GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the third of the series looking at the case more closely we…
APPEAL AGAINST REFUSAL TO ALLOW LATE WITNESS STATEMENTS AT TRIAL: CLAIMANT’S APPEAL DISMISSED
There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the…
SETTING ASIDE DISCONTINUANCE AND DISAPPLYING QOCS: A HIGH COURT DECISION
In Shaw -v- Medtronic [2017] EWHC 1397 (QB) Mr Justice Lavender considered issues relating to the setting aside of notices of discontinuance and disapplying QOCS. He declined to set aside a notice of discontinuance or give permission to enforce costs…
“THE DOG ATE MY COURTWORK”: REASONS, EXCUSES AND EXPLANATIONS IN APPLICATIONS FOR RELIEF FROM SANCTIONS
One thing that the the Denton decision did, without doubt*, was to put an end to the “mandatory” requirement for a “good reason” to explain a breach when applying for relief from sanctions. However it is always incumbent upon…
SKELETON ARGUMENTS TOO LONG & AMOUNT OF DOCUMENTS “ABSURD”: A JUSTIFIABLE JUDICIAL COMPLAINT
In ICAP Management Services Limited -v- Berry [2017] EWHC 1321 (QB) Mr Justice Garnham added his voice to those judges who have protested about the length of skeleton arguments and written submissions and the burden of unnecessary documents. “It is…
NO PLAYING OF THE ADVANTAGE RULE IN CIVIL LITIGATION: LATE WITNESS STATEMENTS LEAD TO CLAIMANT’S CASE BEING SENT OFF: GOOD TRY BUT NO TRIAL
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner uses the English language to its full effect when ruling that a claimant who served a witness statement late should not have been granted relief from sanctions. The case…
STOP USING PROCEDURE TO BULLY VULNERABLE PEOPLE: HM REVENUE & CUSTOMS TOLD TO READ DENTON PROPERLY
I have no intention of taking this blog into areas of taxation and customs and excise. However the judgment of the First-tier Tribunal (Tax) in E -v- The Commissioners for Her Majesty’s Revenue & Customs [2017] UKFTT 348 (TCC) contains…
A NUMBER OF CHALLENGES TO THE ENFORCEABILITY OF A DAMAGES BASED AGREEMENT: MASTER MAKES ORDER FOR A SPLIT TRIAL
In Lexlaw Ltd -v- Zuberi [2017] EWHC 1350 (Ch) Master Clark considered challenges to the validity of a damages based agreement between solicitor and client. It was decided that the question of the enforceability of the agreement should be tried…
SETTING JUDGMENT ASIDE AFTER REDBOURN: 10 KEY POINTS FOR DEFENDANTS (CLAIMANTS MUST READ TOO)
The judgment in Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) highlights the fact that there is a new age for a party seeking to set judgment aside. Not only does the party have to satisfy the requirements of…
DEFERMENT OF PAYMENT OF COSTS NOT PERMITTED: RELIEF FROM SANCTIONS REFUSED: 7 DAYS LATE WAS “SERIOUS AND SIGNIFICANT”
In The Queen on the application of Bhandal -v- HM Revenue and Customs [2016] EWHC 3387 (Admin) Mr Justice Holroyde dismissed an application deferment of an order to pay costs and an application for relief from sanctions in making the…
LITIGANT MAY HAVE LODGED APPEAL NOTICE ON TIME WHEN THE COURT CLOSED EARLY: CLAIMANT GRANTED PERMISSION TO APPEAL
In Croke -v-Secretary of State for Communities and Local Government [2017] EWCA Civ 423 Lord Justice Hickinbottom found that it is arguable that that a litigant in person had complied with the strict six week time limit for appeals because…
DEFENDANT’S ADMISSION IS BINDING: BUT PERMISSION TO WITHDRAW ADMISSION GRANTED: HIGH COURT DECISION
In Blake -v- Croasdale [2017] EWHC 1336 (QB) His Honour Judge Purle QC (sitting as a Judge of the High Court) decided that an admission made by insurers was a binding admission. However he granted permission to resile from that…
WISEMAN -V- MARSTON: COURT FEES CASE: TRANSCRIPT NOW AVAILABLE
The transcript of the judgment in the Wiseman -v- Marston case is now available. I have included it as an attachment to the previous posts on the case. The links are also available here. THE JUDGMENT AND COURT OF APPEAL…
AGREEING EXTENSIONS OF TIME: REFUSAL TO AGREE CONTRARY TO THE OVERRIDING OBJECTIVE HAS CONSEQUENCES IN COSTS
When should a party agree an extension of time? In Emmanuel -v- The Commissioners for Her Majesty’s Revenue and Customs [2017] EWHC 1253 (Ch) Her Honour Judge Karen Walden Smith made some telling observations . “… in my judgment the…
SETTING ASIDE JUDGMENT, DELAY AND DENTON: “PROMPTNESS” CONSIDERED: DELAY MUST BE EXPLAINED
In Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) Mr Justice Coulson refused to set aside a default judgment. The case contains some important discussion on how the Denton principles apply to applications to set aside judgment. “……
