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…
JACKSON L.J. ON AGREEING EXTENSIONS OF TIME AND DEFAULT COSTS CERTIFICATES: IMPORTANT DEVELOPMENTS
I have already dealt with the rules to be introduced next month in relation to the parties being able to agree extensions of time in civil proceedings. Today Jackson L.J. made it clear that it was never part of his…
SKELETON ARGUMENTS: IF YOU DON'T DO THEM PROPERLY YOU WON'T GET PAID!
The judicial review/planning law case of Secretary of State for Local Government -v- Hopkins Development Ltd [2014] EWCA Civ 470 contains some interesting observations of general interest to civil litigators. THE SKELETON ARGUMENTS Jackson L.J. prefaced his judgment with observations…
THE CONSEQUENCES OF CHARTWELL 2: OBTAINING RELIEF FROM SANCTIONS IS DIFFICULT BUT NOT IMPOSSIBLE
The Court of Appeal decision in Chartwell –v- Fergies Properties has already been considered in detail. An earlier article dealt with the importance of serving witness statements on time. Here we consider the implications for the principles relating to granting…
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…
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…
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….
REPORT OF A CASE WHERE RELIEF FROM SANCTIONS WAS GRANTED ON APPEAL TO CIRCUIT JUDGE
Reports of decisions in relation to procedure, particularly relief from sanctions, are always welcome. I am grateful to Simon Young of Kings Chambers for his report of the case of Cook -v- Danter. It is a case where a circuit…
MITCHELL PRINCIPLES APPLIED IN TAX TRIBUNAL
In Mr and Mrs B -v- Revenue & Customs the First Tier tribunal (tax) considered whether the Mitchell principles applied to permissions to appeal out of time in the first-tier tribunal tax chamber. “The law 42. There is no guidance in…
DUNHILL -v- TASKER: SUPREME COURT DECISION GIVEN TODAY: PROTECTED PARTY CANNOT SETTLE CLAIM WITHOUT APPROVAL. SUPREME COURT DECISION ATTACHED
I have attached a copy of the Supreme Court decision in Dunhill -v- Tasker which was given today UKSC_2012_0136_Judgment (1). The conclusion is that a compromise reached by a protected party cannot be valid unless approved by the court. …
NO JUDGMENT IMMEDIATELY AFTER APPLICATION FOR RELIEF FROM SANCTIONS: MIAH V JALIL CONSIDERED
The case of Miaj –v- Jalil (CA 6/3/2014) is reported briefly on Lawtel today. It involves the correct approach of the Court after granting relief from sanctions. More detailed commentary, will follow once the full transcript is available. THE FACTS…
DELAY IN MAKING APPLICATIONS CAN BE FATAL: SAMARA -V- MBI APPLICATION TO HAVE JUDGMENT SET ASIDE REFUSED ON GROUNDS OF DELAY
The case of Samara –v- MBI & Partners EWHC 563 (QB) considers whether the “Mitchell” criteria is relevant to applications to have judgment set aside. THE FACTS The claimant entered judgment in default. It was more than a year later, after…
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