DENTON APPLIED: A (VERY) BRIEF REPORT
The Denton principles were mentioned, in passing, in the judgment of HHJ Moloney QC In NNN -v- DI [2014] EWHC B14 (QB). The defendant had been in default in serving a list of documents on the claimant. A peremptory…
QUOCS IN THE COURT OF APPEAL: FOUR IMPORTANT ISSUES: WAGENAAR CONSIDERED
The decision of the Court of Appeal in Wagenaar -v- Weekend Travel Ltd [2014] EWCA Civ 1105 was reported today. It contains important observations and decisions on qualified one way costs shifting, something that is likely to become a major…
PRINCIPLES OF MITIGATION OF LOSS & THE CREDIBILITY OF EXPERT WITNESSES: A HIGH COURT DECISION CONSIDERED
The case of Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711 (Comm) where judgment was given today contains many interesting lessons for those involved in professional negligence litigation in particular. Here I just want to concentrate upon two: (i)…
DRAFTING WITNESS STATEMENTS: "4 GOLDEN RULES" DIRECTLY FROM THE JUDGES WHO HEAR THE CASES
I have recommended before that litigators read the guidance for litigants in person. It provides useful insights for most litigators and covers most aspects of civil procedure. It is written by six Circuit Judges so it can be safely assumed…
GUIDELINES ON HOURLY RATES: NOT MUCH HAS CHANGED: NEED FOR MORE RESEARCH
The long awaited (and long delayed) guidance on hourly rates has been published. The Courts and Tribunals Judiciary commentary and guidance can be found here. The Committee’s letter to the Master of the Rolls is here The response of the…
LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…
DENTON APPLIED IN THE TAX TRIBUNAL: NO PERMISSION TO APPEAL THREE YEARS LATE
The Mitchell and Denton cases were reviewed by Judge John Brooks in Meah -v- The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 708 (TC). The proposed appellant was three years late. The refusal of permission to appeal out of…
WHAT CAN THE DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 2: A CLINICAL NEGLIGENCE CASE
We have looked before at the question of what a defendant can argue in relation to damages after a judgment has been entered. A case reported today examines this issue in relation to judgment in a clinical negligence action. SYMES -V-…
POST DENTON RELIEF FROM SANCTIONS APPEAL IN THE HIGH COURT: RELIEF FROM SANCTIONS GRANTED: "UNREASONABLE" DEFENDANT ORDERED TO PAY COSTS
I am grateful to Ashley Pratt of St James Chambers for his note of the decision of Mr Justice King in Johnson -v- Bourne Leisure on the 21st July 2014. King J granted relief from sanctions and allowed an appeal from the…
CLAIM FORMS: DECLARATION THAT STEPS TAKEN CONSTITUTE GOOD SERVICE: NEW HIGH COURT CASE CONSIDERED
There is a brief report on Lawtel of the decision in Tanweer T/A the Auto Service Centre -v- UK Insurance & National Insurance & Guarantee Corp (Judge Mackie QC) QBD Merc 18/07/2014. The case is briefly reported and I hope…
THERE ARE DANGERS IF YOU ARE LEAVING THE ISSUE OF COSTS TO THE JUDGE: IN ANY EVENT BE QUICK AND BE CHEAP!
There are limited number of cases where the parties can agree everything except who should pay the costs. There are dangers in leaving the question of costs to the judge, as the case of Spiller -v- Derhalli [2014] 2548 (EWHC)…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
CASE MANAGEMENT AFTER DENTON: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"
Most of the articles about the Denton case focus upon the relief from sanctions and “clarification” of the principles in Mitchell. However the Court of Appeal made it clear that part of the focus of case management should be to…
DENTON: THE DISSENTING JUDGMENT OF JACKSON L.J. CONSIDERED
In the hundreds of articles, blogs and commentaries on the decision in Denton the “dissenting” judgment is barely mentioned or considered. Whilst all three members of the court were in agreement that each of the appeals should be allowed there…
PRECEDENT H AND COSTS BUDGETING: NEW LINKS AND OLD LINKS
There are several posts on this blog which link to guides, articles and assistance on costs budgeting and Precedent H. Here there are several more recent links. The Construction of a Costs Budget is particularly instructive PREVIOUS POSTS One of…
WHAT IS MEANT BY "SERIOUS AND SIGNIFICANT"? THE COURT CONCENTRATES MUCH MORE UPON THE EFFECT OF THE BREACH RATHER THAN THE BREACH ITSELF
In Denton -v- White; [2014] EWCA Civ 906. the Court of Appeal eschewed the use of the word “trivial” where a court is considering an application for relief from sanctions. Instead the Court stated that the focus should be on whether…
AMENDING PLEADINGS: HAS THE LIMITATION PERIOD EXPIRED? WHERE DOES THE BURDEN OF PROOF LIE?
