THE COURT WILL NOT READILY IMPLY SANCTIONS INTO ORDERS THAT DO NOT EXPRESSLY CONTAIN SANCTIONS: AN EARLY CHRISTMAS PRESENT FOR LITIGATORS
In Djurberg v London Borough of Richmond & Ors [2019] EWHC 3342 (Ch) Chief Master Marsh held that a party did not require relief from sanctions when it failed to comply with a court order that did not impose a…
RELIEF FROM SANCTIONS REFUSED WHEN DEFENDANT FILES AN INADEQUATE PLEADING
The Denton principles were considered in an unusual context by Mr Justice Julian Knowles in Oliver v Shaikh [2019] EWHC 3389 (QB). THE CASE The claimant is a Circuit Judge. He brought an action for harassment against the defendant….
HIGH COURT ALLOWS RELIEF FROM SANCTIONS APPEAL FAILING A FAILURE TO PAY THE TRIAL FEE ON TIME
In Badejo v Cranston [2019] EWHC 3343 (Ch) Mr Justice Fancourt overturned the decision of a Circuit Judge and granted relief from sanctions to a claimant who had failed to pay the trial fee in time. One issue related to…
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (3): SANCTIONS AND RELIEF FROM SANCTIONS (OR NOT…)
Another certainty about writing about civil procedure is that every year will bring a batch of applications relating to sanctions and relief from sanctions. This year has been no different. We start off (from the end of last year) with…
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (2): SERVICE OF THE CLAIM FORM (AND ALLIED ISSUES)
The one “certainty” about writing about civil procedure is that every year there will be a few (often more than few)cases about service of the claim form. This is always a fruitful source of difficulty for claimants. The causes of…
SERVICE OF THE PARTICULARS OF CLAIM AND THE “TRAP FOR THE UNWARY CLAIMANT”: THE TRAP OPERATED AND RELIEF FROM SANCTIONS NOT GRANTED
The judgment of Chief Master Marsh today in Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) is a prime example of difficulties being caused because of a mistake in relation to the rules relating to service. It…
ANONYMOUS LITIGANT REFUSED RELIEF FROM SANCTIONS: “ALL THE CIRCUMSTANCES OF THE CASE MILITATE AGAINST GRANTING THE CLAIMANT RELIEF”
In ABC v Google LLC [2019] EWHC 3020 (QB) Mr Justice Pushpinder Saini refused an (anonymous) claimants application for relief from sanctions. The case has some unusual features, however it does highlight the point that a relief from sanctions application…
RELIEF FROM SANCTIONS: CANDOUR FROM THE APPLICANT AND NO EVIDENCE FROM THE DEFENDANT TO PROVE PREJUDICE
There is a report of a case where relief from sanctions was granted in Anglia Autoflow North America LLC and Another v Anglia Autoflow Ltd [2019] Costs LR 155. One thing that marks this case is the total candour from the…
APPLICATION FOR RELIEF FROM SANCTIONS: THE IMPORTANCE OF PROMPT APPLICATIONS
In Pepe’s Piri Piri Ltd & Anor v Muhammad Ali Junaid Food Trends Ltd (Now Dissolved) & Ors[2019] EWHC 2769 (QB) Matthew Gullick (sitting as a High Court judge) granted the claimants relief from sanctions in relation to late service…
STAYING SANE AS A LITIGATOR 5: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…
No matter how hard you try, on occasions, things will go wrong in litigation. Do you have a plan? Here we examine the need to have a plan to cover default and other issues in litigation. We then look in…
WITNESS SUMMARIES, WITNESS SUMMONSES AND RELIEF FROM SANCTIONS: ALL IN ONE CASE…
In Morley (t/a Morley Estates) v The Royal Bank of Scotland Plc [2019] EWHC 2865 (Ch) Mr Justice Kerr granted the claimant’s application to rely on witness summaries and refused the defendant’s application to set aside witness summonses. The judge…
PROSPECTIVE APPLICATIONS FOR EXTENSIONS OF TIME (CONSTITUTIONAL LAWYERS DO NOT GET EXCITED)
