APPEALS: STAY OF EXECUTION AND CONDITIONS IMPOSED BY APPELLATE COURT: THE RELEVANT PRINCIPLES
The fact that an appeal is made, or permission to appeal is granted, does not automatically grant a stay of execution. The appellant has to apply for a stay and the court can grant conditions. The law and principles governing…
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….
A 20 DAY TRIAL WHEN THE CASE WAS ALL ABOUT ONE WITNESS: WOULD THIS CASE BE ANY DIFFERENT TODAY?
Back in 2003 Chris Evans, the radio presenter, was involved in a lengthy contractual dispute with a number of defendants. There were 9 parties to the action and the trial went on for twenty days. The judge’s observations at the…
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…
FAILURE TO SERVE NOTICE OF AMENDED CFA DETAILS IS NOT A SERIOUS OR SIGNIFICANT BREACH: HIGH COURT DECISION CONSIDERED IN DETAIL
The High Court decision in Ultimate Products Ltd -v- Wooley [2014] EWHC 2706 (Ch) provides further guidance as to what the courts are likely to consider “serious or significant” breaches. The High Court judge upheld the decision of the Master…
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 PRINCIPLES AND EXTENDING TIME FOR APPEALING: COURT OF APPEAL OBSERVATIONS
The issue of whether the “Denton” principles applied to applications for permission to appeal out of time were considered briefly by the Court of Appeal in Hart -v- Burbridge [2014] EWCA Civ 992 THE ISSUES The appellants appealed out of…
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…
PROPORTIONATE PENALTY FOR BREACH OF DISCLOSURE OBLIGATIONS: THE AMERICAN APPROACH: MAKE A VIDEO
One of the comments in Denton was that a “strict” construction of Mitchell led to disproportionate results. A judgment reported this week in Above the Law provides an example of how a judge can attempt to remedy continuous defaults. THE ISSUE:…
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…
QUOCS IN THE COURT OF APPEAL: FOUR IMPORTANT ISSUES: WAGENAAR CONSIDERED
The decision of the Court of Appeal in Wagenaar -v- Weekend Travel Ltd [2014] EWCA Civ 1105 was reported today. It contains important observations and decisions on qualified one way costs shifting, something that is likely to become a major…
DRAFTING WITNESS STATEMENTS: "4 GOLDEN RULES" DIRECTLY FROM THE JUDGES WHO HEAR THE CASES
I have recommended before that litigators read the guidance for litigants in person. It provides useful insights for most litigators and covers most aspects of civil procedure. It is written by six Circuit Judges so it can be safely assumed…
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…
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…
DENTON: THE DISSENTING JUDGMENT OF JACKSON L.J. CONSIDERED
In the hundreds of articles, blogs and commentaries on the decision in Denton the “dissenting” judgment is barely mentioned or considered. Whilst all three members of the court were in agreement that each of the appeals should be allowed there…
PRECEDENT H AND COSTS BUDGETING: NEW LINKS AND OLD LINKS
There are several posts on this blog which link to guides, articles and assistance on costs budgeting and Precedent H. Here there are several more recent links. The Construction of a Costs Budget is particularly instructive PREVIOUS POSTS One of…
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)….
BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…
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…
WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY?
The post yesterday on the length of “skeleton” arguments and trial bundles was an appeal from a first instance decision where the judge had to decide which witnesses were credible. First instance decisions on the credibility of witnesses are difficult…
DENTON, RELIEF FROM SANCTIONS AND THE "LITIGATOR'S DILEMMA": LIFE IS NOW DANGEROUS FOR RESPONDENTS
I have written before about the “litigator’s dilemma” in relation to whether a point should be taken in relation to a breach, or an application for relief of sanctions opposed. The Denton decision makes this issue far more difficult for…
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…
SANCTIONS HEARING 4: DOES DECADENT VAPOURS LEAVE A PLEASANT SMELL?