LATE SERVICE OF APPLICATIONS, INACCURATE TIME ESTIMATES AND THE PRESUMPTIONS THE JUDGE SHOULD DRAW
In Capita PLC -v- Darch [2017] EWHC 1248 (Ch) Richard Spearman QC highlighted some of the procedural issues that can arise when applications are served late and with insufficient time estimates. A failure to serve promptly did not, ultimately,…
AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce [2017] EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended…
A CLAIMANT CAN SUE AN UNNAMED DRIVER (AND THE INSURER HAS TO PAY): COURT OF APPEAL DECISION TODAY
NB THIS DECISION WAS OVERTURNED BY THE SUPREME COURT IN Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 t In Cameron -v- Hussain [2017] EWCA Civ 366 the Court of Appeal (by a majority) considered the question whether a claimant…
APPEALS, TIME, SERVICE, VENUE: A REAL PROCEDURAL HOTCHPOTCH – EVEN BEFORE THE MAIN ISSUE IS CONSIDERED
The judgment of Mr Justice Jay in Enniful -v- Motor Insurers Bureau [2017] EWHC 1086 (QB) is a procedural hotchpotch. It relates to service, delay, dates of compliance, venue for appeals and relief from sanctions. All of this occurred before…
TALES FROM THE APIL CONFERENCE I: TO AVOID “AGREEMENT” OF COSTS BUDGETS BY DEFAULT READ DIRECTIONS FOR THE CCMC WITH CONSIDERABLE CARE
I am doing a series of posts on matters arising from the APIL annual conference. I am not aiming to cover all the issues and matters raised. People can (and should) read the Presidents speech . Given the nature of…
PARTICULARS OF CLAIM MUST BE IN A FORM THAT THE DEFENDANT CAN RESPOND TO: PLEADINGS STRUCK OUT ALTHOUGH THE CLAIM WAS NOT
In Kaplan -v- Super PCS LLP [2017] EWHC 1165 (Ch) Mrs Justice Rose struck out the particulars of claim because it was impossible for the defendants to respond to it. It is an object lesson that, even in a complex…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT? NOTHING
What is the position of a defendant whose action has been struck out? This was the question considered by Mr Justice Soole in Michael -v- Phillips [2017] EWHC 1984 (QB). The short answer is the defendant cannot dispute any aspect…
AN UNUSUAL APPLICATION FOR RELEASE OF AUDIO RECORDING OF JUDGMENT: NOT NECESSARY AND NOT ALLOWED
What does a litigant do if a written judgment varies from the oral judgment given in court? This issue was considered by HHJ Matthews (sitting as a High Court judge) in Bath -v- Escott [2017] EWHC 1101 (Ch). The judgment…
DUTY OF FULL AND FRANK DISCLOSURE: APPLIES TO APPLICATIONS MADE ON SHORT NOTICE
The “new year resolution” I recommended for litigators this year was to be very careful when making without notice applications. A failure to make full and frank disclosure has proven to be financially and professionally disastrous for some litigants (and…
WHEN IS AN EXPERT NEEDED? NOT HERE
CPR 35. imposes a duty on the court to restrict expert evidence “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”. This has led to some interesting case law. The most recent discussion is…
MEDIATION AND LITIGATION: A REVIEW OF KEY CASES: IGNORE THEM AT YOUR PERIL
It is sometimes difficult to keep track of the cases that refer to mediation. Given that ADR can play a central role in the litigation process this is an appropriate time to review the key cases, particularly in the light…
DUTY TO DRAW ADVERSE AUTHORITIES TO THE ATTENTION OF THE COURT: HOW FAR DOES IT GO?
The duty to draw the court’s attention to authorities that do not support your case is an important one. In Weir -v- Hildson [2017] EWHC 983 (Ch) Mr Justice Nugee discusses the extent of this duty. THE CASE The applicant…
COSTS AGAINST NON-PARTIES: COSTS ORDER NOT MADE AGAINST DIRECTOR
When is it appropriate to make an order against a director personally? This issue was considered in Housemaker Services Ltd -v- Cole [2017] EWHC 924 (Ch) by HHJ Paul Mattews (sitting as a High Court Judge). The judge declined to…
WHEN THE ASSETS DISAPPEAR FROM A JUDGEMENT DEBTOR: POTENTIAL CAUSES OF ACTION EXPLORED
The first rule of Law School is (or should be) “don’t sue anyone who doesn’t have the cash to pay”. The most meritorious case coupled with the most astute legal team is going to get blood out of a stone….
APPLICATIONS TO AMEND APPEAL NOTICE AND PARTICULARS AT A LATE STAGE NOT ALLOWED BY THE COURT OF APPEAL
I am grateful to Jill Greenfield from Field Fisher for sending me a copy of the Court of Appeal transcript in Howe -v- Motor Insurers Bureau (CA 8th February 2017). This is a judgment refusing permission to amend and for…
KNOW (AND FOLLOW) THE RULES – OR ELSE: DPP COPS IT.
