PAY COURT FEES ON TIME AND DON'T RELY ON COURT STAFF FOR LEGAL ADVICE: ANOTHER REPORTED CASE WHERE RELIEF FROM SANCTIONS REFUSED:
The case of Decadent Vapours Ltd -v- Bevan et al (Judge Jarman Q.C. Cardiff District Registry, 18th February 2014) was reported on Lawtel this morning. It provides another warning of the dangers involved in not complying with court orders on…
PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE
I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings. However Jon Williams pointed out that the case has an…
73rd AMENDMENT TO THE CIVIL PROCEDURE RULES COMES INTO FORCE TODAY: FINAL TRIO OF LINKS
Monmouthshire Law Society’s twitter account announced Happy 73rd update to CPR day this morning. Here are three crucial links so you can join in the celebrations. CELEBRATORY LINKS A general summary and the rules themselves are here Guidance as to…
YOU CAN AGREE TO EXTEND TIME NOW: BUT SHOULD YOU AGREE TO EXTENSIONS?
Parties can agree to extend time from the 5th June. I have already written on the dangers of the system. However, if the dangers can be sidestepped, should a litigator agree to extend time. THE HEATED DEBATE: SHOULD PARTIES AGREE EXTENSIONS? This…
"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…
COSTS, COSTS BUDGETING AND MAKING A LIVING: THE PREQUEL TO THE ESSENTIAL CHECKLIST
The fourth in our “essential checklist” series was prepared by a group that called itself “Group H”. The checklist addresses issues relating to recording and recovering costs. GROUP H This was the only group where I was involved in some…
LATE SERVICE OF THE CLAIM FORM, RETROSPECTIVE EXTENSIONS AND OTHER CAUSES OF SLEEPLESS NIGHTS: A CASE TO POINT.
The recent case of Kaki –v- National Private Air Transport & National Air Service Ltd (QBD (Comm) 23/5/2014 raises some interesting issues in relation to the retrospective validation of service of a claim form when that claim form was served…
SURVIVING MITCHELL 19: PRACTICE "DEFENSIVE LITIGATION" OR DON'T PRACTICE AT ALL
This is the 19th (and penultimate) in this series on “surviving Mitchell”. What the Mitchell case makes clear is that there is now precious little room for error in civil procedure. We have to develop systems of “defensive litigation”. That…
“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…
PROMPTNESS AND APPLICATIONS TO SET ASIDE JUDGMENT : THE BIG YELLOW VAN –V- RAYNER 27/05/2014 CONSIDERED
PROMPTNESS AND APPLICATIONS TO SET ASIDE JUDGMENT : THE BIG YELLOW VAN –V- RAYNER (2014) IPEC (Judge Hacon) 27/05/2014 CONSIDERED The importance of a prompt response to procedural issues and setting aside default judgment has been explored previously on this…
COSTS, CONDUCT, PART 36 AND THE "WINNING PARTY": AVB -V TDD CONSIDERED
The case of AVB -v- TDD [2014] EWHC 1442 has received a lot of publicity in the legal press and beyond, involving a relationship between a solicitor and a law student. However the surprising aspect of the reporting is that…
MITCHELL, APPLICATIONS TO EXTEND TIME AND INSOLVENCY: CONTRARIAN FUNDS -v- LOMAS CONSIDERED
The Mitchell case is cited in many different contexts. In Contrarian Funds LLc -v- Lomas et al [2014] EWHC 1687 (Ch) it was considered in the context of an application for a further extension of time in which to apply…
SERVICE BY E-MAIL: SETTING ASIDE JUDGMENTS AFTER MITCHELL AND MUCH MORE: BRETT –V- COLCHESTER HOSPITAL UNIVERSITY CONSIDERED
There is a considerable amount of interest in the judgment of Master O’Hare in this case. Firstly was service by e-mail good service when a party had not complied with the Practice Direction on service by electric means? Secondly what…
A DELIBERATE DECISION NOT TO FILE A WITNESS STATEMENT AND YET RELIEF FROM SANCTIONS GRANTED: MONDE PETROLEUM SA-V- WESTERNAZAGROS LTD CONSIDERED
In Monde Petroleum SA –v- Westernzagros Ltd (2014) QBD (Comm) (Hamblen J) 19/05/2014 a party intentionally failed to file a witness statement on time, yet relief from sanctions was granted. (The following is based on the Lawtel summary) THE FACTS…
CPR 3.9: MITCHELL AND APPLYING TO JOIN GROUP LITIGATION: HOLLOWAY -v- TRANSFORM MEDICAL GROUP
In Holloway -v- Transport Medical Group [2014] EWHC 1641 (QB) Mrs Justice Thirlwall DBE considered whether the “Mitchell” principles applied to late applications to join the register of claims following a Group Litigation Order. THE JUDGMENT The judgment is available…
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…
RELIEF FROM SANCTIONS, PRISONS AND SANITATION
The issue of relief from sanctions was considered by Mr Justice Hickinbottom in Ashton (et al) -v- The Ministry of Justice [2014] EWHC 1624 QB. THE FACTS A large number of prisoners were bringing actions under the European Convention alleging…
A TWO DAY BREACH IS "TRIVIAL": ANOTHER CASE WHERE RELIEF FROM SANCTIONS GRANTED AFTER LATE SERVICE OF COSTS BUDGET
In Azure East Midlands Ltd -v- Manchester Aiport Group Ltd [2014] EWHC 1644 (TCC) His Honour Judge Grant made an order for relief from sanctions where a costs budget was served two days late. THE BREACH The claimant filed its…
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…
SERVICE OF THE CLAIM FORM: SERVICE AT “LAST KNOWN” ADDRESS: MORE DANGEROUS POINTS TO WATCH
Following the previous posts as to issues and problems relating to service of the claim form some responses have highlighted the difficulties of service at the “last known address”. The rules here are somewhat complex, a detailed knowledge is necessary….
