WHEN A CLAIMANT TRIES TO USE A REPLY TO INTRODUCE A NEW CAUSE OF ACTION: PERMISSION TO AMEND REPLY REFUSED
In Powis Street Estates (No 3) Ltd v Wallace LLP & Anor [2021] EWHC 3269 (Ch) Deputy Master McQuail considered that parts of a Reply was an attempt to introduce a new cause of action. The claimant was not given…
A DEFENDANT CAN RARELY (IF EVER) COMPEL A CLAIMANT TO JOIN OTHER DEFENDANTS TO AN ACTION: COURT OF APPEAL EXTRACTS CLAIMANT FROM A DIFFICULT SITUATION
In Pawley v Whitecross Dental Care Ltd & Anor [2021] EWCA Civ 1827 the Court of Appeal overturned an order that allowed a defendant to add additional defendants to a claim. Making such an order exposed the claimant to the…
SERVICE OF THE CLAIM FORM: WHEN THE DEFENDANT NEEDS AN EXTENSION OF TIME TO TAKE POINTS AS TO SERVICE: PROBLEMS BORN IN THE US OF A.
In Joe Macari Servicing Ltd v Chequered Flag International Inc [2021] EWHC 3175 (QB) Master Dagnall considered a case where the defendant required an extension of time in order to take points in relation to service of proceedings. The Master…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: “MAINTAINING THE LIE ALL THE WAY TO THE COURT OF APPEAL”
The Court of Appeal judgment in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766 contains an important discussion of the circumstances in which it is possible to bring a second action to set aside…
APPLICATIONS AND INTERLOCUTORY HEARINGS (PLUS APPLYING FOR EXTENSIONS OF TIME)
On the 2nd December 2021 I am giving a webinar “Applications and Interlocutory Hearings: A Practitioner’s Guide”. Since applications are made, and resisted, on a regular basis it is easy to overlook the underlying rules and case law. This webinar…
IF YOU ARE APPLYING FOR RELIEF FROM SANCTIONS “OWN YOUR MISTAKES”: YOU HAVE TO SERVE THE PARTICULARS OF CLAIM WITHIN FOUR MONTHS: CLAIMANT IN ERROR, BUT RELIEF FROM SANCTIONS GRANTED
The judgment in Holterman v Electrium Sales Ltd & Anor [2020] EWHC 3915 (TCC) shows a “classic” error in relation to service of proceedings. The claimant served the claim form at the end of the relevant period, and the particulars…
RELIEF FROM SANCTIONS GRANTED FOR LATE SERVICE OF ACKNOWLEDGMENT OF SERVICE: A POINT FOR DEFENDANTS TO WATCH
There are two point missed, surprisingly often, by defendants who want to take a point as to service. The first is that an acknowledgment of service must be served timeously, the second is that an application under CPR Part 11…
CHALLENGE TO JURISDICTION OF THE COURT WAS AN APPROPRIATE STEP IN AN ACTION BROUGHT BY A “REDUNDANT” SOLDIER
There is a procedural issue considered in the judgment of Mr Justice Martin Spencer in Malone v Ministry of Defence [2021] EWHC 2958 (QB). The judge held that it was appropriate for the Ministry of Defence, facing a claim in…
ACCURATE TIME ESTIMATES: A RECAP: THIS MAY GO ON A BIT…
The post last week in relation to inaccurate time estimates led to some comments that there was an absence of guidance on time estimates. I am not sure this is true. There are at least half a dozen posts on…
TIME ESTIMATES: “WILDLY OPTIMISTIC TO THE POINT OF ABSURDITY”: AN UNHAPPY JUDGE
In E v B (Interim Maintenance Inaccurate Time Estimate) [2021] EWFC 90 Recorder Chandler made some observations on the difficulties the courts face when the parties list hearings with inadequate time estimates. These are matters of general interest relating to…
