COST BITES 83: DEFENDANT SERVING BUDGET LATE SCRAPES HOME IN A “BORDERLINE” CASE
In K/S Mountain Invest v Ducat Maritime Ltd [2023] EWHC 939 (Comm) HHJ Keyser KC (sitting as a High Court Judge) granted the defendant relief from sanctions following the late filing of its costs budget. The defendant was, perhaps, fortunate….
AMENDMENT, COMPLIANCE WITH PEREMPTORY ORDERS AND THE DENTON CRITERIA: THERE IS NO HALFWAY HOUSE: COURT OF APPEAL DECISION
There are so many judgments dealing with the issue of late amendment that, as I have stated before, I often do not write about them – each being fact specific. However the Court of Appeal judgment in CNM Estates (Tolworth…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 25th APRIL 2023
This blog spends a lot of time looking at cases where things have gone wrong, for one reason and another. This webinar on the 25th April 2023 looks at the main problem areas in litigation and the practical steps that…
DEFENDANT GRANTED RELIEF FROM SANCTIONS WHEN WITNESS EVIDENCE SERVED ONE YEAR LATE: WIDER INTERESTS OF JUSTICE CONSIDERED
I am grateful to barrister Andrew McLaughlin for drawing my attention to the judgment of Mr Justice Freedman in Tiernan-Spratt & Anor v City Of Wolverhampton Council [2023] EWHC 811 (KB). It concerns a successful appeal. The judge at first…
THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY
It is quite possible that both parties in an action could be in default. One party could be granted relief from sanctions for that default and the other refused. This is precisely what happened in Shill Properties Ltd v Bunch…
UPDATED VERSION OF THE DENTON RESOURCE: “A BUMPER CROP OF PROCEDURAL ERRORS”
The Sanctions Case Watch section of this blog has, for many years, included a link to the Denton Resource. A new edition of the Resource was published on the 7th February 2023 and it can be found here. THE DENTON…
RELIEF FROM SANCTIONS REFUSED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: RECOURSE TO HUMAN RIGHTS ARGUMENTS WERE TO NO AVAIL
In Bank of Scotland Plc v Hoskins [2023] EWHC 306 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused an application for relief from sanctions following late service of witness evidence. The Defendant’s attempt to invoke Human Rights…
THE CLAIMANT HAD SIX WEEKS TO ISSUE AND SERVE THE CLAIM FORM AND WAS ONE DAY LATE: RELIEF FROM SANCTIONS REFUSED
In Halton Borough Council v Secretary of State for Levelling Up, Housing And Communities [2023] EWHC 293 (Admin) HHJ Stephen Davies (sitting as a High Court Judge) refused a claimant’s application for relief from sanctions. This was a case where…
COURT REFUSES CLAIMANT’S APPLICATION FOR RETROSPECTIVE EXTENSION OF TIME TO SERVE THE CLAIM FORM:CLAIMANT’S ARGUMENTS THAT CPR 3.9 APPLIED FAILED TO FLY
Regular readers may be concerned that we have got through to the second week of February of the year and we have not yet had a claims form case. (There are several in the pipeline.) I am grateful to barrister…
CLAIMANT’S APPLICATION FOR RELIEF FROM SANCTIONS REFUSED – IN CATEGORICAL TERMS
In 889 Trading Ltd v Clydesdale Bank Plc & Ors [2023] EWHC 215 (Ch) HHJ Hodge KC, sitting as a judge of the High Court, refused the claimant’s application for relief. That refusal was in very categorical terms. The claimant…
RESPONDENT SIX MONTHS LATE IN SERVING WITNESS STATEMENT: RELIEF FROM SANCTIONS GRANTED
In Davidson & Ors v Looney (Re Kieran Looney & Co Ltd) [2023] EWHC 197 (Ch) Deputy ICC Judge Kyriakides granted a respondent relief from sanctions when a witness statement was served six months late. THE CASE The applicant liquidators…
