THE RISK OF INDEMNITY COSTS: WHAT ARE YOU GOING TO TELL YOUR CLIENT?
The idea of costs budgeting was, in part at least, to give the parties some certainty as to the costs they would have to face it they lost an action. However the decision in Kellie & Kellie -v- Wheatley &…
DENTON APPLIED IN THE TAX & CHANCERY CHAMBER: LEEDS -v- COMMISSIONERS CONSIDERED
One of the places where Mitchell, and subsequently Denton, had a major impact was the specialist tribunals. As we have seen in this blog Mitchell principles were applied with some vigour and the “clarification” by Denton has also had an effect….
PART 36 OFFERS AND NON-MONETARY CLAIMS: A HIGH COURT CASE CONSIDERED
We have looked before at the advantages to a claimant in making an early Part offer. If the claimant matches or beats that offer at trial then there are advantages in costs and interests. There can also be a 10%…
MORE ABOUT TRIAL BUNDLES: MOST OF THE STUFF IN THEM IS USELESS (APPARENTLY)
The decision discussed earlier today of Dowdall -v- William Kenyon & Sons Ltd [2014] EWHC 2822 (QB) contained an interesting observation that I wanted to deal with separately. It concerns the “usefulness” of trial bundles. OBSERVATIONS ON THE BUNDLES The Claimant has…
SECOND ACTION AFTER SETTLEMENT NOT AN ABUSE OF PROCESS: SECTION 33 APPLICATION ALLOWED: DOWDALL CONSIDERED IN DETAIL
The case of Dowdall -v- William Kenyon & Sons Ltd [2014] EWHC 2822 (QB) decided yesterday contains some important observations in relation to allegations of abuse of process; estoppel and section 33. THE FACTS Mr Dowdall has pleural mesotheliomia. In 2003…
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 CONSIDERED IN THE TAX TRIBUNAL: ELDER -v- REVENUE & CUSTOMS
The Denton case was considered by the First Tier Chamber: Tax Tribunal in Elder -v- Revenue & Customs [2014] UKFTT 728 (TC). Consideration of the Denton principles led to relief being granted. The decision is, obviously, specific to the rules relating to…
FAILURE TO COMPLY WITH AN ORDER FOR E-DISCLOSURE: DECISION THAT A PARTY HAD COMPLIED OVERTURNED IN THE COURT OF APPEAL
The first instance decision in Smailes -v- McNally (Re Atrium Training Service) [2013] EWHC 2882 (Ch) was looked at in detail in a previous post in October last year. It is worth noting that the Court of Appeal have overturned the…
DENTON APPLIED: A (VERY) BRIEF REPORT
The Denton principles were mentioned, in passing, in the judgment of HHJ Moloney QC In NNN -v- DI [2014] EWHC B14 (QB). The defendant had been in default in serving a list of documents on the claimant. A peremptory…
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…
DENTON APPLIED IN THE TAX TRIBUNAL: NO PERMISSION TO APPEAL THREE YEARS LATE
The Mitchell and Denton cases were reviewed by Judge John Brooks in Meah -v- The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 708 (TC). The proposed appellant was three years late. The refusal of permission to appeal out of…
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-…
POST DENTON RELIEF FROM SANCTIONS APPEAL IN THE HIGH COURT: RELIEF FROM SANCTIONS GRANTED: "UNREASONABLE" DEFENDANT ORDERED TO PAY COSTS
I am grateful to Ashley Pratt of St James Chambers for his note of the decision of Mr Justice King in Johnson -v- Bourne Leisure on the 21st July 2014. King J granted relief from sanctions and allowed an appeal from the…
CLAIM FORMS: DECLARATION THAT STEPS TAKEN CONSTITUTE GOOD SERVICE: NEW HIGH COURT CASE CONSIDERED
There is a brief report on Lawtel of the decision in Tanweer T/A the Auto Service Centre -v- UK Insurance & National Insurance & Guarantee Corp (Judge Mackie QC) QBD Merc 18/07/2014. The case is briefly reported and I hope…
THERE ARE DANGERS IF YOU ARE LEAVING THE ISSUE OF COSTS TO THE JUDGE: IN ANY EVENT BE QUICK AND BE CHEAP!
There are limited number of cases where the parties can agree everything except who should pay the costs. There are dangers in leaving the question of costs to the judge, as the case of Spiller -v- Derhalli [2014] 2548 (EWHC)…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
CASE MANAGEMENT AFTER DENTON: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"
Most of the articles about the Denton case focus upon the relief from sanctions and “clarification” of the principles in Mitchell. However the Court of Appeal made it clear that part of the focus of case management should be to…
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…
AMENDING PLEADINGS: HAS THE LIMITATION PERIOD EXPIRED? WHERE DOES THE BURDEN OF PROOF LIE?
The Court of Appeal decision today in Mercer -v- Ballinger [2014] EWCA Civ 996 may appear to be an issue of esoteric civil procedure. However the decision is an important one with far-ranging practical consequences for a party seeking to…
MITCHELL NOT EXTENDED TO ADMINISTRATIVE LAW: AN ISSUE FOR ANOTHER DAY
In R (Abbas Mohammadi -v- Secretary of State for the Home Department [2014] EWHC 2251 (Admin)the court did not decide the issue of whether “Mitchell” principles applied to applications for judicial review. THE FACTS The applicant was seeking judicial review of…
CIVIL PROCEDURE – HOW IT SHOULD BE DONE: A DESCRIPTION OF HOW THE ASBESTOS COURT WORKS
Anyone want to see a description of a civil procedure system running smoothly then read Master McCloud’s description of the “asbestos disease court” in her judgment in Yates -v- Commissioners for Her Majesty’s Revenue & Customs [2014] EWCH 2311 (QB)….