DEFENDANT REFUSED PERMISSION TO WITHDRAW FIGURES SET OUT IN COUNTER-SCHEDULE
The judgment of Mr Justice Ritchie in Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021] EWHC 2924 (QB) is interesting in that it shows the application of Scottish principles of damages to a fatal case (the award was much…
INSURER’S APPLICATION TO SET ASIDE DEFAULT JUDGMENT REFUSED ON THE BASIS OF INEXCUSABLE DELAY
In Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) Master Thornett refused an insurer’s application to set aside judgment on the grounds that the application was not made “promptly”. THE CASE The claimant brought…
WITNESS STATEMENT IN RESPONSE TO EVIDENCE GIVEN IN TRIAL NOT PERMITTED: COURT ANXIOUS TO AVOID A NEVER ENDING SPIRAL
In Brake & Ors v The Chedington Court Estate Ltd (New Witness Statement) [2021] EWHC 2882 (Ch) HHJ Paul Matthews refused an application for permission to adduce an additional witness statement. “Of course, it is natural for litigants to…
COURT OF APPEAL UPHOLDS DECISION NOT TO EXTEND TIME FOR COMPLIANCE WITH COURT ORDER: 28,000 CLAIMS BITE THE DUST
In the decision today in Jalla & Anor v Shell International Trading And Shipping Co. Ltd & Anor (Appeal 3: Refusal to Extend Time)[2021] EWCA Civ 1559 the Court of Appeal upheld a decision not to grant extensions of time…
IS A CLUB YARD A “PUBLIC PLACE”? REVERSE SUMMARY JUDGMENT GRANTED TO INSURER DEFENDANTS
In Brown v Fisk & Ors [2021] EWHC 2769 (QB) Master Dagnall granted reverse summary jugment to an insurer defendant. This involved consideration of whether a yard was a “public place” under s.151 of the Road Traffic Act 1988. THE…
RECORDING COURT PROCEEDING WITHOUT PERMISSION: THE PROBLEM ARISES – AGAIN
In Business Mortgage Finance 4 Plc & Ors v Hussain & Ors [2021] EWHC 2766 (Ch) Mr Justice Miles gave a judgment in another case where a party had recorded proceedings without permission. Permission was given retrospectively, however this was…
IN THE RUN UP TO HALLOWEEN: MISSIVES FROM THE BENCH: “THAT ONE’S HALF BLIND AND HALF DEAF. I CALL HIM THE COURT OF APPEAL”
In the run up to Halloween I thought I would repeat some of the “scary” posts on this blog. Here we look at a post from November 2018, a collection of Twitter comments about judicial interventions. “DJ Tynas at Macclesfield…
WHEN AT COURT MAKE SURE YOU CAN ALWAYS BE FOUND: PROMPTNESS, SETTING ASIDE AND CPR 39.3(5)
In Altaf & Ors v Close Brothers Ltd [2021] EWHC 2823 (QB) Mr Justice Fordham considered an application made by a defendant who left the court before the trial started. It highlights the importance of every litigant, once they arrive…
DEFENDANTS FAILED TO COMPLY WITH PEREMPTORY ORDER: RELIEF FROM SANCTIONS REFUSED
In Parkes v Hall & Ors [2021] EWHC 2824 (QB) Sir Andrew Nicol refused the defendants’ application for relief from sanctions following failure to comply with a peremptory order. THE CASE The defendants were ordered to file further particulars…
THE NEED FOR ACCURATE TIME ESTIMATES: A PLEA FROM THE BENCH: A 2 1/2 HOUR TIME ESTIMATE REQUIRED TWO DAYS
This is not the first time this blog has noted judicial comments on the need for realistic time estimates. This can be seen clearly in the judgment of HHJ Russen QC in Potgieter v Village [2021] EW Misc 18 (CC)….