YOU SHOULD REALLY NOTICE WHEN YOU HAVE FAILED TO COMPLY WITH A COURT ORDER AND REQUIRE RELIEF FROM SANCTIONS: “THE COURT’S PATIENCE WAS BEING SORELY TESTED”
A short part of the judgment of Master Stevens in Bailey v Bijlani & Anor [2022] EWHC 2821 (KB) records the fact that the applicant defendant required relief from sanctions, but was not proposing to ask for it. “… I…
RELIEF FROM SANCTIONS REFUSED: TRIAL BUNDLES, LATE WITNESS STATEMENTS AND LATE DISCLOSURE: CASES NEED TO BE PREPARED PROPERLY
I am grateful to my colleague Eleanor Temple for sending me a copy of the decision of HHJ-Davis-White KC in the case of Ball -v- Ball (11th October 2022), a copy of the judgment is available here Ball v Ball…
UNSUCCESSFUL APPEAL: DEFENDANT REFUSED RELIEF FROM SANCTIONS
Appealing a decision concerning relief from sanctions is always an uphill struggle. This can be seen in the judgment of Mr Justice Zacaroli in Smith v Lloyd [2022] EWHC 2414 (Ch). This was an unsuccessful appeal against a decision to…
RELIEF FROM SANCTIONS APPLICATIONS: RE-VISITING THE BASICS: 10 POINTS TO IMPROVE THE ODDS:
It is now just over 8 years since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. This is a good time to re-visit the advice given shortly after the case as to increasing…
WHAT A DIFFERENCE A DAY MAKES: RELIEF FROM SANCTIONS REFUSED WHEN PARTICULARS OF CLAIM WERE SERVED ONE DAY LATE
There were complicated factors involved in the judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch), however the action failed because the claimant was one day late in serving…
A DEFENDANT WHO DOES NOT ATTEND TRIAL CANNOT SIMPLY TURN THE CLOCK BACK: COURT OF APPEAL REFUSES APPLICATION UNDER CPR 39.3
In Mabrouk v Murray [2022] EWCA Civ 960 the Court of Appeal refused the defendant’s application for permission to appeal in a case where the defendant failed to attend the trial. The Court of Appeal dismissed the application under CPR…
THE AUTOMATIC STAY AND RELIEF FROM SANCTIONS: AN ISSUE “DESTINED TO LIVE OUT ITS LITIGATION LIFE IN A LIMBO OF OBITER OBSERVATIONS”
The judgment of Mr Justice Foxton in Bank of America Europe DAC v CITTA Metropolitana Di Milano [2022] EWHC 1544 (Comm) serves of a salutary reminder (to some) of the existence of the automatic stay in civil proceedings. A claimant…
DEFENDANTS DEBARRED FROM DEFENDING A CLAIM CANNOT PARTICIPATE IN THE TRIAL: “DEBARRING ORDERS SHOULD MEAN WHAT THEY SAY”
In Financial Conduct Authority v London Property Investments & Ors [2022] EWHC 1041 (Ch) Mr Justice Trower considered whether a defendant, debarred from participating in proceedings, could play any part in the trial of those proceedings. It also highlights…
COURT REFUSES RELIEF FROM SANCTIONS WHEN PARTICULARS OF CLAIM ARE SERVED OUT OF TIME: THE DANGERS OF LIVING IN THE “TWILIGHT ZONE” (AND OF LEAVING SERVICE UNTIL THE LAST MINUTE)
In Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) Deputy Master Marsh refused the claimants’ application for relief from sanctions in a case where the Particulars of Claim were served one day late. It…
DEFENDANTS WERE TOO LATE TO ACCEPT A PART 36 OFFER: THEIR APPLICATIONS FOR RELIEF FROM SANCTIONS ALSO DENIED
In Wirex Ltd v Cryptocarbon Global Ltd & Ors [2022] EWHC 1161 (IPEC) HHJ Hacon determined some interesting issues in relation to attempts to accept Part 36 offers late and relief from sanctions. THE CASE The claimants had obtained a…
“THE LADD -V- MARSHALL CRITERIA ARE CUMULATIVE”: RELIEF FROM SANCTIONS GRANTED BUT APPLICATION TO ADDUCE NEW EVIDENCE REFUSED: APPEAL ON JUDGE’S FINDINGS OF FACT FAILED