"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…
PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A "NON-ADMISSION" & A "DENIAL" EXPLORED
The decision of Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB) relates to a police force’s obligations in relation to the disclosure of details of undercover operations and informers. However it also deals…
ANATOMY OF A POST-DENTON APPLICATION FOR RELIEF FROM SANCTIONS 4: COSTS, INDEMNITY COSTS & EVERYBODY IS AT RISK AS TO COSTS
In the fourth in the series of articles we look at the very heavy incentive the Court of Appeal imposed upon litigants (and litigators) not to object to applications for relief from sanctions in “all but the most serious cases”….
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…
SERVICE OF THE CLAIM FORM: THE IMPORTANCE OF SERVING AT THE RIGHT PLACE AND THE RIGHT TIME: ANOTHER CLAIMANT COMES TO GRIEF
This is the third case on service of the claim form reported on this blog in two days, which may be significant. The strict rules on service pre-dated Jackson/Mitchell by over a decade and yet practitioners regularly come to grief. …
NO SPECIFIC FORM OF WRITTEN NOTICE IS REQUIRED TO WITHDRAW A PART 36 OFFER: THE ADVANTAGES AND DISADVANTAGES OF LEAVING A PART 36 OFFER OPEN
Part 36 offers are relatively easy to withdraw. This is demonstrated by the decision of Flaux J in of Supergroup Plc v JustEnough Software Corp Inc where he rejected an application for a declaration that the the claimant had validly…
PRO BONO COSTS ORDERS: THE SECTION, GUIDES AND LINKS
I am grateful to Nick Hanning for pointing out one aspect of the judgement in the recent Paratus case that he, rightly, says would benefit from wider publicity. The Court made a Pro Bono Costs order under section 194…
UNILATERAL DECISIONS TO VARY ORDERS WILL LEAD TO TROUBLE AND AMOUNT TO CONTEMPT: PARATUS AMC EXAMINED
The case of Paratus AMC Ltd -v- Lewis [2014] EWHC 1577 (Ch) has been placed on Bailli following an order by the judge to highlight an issue of contempt of court. As such it clearly requires wider publication. It also…
MORE ABOUT SETTING ASIDE JUDGMENT AND CPR 3.9: NEWLAND -v- TOBA CONSIDERED
The question of whether CPR 3.9 and the Mitchell criteria apply to applications to have judgment set aside is an issue that has been considered several times on this blog. In a decision yesterday Newland -v- Trading FZC (& other)…
RELIEF FROM SANCTIONS FOLLOWING LATE FAILURE TO SERVE WITNESS STATEMENT: ONE OUT OF THREE MAY NOT BE ENOUGH
In Cranford Community College -v- Cranford College Ltd (16/06/2014 IPEC Judge Hacon) the court granted relief from sanctions following late service of a witness statement. (The case was reported on Lawtel on the 18th June 2014). THE FACTS The action…
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…
LEEDS LAW SOCIETY MEET THE JUDGES EVENT: JACKSON ONE YEAR (AND A FEW MONTHS) ON
Yesterday evening Leeds Law Society held a “meet the judges” evening when practitioners met local judges and court staff to discuss issues arising out of the implementation of the Jackson reforms. Some of the issues were specific to Leeds but most…
RELIEF FROM SANCTIONS FOLLOWING FAILURE TO FILE FUNDING INFORMATION AT START OF COSTS ASSESSMENT: MERCANTILE COURT DECISION
In Warner -v- Merrett (QBD Merc 12/6/2014) Judge Mackie QC granted relief from sanctions following a failure to serve documents relating to serve documents relating to additional liabilities at the outset of a detailed costs assessment. The case was briefly…
RELIEF FROM SANCTIONS GRANTED AFTER LATE SERVICE OF WITNESS SUMMARY: HIGH COURT CASE CONSIDERED
Whilst the Court of Appeal ruminates over the problems caused by Mitchell life goes on at the procedural coalface. Attached to this post is a decision of Mr. N. Strauss Q.C. sitting as a Deputy High Court Judge on the…
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…
PORTAL ISSUES: WHAT HAPPENS IF THE DEFENDANT DOESN'T PAY THE COSTS?
It is clear that a new jurisprudence is developing around behaviour in, or around, the portal. A previous post looked at how the court will construe procedural issues arising out of the portal. I am grateful to Tom Melville 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…
SETTING JUDGMENT ASIDE: DELAY & PROMPTNESS
When setting aside a default judgment the court has to consider whether the application was made “promptly”. The relevance and importance of a “prompt” application has been considered several times on this blog. The issue was considered again in Page…
MITCHELL CASE IN THE COURTS AGAIN (2): NON PARTY DISCLOSURE ISSUES
The substantive action in Mitchell goes on. A post on this blog in March considered the application for disclosure made against the police. This issue was considered again by Tugendhat J again yesterday when the judge made orders for…
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…