STATEMENTS OF OPINION AND COMMENT WILL BE REDACTED: WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS: THE NEW RULES CONSIDERED
The judgment of Mrs Justice O’Farrell in Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2747 is one of the first times the new provisions on witness statements in the Business and Property Courts have been considered by…
WASTED COSTS AND THE SOLICITOR AS TARGET: “HEAVY SATELLITE LITIGATION IS TO BE DEPRECATED”
The judgment of Mr Justice Bryan in Lakatamia Shipping Co Ltd v Su & Ors [2021] EWHC 2702 (Comm) is essential reading for anyone contemplating making a wasted costs application. It is, of course, equally important for anyone defending such…
THE DANGEROUS USE OF “PRECEDENTS”: WHEN 28 DIVORCE PETITIONS MAKE IDENTICAL ALLEGATIONS THEN SOMETHING IS NOT QUITE RIGHT..
The judgment of Mr Justice Moor in Yorston & Ors, Re (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80 makes interesting reading. The judge was considering a referral from a court which found that 28 divorce petitions, based on…
AN EXTRAORDINARY CASE: DRAFT JUDGMENTS ARE SACROSANCT: ALLEGATIONS OF DISCLOSURE, AND OF “JUDGE’S OFFICE” LEAKING LIKE A SIEVE WERE TOTALLY MISFOUNDED
The judgment in Optis Cellular Technology Inc & Anor v Apple Retail UK Ltd & Ors [2021] EWHC 2694 (Pat) is one of the most extraordinary I have read. It concerns the important principle that draft judgments sent out by…
RELIEF FROM SANCTIONS WHEN CLAIMANT WAS ONE YEAR LATE IN SERVING PARTICULARS OF CLAIM (BUT THERE IS A LITTLE MORE TO THIS…)
In Excotek Ltd v City Air Express Ltd & Anor [2021] EWHC 2615 (Comm) Mr Justice Henshaw granted a claimant relief from sanctions when it applied to serve Particulars of Claim over a year late. However the parties had agreed…
HOW ISSUING ELECTRONICALLY CAN REALLY CONFUSE CLAIMANTS: PROCEEDINGS SERVED INCORRECTLY AND LATE, SAVED BY SERVICE OF AN UNSEALED CLAIM FORM
Adding to the regular supply of cases on service of the claim form on this blog is the decision of Mr Justice Fraser in Citysprint UK Ltd v Barts Health NHS Trust [2021] EWHC 2618 (TCC). This case contains a…
PRE-ACTION DISCLOSURE CANNOT BE A FISHING EXPEDITION: A JUDGE WILL NOT DO THE PRUNING FOR AN APPLICANT
The judgment of Deputy Master Brightwell in Willow Sports Ltd v Sportslocker24.com Ltd & Anor [2021] EWHC 2524 (Ch) is a reminder of how difficult it can be to obtain pre-action disclosure, particularly in commercial cases. It is also a…
LITIGATION, DELAY AND THE DOCTRINE OF LACHES: IT WOULD BE “UNCONSCIONABLE FOR THE COURT TO GRANT THE APPLICANT ANY RELIEF”
The judgment of ICC Judge Barber in CSB 123 Ltd, Re [2021] EWHC 2506 (Ch)is interesting for a large number of reasons. Not least the total failure of the applicant to establish major (if not all) parts of its case,…
PEREMEPTORY ORDERS IN THE COURT OF APPEAL 2: MAKING CONCESSIONS AND PUTTING ALL YOUR EGGS IN ONE BASKET
There are twp other aspects of the Court of Appeal judgment in Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 that merit consideration. Firstly the claimant’s decision to make one application; the second related to concessions made…
SERVING PROCEEDINGS ON “PERSONS UNKNOWN”: AN ONGOING ISSUE – WITH NO EASY ANSWER
In the course of his judgment in The London Borough of Hackney v Grant& Ors [2021] EWHC 2548 (QB) Mr Justice Lavender considered the issue of service on persons unknown. WEBINAR ON SERVICE OF THE CLAIM FORM On the 24th…
JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK
In Elias & Anor v Blemain Finance Ltd [2021] EW Misc 15 (CC) HHJ Keyser QC overturned a decision allocation an action to the small claims track. The matter was re-allocated to the fast track. “… it seems to me…
ANOTHER ROUND IN A LONG-RUNNING SOLICITOR-CLIENT COSTS DISPUTE: JUDGE REFUSES APPLICATION FOR A STAY AND FOR SECURITY FOR COSTS.