In Premier Experts London Ltd -v- Rajwani [2022] EWHC 1188 (QB) Sir Andrew Nicol refused the defendant’s application for permission to appeal. Relief was granted when new evidence was served late, however that evidence failed to satisfy the Ladd -v-…
PAYING PARTY REFUSED PERMISSION TO RELY ON LATE POINTS OF DISPUTE IN ASSESSMENT: DECISION UPHELD ON APPEAL
In Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) Mrs Justice Foster refused the defendant’s appeal in a case where a very late addition to the points of dispute had been refused by Master Campbell. The issues that…
DENTON PRINCIPLES DO NOT APPLY TO AN APPLICATION TO SET ASIDE A DEFAULT JUDGMENT: NO UNIVERSAL JUDICIAL VIEW HERE
There is a brief report on Lawtel of the case of C-v- D [2022] WLUK 99 where Dexter Dias QC, sitting as a Deputy High Court judge, did not agree with the proposition that Denton principles applied to an application…
COURT REFUSED TO SET ASIDE A DEFAULT JUDGMENT ON COSTS: DENTON PRINCIPLES ARE VERY MUCH INVOLVED IN SUCH AN APPLICATION
In Ince Gordon Dadds LLP v Mellitah Oil & Gas BV [2022] EWHC 997 (Ch) Mr Hugh Sims QC, sitting as a Deputy High Court Judge, refused the defendant’s application to set aside a default judgment obtained for solicitor’s costs. …
RELIEF FROM SANCTIONS: NOT ALL BAD REASONS FOR DEFAULT ARE EQUALLY BAD: A PARTY CANNOT ASSERT PREJUDICE BY BEING SILENT
In EXN v East Lancashire Hospitals NHS Trust & Anor [2022] EWHC 872 (QB) Mr Justice Turner allowed an appeal where a District Judge had refused to grant relief from sanctions. The judgment is particularly interesting in that it notes…
COURT OF APPEAL UPHOLDS RELIEF FROM SANCTIONS GRANTED WHEN A PARTY HAD NOT MADE A FORMAL APPLICATION
In Park v Hadi & Anor [2022] EWCA Civ 581 the Court of Appeal upheld a decision granting a claimant relief from sanctions. The initial application had been made informally, during the course of an application, the defendant’s appeal against…
RELIEF FROM SANCTIONS REQUIRED WHEN A PARTY SERVES A WITNESS SUMMARY AND NOT A WITNESS STATEMENT: SOME WITNESSES ALLOWED, OTHERS WERE NOT
The judgment of Mrs Justice Steyn in Vardy -v- News Group Newspapers Ltd [2022] EWHC 946 (QB) serves as a reminder that a party cannot simply serve witness summaries in place of witness statements. The judge granted relief from sanctions…
EXCESSIVE COSTS INCURRED IN ARGUING ABOUT COSTS: A PARTY OBTAINING RELIEF FROM SANCTIONS WAS CORRECTLY ORDERED TO PAY THE COSTS OF THE APPLICATION: “RULES EXIST FOR A REASON”
In Swivel UK Ltd v Tecnolumen GmbH & Anor [2022] EWHC 825 (Ch) Mr Justice Marcus Smith upheld the decision of a Master that a party that had obtained relief from sanctions should pay the costs of the application. It…
APPLICATION FOR RELIEF FROM SANCTIONS REFUSED IN GROUP LITIGATION ORDER
In Baker & Ors v Volkswagen Aktiengesellschaft & Ors (VW NOx Emissions Group Litigation) [2022] EWHC 810 (QB) Senior Master Fontaine refused the applicants’ application for relief from sanctions in relation to their inclusion in a register for a Group…
CLAIMANT’S APPLICATION FOR AN EXTENSION OF TIME TO SERVE PARTICULAR OF CLAIM REFUSED: A CASE THAT WAS IN THE “LAST CHANCE SALOON” FOR FAR TOO LONG
In CDE v Buckinghamshire County Council [2022] EWHC 738 (QB) Master Thornett rejected a claimant’s application for an extension of time for service of the particulars of claim. The action had a long history with a pattern of delay on…
COURT OF APPEAL UPHOLDS AN ORDER THAT NO COSTS BE ORDERED ON AN APPEAL
