YOUR CHANCE TO COMMENT ON THE IMPACT OF THE JACKSON REFORMS: CIVIL JUSTICE COUNCIL CONFERENCE
I have heard a lot comments on the impact of the Jackson Reforms, (some of it unprintable). The Civil Justice Council is holding a conference in March on the impact of the reforms and is inviting “position papers”. I would…
CASE STRUCK OUT BECAUSE OF A FAILURE TO ARRANGE A TELEPHONE HEARING: WHAT HAPPENED NEXT AND WHAT WOULD HAPPEN NOW?
JONES –V- WEALTH MANAGEMENT (UK) LTD (2014) Ch D (Arnold J) 12/02/2014 This case is reported briefly on Lawtel today. It concerns an application for relief from sanctions in insolvency proceedings. The relief from sanctions application was made prior to…
THE DANGERS OF SERVING BY E-MAIL: A WORKING EXAMPLE
A recent post looked at potential problems with serving documents by e-mail. That this is a very real issue is shown by a report of a decision sent to me by counsel. The full details of the case are withheld. …
MORE ON ORDERS ALLOWING THE PARTIES TO EXTEND TIME BY AGREEMENT
It appears that the proposed change to allow the parties to vary orders by consent only applies to clinical negligence cases. Lexis Law Dispute Resolution report The Judicial Office has released this statement: “A draft amendment to the clinical negligence…
SENDING DOCUMENTS TO THE COURT BY E-MAIL: THE PRACTICE DIRECTION AND POTENTIAL PROBLEM AREAS
An earlier post about the problems of serving documents by e-mail led to a flurry of comments on twitter about similar issues in relation to filing documents at court . I am awaiting some reports of cases where the lodging…
THE REMAINING PROBLEM OF HISTORICAL AGREEMENTS TO EXTEND TIME: USEFUL GUIDANCE FROM PREVIOUS AUTHORITIES ON CIVIL PROCEDURE
ANDREW WILKEY –V- BRITISH BROADCASTING CORPORATION [2002] EWCA Civ 1561 Wilkey was a case in which the Court of Appeal considered the practical impact of the decision in Godwin v Swindon Borough Council [2002] 1 WLR 997 and Anderton v…
Chambers v Buckinghamshire Healthcare NHS Trust: A detailed examination as to why the defendant could not adduce its expert evidence
CHAMBERS –V- BUCKINGHAMSHIRE HEALTHCARE NHS TRUST [2013] EWHC (QB) (Master Cook ) (18/12/13) Chambers -v- Buckinghamshire Healthcare NHS Trust-1 This case highlights the fact that defendants are far from immune from the problems caused by Mitchell. THE FACTS Chambers was…
ARE YOU SERVING DOCUMENTS BY E-MAIL? IS IT SAFE? ARE YOU SURE? A CASE STUDY IN PROBLEMS THAT CAN OCCUR
The Civil Procedure Rules allow service of documents by e-mail. However I was involved in a case today which demonstrated that relying on e-mail service can be problematic and led to the sender requiring relief from sanctions. THE RULES CPR…
WHAT HAPPENS WHEN ONE BUDGET IS PROVIDED INSTEAD OF THREE? IS THERE A BREACH AND WOULD THE COURT GRANT RELIEF FROM SANCTIONS?
Arguments about the form of compliance are likely to become as commonplace as about the time of compliance. These arguments were considered by Master Kay Q.C. Important observations are made about the appropriate form for costs budgets when one or…
ANOTHER HIGH PROFILE COSTS BUDGETING ERROR: BURT -v- LINFORD CHRISTIE
The Mitchell case was about a failure to file a costs budget in time. In Burt -v- Linford Christie the court refused relief from sanctions where the defendant filed to file the costs budget in time. The application was considered…
HISTORIC AGREEMENTS TO EXTEND TIME: WHAT IS THE APPROPRIATE APPROACH OF THE COURT? CAROLINE MAEVE MEEHAN -v- JOSEPH MANLEY & CHURCHILL INSURANCE COMPANY LIMITED
The decision in Lloyd that it was not open to the parties to agree to extend time can cause a problem in relation to cases where service of documents has taken place late by agreement. This was a common occurrence…
MITCHELL IN THE CONTEXT OF A TAX APPEAL: HMRC HIT A STONE WALL.
