THE CRITERIA TO BE APPLIED WHEN A PARTY MAKES AN APPLICATION AHEAD OF THE DATE OF THE BREACH: THE ROBERT CRITERIA CONSIDERED
In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) it was made clear that Mitchell principles did not apply in cases where an application was made prior to the date of breach. The principles in Robert -v- Momentum Services [2003] EWCA…
HAS PROPER DISCLOSURE BEEN GIVEN? A NEW AREA OF BATTLE. GLOBAL MARINE DRILLSHIPS LIMITED –V- WILLIAM LA BELLA [2014] EWHC 1230 (Ch) CONSIDERED
In the post Mitchell world parties are anxious to demonstrate that their opponents have not complied with orders of the court and, consequently, should have their actions struck out. These arguments are likely to be particularly problematic in issues relating…
RELIEF FROM SANCTIONS: WHAT DOES “TRIVIAL” ACTUALLY MEAN? A LOOK AT THE CASES
If you attend one of the, numerous, “Jackson” and “Mitchell” conferences that abound at the moment you can easily make the lecturer sweat. Ask them to define “trivial”. Whether a breach is “trivial” or not is crucial to the way…
A BUDGET SERVED A DAY LATE IS A “TRIVIAL” ERROR: WAIN –v- GLOUCESTERSHIRE COUNTY COUNCIL [2014] EWHC 1274 (TCC) CONSIDERED
It was made clear in Mitchell that the courts should not concern themselves with “trivial” breaches, however what was meant by “trivial” was never defined. In Wain –v- Gloucestershire County Council Judge Grant, sitting as a judge of the High…
WHAT IS THE DATE OF SERVICE? THE DIFFERENCE BETWEEN THE “DEEMED” DATE OF SERVICE AND THE “EFFECTED” DATE OF SERVICE
T & L SUGARS LTD V TATE & LYLE INDUSTRIES LTD [2014] EWHC 1066 Problems with service and the date of service continue to abound. They have always been subject to a much stricter regime. In particular the date of…
IMPORTANT CHANGES ON THE 22ND APRIL: NEW COURT FEES AND NEW STATEMENT OF TRUTH ON COST BUDGET
The previous post dealt with the date of applications and considered the potential implications if an application was not accompanied by the relevant fee. It seems timely to remind everyone that: 1. New Court Fees come into force on the 22nd…
WHEN IS AN APPLICATION "MADE"? A MATTER THAT COULD BE OF SOME IMPORTANCE
The case of In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards. An application made after the…
SURVIVING MITCHELL 17: MAKE ANY APPLICATION BEFORE DEFAULT AND OBTAIN REALISTIC DIRECTIONS
It is no coincidence that Rule 17 is identical to Rule 3. In fact I could easily, and without apology, repeat this principle as rules 10 – 20. If you cannot comply with a court order, direction or rule then…
MAKING AN APPLICATION BEFORE THE DATE OF DEFAULT SAVES THE DAY: KANERIA -v- KANERIA CONSIDERED
The Mitchell principles govern what happens when a party requires relief from sanctions. An open question remained as to the principles that apply when a party applies for an extension of time before the expiry of the date for compliance….
THE CONSEQUENCES OF CHARTWELL 1: JUST DON'T EVER SERVE WITNESS STATEMENTS LATE
It is highly dangerous for litigators to view the decision of the Court of Appeal in Chartwell -v- Fergies as any kind of step away from the Mitchell principles. The case has already been outlined in detail in an earlier post….
CHARTWELL ESTATE AGENTS LIMITED V FERGIES PROPERTIES : CONSIDERED IN FULL
The decision of the Court of Appeal in Chartwell Estate Agents Limited –v- Fergies Properties [2014] is now available on Bailli. This is the first case in which the Court of Appeal have upheld a decision of a judge to…
TWO CASES WHERE RELIEF FROM SANCTIONS REFUSED: (I) LATE WITNESS STATEMENTS (II) NO SCHEDULE OF COSTS
There are two cases reported on Lawtel this morning which exemplify problems of modern litigation and relief from sanctions. The first involves late service of a witness statement in a fatal accident case; the second the failure to file a…
HIGH COURT MASTER GRANTS AN EXTENSION OF TIME FOR SERVICE OF REPLIES TO POINTS OF DISPUTE ON ASSESSMENT OF COSTS
I am grateful to Neil Sexton from Blake Lapthorn for sending me a note of a decision of Master Leonard where an extension of time for service of Replies to Points of Dispute was granted. (The note is printed here…
SURVIVING MITCHELL 16: DEALING WITH "FISH FILES": OVERCOMING PROCRASTINATION
A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe. Ripe, that is, for problems to…
SIR JACK JACOB QC AND THE FABRIC OF ENGLISH CIVIL JUSTICE: LESSONS FOR TODAY?
With the speed in which modern litigation is conducted it is often difficult to pause and reflect, let alone look back to assess whether experts from the past can assist. For some time I have been looking for a copy…
CAN MITCHELL BE UTILISED IF THERE ARE SEVERAL MINOR BREACHES? UTILISE -v- CRANSTOUN CONSIDERED: LATE FILING OF COSTS BUDGETS CAUSES ANOTHER PARTY TO COME TO GRIEF
In Utilise -v- Cranstoun [2014] EWHC 834 (Ch) Judge Hodge QC, sitting as a judge of the High Court, considered another issue arising out of the Mitchell criteria – in essence what is the effect of two trivial breaches on…
THE APPROPRIATE CRITERIA FOR REINSTATEMENT WHEN AN ACTION IS STRUCK OUT OF COURT'S OWN MOTION: HALEY -v- SIDDIQUE CONSIDERED
In Haley -v- Siddique [2014] EWHC 835 (Ch) Judge Hodge Q.C., sitting as a judge of the High Court, considered issues arising from a striking out order made of the court’s own motion. His judgment states that the case provides…
"PAPER MUST VANISH FROM THIS COURT": CANADIAN JUDGE ORDERS E-TRIAL TO PREVENT COURTS BECOMING MUSEUM PIECES
At a time when increased resources are promised to the court it is interesting to read the observations in the Canadian Courts of Brown J in the case of Broome Financial Corporation -v- Bank of Montreal 2014 ONSC 2178 (CanLII). Essentially…
ACTION STRUCK OUT FOR FAILURE TO GIVE DISCLOSURE: RELIEF FROM SANCTIONS REFUSED
In Medical Supplies and Services Ltd -v- Acies & Gosling [2014] EWHC 1032 (QB) the claimant came to grief because of a failure to comply with a peremptory order for disclosure. Relief from sanctions was refused. It provides another object…
COST BUDGET REQUIREMENT DOES NOT APPLY TO PART 8 CASES: A CASE IN POINT
There has been considerable discussion about whether the requirements to lodge a costs budget applies to Part 8 cases. Part 8 cases are automatically allocated to the Multi Track and the requirements to lodge a budget was thought to apply….