Today seems a good day to consider prospective applications for extensions of time. These are going to figure in every litigators career at some point. A knowledge of the relevant law is essential. A prospective application of time is dealt…
STAYING SANE AS A LITIGATOR 4: : A HALLOWEEN SPECIAL: KNOWING THE EVERYONE HAS LITIGATION NIGHTMARES
Litigation gives rise to its own pressures. Every litigator with any degree of experience will have horror stories. I thought it worthwhile repeating the advice given by the lawyers of Twitter for Halloween a few years back. You will see…
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
REFUSAL TO GRANT RELIEF FROM SANCTIONS OVERTURNED ON APPEAL: “THE SANCTION WAS WHOLLY DISPROPORTIONATE AND IT WAS WRONG NOT TO GRANT RELIEF”
In Michael v Lillitos [2019] EWHC 2716 (QB) Mrs Justice Steyn overturned a decision refusing relief from sanctions. The Appellant had made payments by cheque rather than by bank transfer. It is also an important example of the pitfalls caused…
DENTON APPLIED TO OUT OF TIME APPLICATION IN COMMITTAL PROCEEDINGS: THE APPLICANT STAYS IN JAIL
In Lakatamia v SU [2019] EWCA Civ 1626 the Court of Appeal refused an application for permission to appeal out of time in a case where the applicant had been committed to prison for contempt. “Hysaj establishes that the…
DEFENDANTS – WAKE UP, SERIOUSLY: A “VERY RELAXED” ATTITUDE TO THE RULES WILL COST YOUR CLIENTS DEAR: APPLICATION FOR EXTENSION OF TIME TO FILE A DEFENCE REFUSED: REFUSAL CONFIRMED ON APPEAL
In Joan Angela Kember v (As Personal Representative of the Estate of Leonard John Kember, Deceased And On Her Own Behalf And On Behalf of His Dependants) [2019] EWHC 2297 (QB) Mrs Justice Lambert upheld a refusal to grant a…
WITNESS STATEMENTS: THE DANGERS OF INADVERTENTLY MISLEADING THE COURT: CHECK BEFORE YOU ASSERT (ALSO A MESSAGE HERE FOR EXPERTS)
The judgment of Master Clark in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) contains a number of important lessons : (i) for anyone preparing a witness statement to be careful not to inadvertently mislead the court; (ii) for experts – on…
SETTING ASIDE JUDGMENT IN DEFAULT: DEFENDANT’S SOLICITOR FAILED TO NOTICE THAT PARTICULARS OF CLAIM HAD BEEN SERVED WITH THE CLAIM FORM
The judgment of HH Judge Hodge QC (sitting as a HIgh Court Judge) in Praetura Asset Finance Ltd v Hood [2019] EWHC 2231 (Comm) shows how important it is to check what has been served. The one, overwhelming, lesson for…
BOTH SIDES LATE WITH WITNESS EVIDENCE: BOTH SIDES REFUSED RELIEF FROM SANCTIONS: DEUCE IN A JUICE CASE
There are many interesting aspects of the judgment in Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret VE Sanati A.S (Goknur) v Organic Village Ltd [2019] EWHC 2201 (QB), not least that both sides were in default in relation to…
WHAT IS THE APPROPRIATE TEST IF SOMEONE APPLIES IN ADVANCE TO EXTEND TIME TO COMPLY WITH A PEREMPTORY ORDER? HIGH COURT DECISION
In Everwarm Ltd v BN Rendering Ltd [2019] EWHC 2078 (TCC) Mr Alexander Nissen QC (sitting as a Deputy High Court Judge) considered the appropriate test to be applied when the court made a peremptory order and an application was…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of…
APPLICATION FOR EXTENSION OF TIME FOR DETAILED ASSESSMENT PROCEEDINGS REFUSED:
There are many lessons that litigation lawyers can learn from the judgment of Master Leonard in Rattan v Carter-Ruck Solicitors [2019] EWHC B9 (Costs). It is a case where a client agreed to a settlement and then, essentially, sought to…
COURT ENTERS JUDGMENT IN DEFAULT OF DEFENCE – SIDESTEPPING THE LATE ACKNOWLEDGEMENT OF SERVICE ARGUMENT: DENTON PRINCIPLES APPLIES
In Hanson & Ors v Carlino & Anor [2019] EWHC 1940 (Ch) Mrs Justice Falk neatly sidestepped the vexed question of when a claimant can enter judgment in default of acknowledgement of service by entering judgment in default of defence. …