The Court of Appeal decision today in Mercer -v- Ballinger [2014] EWCA Civ 996 may appear to be an issue of esoteric civil procedure. However the decision is an important one with far-ranging practical consequences for a party seeking to…
MITCHELL NOT EXTENDED TO ADMINISTRATIVE LAW: AN ISSUE FOR ANOTHER DAY
In R (Abbas Mohammadi -v- Secretary of State for the Home Department [2014] EWHC 2251 (Admin)the court did not decide the issue of whether “Mitchell” principles applied to applications for judicial review. THE FACTS The applicant was seeking judicial review of…
CIVIL PROCEDURE – HOW IT SHOULD BE DONE: A DESCRIPTION OF HOW THE ASBESTOS COURT WORKS
Anyone want to see a description of a civil procedure system running smoothly then read Master McCloud’s description of the “asbestos disease court” in her judgment in Yates -v- Commissioners for Her Majesty’s Revenue & Customs [2014] EWCH 2311 (QB)….
BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…
MORE ABOUT APPEALING MITCHELL DECISIONS OUT OF TIME: RELEVANT CASE LAW
A post yesterday considered the possibility of appealing, out of time, the unjust orders that may have been made following Mitchell and the subsequent “clarification” in Denton. There is some law on this topic, ironically it is a result of…
"HISTORIC" SANCTIONS DECISIONS: ARE YOU GOING TO APPLY TO APPEAL OUT OF TIME
In Denton -v- White [2014] EWCA Civ 906. the Court of Appeal stated that we think that the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs to be clarified and amplified in…
PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A "NON-ADMISSION" & A "DENIAL" EXPLORED
The decision of Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB) relates to a police force’s obligations in relation to the disclosure of details of undercover operations and informers. However it also deals…
WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY?
The post yesterday on the length of “skeleton” arguments and trial bundles was an appeal from a first instance decision where the judge had to decide which witnesses were credible. First instance decisions on the credibility of witnesses are difficult…
USELESS BUNDLES; LENGTHY SKELETONS AND JUDICIAL IRE: THE COURT OF APPEAL RUES INABILITY TO IMPOSE "OLD FASHIONED" SANCTIONS
This is not the first time CLB has commented on judicial complaints about over-long skeletons and poorly thought out bundles. These points are made again by the Court of Appeal in Caldero Trading -v- Leibson [2014] EWCA Civ 935. The…
DENTON, RELIEF FROM SANCTIONS AND THE "LITIGATOR'S DILEMMA": LIFE IS NOW DANGEROUS FOR RESPONDENTS
I have written before about the “litigator’s dilemma” in relation to whether a point should be taken in relation to a breach, or an application for relief of sanctions opposed. The Denton decision makes this issue far more difficult for…
ANATOMY OF A POST-DENTON RELIEF FROM SANCTIONS APPLICATION: ALL THE LINKS IN ONCE PLACE
There are four articles on relief from sanctions Post-Denton. 1. Death of the word “trivial”. 2. The reason may not be good enough but this does not prevent relief from sanctions being granted. 3. The “Third Stage”: Everything is in…
ANATOMY OF A POST-DENTON APPLICATION FOR RELIEF FROM SANCTIONS 4: COSTS, INDEMNITY COSTS & EVERYBODY IS AT RISK AS TO COSTS
In the fourth in the series of articles we look at the very heavy incentive the Court of Appeal imposed upon litigants (and litigators) not to object to applications for relief from sanctions in “all but the most serious cases”….
ANATOMY OF A POST-DENTON APPLICATION FOR RELIEF FROM SANCTIONS 3: THE "THIRD STAGE": EVERYTHING IS IN THE MIX
Having considered whether the breach is serious or significant and the reason for the breach a judge hearing a relief from sanctions application may have to go on to the “third stage”. Here the court considers all aspects of the…
ANATOMY OF A POST-DENTON RELIEF FROM SANCTIONS APPLICATION 2: THE REASON MAY NOT BE GOOD ENOUGH BUT THIS DOES NOT PREVENT RELIEF BEING GRANTED
The first stage of an application for relief from sanctions has been considered in an earlier post. If the breach is neither serious or significant then the court need not spend too much time on the second and third stages….