The second substantive decision was Decadent Vapours. Here the Court of Appeal overturned a refusal to grant relief from sanctions and the claimant’s case was allowed to proceed. THE FACTS The claimant failed to make payments of fees by the…
SANCTIONS JUDGMENT: THE KEY POINTS (1): STAGES 1 AND 2 OF CONSIDERATIONS IN RELIEF FROM SANCTIONS APPLICATIONS
The history and arguments in relation to the Court of Appeal hearings on sanctions have been fully recorded on this blog. In the judgment given today there are a number of Key points. MITCHELL HAS BEEN THE SUBJECT OF CRITICISM…
“NO CREDIT TO OUR CIVIL JUSTICE SYSTEM” WHAT CONSTITUTES TAKING STEPS TO BRING THE CLAIM FORM TO THE ATTENTION OF THE DEFENDANT?
“This depressing litigation reflects no credit on our civil justice system. It is yet another example of wasteful satellite litigation unconcerned with the merits of the underlying claim. The Claimant alone escapes censure” Tomlinson L J in Power v Meloy…
SERVICE OF THE CLAIM FORM CAN BE A PROBLEM FOR DEFENDANTS TOO: ACT PROMPTLY OR YOU HAVE ACCEPTED JURISDICTION
Issues relating to service of the claim form are always problematic for claimants . They can, however, be problematic for defendants as well. . This is demonstrated by the decision of Eder J in Nwoko –v- Oyo State of Nigeria…
PRECEDENT H: PULLING IT ALL TOGETHER: LINKS TO THE USEFUL POSTS ON COSTS BUDGETING
There are now nearly 400 posts on this blog and some patterns are emerging. Some posts are read in the immediate aftermath of posting, some keep on being read. Posts about Precedent H are part of those keep on being…
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…
WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS)
The recent Leeds Law Society Civil Litigation event reminded me of a similar meeting with judges over 25 years ago. The Registrars (District Judges) gave a talk to local articled clerks (trainee solicitors). There was a basic message delivered in…
ALLOCATION BETWEEN THE SMALL CLAIMS TRACK AND THE FAST TRACK: WHAT IS MEANT BY "ANY AMOUNT NOT IN DISPUTE"?
In the case of Akhtar -v- Boland [2014] EWCA Civ 872 the Court of Appeal gave guidance on CPR 26 and the matters to be considered when a determination is made as to allocation between the Fast Track and the…
WITNESS STATEMENTS CANNOT BE RELIED ON AT TRIAL IF SERVED LATE AND RELIEF FROM SANCTIONS NOT GIVEN
Lawtel today reported the case of Davies -v- Liberty Place [2014] EWHC 2034 (Admin). In that case Leggatt J stated that a party who served a witness statement late was not automatically precluded from relying on that statement at trial….
INSTRUCTING EXPERT WITNESSES: VIEWS FROM "ACROSS THE POND"
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known. It is clear that the issues are international. A recent article in the American Journal “The Lawyerist” contains some interesting…
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…
FIRST ANNIVERSARY OF CIVIL LITIGATION BRIEF (OR CONFESSIONS OF A RELUCTANT BLOGGER)
Today marks the first anniversary of the setting up of this blog, tomorrow marks the anniversary of the first post. It gives an opportunity to recap (and reminisce). CIVIL PROCEDURE IN JUNE 2013 When the blog started civil procedure was…
NO RELIEF FROM SANCTIONS AFTER APPELLANT FAILED TO FILE TRANSCRIPTS ON TIME.
In Patterson -v- Spencer [2014] EWHC 1878 (Ch) Henry Carr QC (sitting as a High Court Judge) refused an appellant’s application for relief from sanctions after she failed to file transcripts of the initial hearing. THE FACTS One of the defendants,…
ANOTHER CASE WHERE PARTY REFUSED RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENT
The case of Swinden -v- Grima (Nicol J) 18/06/2014 is briefly reported on Lawtel (20th June). It is another example of the court refusing permission to serve witness statements late. THE FACTS The defendant served a witness statement on the…
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)…