CAN YOU ENTER JUDGMENT IN DEFAULT WHEN THE DEFENCE IS SERVED LATE? HIGH COURT DECISION THAT SAYS NOT
In Clements Smith v Berrymans Lace Mawer Service Co. & Anor [2019] EWHC 1904 (QB) Master McCloud considered the issue of whether a judgment entered after a defence had been filed late was a regular judgment. Permission was given to…
CIVIL PROCEDURE BACK TO BASICS 55: THE 70 KEY POINTS OF THE DENTON JUDGMENT
The judgment in Denton -v- White [2014] EWCA Civ 906 was given five years ago. It is a case that is still cited daily in the courts. It can be misunderstood or misquoted. Here are the 70 key points of this…
ROBUST DECISION TO STRIKE OUT PERSONAL INJURY CLAIM FOR NON-COMPLIANCE WITH RULES IS UPHELD ON APPEAL: BANDWAGONS & CRASH HELMETS IN BRADFORD COUNTY COURT
I am grateful to barrister Toby Coupe for sending me a copy of the decision of HHJ Gosnell in Aslam -v- The Secretary of State for Justice (17/05/2019), a copy of which is available here. Aslam v Secretary of…
CASE NOT STRUCK OUT AFTER A FOUR YEAR DELAY: ALTERNATIVE “SANCTION” ORDERED INSTEAD
In Alba Exotic Fruit SH PK v MSC Mediterranean Shipping Company S.A. [2019] EWHC 1779 (Comm) HHJ Rawlings considered the appropriate sanction where there had been a four year delay by the claimant in pursuing an action. This case is…
A SECOND – IDENTICAL – APPLICATION WAS AN ABUSE OF PROCESS AND DISMISSED ON THAT GROUND ALONE
In Lambert v Forest of Dean District Council & Ors [2019] EWHC 1763 (Ch) ICC Judge Mullen rejected an application on the grounds that it was an abuse of process. An identical application had been made earlier and struck out…
CIVIL PROCEDURE BACK TO BASICS 53A: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES: ALI -v-CHANNEL 5
Shortly after I completed the post on Part 36 offers after the costs budget has been confined to court fees Professor Dominic Regan reminded me that there is another example in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC…
WHY DEFENDANTS HAVE TO KNOW THE RULES ABOUT SERVICE AND JURISDICTION AND ACT PROMPTLY: YOU’LL FIND YOURSELVES MAKING AN APPLICATION FOR RELIEF FROM SANCTIONS
The judgment today in Babcock Marine (Clyde) Ltd v HS Barrier Coatings Ltd [2019] EWHC 1659 (TCC) highlights the need for defendants to be prompt if they are making an application in relation to service or jurisdiction. CPR 11 gives…
A PARTY CAN’T DUMP DOCUMENTS ON THEIR OPPONENT THE NIGHT BEFORE A HEARING: JUDGE REFUSES PERMISSION TO RELY ON EVIDENCE SERVED VERY LATE
In Willow Corp S.À.R.L. v MTD Contractors Ltd [2019] EWHC 1591 (TCC) Mr Justice Pepperall refused to allow a party to rely on documents served very late in an application for summary judgment. The late “dumping” of documents, the evening…
MAKING APPLICATIONS IN ADVANCE OF A BREACH: WHY A STITCH IN TIME OFTEN, BUT NOT INVARIABLY, SAVES AN APPLICANT
The post earlier today about the decision in Bedzhamov & Ors Re Vneshprombank LLC [2019] EWHC 1430 (Ch) was an example of the court refusing an application for an extension of time made in advance of the date of breach. The…
FOOTBALL CLUB’S APPLICATION DOES NOT GET EXTRA TIME: APPLICATION FOR RELIEF FROM SANCTIONS IN ORDER TO DISPUTE AUTHENTICITY OF DOCUMENTS IS REFUSED
In UTB LLC v Sheffield United Ltd [2019] EWHC 1377 (Ch) Mr Justice Fancourt refused Sheffield United’s application for relief from sanctions so as to allow it to dispute the authenticity of documents during the course of a trial. “A…
ANOTHER TRIAL BUNDLE CASE: ACTION STRUCK OUT FOR FAILURE TO PREPARE TRIAL BUNDLE: APPEAL AGAINST STRIKING OUT DISMISSED
In Al-Balhaa v Raphael & Ors [2019] EWHC 1323 (QB) Mr Justice Nicol upheld a finding that the action was struck out because of the claimant’s failure to prepare a trial bundle and relief from sanctions should not be granted. …
TRYING TO SERVE A SUPPLEMENTAL EXPERT’S REPORT: WHEN DO THE DENTON PRINCIPLES APPLY?
