THE FACT THAT A DEFENDANT CANNOT PAY A JUDGMENT DOES NOT MAKE THE ACTION AN ABUSE OF PROCESS: CLAIMANT GRANTED SUMMARY JUDGMENT
In Caribonum Pension Trustee Ltd & Anor v Pelikan Hardcopy Production AG [2018] EWHC 2321 (Ch) Master Clark rejected an argument that the fact that a defendant was never going to be able to pay a judgment meant that the action…
THE LIMITS OF DECLARATORY RELIEF: THE DANGERS OF APPLYING FOR IT: CLAIMANT’S ARGUMENTS (AND PLEADINGS) FAIL TO RAISE THE ROOF
I am grateful to my colleague John de Waal QC at Hardwicke for bringing my attention to the judgment of Mrs Justice O’Farrell in Office Depot International (UK) Ltd v UBS Asset Management (UK) Ltd & Ors [2018] EWHC 1494 (TCC). It…
APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE
A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique. This was emphasised in the judgment of Miss Penelpe Reed QC in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018]…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a claimant being unable to prove their case against that particular defendant. …
PROVING THINGS 104: “THERE IS NO EVIDENCE BEFORE ME AS TO HOW THE PLAINTIFF WOULD PROVE THE EXISTENCE OF A GHOST”
I don’t normally travel too far from England and Wales in the Proving Things series. However a kind reader sent me an article on the Canadian decision in Ont. Inc. v K-W Labour Association et al, 2013 ONSC 5401 (CanLII). It…
APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT
On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It…
SUMMARY JUDGMENT FOR DEFENDANT IN A NEGLIGENCE ACTION AGAINST SOLICITORS
I am grateful to my colleague at Hardwicke, Laurence Page, for sending me a transcript of the judgment of District Judge Langley in the case of Wright -v- Rix & Kay Solicitors, Central London County Court, 30/11/2017 (available here Wrighttranscript)….
LIMITATION: WHAT A DIFFERENCE A DAY MAKES: LIMITATION PERIOD STARTS TO RUN ON DAY CAUSE OF ACTION BEGINS
In Matthew & Ors v Sedman & Ors [2017] EWHC 3527 (Ch) His Honour Judge Hodge QC (sitting as a Judge of the High Court) had to consider an interesting issue in relation to limitation. “… where it is absolutely clear…
THE PERILOUS STRATEGY OF SERVING EVIDENCE LATE: DENTON APPLIES: A RELEVANT FACTOR IN A SUMMARY JUDGMENT APPLICATION
The case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor [2018] EWHC 54 (TCC) highlights the dangers of waiting to serve evidence until the last moment. If it is served late then a party requires permission of the…
THE PROBLEM IN OBTAINING AN ORDER YOU HAVEN’T ASKED FOR:AN APPLICATION UNDER CPR 3.4 WILL NOT BE TREATED AS AN APPLICATION UNDER PART 24
The judgment of Chief Master Marsh in Saeed & Anor v Ibrahim & Ors [2018] EWHC 3 (Ch) contains several important observations in relation to making applications. The Master refused to treat an application, ostensibly made under CPR 3.4, as an…
YOU’VE SPENT £625,000 IN COSTS AND GOT NO FURTHER FORWARD: COSTS AFTER UNSUCCESSFUL SUMMARY JUDGMENT APPLICATION
In Burnden Holdings (UK) Ltd & Anor v Fielding & Anor [2017] EWHC 2118 (Ch) His Honour Judge Hodge QC (sitting as a Judge of the High Court) considered the issue of costs after the claimants’ unsuccessful application for summary judgment….
WHY LIFE IS NOW DANGEROUS FOR DEFENDANTS (ESPECIALLY THOSE WHO DON’T FILE A DEFENCE ON TIME)
The judgment of Mr Justice Coulson in ADVA Optical Networking Limited -v- Optron Holding Limited [2017] EWHC 1813 (TCC) highlights what a dangerous world this can be for defendants. A defendant who is late filing a defence, and where judgment has not been…
SUMMARY JUDGMENT FOR THE DEFENDANT IN A FATAL ACCIDENT CASE: DODD -V- RAEBARN IN THE COURT OF APPEAL
I am grateful to my colleague Colm Nugent for supplying me with a copy of the judgment in Dodd -v- Raeburn [2017] EWCA Civ 439 *given today the Court of Appeal upheld an order giving summary judgment in a fatal…
CAN AN APPLICATION BE AMENDED? AN INTERESTING POINT TO START THE YEAR
There are some procedural issues where you would assume that there was clear pre-existing authority in existence. However, on examination (usually just before the hearing) it transpires that the point is a “novel” one. In Agents Mutual Limited-v- Moginnie…
PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley [2016] EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object…
"SECOND" ACTION FOR CLINICAL NEGLIGENCE NOT STRUCK OUT AS AN ABUSE OF PROCESS
In the judgment today in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) Mr Justice Edis refused the defendant’s application to strike out the claim or for summary judgment on the grounds that the claimant had settled an…
PROVING THINGS 18: DAMAGES; CAR HIRE; PROOF AND SUMMARY JUDGMENT
The burden is (usually) on a claimant to prove a loss. There is an interesting discussion on the need to prove “need” in the decision of District Judge Read in Frankland -v- U.K. Insurance Ltd (10th August 2015) which was…
SUMMARY JUDGMENT FOR DEFENDANT WHEN THERE WERE ALLEGED DISPUTES OF FACT: DON'T PARK THE CAR
Is it prudent to apply for summary judgment when there are alleged disputes of fact? I am grateful to my colleague Colm Nugent for sending me a copy of the judgment of Mr Justice Cooke in Price -v- Euro Car…
DISPUTES OF FACT IN SUMMARY JUDGMENT APPLICATIONS: THE APPROPRIATE TEST
In Optaglio Limited -v- Tethal [2015] EWCA Civ 1002 the Court of Appeal considered the issue of how far a judge can determine disputed issues of fact in a summary judgment application. THE CASE The claimant was appealing an order…