In Edwards & Ors v Slater & Gordon UK Ltd [2021] EWHC B19 (Costs) Costs Judge Rowley considered several procedural issues in relation to ongoing solicitor and own-client assessments. THE CASE Some 134 cases are being brought by Clear Legal…
A TOMLIN ORDER CAN BE ENFORCED IN THE ORIGINAL ACTION
In Trebisol Sud Ouest SAS & Anor v Berkley Finance Ltd & Ors [2021] EWHC 2494 (QB) Charles Morrison (sitting as a Deputy High Court Judge) considered the issue of whether the terms of Tomlin Order are enforceable within the…
DIDN’T FILE A SCHEDULE: COSTS CONFINED TO COUNSEL’S FEES
In Mahandru v Nielson [2021] EWHC 2297 (QB) Mrs Justice Steyn DBE considered what costs should be awarded when a respondent had successfully defended an appeal but not filed a costs schedule. The answer, in that case, was to simply…
NEW RULES COMING INTO FORCE ON THE 1ST OCTOBER 3: PERMISSION TO APPEAL FROM FIRST INSTANCE JUDGEAFTER ADJOURNMENT
The rules currently provide that application for permission to appeal to the judge who made the decision must be made to the lower court at the hearing at which the decision to be appealed was made. If an application is…
RELIEF FROM SANCTIONS NOT GRANTED AFTER A NINE YEAR DELAY
In Francis v F Berndes Ltd & Ors [2021] EWHC 2350 (Ch) Deputy Master Linwood dismissed the claimant’s application to resurrect an application to amend which had been made nine years previously. THE CASE The claimant brought an action…
PERSONAL INJURY ACTION BROUGHT AFTER EMPLOYMENT TRIBUNAL SETTLEMENT NOT AN ABUSE OF PROCESS: THE DEFENDANT HAS GOT WHAT IT SIGNED UP TO…
In Farnham-Oliver v RM Educational Resources Ltd [2021] EWHC 2418 (QB) Master Dagnall rejected an argument that personal injury proceedings, brought after employment proceedings had been settled, were an abuse of process. The settlement agreement had specifically stated that it…
MASTER WAS RIGHT TO SET ASIDE AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: ANOTHER CLAIMANT’S ACTION BITES THE DUST
The judgment of Mr Justice William Davis in Qatar Investment And Projects Holding Co & Anor v Phoenix Ancient Art S.A. [2021] EWHC 2243 (QB) adds to the many, many, cases on this blog that deal with the dangers relating…
WHEN A DEFENDANT DOES NOT TURN UP FOR TRIAL: THE RELEVANT CRITERIA CONSIDERED
In Van Zuylen v Whiston-Dew & Anor [2021] EWHC 2219 (Ch) Mr Nicholas Thompsell, sitting as a High Court Judge, considered the relevant criteria the court applies when a party fails to attend trial. The judgment also considers the relevant…
ANOTHER SERVICE OF THE CLAIM FORM CASE: THE COURT WILL NOT “REWRITE HISTORY”: SERVICE HAS TO TAKE PLACE ACCORDING TO THE RULES: EVEN AGAINST “PERSONS UNKNOWN”
The judgment of Mr Justice Nicklin in London Borough of Ealing v Persons Unknown [2021] EWHC 2132 (QB) serves as a stark reminder that there is a duty to comply with the rules relating to service of the claim form,…
“THIS CASE SHOULD ONCE AGAIN SERVE AS A REMINDER TO LITIGANTS THAT LEAVING THE ISSUE OF A CLAIM FORM TO THE ELEVENTH HOUR OF LIMITATION IS AN EXTREMELY RISK APPROACH TO TAKE AND SHOULD BE AVOIDED AT ALL COSTS”: ISSUE AND THE ELECTRONIC WORKING SYSTEM
The decision of Deputy Master Grimshaw in ABC & Ors v The London Borough of Lambeth [2021] EWHC 2057 (QB) is, I think, the first to consider the question of the date of issue in the Electronic Working System. It…
YOU CANNOT CLAIM ADDITIONAL COSTS AFTER A SECOND CNF IS SENT IN THE PORTAL PROCESS: DISTRICT JUDGE DECISION
I am grateful to barrister James Miller for sending me a copy of the decision of District Judge Rouin in Thandi -v- Esure Services Ltd (9th June 2021). Thandi v Esure – Approved Judgment – 09.06.21 V1 The claimant…
CLAIMANT FAILS TO SERVE CLAIM FORM PROPERLY IN £10 MILLION CASE: A PARTY “COURTING DISASTER” HAD BROUGHT THIS SITUATION ON THEMSELVES.