AGREEMENTS TO EXTEND TIME: THE NEW RULES IN FULL
It required a statutory instrument to reinstate the ability to extend time that the Jackson Report never intended to take away. THE NEW RULES The Civil Procedure (Amendment No 5) Rules 2014 come into force on the 5th June 2014….
MASSIVE DELAY, SETTING ASIDE JUDGMENT AND THE MITCHELL PRINCIPLES: MID-EAST SALES LTD –v- UNITED ENGINEERING & THE ISLAMIC REPUBLIC OF PAKISTAN CONSIDERED
One of the many moot points that arise from Mitchell is how far the amendment to the overriding objective and CPR 3.9 impact upon applications to have judgment set aside. This issue was considered by Burton J in Mid-East Sales…
AMENDING PLEADINGS LATE AND MITCHELL: NOT A SMOOTH JOURNEY
What relevance do the Mitchell principles have in relation to applications to amend pleadings. Particularly when those applications are made late? This was considered by Mrs Justice Andrews in Dany Lions Ltd -v- Bristol Cars Ltd [2014] EWHC (QB) 928….
CHANGING THE TRIAL DATE : A CASE IN POINT: MITCHELL REMAINS A "TOP BRAND"
Ever since the introduction of the Woolf reforms the trial date has been viewed as fairly sacrosanct. Once set it is hard to change without a good reason. This position has probably hardened as a result of Mitchell. The issue…
THE CONSEQUENCES OF CHARTWELL 3: THE "LITIGATOR'S DILEMMA": DO YOU TAKE THE "MITCHELL" POINT?
This is the third in the series examining the practical consequences of the Chartwell decision. The first post looked at the importance of serving witness statements on time, the second at the effect on the criteria for reinstatement. Here we…
PLEADING MITIGATION OF LOSS: WHY THE PRACTICE DIRECTION IS (ALMOST ALWAYS) WRONG AND THE RULES ARE A SHAMBLES
It is well established law that the burden of proving a failure to mitigate loss lies with the defendant. It is for the defendant to establish that the claimant failed to act reasonably. Somewhat surprisingly a Practice Direction in…
THE COURT SERVICE AND THE "SECRET STATE": ANOTHER EXAMPLE FROM "LEGAL CHAP"
A blog post yesterday highlighted the problems that solicitors had been having with some courts insisting that there was a “secret” letter that meant Part 8 applications could not be issued for minor approval applications. After considerable delay it was…
THE APPROPRIATE FEE FOR PART 8 APPLICATIONS: CLARIFICATION AT LAST
In a post in February “Civil Procedure and the Secret State” complaints were made of a “secret” policy introduced by the courts of changes to a demand that Part 7 proceedings be issued instead of Part 8 proceedings and that higher…
THE CRITERIA TO BE APPLIED WHEN A PARTY MAKES AN APPLICATION AHEAD OF THE DATE OF THE BREACH: THE ROBERT CRITERIA CONSIDERED
In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) it was made clear that Mitchell principles did not apply in cases where an application was made prior to the date of breach. The principles in Robert -v- Momentum Services [2003] EWCA…
HAS PROPER DISCLOSURE BEEN GIVEN? A NEW AREA OF BATTLE. GLOBAL MARINE DRILLSHIPS LIMITED –V- WILLIAM LA BELLA [2014] EWHC 1230 (Ch) CONSIDERED
In the post Mitchell world parties are anxious to demonstrate that their opponents have not complied with orders of the court and, consequently, should have their actions struck out. These arguments are likely to be particularly problematic in issues relating…
A BUDGET SERVED A DAY LATE IS A “TRIVIAL” ERROR: WAIN –v- GLOUCESTERSHIRE COUNTY COUNCIL [2014] EWHC 1274 (TCC) CONSIDERED
It was made clear in Mitchell that the courts should not concern themselves with “trivial” breaches, however what was meant by “trivial” was never defined. In Wain –v- Gloucestershire County Council Judge Grant, sitting as a judge of the High…
WHAT IS THE DATE OF SERVICE? THE DIFFERENCE BETWEEN THE “DEEMED” DATE OF SERVICE AND THE “EFFECTED” DATE OF SERVICE
T & L SUGARS LTD V TATE & LYLE INDUSTRIES LTD [2014] EWHC 1066 Problems with service and the date of service continue to abound. They have always been subject to a much stricter regime. In particular the date of…
IMPORTANT CHANGES ON THE 22ND APRIL: NEW COURT FEES AND NEW STATEMENT OF TRUTH ON COST BUDGET
The previous post dealt with the date of applications and considered the potential implications if an application was not accompanied by the relevant fee. It seems timely to remind everyone that: 1. New Court Fees come into force on the 22nd…
WHEN IS AN APPLICATION "MADE"? A MATTER THAT COULD BE OF SOME IMPORTANCE
The case of In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards. An application made after the…
MAKING AN APPLICATION BEFORE THE DATE OF DEFAULT SAVES THE DAY: KANERIA -v- KANERIA CONSIDERED
The Mitchell principles govern what happens when a party requires relief from sanctions. An open question remained as to the principles that apply when a party applies for an extension of time before the expiry of the date for compliance….