As previous posts have shown the Mitchell criteria are being considered in wider contexts. In R&CC –v- McCarthy & Stone (Developments) Limited the Upper Tribunal (Finance and Tax) applied it to the government’s application to appeal a decision out of…
MITCHELL AND SANCTIONS IN THE CONTEXT OF JUDICIAL REVIEW: WAS IT WORTH THE CANDLE?
It is clear that the Mitchell principles are being applied widely. In The Queen on the Application of Royal Free London NHS Foundation Trust, Mr Justice Coulson considered the principles in the context of a late application in judicial review…
THE COURT DIDN’T TELL ME TO FILE PRECEDENT H! WHAT HAPPENS WHEN THE PARTIES FAIL TO FILE COSTS BUDGETS BECAUSE OF BEING MISLED BY A COURT FORM?
The penalties for failing to file Precedent H in time are draconian. What happens if the parties do not file Precedent H because they are misled by the court directions? In Aliasghas Porbanderwalla –v- Daybridge Ltd HH Judge Worster allowed an…
SURVIVING MITCHELL 9: AGREEMENTS TO EXTEND TIME AGAIN! LLOYD & ITS PRACTICAL CONSEQUENCES
There is now a lot of evidence of parties taking “opportunistic” points in relation to procedure. That is pointing to historic breaches, often months before a hearing/application, and arguing that these breaches mean that the case/defence should be struck out…
STRIKING OUT SPECIAL DAMAGES CLAIM BECAUSE OF ABSENCE OF EVIDENCE IN WITNESS STATEMENT: MORE DETAIL PROVIDED
I am grateful to Dave Toulson of Hill Dickinson for a more detailed explanation of the news that prompted the article on drafting witness statements and proving damages. The original tweet was that a claim for hire had been struck…
APIL: MONITORING OF COSTS BUDGETING AND RELIEF FROM SANCTIONS.
The Association of Personal Injury Lawyers is monitoring both costs budget and relief from sanctions. It has asked for information from members on these issues. If you are not a member (you could always join) APIL may still welcome input…
PUTTING THE POWER TO AGREE TO EXTEND TIME IN THE COURT ORDER: A SHORT NOTE
The question of whether the parties can agree to extend time for compliance with a court order is an open one at the moment. See the discussion in the earlier posts on this issue. There was a short tweet earlier…
SURVIVING MITCHELL 5: CAN YOU EVEN AGREE EXTENSIONS OF TIME?
The earlier post on extensions of time gained a lot of attention and numerous issues were raised at twitter. This is such a fast moving area that a case, reported yesterday, deals with some of the issues raised. I wanted…
TWO NEW CASES WHERE RELIEF FROM SANCTIONS REFUSED: WEBB RESOLUTIONS AND LLOYD & SONS CONSIDERED IN DETAIL
There were two High Court cases on relief from sanctions considered today. Both were decisions of Mr Justice Turner Here we consider Webb Resolutions –v- E-Surv Limited [2014] EWHC 49 (QB)and M A Lloyd –v- PPC International Ltd [2014] EWHC…
TWO FURTHER DECISIONS REFUSING RELIEF FROM SANCTIONS: LINKS TO CASES
There are two further High Court decisions where relief from sanctions was refused. Webb Resolutions -v- E Surv [2014] EWHC 49 (QB) MA Lloyd & Sons -v- PPC International [2014] EWHC 41 (QB) These are links to the decisions. A full discussion…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 4: BE CAREFUL WHEN AGREEING VARIATIONS OF THE DIRECTIONS
One issue that has arisen consistently since the Mitchell decision in particular is whether the parties can agree to vary directions. The answer is far from simple. THE RULES The rules are always a good place to start. CPR 2.11…
HAVE YOU COMPLIED WITH AN ORDER FOR DISCLOSURE? THE APPROPRIATE TEST: AN OBJECT LESSON ON LITIGATION TACTICS IN A POST-MITCHELL WORLD
With relief from sanctions being notoriously hard to obtain the question of whether a party has complied with an order, particularly an unless order, is now of critical importance. In Dinsdale Moorland Services Ltd –v- Evans 2014] EWHC 2 (Ch)…
MITCHELL: LINKS TO USEFUL ARTICLES AND POSTS
THIS POST CONTAINS THE DECISIONS RELATING TO MITCHELL AND THE CASES THAT FOLLOWED IMMEDIATELY AFTERWARDS. LATER LINKS CAN BE FOUND AT DISCUSSIONS OF MITCHELL AT http://civillitigationbrief.wordpress.com/2013/11/27/mitchell-links-to-articles-and-posts/ WHAT IS ON THIS POST 1. Zenith Chambers. 2. Indi… Enjoying this post? Become a Civil…
MITCHELL CONSIDERED BY THE COURT OF APPEAL FOR A THIRD TIME: ANOTHER TWIST IN THE THEVARAJAH TALE
In the case heard today of Thevarajah –v- Riordan [2014] EWCA Civ 15the Court of Appeal reiterated the rigorous nature of the Mitchell test. Here we look at that decision in detail and the trenchant observations made by the Court….