In Global Horizons Corporation -v- Gray [2019] EWHC 1132 (Ch) Mr Justice Arnold considered the question of when the Denton principles apply to service of a “supplementary” medical report. “… the question of whether an application for permission to…
CIVIL PROCEDURE BACK TO BASICS 42: WHY A DAY EARLY IS SO VERY DIFFERENT TO A DAY LATE: THE ROBERT CRITERIA
There is a world of different between a prospective and retrospective application to extend time, or comply with an order. Every litigator has to know about Robert -v- Momentum Services [2003] EWCA Civ 229. An application made in advance means that the…
WITNESS STATEMENTS WHEN THE WITNESS CANNOT READ ENGLISH: NOT GROUNDS FOR STRIKING OUT, RELIEF FROM SANCTIONS MAY NOT BE REQUIRED
In Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce (sitting as a High Court Judge) considered the issues that arose when a point arose at the beginning of a trial in relation to signature…
RELIEF FROM SANCTIONS GRANTED WHERE MONEY PAID 17 HOURS LATE:”A SENSE OF PERSPECTIVE IS NECESSARY”
In Khandanpour v Chambers [2019] EWCA Civ 570 the Court of Appeal allowed an appeal in relation to a refusal to give relief from sanctions. A delay in payment of 17 hours of part of the moneys ordered by the…
SERVICE, THE CLAIM FORM AND DENTON: THE COURT WOULD NOT TAKE THE HUMP WHEN DOCUMENTS WERE NOT SERVED: NEITHER SERIOUS OR SIGNIFICANT
In Ablynx NV & Anor v Vhsquared Ltd & Ors [2019] EWHC 792 (Pat) HHJ Hacon brushed aside the defendant’s objections in relation to service of the claim form. THE CASE The action was in relation to patents from an…
APPLICATION FOR RELIEF REFUSED AFTER LATE SERVICE OF WITNESS STATEMENTS
In SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) Charles Bourne QC, sitting as a High Court Judge, refused the claimant’s application to rely on witness statements…
RELIEF FROM SANCTIONS, LATE SERVICE OF NOTICE TO APPEAL AND THE LITIGANT IN PERSON
In London Borough of Hamlets v Al Ahmed [2019] EWHC 749 (QB) Mr Justice Dove set aside an order granting an appellant an extension of time for appealing. The fact that the appellant was a litigant in person was not a…
DENTON CONSIDERED: EXTENSION ALLOWED WHEN NOTICE HAD GONE INTO SOLICITOR’S SPAM FOLDER
In Adetoye v The Solicitors Regulation Authority [2019] EWHC 707 (Admin) Mr Justice Mostyn allowed an appellant an extension of time when a notice of appeal was served late. The delay was because the appellant had not noticed the order appealed…
“THE DEFENDANTS DID NOT TAKE THE DIRECTIONS SERIOUSLY ENOUGH”: ANOTHER RELIEF FROM SANCTIONS CASE
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 1) [2019] EWHC 341 (QB) Mr Justice Warby granted the defendant relief from sanctions. However the observations made in relation to the conduct of litigation are…
“OUTSIDE THE REALMS OF FICTION”, NOT NECESSARILY A PRUDENT WAY TO CONDUCT LITIGATION: WITNESS STATEMENTS, WITNESS SUMMARIES AND RELIEF FROM SANCTIONS:
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2) [2019] EWHC 346 (QB) Mr Justice Warby granted limited relief from sanctions to a litigant in person who had served “witness summaries” rather than witness…
DEFAULT JUDGMENT SET ASIDE, RELIEF FROM SANCTIONS GRANTED: ACTION THEN STRUCK OUT: REMEMBERING THE BASIC OBLIGATION TO FILE A DEFENCE – ON TIME
In Workman v Deansgate 123 LLP [2019] EWHC 360 (QB) Mr Justice William Davis allowed an application to set aside a default judgment and relief from sanctions. The most surprising procedural aspect of this case is the defendant’s failure to file…
IF YOU ARE AT TRIAL AND HAVEN’T PAID THE TRIAL FEE: STRIKE OUT IS AUTOMATIC: A FORMAL APPLICATION FOR RELIEF FROM SANCTIONS NEEDS TO BE MADE
In Hyslop -v- 38/41 CHG Residents Company Limited [2018] EWHC 3893 (QB) Mr Justice Freedman considered a case in which the fact that a claimant had not paid the trial fee only came to light at the trial itself. …
DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE
In Consult II SRO & Ors v Shire Warwick Lewis Capital Ltd & Ors [2019] EWHC 286 (Comm) Andrew Henshaw QC (sitting as a High Court Judge) refused the defendants’ application for relief from sanctions. The lack of a candid explanation…
“IF EVER THERE WERE A CASE IN WHICH THE COURT SHOULD REFUSE TO EXERCISE ITS DISCRETION IN FAVOUR OF GIVING THE CLAIMANTS ANY FURTHER INDULGENCE, THIS IS IT”
The judgment in Jetly & Anor v The Secretary of State for the Home Department [2019] EWHC 204 (Admin) sets out a series of surprising events. Mrs Justice Andrews came down very firmly against granting relief from sanctions. Many of the…
CIVIL PROCEDURE BACK TO BASICS 30: THE ADVANTAGES OF APPLYING FOR AN EXTENSION BEFORE THE DATE OF BREACH: THE CASE KEEPS MOMENTUM
In Robert –v- Momentum Services Limited [2003] EWCA Civ 299 the Court of Appeal held that where an application for an extension of time is made before the expiry of the stipulated period this was not a case as one of relief from sanctions. The…
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