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…
TWO CASES WHERE RELIEF FROM SANCTIONS REFUSED: (I) LATE WITNESS STATEMENTS (II) NO SCHEDULE OF COSTS
There are two cases reported on Lawtel this morning which exemplify problems of modern litigation and relief from sanctions. The first involves late service of a witness statement in a fatal accident case; the second the failure to file a…
HIGH COURT MASTER GRANTS AN EXTENSION OF TIME FOR SERVICE OF REPLIES TO POINTS OF DISPUTE ON ASSESSMENT OF COSTS
I am grateful to Neil Sexton from Blake Lapthorn for sending me a note of a decision of Master Leonard where an extension of time for service of Replies to Points of Dispute was granted. (The note is printed here…
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…
ACTION STRUCK OUT FOR FAILURE TO GIVE DISCLOSURE: RELIEF FROM SANCTIONS REFUSED
In Medical Supplies and Services Ltd -v- Acies & Gosling [2014] EWHC 1032 (QB) the claimant came to grief because of a failure to comply with a peremptory order for disclosure. Relief from sanctions was refused. It provides another object…
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…
WHAT THE JACKSON REPORT SAID 4: PROBLEMS WITH WITNESS STATEMENTS: LENGTHY, IRRELEVANT AND RAMBLING
The Jackson Reforms made only minor amendments to the rules relating to witness statements. However the Reports, particularly the Preliminary Report, disclosed a real issue in relation to over-extensive report. THE “TWO NATIONS” OF WITNESS STATEMENTS The preliminary report demonstrated…
WHAT THE JACKSON REPORT SAID 3: CASE MANAGEMENT AND EXTENSIONS OF TIME
Both Jackson reports considered that case management was closely allied with costs management. Here I want to look at two aspects – the need for a realistic timetable and agreements to extend time. DIRECTIONS MUST BE REALISTIC At 6.5 of…
COURT OF APPEAL DISMISSES APPEAL AGAINST RELIEF FROM SANCTIONS BEING GRANTED IN CHARTWELL ESTATES CASE
Relief from sanctions was granted by Mr Justice Globe in the case of Chartwell Estates -v- Fergies and this has been discussed, at length, in earlier posts in this blog. The Court of Appeal dismissed the defendant’s appeal today. Reasons…
RELIEF FROM SANCTIONS CONSIDERED IN THE HIGH COURT AGAIN: MCTEAR CONSIDERED IN DETAIL
The case of McTear -v- Englehard [2014] EWHC 722 (Ch) was looked at briefly in an earlier post in relation to the number of cases cited to the Court. Here we look at the substantive decision in relation to applications…
THE COURTS SHOULD NOT MAKE PEREMPTORY ORDERS LIGHTLY: PORTER CAPITAL CORPORATION –V- ZULFIKAR MASTERS CONSIDERED
The fact that relief from sanctions is now more difficult emphasises the principle that courts should not make peremptory orders lightly. The case of Porter Capital –v- Zulfikar (19/3/1014) only on Lawtel at present) is a case to point. THE…
MITCHELL CRITERIA AND SETTING ASIDE DEFAULT JUDGMENTS
There is a discussion of the Mitchell criteria in the context of setting aside a default judgment in the case of Mole -v- Hunter [2014] EWHC 658 QB. (Tugendhat J). THE FACTS Judgment in default had been entered on a…
WHAT THE JACKSON REPORT SAID 1: SANCTIONS: WHAT WAS SAID & WHAT HAS HAPPENED?
There are lots of events coming up dealing with the first anniversary of the Jackson reforms. It would be an opportune time to look back at the Jackson Report itself to remind us what it said on certain key issues….