APPLICATION FOR RELIEF FROM SANCTIONS REFUSED WHEN PARTY FAILED TO SERVE STATEMENT OF REASONS: FULL TRANSCRIPT AVAILABLE
There is a decision by Master Rowley in the case of Long -v- Value Properties Ltd 13/1/14 available on dropbox at https://www.dropbox.com/s/h8keoeme94gvrzp/Long%20v%20%20Value%20Properties%20%26%20Anor.pdf THE APPLICATION FOR RELIEF FROM SANCTIONS This was an application for relief from sanctions ar… Enjoying this post? Become…
MITCHELL AND INDEMNITY INSURERS: A WORRYING TIME
One obvious concern about the Mitchell fallout is the position of Indemnity insurers. This is reflected in a piece by Hill Dickinson. The observations need to be noted. HILL DICKINSON’S POST There is a succinct summary of the decisions in…
DO YOU NEED TO APPLY FOR RELIEF FROM SANCTIONS OR AN EXTENSION OF TIME? ANOTHER KEY ISSUE PRACTITIONERS SHOULD BE CERTAIN ABOUT
There was an interesting debate on twitter on Friday evening about whether Mitchell was being cited too widely. It was reported that, in some cases district judges had rejected the argument that when parties were applying for extension of time…
SECOND ACTION STRUCK OUT AS AN ABUSE OF PROCESS: REPORT OF FIRST INSTANCE DECISION
Searches for “abuse of process and section action” formed more than half of the search terms that brought people to this blog earlier in the week. It is clear that this is going to be a major subject of litigation…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES IF THE CLAIMANT HAS JUDGMENT OR THE DEFENCE HAS BEEN STRUCK OUT?
One important aspect of the new rules about relief from sanctions is that they apply to defendants as well. A defendant who is late in adducing evidence can be debarred from calling evidence as in the Durrant case. Here we…
MORE MITCHELL MAYHEM: USE OF SQUARE BRACKETS LEADS TO COSTS BUDGET BEING DISALLOWED
A report by Tom Gibson in PI Brief Update makes worrying reading. The headline reads ” Would a district judge strike out a costs budget because it contained the phrase “[Statement of truth]”, in square brackets, rather than the full…
CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POST
Links to posts and articles on all aspects of civil procedure. Linking does not indicate approval or agreement but that all discussion on these issues is useful. RECENT POSTS AND ARTICLES 23rd June 2019 Herbert Smith Freehills Litigation Notes…
ISSUING PROCEEDINGS A SECOND TIME: NOT AN ABUSE OF PROCESS: HALL –v- MINISTRY OF DEFENCE EXAMINED
Can a claimant issue again if an action is struck because of a failure to comply with the rules and? This is likely to become a question of considerable interest given the number of cases that are failing because of…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 3: IF YOU CANNOT COMPLY WITH A RULE OR PRACTICE DIRECTION THEN MAKE AN APPLICATION BEFORE IT IS BREACHED
The Mitchell case makes it clear that applications for relief from sanctions made after breach will be granted sparingly. Here we consider the merits of making an application in advance of the date of breach. WHAT THE COURT OF APPEAL…
RELIEF FROM SANCTIONS AND SERVING NOTICE OF FUNDING: A TALE OF TWO CASES
Results of relief from sanctions applications are now being reported regularly. Here we look at two apparently contrasting applications in relation to relief from sanctions and the failure to give notice of funding. Both cases were reported today; both are…
KARBHARI: THE MITCHELL CRITERIA AND THE LATE SERVICE OF WITNESS STATEMENTS
KARBHARI -v- AHMED http://www.bailii.org/ew/cases/EWHC/QB/2013/4042.html 2013] EWHC 4042 (QB) This was a High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary…
ANOTHER COURT OF APPEAL CASE ON RELIEF FROM SANCTIONS : DURRANT –V- CHIEF CONSTABLE OF AVON & SOMERSET CONSTABULARY
In the first relief from sanctions case to reach the Court of Appeal since Mitchell, the Court of Appeal reiterated the tough new approach which courts should taken when considering relief applications. The Claimant brought a claim against the Defendant…
SERVICE OF THE CLAIM FORM: MITCHELL: RELIEF FROM SANCTIONS AND A “GOOD” REASON: AND SO TO BED: A LOOK AT THE CASE LAW
In Mitchell the Court of Appeal stated that a court should normally consider relief from sanctions in a “non-trivial” case if there were good reasons and referred to the case law relating to extending time for service of the…
FULL COPY OF TRANSCRIPT OF ALDINGTON -v- ELS
I am grateful to Gordon Wignall of No 5 Chambers for sending me a copy of the full transcript of Aldington -v- ELS where a claimant was granted relief from sanctions. (The transcript is upside down – click rotate clockwise…
WEBINAR ON "SURVIVING MITCHELL":29th JANUARY 2014
I am broadcasting a Webinar for CLT on “Surviving Mitchell” on the 29th January 2014 at 13.00. The link for subscribing can be found at http://www.clt.co.uk/webinar.aspx?crseidcode=1695882 “This webinar which is presented by Gordon Exall, will explain exactly what went wrong for…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 2: ASSUME EVERY ORDER OF THE COURT IS A PEREMPTORY ORDER.
