WRITTEN SUBMISSIONS: STATEMENTS OF ISSUES; PLEADING AND PROOF
The decision of Mr Justice Walker in Burrows -v- Northumbrian Walker Ltd [2014] EWHC 3305(QB) considers the need for clarity in written submission and for the issues the judge is asked to determine to be clearly defined. It also considers…
PRE-ACTION DISCLOSURE WAS JUSTIFIED AND REASONABLE: COURT OF APPEAL DECISION
In the judgment today in Jet Airways (India) Ltd -v- Barloworld Handling Ltd [2014] EWCA Civ 1311 the Court of Appeal reiterated the criteria for pre-action disclosure. The Court upheld a decision ordering pre-action disclosure and were extremely firm in…
DENTON APPLIES TO APPLICATIONS TO SET ASIDE DEFAULT JUDGMENTS: HOCKLEY -v- NORTH EAST LINCOLNSHIRE CONSIDERED
The issue of whether the “Mitchell/Denton/CPR 3.9” criteria apply to applications by a defendant to set aside a default judgment has been discussed several times on this blog. In Hockley -v- North Lincolnshire & Goole NHS Trust (19th September 2014)…
RELIEF FROM SANCTIONS GRANTED: RESPONDENT'S "OPPORTUNISTIC" BEHAVIOUR CONDEMNED
In Long -v- Value Properties [2014] EWHC 2981 (Ch) Mr Justice Barling roundly condemned the defendants for taking opportunistic points in litigation. The judge overturned a decision by the Master refusing relief from sanctions. THE FACTS This was an application…
CALDERBANK OFFER HAD NO EFFECT ON OUTCOME IN RELATION TO COSTS:
Some parties make “Calderbank” offers in place of Part 36 offers. The effect of a Calderbank offer and whether it should affect an order for costs was considered by the Court of Appeal today in Coward -v- Phaesetos [2014] EWCA…
MORE ON CHILD CLAIMANTS AND THE RECOVERY OF SUCCESS FEES: AN EXTREMELY HELPFUL NOTE FROM THE CLAIMANT'S SOLICITORS
The post yesterday on children and success fees got a lot of attention. I am grateful to Daniel Higgins head of costs at Gavin Edmonson Solicitors Ltd who was involved in that appeal. His note (reproduced with his permission below)…
COSTS CAPPING IN THE COURT OF APPEAL: DON'T BANK ON THE TIDE BEING IN YOUR FAVOUR
In Tidal Energy -v- Bank of Scotland Plc Arden L.J. considered, and rejected, an application for costs capping in relation to a forthcoming Court of Appeal hearing. The Court was keen to discourage satellite litigation in the Court of Appeal….
COSTS IN THE SUPREME COURT: NEGLIGENT SOLICITORS ORDERED TO PAY COSTS OF BOTH SIDES
What costs order should the Supreme Court make when an appellant succeeds in establishing that wills are valid despite the fact that they have been improperly executed because of negligence on the part of a solicitor? A pragmatic view was…
CAN YOU GET AN ORDER FOR QOCS TO APPLY ON AN APPEAL? CPR 59.2A CONSIDERED BY THE COURT OF APPEAL
In JE -v- Secretary of State for the Home Department [2014] EWCA Civ 192 the Court of Appeal considered whether a QUOCs type order could be made in the Court of Appeal. The Court also emphasised the importance of prompt…
TAKING EVIDENCE; WITNESS STATEMENTS AND NOT MISLEADING THE COURT: BRETT -v- THE SRA CONSIDERED
The question of the duties owed by a lawyer to not mislead the court was at the forefront of the decision yesterday in Brett -v- The Solicitors Regulatory Authority [2014] EWHC 2974 (Admin). This case has obvious and very wide…
E-BUNDLES COMING TO THE SUPREME COURT AND PRIVY COUNCIL VERY, VERY SOON
The Supreme Court has issued guidance on the use of electronic bundles which will be mandatory for a trial period. Parties given permission to appeal in the Supreme Court and Privy Council after the 1st October 2014 will be expected…
CIVIL EVIDENCE AND WITNESS STATEMENTS – HERE’S THE CATCH: THE JUDGE CAN ACCEPT SOME OF THE EVIDENCE SOME OF THE TIME
