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…
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…