Some of the cases on sanctions reported this week have been highly disturbing; with cases being struck out on the morning of the trial because the bundles were not lodged three days earlier. As a result the only safe assumption…
POST MITCHELL MAYHEM 2: A CASE WHERE RELIEF FROM SANCTIONS WAS GRANTED
Litigation Futures carries a report of a High Court case where relief from sanctions was granted. The link is at http://www.litigationfutures.com/news/exclusive-high-court-grants-first-post-mitchell-relief-sanctions Details will be added to the Mitchell Case Watch later today…. Enjoying this post? Become a Civil Litigation Brief member…
SANCTIONS: CASE WATCH
This section looks at decisions in relation to relief from sanctions and the general principles of CPR 3.9. Often there are links to the decisions themselves, together with links to posts on this blog. CASES IN CHRONOLOGICAL ORDER May 2026…
SG DG PETROL: A (HIGH COURT) POST-MITCHELL DECISION ON RELIEF FROM SANCTIONS
There is a High Court decision on relief from sanctions at http://www.bailii.org/ew/cases/EWHC/Comm/2013/3920.html An application for relief from sanctions was dismissed. The judge went on to make general observations about how applications for relief from sanctions should be conducted. In SG DG Pet……
SURVIVING MITCHELL A PRACTITIONER’S GUIDE : 1 KNOW WHAT HAPPENED IN MITCHELL AND HOW IT COULD HAVE BEEN AVOIDED
The decision in Mitchell is already having a major impact on day to day litigation. This is the first of a series of posts which looks at the Mitchell decision and deals with the practical steps that practitioner’s must take…
THE AFTERMATH FROM MITCHELL: THIS IS GETTING REALLY, REALLY, SERIOUS
I have been in discussions today with one barrister who estimates that, in his own practice alone, he has already represented claimants where a total of £1 million pounds of damages have been lost as a result of a decision…
CAN MR MITCHELL STILL GET HIS COSTS? A PROFESSOR'S OPINION
The comments section is at the bottom right hand side of this blog and a comment from Professor Hibbert made earlier this week may have been missed by many. I set it out below. No doubt this will give rise to…
RELIEF FROM SANCTIONS: DECISION OF THE HIGH COURT: THE LETTER OF THE LAW
The case of Forstator -v- Python (Monty) Pictures Ltd [2013] EWHC 3759 is a case where the Court granted relief from sanctions. It was heard before the Mitchell decision but judgment was given afterwards. The judge did not hear submissions…
TIBBLES BITES AGAIN: THE PROBLEMS OF ATTEMPTING TO VARY A COURT ORDER
Hot on the heels of the previous post in relation to variation of court orders that a party dislikes comes another report highlighting the difficulties facing a party seeking to vary an order, Apex Global Management –v- Global Torch Ltd…
I NEVER LIKED THAT ORDER ANYWAY – CAN I SET IT ASIDE NOW? CONSIDERATION OF THE TIBBLES CRITERIA IN APPLICATIONS FOR RELIEF FROM SANCTIONS”.
In the Mitchell case the claimant made an attempt to challenge and set aside one of the orders made by the Master which had been breaches. The Court gave clear guidance as to the steps to be taken if a…
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