We see a classic mistake as to service of the claim form in the judgment of Mr Justice Fraser in LSREF 3 Tiger Falkirk Ltd I S.a.r.l & Anor v Paragon Building Consultancy Ltd [2021] EWHC 2063 (TCC). The claimant…
EXTENSIONS OF TIME AND THE DENTON CRITERIA: WHEN IT IS UNSATISFACTORY FOR AN APPELLANT TO GO HUNTING
In Secretary of State for Work and Pensions & Anor v Hughes & Ors [2021] EWCA Civ 1093 the Court of Appeal were, shall we say, slightly unimpressed by an argument that a judge should have applied the Denton test…
DEFENDANT REFUSED PERMISSION TO WITHDRAW FROM AN ADMISSION: COURT OF APPEAL UPHOLDS DECISION OF HIGH COURT JUDGE
In J v A South Wales Local Authority [2021] EWCA Civ 1102 the Court of Appeal upheld an earlier decision refusing a defendant permission to resile from an admission. “There is no doubt that the checklist at paragraph 7.2 is…
DENTON, APPLICATIONS, THE COURT OF APPEAL AND THE ADMINISTRATIVE COURT: WHEN THE COURT TELLS YOU THAT SPECIFIC APPLICATIONS ARE NEEDED IT IS A GOOD IDEA TO MAKE THEM
In Mahmud, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 1004 the Court of Appeal sent out a reminder that the need to comply with the Civil Procedure Rules extends to the Administrative…
WHEN TWO EXPERTS ARE BETTER THAN ONE: IT MAY BE MORE ART THAN SCIENCE…
Many of the reported cases in relation to the courts and witness experts are about the judge restricting the use of experts. In Borro Ltd & Ors v Aitken [2021] EWHC 1902 (Ch) HHJ Johns QC (sitting as a High…
APPLYING TO HAVE JUDGMENT SET ASIDE: BE QUICK TO BE SAFE: DELAY IN MAKING APPLICATION MEANT IT WAS “RIGHT ON THE LINE”
In Mountain Ash Portfolio Ltd v Vasilyev [2021] EWHC 1853 (Comm) Stephen Houseman QC, sitting as a Deputy High Court Judge, set aside a default judgment. However this was done by the narrowest of margins, the delay in making the…
DEFENDANT UNSUCCESSFUL IN APPLICATION TO STRIKE OUT PART OF CLAIMANT’S WITNESS EVIDENCE: WHEN “HYPOTHETICAL” EVIDENCE MAY BE ADMISSIBLE
The judgment of Sir Michael Burton in Mad Atelier International BV v Manes [2021] EWHC 1899 (Comm) is possibly the first time that Practice Direction 57AC – Trial Witness Statements in the Business and Property Courts has been considered by the…
BREXIT, APPLICATIONS AND THE LEGAL LABYRINTH: A CASE TO POINT
The legal problems caused by Brexit raised their head in the judgment of Master Clark in Shanavazi, Re [2021] EWHC 1832 (Ch). “It will be apparent from this judgment that a relatively simple practical problem has given rise to…
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