There have been several posts on this blog in relation to witness evidence and witness credibility. One important point to note is that a judge is entitled to find that a witness is correct on some matters and not on…
APPEALS: STAY OF EXECUTION AND CONDITIONS IMPOSED BY APPELLATE COURT: THE RELEVANT PRINCIPLES
The fact that an appeal is made, or permission to appeal is granted, does not automatically grant a stay of execution. The appellant has to apply for a stay and the court can grant conditions. The law and principles governing…
FAILURE TO SERVE NOTICE OF AMENDED CFA DETAILS IS NOT A SERIOUS OR SIGNIFICANT BREACH: HIGH COURT DECISION CONSIDERED IN DETAIL
The High Court decision in Ultimate Products Ltd -v- Wooley [2014] EWHC 2706 (Ch) provides further guidance as to what the courts are likely to consider “serious or significant” breaches. The High Court judge upheld the decision of the Master…
THE MITCHELL CASE RUMBLES ON: MORE PROCEDURAL ISSUES: SPLIT TRIAL ORDERED
I feel almost duty bound to continue to report on the Mitchell case, even if now has limited relevance to the question of sanctions. The latest case management decision offers an interesting decision on whether there should be a split…
DENTON PRINCIPLES AND EXTENDING TIME FOR APPEALING: COURT OF APPEAL OBSERVATIONS
The issue of whether the “Denton” principles applied to applications for permission to appeal out of time were considered briefly by the Court of Appeal in Hart -v- Burbridge [2014] EWCA Civ 992 THE ISSUES The appellants appealed out of…
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…
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-…
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…
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…
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…
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…
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…
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…
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…
ALLOCATION BETWEEN THE SMALL CLAIMS TRACK AND THE FAST TRACK: WHAT IS MEANT BY "ANY AMOUNT NOT IN DISPUTE"?
In the case of Akhtar -v- Boland [2014] EWCA Civ 872 the Court of Appeal gave guidance on CPR 26 and the matters to be considered when a determination is made as to allocation between the Fast Track and the…
NO RELIEF FROM SANCTIONS AFTER APPELLANT FAILED TO FILE TRANSCRIPTS ON TIME.
In Patterson -v- Spencer [2014] EWHC 1878 (Ch) Henry Carr QC (sitting as a High Court Judge) refused an appellant’s application for relief from sanctions after she failed to file transcripts of the initial hearing. THE FACTS One of the defendants,…
ANOTHER CASE WHERE PARTY REFUSED RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENT
The case of Swinden -v- Grima (Nicol J) 18/06/2014 is briefly reported on Lawtel (20th June). It is another example of the court refusing permission to serve witness statements late. THE FACTS The defendant served a witness statement on the…
WELL WHAT SHOULD THE TEST FOR RELIEF FROM SANCTIONS BE? YOUR CHANCE TO COMMENT
“Is there not a more imaginative way to encourage parties to co-operate? Looking at some of the circumstances litigation had been utterly derailed due to satellite litigation. This is inappropriate in 99% of cases. We need a message saying that…
COURT OF APPEAL SANCTIONS HEARING: SUBMISSIONS IN UTILISE -V- DAVIES
The final tranche of the notes taking at the hearing of the sanctions cases yesterday. The case of Utilise -v- Davies. Discussion of the first instance decision can be found in this blog as can a link to the transcript….