There is some irony in the decision of Mr Justice Fraser in R (RA) -v- The Director of Public Prosecutions [2017] EWHC 714 (Admin). The claimant, a litigant in person, complied with the rules. The defendant, a specialised government department…
PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT”
There is an interesting discussion of the purpose of pleadings and expert evidence in the judgment of HH Parkes QC in PP -v- The Home Office [2017] EWHC 663 (QB). The fact that an expert report is referred to in…
ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS
In Dove -v- London Borough of Havering [2017] EWCA Civ 156 the Court of Appeal considered a number of procedural issues prior to giving judgment on the substantive point. The defendants argued that they should have been granted an adjournment of…
WITHDRAWAL OF PART 36 OFFER BY EMAIL: CPR 3.10 SAVES THE CLAIMANT
The change in the discount rate meant that many claimants withdraw Part 36 offers they had made. This has led to the question – is an email withdrawing an offer sufficient. I am grateful to Dominic Graham from Holmes &…
JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED
In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without…
COSTS NORMALLY FOLLOW THE EVENT: SUCCESSFUL DEFENDANT ENTITLED TO 100% OF ITS COSTS
We looked at the decision in Oldcorn -v- Southern Water Services Ltd [2017] EWHC in an earlier post. A second judgment on the case on the issue of costs is reported at [2017] EWHC 460 (TCC). . The successful defendant was…
COURT OF APPEAL: REFUSAL TO ENGAGE WITH AN OPEN OFFER OF SETTLEMENT IS AN ABUSE OF PROCESS
In Balk -v- Otkrite International Investment [2017] EWCA the Court of Appeal was highly critical of a litigant’s failure to respond to an open offer of settlement of appeal. The failure to engage with an open offer of settlement amounted…
WHAT A DIFFERENCE A DAY MAKES: ACTION BROUGHT IN TIME: COURT’S EARLIER REFUSAL TO EXTEND DISCRETION TO EXTEND TIME OVERTURNED
The judgment of the Court of Appeal in Otuo -v- Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136 shows the importance of calculating time periods for limitation. It shows what a difference a day makes KEY POINTS…
COSTS AGAINST NON-PARTIES: “FOR THE BENEFIT OF MR…. BAILEY”
In Sony/ATV Music -v- WMPC Music (In liquidation) & Bailey [2017]EWHC389 (Ch) Mr Justice Arnold made an award against a non-party. The judgment reviews the relevant law in detail. “It is therefore necessary to consider what difference it would have…
MICROSOFT, SERVICE AND FULL AND FRANK DISCLOSURE: HIGH COURT JUDGE SAYS “NO”
One feature of this blog for this year has been the duty owed by litigants making without notice applications. Another example of the problems caused can be seen in the judgment on Mr Justice Marcus Smith in Microsoft Mobile OY…
AN ORDER UNDER THE ARBITRATION ACT IS NOT AN ORDER UNDER CPR 3.1(7)
The judgment of Popplewell J in H -v- L [2017] EWHC 137 (Comm) relates to an application to remove an arbitrator. Most of the judgment considers the principles relating to the independence of arbitrators. The judge also considered points…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
RELIEF FROM SANCTIONS REFUSED(AFTER THE TRIAL)
In the judgment today in Schenk -v- Cook [2017] EWHC 144 (QB) Mr Justice Green upheld an order refusing relief from sanctions. However the appeal was heard in unusual circumstances. The judge considered the application for relief from sanctions striking…
ADMISSIBILITY OF PREVIOUS JUDGMENT AS EVIDENCE OF FOREIGN LAW
In Joint Stock Company -v- Wood [2017] EWHC 150 (Ch) Mr Justice Warren considered whether a decision by judge in relation to foreign law was admissible as evidence. KEY POINTS A previous judgment where the judge considered and made findings…
FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN
There are going to be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post…
ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE
In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias. This judgment emphasises the fact that the test is one of the fair minded and informed observer and not…
THE DUTY OF FULL DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: ANOTHER EXAMPLE OF PROBLEMS OCCURRING
The New Year’s resolution for litigators that I recommended this year came (apparently) as a surprise to many: “Think very carefully before, during and after, making an ex parte application of any kind.” The judgment of Mrs Justice Andrews DBE…
EXPERT EVIDENCE NOT NECESSARY ON AN QUESTION OF CONSTRUCTION: SNEAKING EXPERT EVIDENCE INTO WITNESS STATEMENTS: EVIDENCE IS STRUCK OUT
We have seen several examples of litigants attempting to give “expert” evidence in their witness statements. This practice was considered by Master Matthews in Change Red Limited -v- Barclays Bank PLC [2016] EWHC 3489 (Ch). The Master was considering whether…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
COMMITTAL APPLICATIONS, PENAL NOTICES AND GOING TO PRISON
There are two lessons in the judgment of Mr Justice Cranston in Bunge S.A -v- Huaya Maritime Corporation [2017] EWHC 90 (Comm): (i) if you are applying for committal you should include a penal notice in the application; (ii) if…
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