ANATOMY OF A POST-DENTON RELIEF FROM SANCTIONS APPLICATION 1: THE DEATH OF THE WORD "TRIVIAL"
There are now plenty of places that summarise and give views on the effect of the Court of Appeal decision in Denton -v- White. Here I want to start on the task of looking, in some detail, at the practical…
COURT OF APPEAL SANCTIONS HEARING: 70 KEY POINTS OF THE JUDGMENT
The 70 key points of the Court of Appeal judgment in Denton -v- White [2014] EWCA Civ 906. “We hope that what follows will avoid the need in future to resort to the earlier authorities.” (Paragraph 24). CRITICISM OF MITCHELL 1. The…
SANCTIONS HEARING 6: USEFUL LINKS AND WATCH THE JUDGMENT
These are links to commentary and comment on the Court of Appeal decision in Denton -v- White [2014] EWCA Civ 906. 1. The Law Society Gazette reviews the decision (and also allows you to see the judgment being given).(Also a…
SANCTIONS HEARING 5: UTILISE -v-DAVIES: MANY TRIVIAL BREACHES DO NOT LEAD TO RELIEF FROM SANCTIONS BEING REFUSED
The claimant served their costs budget 45 minutes late. Both the District Judge and Circuit Judge refused relief from sanctions. The Court of Appeal overturned this decision. THE FACTS The claimant’s cost budget was served at 4.45 and not 4.00….
SANCTIONS HEARING 4: DOES DECADENT VAPOURS LEAVE A PLEASANT SMELL?
The second substantive decision was Decadent Vapours. Here the Court of Appeal overturned a refusal to grant relief from sanctions and the claimant’s case was allowed to proceed. THE FACTS The claimant failed to make payments of fees by the…
SANCTIONS JUDGMENT 3: THE INDIVIDUAL CASES: DENTON – DON'T MILK SANCTIONS ARGUMENTS?
The previous posts looked at the general principles the Court of Appeal considered. Here we look at the practical results in the three cases. DENTON: Denton was a case about an allegedly defective milking parlour. The trial was set to…
SANCTIONS JUDGMENTS 2: THE THIRD STAGE AND CRACKING DOWN ON "OPPORTUNISM"
The Court of Appeal went on to state that a major misunderstanding had occurred in relation to sanctions applications. There was a third stage which the Court explained at length. THE THIRD STAGE “31. The important misunderstanding that has occurred…
SANCTIONS JUDGMENT: THE KEY POINTS (1): STAGES 1 AND 2 OF CONSIDERATIONS IN RELIEF FROM SANCTIONS APPLICATIONS
The history and arguments in relation to the Court of Appeal hearings on sanctions have been fully recorded on this blog. In the judgment given today there are a number of Key points. MITCHELL HAS BEEN THE SUBJECT OF CRITICISM…
COURT OF APPEAL HEARING ON SANCTIONS TODAY: BREAKING NEWS AND LINK TO JUDGMENT
The Court of Appeal have allowed all three appeals in the sanctions cases that were before them. This is breaking news (as I write the judgment is still being given). In Decadent Vapours the action had been struck out…
SERVICE OF THE CLAIM FORM: THE IMPORTANCE OF SERVING AT THE RIGHT PLACE AND THE RIGHT TIME: ANOTHER CLAIMANT COMES TO GRIEF
This is the third case on service of the claim form reported on this blog in two days, which may be significant. The strict rules on service pre-dated Jackson/Mitchell by over a decade and yet practitioners regularly come to grief. …
“NO CREDIT TO OUR CIVIL JUSTICE SYSTEM” WHAT CONSTITUTES TAKING STEPS TO BRING THE CLAIM FORM TO THE ATTENTION OF THE DEFENDANT?
“This depressing litigation reflects no credit on our civil justice system. It is yet another example of wasteful satellite litigation unconcerned with the merits of the underlying claim. The Claimant alone escapes censure” Tomlinson L J in Power v Meloy…
DATE SET FOR JUDGMENTS ON COURT OF APPEAL SANCTIONS HEARINGS
Judgment in the three recent cases where the Court of Appeal reviewed the application of the Mitchell criteria is to be given in in Court 71 in the Royal Courts of Justice on Friday 4th July at 2pm. TO SEE THE ARGUMENTS…
SERVICE OF THE CLAIM FORM CAN BE A PROBLEM FOR DEFENDANTS TOO: ACT PROMPTLY OR YOU HAVE ACCEPTED JURISDICTION
Issues relating to service of the claim form are always problematic for claimants . They can, however, be problematic for defendants as well. . This is demonstrated by the decision of Eder J in Nwoko –v- Oyo State of Nigeria…
PRECEDENT H: PULLING IT ALL TOGETHER: LINKS TO THE USEFUL POSTS ON COSTS BUDGETING
There are now nearly 400 posts on this blog and some patterns are emerging. Some posts are read in the immediate aftermath of posting, some keep on being read. Posts about Precedent H are part of those keep on being…
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