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…
A WORD ABOUT BUNDLES: MORE VIEWS FROM THE BENCH: RULES APPLY TO JUDICIAL REVIEW TOO
The article I wrote on trial bundles remains one of the most visited posts on this blog. It is always one of the most visited posts each working day. Proper preparation can make a major different to the efficient…
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 CONSEQUENCES OF CHARTWELL 2: OBTAINING RELIEF FROM SANCTIONS IS DIFFICULT BUT NOT IMPOSSIBLE
The Court of Appeal decision in Chartwell –v- Fergies Properties has already been considered in detail. An earlier article dealt with the importance of serving witness statements on time. Here we consider the implications for the principles relating to granting…
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…
RELIEF FROM SANCTIONS: WHAT DOES “TRIVIAL” ACTUALLY MEAN? A LOOK AT THE CASES
If you attend one of the, numerous, “Jackson” and “Mitchell” conferences that abound at the moment you can easily make the lecturer sweat. Ask them to define “trivial”. Whether a breach is “trivial” or not is crucial to the way…
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…
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…
SURVIVING MITCHELL 17: MAKE ANY APPLICATION BEFORE DEFAULT AND OBTAIN REALISTIC DIRECTIONS
It is no coincidence that Rule 17 is identical to Rule 3. In fact I could easily, and without apology, repeat this principle as rules 10 – 20. If you cannot comply with a court order, direction or rule then…
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….
THE CONSEQUENCES OF CHARTWELL 1: JUST DON'T EVER SERVE WITNESS STATEMENTS LATE
It is highly dangerous for litigators to view the decision of the Court of Appeal in Chartwell -v- Fergies as any kind of step away from the Mitchell principles. The case has already been outlined in detail in an earlier post….
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…
SURVIVING MITCHELL 16: DEALING WITH "FISH FILES": OVERCOMING PROCRASTINATION
A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe. Ripe, that is, for problems to…
SIR JACK JACOB QC AND THE FABRIC OF ENGLISH CIVIL JUSTICE: LESSONS FOR TODAY?
With the speed in which modern litigation is conducted it is often difficult to pause and reflect, let alone look back to assess whether experts from the past can assist. For some time I have been looking for a copy…
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…
"PAPER MUST VANISH FROM THIS COURT": CANADIAN JUDGE ORDERS E-TRIAL TO PREVENT COURTS BECOMING MUSEUM PIECES
At a time when increased resources are promised to the court it is interesting to read the observations in the Canadian Courts of Brown J in the case of Broome Financial Corporation -v- Bank of Montreal 2014 ONSC 2178 (CanLII). Essentially…
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…
AMENDMENTS TO THE CPR TO ALLOW A BUFFER: THE TIMETABLE
There has been some discussion about whether, and when, the Civil Procedure Rules will be amended to allow the parties to agree to vary directions. I am grateful to Katherine van Aardt of Plxus Law for sending me information which…
THE DANGERS OF LETTING WITNESSES GIVE THEIR OPINIONS: IT HINDERS RATHER THAN HELPS YOUR CASE
A post yesterday reviewed the comments on witness statements made in the Jackson Report. One major criticism was that witness statements were being used to advance matters of opinion and not fact. A case decided yesterday exemplifies that problem. It…
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…
SURVIVING MITCHELL 14: LITIGATORS MUST KNOW ABOUT CREDIBILITY
I am picking up on a point in Kerry Underwood’s article on Rules of Survival. In that article he emphasised the need for a client to “pass a test” of being able to be “Mitchell compliant” before the client is…
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…
MITCHELL CASE IN THE NEWS AGAIN: THIS TIME ON NON-PARTY DISCLOSURE
Despite the costs order upheld by the Court of Appeal the Mitchell libel action continues. There is a report of a decision today by Tugendhat in relation to an application for disclosure [2014] EWHC 879 (QB). It concerned an…
LORD JACKSON'S RESPONSE TO THE CIVIL JUSTICE COUNCIL
The Civil Justice Council review of the Jackson reforms received 70 papers in total. The only ones generally available, to the best of my knowledge, are the ones available on this blog and the paper provided by Lord Jackson which…
LAW SOCIETY CIVIL JUSTICE CONFERENCE: 30th APRIL 2014: THE PLACE TO BE
I am one of the speakers at The Law Society Civil Justice Section Conference on the 30th April 2014, details of which can be found here. “Venue:The Law Society, 113 Chancery Lane, London WC2A 1PL Cost:From free Overview CPD Hours…
RELIEF FROM SANCTIONS APPLICATION: COSTS AWARDED AGAINST "INNOCENT" PARTY
The case of Lakatamia Shipping -v- Nobu Su [2014] EWHC 796 has been dealt with before on this blog in relation to a successful application for relief from sanctions. The judge’s comments on the costs of the application are now available…
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….