In South Lodge Flats Limited v Malik [2022] EWCA Civ 411 the Court of Appeal upheld a decision that no order for costs be made on an appeal. The defendants had succeeded in the appeal but required the indulgence of…
RESERVED JUDGMENTS: IF YOU DON’T APPLY FOR THE COSTS IN TIME THEN YOU DON’T GET THEM: HIGH COURT DECISION
In Preston v Beaumont [2022] EWHC 440 (Ch) Richard Farnhill, sitting as a Deputy Judge of the Chancery Division, found that a successful respondent to an appeal could not recover costs. There had been a failure to comply with the…
NEW UPDATE TO REVIEW OF DENTON CASES: 1st MARCH 2022
Dr Rachel Segal of St John’s Chambers periodically updates a guide to cases relating to Denton and relief from sanctions. The latest edition was published on 1st March 2022 and is available here. There are around 50 new cases…
COURT OF APPEAL REFUSES RELIEF FROM SANCTIONS: “LIBERTY TO APPLY” DOES NOT GIVE A GENERAL RIGHT OF REVIEW
In Helios Oryx Ltd v Trustco Group Holdings Ltd [2022] EWCA Civ 236 the Court of Appeal dismissed an appellant’s application for relief from sanctions where there had been a failure to comply with a peremptory order given as a…
WHEN THE COURT LOOKS AT THE MERITS OF THE CASE IN A RELIEF FROM SANCTIONS APPLICATION: A RARE,BUT IMPORTANT, DEVELOPMENT
In Rapid Displays Inc & Anor v Ahkye & Anor [2022] EWHC 274 (Comm) HHJ Pearce (sitting as a judge of the High Court) refused the defendants’ application for relief from sanctions. That application was heard alongside the claimant’s application…
SEEKING TO ADDUCE NEW EVIDENCE AFTER THE TRIAL HAS ENDED: DENTON PRINCIPLES APPLY, A FORMAL APPLICATION IS REQUIRED: OVERIDING OBJECTIVE LEADS TO REFUSAL
In JD Group Ltd, Re [2022] EWHC 202 (Ch) Deputy Insolvency and Companies Court Judge Agnello QC refused an application to adduce new evidence after a trial had ended, and judgment was pending. A formal application was required, Denton principles…
JUDGE GRANTS DEFENDANT RELIEF FROM SANCTIONS IN RELATION TO LATE FILING OF THE ACKNOWLEDGMENT OF SERVICE
In Cambpell v Chief Land Registrar [2022] EWHC 200 (Ch) HHJ Hodge (sitting as a judge of the High Court) granted the defendant relief from sanctions following its failure to acknowledge service in time. “it would be unjust if two…
THE GOOD LAW PROJECT JUDGMENT TODAY – TWO PROCEDURAL ISSUES: RELIEF FROM SANCTIONS & THE COURT’S APPROACH TO UNCHALLENGED WITNESS EVIDENCE
The Court of Appeal judgment today in The Good Law Project, R (On the Application Of) v Minister for the Cabinet Office [2022] EWCA Civ will, no doubt, be subject to much legal, and political, scrutiny. Here I want to…
JUDGES REFUSES TO GRANT RELIEF FROM SANCTIONS FOR DEFENDANTS WHO HAD “BURIED THEIR HEADS IN THE SAND”
In Vitrition UK Ltd v Caine & Ors [2022] EWHC 51 (Comm) HHJ Davis-White QC, sitting as a judge of the High Court, refused the defendants application for relief from sanctions following their failure to comply with an unless order…
AVOIDING PROCEDURAL PITFALLS IN PERSONAL INJURY LITIGATION: WEBINAR 20th JANUARY 2022
There are a number of cases reported today in relation to service of the claim form and relief from sanctions. This may be an appropriate time to remind people of the webinar on the 20th January 2020 “Avoiding Procedural Pitfalls…
RELIEF FROM SANCTIONS APPLICATIONS: 10 MATTERS THAT WILL INCREASE THE PROSPECTS OF SUCCESS
Here I want to look at some practical matters which can help a party seeking relief from sanctions. This is guidance on the most prudent steps to take but it should be made clear that there are no easy options….
