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…
COURT OF APPEAL SANCTIONS HEARING: 70 KEY POINTS OF THE JUDGMENT
The 70 key points of the Court of Appeal judgment in Denton -v- White [2014] EWCA Civ 906. “We hope that what follows will avoid the need in future to resort to the earlier authorities.” (Paragraph 24). CRITICISM OF MITCHELL 1. The…
SANCTIONS HEARING 6: USEFUL LINKS AND WATCH THE JUDGMENT
These are links to commentary and comment on the Court of Appeal decision in Denton -v- White [2014] EWCA Civ 906. 1. The Law Society Gazette reviews the decision (and also allows you to see the judgment being given).(Also a…
SANCTIONS HEARING 5: UTILISE -v-DAVIES: MANY TRIVIAL BREACHES DO NOT LEAD TO RELIEF FROM SANCTIONS BEING REFUSED
The claimant served their costs budget 45 minutes late. Both the District Judge and Circuit Judge refused relief from sanctions. The Court of Appeal overturned this decision. THE FACTS The claimant’s cost budget was served at 4.45 and not 4.00….
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…
COURT OF APPEAL HEARING ON SANCTIONS TODAY: BREAKING NEWS AND LINK TO JUDGMENT
The Court of Appeal have allowed all three appeals in the sanctions cases that were before them. This is breaking news (as I write the judgment is still being given). In Decadent Vapours the action had been struck out…
DATE SET FOR JUDGMENTS ON COURT OF APPEAL SANCTIONS HEARINGS
Judgment in the three recent cases where the Court of Appeal reviewed the application of the Mitchell criteria is to be given in in Court 71 in the Royal Courts of Justice on Friday 4th July at 2pm. TO SEE THE ARGUMENTS…
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….
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…
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)…
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…
COURT OF APPEAL SANCTIONS HEARING: SUBMISSIONS IN UTILISE -V- DAVIES
The final tranche of the notes taking at the hearing of the sanctions cases yesterday. The case of Utilise -v- Davies. Discussion of the first instance decision can be found in this blog as can a link to the transcript….
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…
COURT OF APPEAL HEARING TODAY: DETAILED NOTE OF SUBMISSIONS AND DISCUSSIONS AT THE COURT
The Court of Appeal hearing on sanctions after Mitchell goes on. Here I outline, in detail, the submissions and discussions in Denton. Other cases will follow. DENTON AND OTHERS V T H WHITE LIMITED Heard by the Court of…
SANCTIONS CASES: SUMMARY OF ARGUMENTS THIS MORNING
Here is a very brief summary of the arguments considered by the Court of Appeal in the cases on sanctions this morning. A useful summary is also being provided by @JohnHyde1982 on twitter. Lord Justices Jackson, Dyson and Voss are…
PROCEDURE: THINGS TO WATCH OUT FOR MONDAY & TUESDAY ON THIS BLOG & TWITTER
There are important developments this week. You should be able to follow those on this blog or the associated twitter account @CivilLitTweet. COURT OF APPEAL HEARING ON RELIEF FROM SANCTIONS I hope that the arguments employed in the Court 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…
COSTS DRAFTSMAN SIGNING COSTS BUDGET DOES NOT RENDER IT A NULLITY: HIGH COURT DECISION TODAY CONSIDERED
There may be no end to the Mitchell points being taken. In a case earlier today, Americhem Europe Ltd -v- Rakem Ltd [2014] EWHC 1881 (TCC) e Mr Justice Stuart-Smith considered an argument that the costs budget signed by a…
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…
FAILURE TO SERVE FORM N251: ADDITIONAL LIABILITIES & PREMIUM DISALLOWED; RELIEF FROM SANCTIONS REFUSED
We are seeing reports come through of cases that were decided some time ago. However they provide illustrations of the problems that can arise and the court’s likely approach. Ibbertson -v- Black Horse Ltd [Maidstone County Court] is available on…
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…
WHEN CAN YOU SERVE WITNESS SUMMARIES? A HIGH COURT CASE ON THE QUESTION OF WHETHER A PARTY IS "UNABLE" TO OBTAIN A WITNESS STATEMENT
The case of Scarlett -v- Grace (4/6/2014) QBD Phillips J was reported briefly on Lawtel yesterday. It provides an example of the difficulties when a party proposes to serve witness summaries rather than witness statements. THE RULES: CPR 32.9 CPR…
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…
COURT OF APPEAL TO HEAR THREE MORE CASES ON RELIEF FROM SANCTIONS
The Court of Appeal is to hear three cases on sanctions on the 16th & 17th June. One of the cases being considered is Utilise -v- Davies [2014] EWHC 834 (Ch) which was considered in an earlier post on this blog. The…
SURVIVING MITCHELL 20: THE GREAT BIG OVERALL CHECKLIST
I suspect that this series could go on indefinitely. It is drawn to a close with a round up of the key points. KEY POINTS 1. Know what happened in Mitchell and how it could have been avoided. 2. Assume…
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…
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…
“FAILING TO SEE THE WOOD FOR THE TREES” AND LATE APPLICATIONS TO AMEND PLEADINGS : GROARKE –V- FONTAINE CONSIDERED
Groarke –v- Fontaine [2014] EWHC 1679 (QB) centred on a Road Traffic Accident that happened in November 2009. The central issue on appeal was whether a late application to amend the defence to plead contributory negligence should have been allowed….
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…