SANCTIONS CASE TODAY: SUBMISSIONS AND DISCUSSIONS FROM THE LAW SOCIETY AND BAR COUNCIL
The Bar Council and the Law Society were invited to make submissions at the sanctions hearings in the Court of Appeal today. The discussions between the Bar and the Bench make fascinating reading. (Mr Holland QC for both the Bar…
SANCTIONS HEARING TODAY: NOTES OF THE HEARING IN DECADENT VAPOURS
DECADENT VAPOURS LIMITED V BEVAN Heard by the Court of Appeal on 16th June 2014 (Lord Justice Dyson MR) (Lord Justice Jackson) (Lord Justice Vos) APPELLANT/CLAIMANT’S SUBMISSION In the present case the appellant appeals a decision to refuse relief from…
COURT OF APPEAL HEARING TODAY: DETAILED NOTE OF SUBMISSIONS AND DISCUSSIONS AT THE COURT
The Court of Appeal hearing on sanctions after Mitchell goes on. Here I outline, in detail, the submissions and discussions in Denton. Other cases will follow. DENTON AND OTHERS V T H WHITE LIMITED Heard by the Court of…
SANCTIONS CASES: SUMMARY OF ARGUMENTS THIS MORNING
Here is a very brief summary of the arguments considered by the Court of Appeal in the cases on sanctions this morning. A useful summary is also being provided by @JohnHyde1982 on twitter. Lord Justices Jackson, Dyson and Voss are…
PROCEDURE: THINGS TO WATCH OUT FOR MONDAY & TUESDAY ON THIS BLOG & TWITTER
There are important developments this week. You should be able to follow those on this blog or the associated twitter account @CivilLitTweet. COURT OF APPEAL HEARING ON RELIEF FROM SANCTIONS I hope that the arguments employed in the Court of…
TWO DAYS LATE SERVICE OF NOTICE OF APPEAL IS A "TRIVIAL" ERROR: HIGH COURT DECISION CONSIDERED
In Harrogate Borough Council -v- Secretary of State for Communities & Local Government & Zammitt [2014] EWHC 1506 (Admin) the appellant was two days late in serving a notice of appeal. His Honour Judge Behrens (sitting as a judge of the…
YET MORE ON SETTING ASIDE DEFAULT JUDGMENT, DELAY & PROMPTNESS
The case of Page -v- Champion Financial Ltd [2014] EWHC 1778 (QB) was discussed in an earlier post in relation to delays in applying to set judgment aside. The case of Dalton -v- Cooper [2014] EWHC 1556 (QB) was decided earlier, by…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
“MITCHELL BITES TO PENALISE LITIGANTS WHO FAIL TO COMPLY”: EXTENSIONS OF TIME, APPEALS AND BAHO.
The case of Baho & Ors –v- Meerza [2014] EWCA Civ 669 is a further example of a litigant coming to grief because they failed to file an application in time and make the application for an extension of time…
SECTION 33 AND “LONG TAIL CLAIMS”: CONSTRUCTIVE KNOWLEDGE AND RELEVANCE OF DELAY BETWEEN THE BREACH AND THE DATE OF KNOWLEDGE
In Collins -v- Secretary of State for Business Innovation and Skills & Ors [2014] EWCA Civ 717 the Court of Appeal considered the appropriate legal test for the date of knowledge and exercise of the section 33 discretion when an…
“FAILING TO SEE THE WOOD FOR THE TREES” AND LATE APPLICATIONS TO AMEND PLEADINGS : GROARKE –V- FONTAINE CONSIDERED
Groarke –v- Fontaine [2014] EWHC 1679 (QB) centred on a Road Traffic Accident that happened in November 2009. The central issue on appeal was whether a late application to amend the defence to plead contributory negligence should have been allowed….
SETTING ASIDE A DEFAULT JUDGMENT AFTER MITCHELL: WHAT IS THE APPROPRIATE TEST?
There has been much discussion of whether the Mitchell principles impact upon an application have a default judgment set aside. There are some cases that indicate that the amended CPR 3.9 should be taken into account in relation to a…
“A DISMAL CATALOGUE OF CONFUSION AND ERROR”: SERVICE OF THE CLAIM FORM, COURT ERRORS AND OTHER MISHAPS
An article in the Law Society Gazette this week reported a denial by the Ministry of Justice that the civil court system had been affected by austerity. Perhaps the MOJ should read the decision in Stoute -v- LT Operations Ltd…
MITCHELL CASES: HAVING A TAXING TIME? THREE CASES CONSIDERED IN THE TAX CHAMBER
The “Mitchell” principles have been adopted in other tribunals, not least the First Tier Chamber Tax Tribunal. There are three recent cases where the Mitchell principles have been considered extensively by the Tribunal. The principles have had a major impact…
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