RELIEF FROM SANCTIONS: LATE SERVICE OF ACKNOWLEDGMENT OF SERVICE: NOT A “SUBSTANTIAL, SERIOUS OR SIGNIFICANT” FAILURE
In Aelf MSN 242, LLC v De Surinaamse Luchtvaart Maatschappij NV DBA Surinam Airways [2021] EWHC 3482 (Comm) Peter MacDonald Eggers QC (sitting as a Deputy High Court Judge) granted a defendant relief from sanctions in relation to late (and…
“A SOLICITOR, NO MATTER HOW EXPERIENCED OR INEXPERIENCED, MUST BE TAKEN TO KNOW THE CIVIL PROCEDURE RULES”
That quotation, taken from the judgment of HHJ Bird in Holterman v Electrium (2020) EWHC 3915 ( TCC) was chosen by Professor Dominic Regan as his “thought of the year” in a recent tweet. Since there are 3208 pages in…
COURT REFUSES CLAIMANT’S APPLICATION TO AMEND ITS OWN APPLICATION: THE DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION
There are few judgments in relation to the amendment of applications. This issue was considered by Deputy Master Francis in Cavadore Ltd & Anor v Jawa & Anor [2021] EWHC 3382 (Ch). The claimant’s application to amend its application was…
CLAIMANT’S APPLICATION FOR RELIEF FROM SANCTIONS REFUSED: A PARTY MORE INTERESTED IN APPEALING A COURT ORDER THAN COMPLYING WITH ITS TERMS…
In Day v Womble Bond Dickinson (UK) LLP [2021] EWHC 3236 (QB) Deputy Master Toogood refused a claimant’s application for relief from sanctions when there had been a four month delay in applying for permission to amend the Particulars of…
DEFENDANT GRANTED AN EXTENSION OF TIME WHEN IT WAS FIVE YEARS LATE: DENTON PRINCIPLES APPLIED
Until yesterday I do not recall seeing many cases where a defendant required an extension of time in order to make an application under CPR Part 11. However, like London buses, they seem to travel in pairs. In Apollo Ventures…
SERVICE OF THE CLAIM FORM: WHEN THE DEFENDANT NEEDS AN EXTENSION OF TIME TO TAKE POINTS AS TO SERVICE: PROBLEMS BORN IN THE US OF A.
In Joe Macari Servicing Ltd v Chequered Flag International Inc [2021] EWHC 3175 (QB) Master Dagnall considered a case where the defendant required an extension of time in order to take points in relation to service of proceedings. The Master…
TO HELP YOU OVER A WINTER, A SERIES OF WEBINARS ON APPLICATIONS, LIABILITY, INSOLVENCY, PLEADINGS AND AVOIDING PROBLEMS IN LITIGATION
I am presenting a series of webinars on several aspects of litigation over December, January and February. All are one hour long. General details can be found here. The links to specific webinars can be found below. APPLICATIONS AND…
IF YOU ARE APPLYING FOR RELIEF FROM SANCTIONS “OWN YOUR MISTAKES”: YOU HAVE TO SERVE THE PARTICULARS OF CLAIM WITHIN FOUR MONTHS: CLAIMANT IN ERROR, BUT RELIEF FROM SANCTIONS GRANTED
The judgment in Holterman v Electrium Sales Ltd & Anor [2020] EWHC 3915 (TCC) shows a “classic” error in relation to service of proceedings. The claimant served the claim form at the end of the relevant period, and the particulars…
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