SO CPR 3.9 HAS BEEN MADE EASIER? McTEAR COULD BRING A TEAR TO THE EYE
One of the avowed aims of amending CPR 3.9 was to make the judge’s job simpler. The case of McTear -v- Englehard [2014] demonstrates that it has precisely the opposite effect. THE JACKSON REPORT ON THE ISSUE OF SANCTIONS In…
READ LITIGATION FUTURES TODAY: VIEWS OF THE MASTER OF THE ROLLS ON MITCHELL
Anyone interested in how the Mitchell principles should be construed and may develop should read Litigation Futures today and its report of the Civil Justice Council of the 24th March 2014. CLOSING REMARKS FROM THE MASTER OF THE ROLLS In…
MITCHELL PRINCIPLES APPLIED IN TAX TRIBUNAL
In Mr and Mrs B -v- Revenue & Customs the First Tier tribunal (tax) considered whether the Mitchell principles applied to permissions to appeal out of time in the first-tier tribunal tax chamber. “The law 42. There is no guidance in…
COULD CPR 3.10 BE THE LITIGATORS NEW BEST FRIEND? THE IMPLICATIONS OF INTEGRAL PETROLEUM CONSIDERED (AND THEY ARE ENORMOUS)
In Integral Petroleum SA -v- SCU Finanz AG [2014] EWHC 702 (Comm) Popplewell held that the provisions of CPR 3.10 meant that service of the particulars of claim by e-mail could be good service and the default judgment entered thereafter…
SERVICE BY E-MAIL: IMPORTANT DECISION IN INTEGRAL -v- SCU FINANZ ON CPR 3.10
There is an important discussion of the effect of serving by e-mail by Popplewell J in the case of Integral Petroleum SA -v- SCU Finanz SA [2014] EWHC 702 (Comm) The decision relates to serving process by electronic…
SURVIVING MITCHELL 13: READ KERRY'S RULES OF SURVIVAL
At the end of the previous post on Surviving Mitchell I wrote that there were important issues of law firm management which needed to be addressed and that, perhaps, Kerry Underwood would be better placed than me to address them….
WHAT WOULD THE SUPREME COURT THINK ABOUT MATTERS RELATING TO PROCEDURE? CLUES FROM THE PRIVY COUNCIL?
The Mitchell case was not appealed. Practitioners have no clue as to the approach of the Supreme Court to matters of procedure. However a decision of the Privy Council on the 3rd March makes interesting reading as to potential construction…
USE OF EXTERNAL REPORTS IN CIVIL PROCEEDINGS: HOYLE -v- ROGERS CONSIDERED
Can a party rely on an external report that contains opinion evidence? The Court of Appeal considered this question in a case reported today Hoyle -v- Rogers[2014] EWCA Civ 257. Important distinctions have to be drawn between admissibility and weight…
NEW COUNTY COURT RULES: EXTENSION OF EQUITY JURISDICTION TO £350,000
On the 22nd April 2014 the County Court Equity jurisdiction is extended to £350,000. A copy of the relevant Statutory Instrument is attached uksi_20140503_en (1) and there is a link here…. Enjoying this post? Become a Civil Litigation Brief member to read…
DUNHILL -v- TASKER: SUPREME COURT DECISION GIVEN TODAY: PROTECTED PARTY CANNOT SETTLE CLAIM WITHOUT APPROVAL. SUPREME COURT DECISION ATTACHED
I have attached a copy of the Supreme Court decision in Dunhill -v- Tasker which was given today UKSC_2012_0136_Judgment (1). The conclusion is that a compromise reached by a protected party cannot be valid unless approved by the court. …
ARGUMENT ABOUT TIME FOR SERVING COSTS BUDGET "MANIFEST NONSENSE": RATTAN -V- UBS CONSIDERED IN FULL
Highly technical points are now being taken as a matter of course. Some succeed. Some come to grief. This is what happened to the point in relation to service of the Precedent H costs budget in Rattan -v- UBS [2014] EWHC 665…
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