101st CPR UPDATE: WELCOME TO THE VIDEO LINK WORLD
The 101st update to the Civil Procedure Rules apply from 8th and 30th November 2018. The main development is a procedure whereby applications to set aside default judgment may be heard by video link. SETTING ASIDE DEFAULT JUDGMENTS: HEARD BY…
AN APPLICATION TO SET ASIDE A WITHOUT NOTICE ORDER IS NOT SUBJECT TO “TIBBLES” CRITERIA: SOMETIMES DENTON DOES NOT APPLY – OR SHOULD NOT BE APPLIED
There is a short passage in the judgment of Mr Justice Pepperall in Berhad v Frazer-Nash Research Ltd & Anor [2018] EWHC 2970 (QB) in relation to late service of evidence before an interlocutory hearing. The judge held that the Denton…
A HARSH REMINDER: IF YOU DON’T TURN UP FOR TRIAL THEN THE TEST FOR SETTING JUDGMENT ASIDE IS VERY TOUGH: BE PROMPT, BE VERY PROMPT
In Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch) Mr Justice Henry Carr refused to set aside a judgment obtained after the defendant failed to attend trial. There was a major mistake on the part of the court, however the…
SERVICE OF THE CLAIM FORM: DEFENDANT’S LAST KNOWN ADDRESS: CLAIMANT’S “REASON TO BELIEVE”: A FEW POINTS TO WATCH
In Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) considered the issue of whether a claimant had “reason to believe” that a defendant did not live at the address…
SETTING JUDGMENT ASIDE: LIMITATION, SECTION 33 AND DENTON: CARDS ON THE TABLE PLEASE – THIS IS THE CPR
In TPE v Franks [2018] EWHC 1765 (QB) Mr Justice Julian Knowles set aside a default judgment. The case contains some important observations as to how the courts should consider an application to set aside a default judgment – considering…
WHEN THE OTHER SIDE’S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS: THE DILEMMA OF THE PARALEGAL “WHISTLE BLOWER”
Several people have pointed out the judgment in Bruzas v Saxton [2018] EWHC 1619 (Fam) to me. This is a case that could have profound effects for the profession and the principles of legal professional privilege. This is the preliminary…
APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE
A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique. This was emphasised in the judgment of Miss Penelpe Reed QC in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018]…
SETTING ASIDE A DEFAULT JUDGMENT IN RELATION TO SOLICITORS’ COSTS: INTEREST SET ASIDE, PRINCIPAL SUM REMAINS A DEBT
In RS v LS & LMP [2018] EWHC 449 (Fam) Mrs Justice Roberts considered an application to set aside a default judgment obtained in relation to a solicitor’s costs. There are issues in relation to a failure to serve the response…
JUDGE WAS WRONG NOT TO GRANT ADJOURNMENT ON THE GROUNDS OF ILL HEALTH AND TO REFUSE TO SET ASIDE SUBSEQUENT JUDGMENT
In Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101 today the Court of Appeal overturned a decision discussed on this blog in 2015. The Court found that a judge should have granted a defendant an adjournment on ill-health grounds. He…
SETTING ASIDE A DEFAULT JUDGMENT DURING CLOSING SUBMISSIONS AT TRIAL: A “HIGHLY UNUSUAL CASE”
I am grateful to barrister Robert Smith for sending me a copy of the judgment of His Honour Judge Gargan in the case of Jackson -v- Durham County Council & ors (20th December 2017). The judgment dealt with the issue…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
SETTING JUDGMENT ASIDE AFTER REDBOURN: 10 KEY POINTS FOR DEFENDANTS (CLAIMANTS MUST READ TOO)
The judgment in Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) highlights the fact that there is a new age for a party seeking to set judgment aside. Not only does the party have to satisfy the requirements of…
SETTING ASIDE JUDGMENT, DELAY AND DENTON: “PROMPTNESS” CONSIDERED: DELAY MUST BE EXPLAINED
In Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) Mr Justice Coulson refused to set aside a default judgment. The case contains some important discussion on how the Denton principles apply to applications to set aside judgment. “……
JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED
In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without…
DISPUTING SERVICE: USING THE RIGHT PROCEDURE: THE APPLICATION OF CPR 3.10
In Bank of Boroda, GCC Operations -v- Nawayny Marine Shipping FZE [2016] EWHC 3089 (Comm) Ms Sara Cockerill QC (sitting as a Deputy Judge of the High Court) considered issues in relation to disputing service. What is interesting here is…
IF THE DEFENCE IS FILED LATE THE CLAIMANT IS STILL ENTITLED TO DEFAULT JUDGMENT: TWO POINTS TO WATCH
NB THIS DECISION HAS SINCE BEEN OVERTURNED BY A CHANGE IN THE RULES, SEE THE POST HERE. The decision of Deputy Master Pickering in Billington -v- Davies [2016] EWHC 1919 (Ch) illustrates two important principles that are often overlooked. A…
DELAY AND SETTING ASIDE DEFAULT JUDGMENT: BALD ASSERTIONS IN AN EXPERT'S REPORT
The result in Gahir -v- Bansal [2016] EWHC 2041 (QB) (Sir David Eady) is perhaps surprising given the strength of the judge’s observations as to the defendant’s conduct. Despite major unjustified delay an application to set aside a default judgment…
COURT OF APPEAL OVERTURNS REFUSAL TO SET ASIDE JUDGMENT AFTER DEFENDANT FAILED TO ATTEND TRIAL
Given the many strictures relating to the sanctity of the trial date the decision of the Court of Appeal in TBO Investments Ltd -v- Mohun-Smith [2016] EWCA Civ 403 may be viewed as a surprising one. The defendant failed to…
DELAY, DISCRETION AND SETTING ASIDE JUDGMENT
In the judgment today in Albesher -v- Ryan [2016] EWHC 541 (Comm) Mr Justice Walker considered issues of delay in an application to set aside a default judgment. KEY POINTS A regular judgment was set aside because there was…
DENTON CRITERIA OVERRIDES ALLEGATIONS OF FRAUD: COURT OF APPEAL DECISION: A WAKE UP CALL FOR THE INSURANCE INDUSTRY?
In Gentry -v- Miller and UK Insurance Company [2016] EWCA Civ 141 the Court of Appeal held that the fact that a defendant was alleging fraud did not entitle it to any special treatment in relation to breaches of rules….
RELIEF FROM SANCTIONS, "MATERIALITY" & CONSIDERING THE MERITS IN A DEFAULT JUDGMENT: APPEAL AGAINST REFUSAL OF RELIEF ALLOWED
In Joshi & Welch Limited -v- Tay Foods [2015] EWHC 3905 (QB) Mr Justice Green allowed an appeal where the judge a first instance refused to grant relief from sanctions. Much centred on the definition of the word “material”. The…
WHEN THE COURT FAILS TO SERVE: AN IRREGULAR JUDGMENT MUST BE SET ASIDE
In Tanir -v- Tanir [2015] EWHC 3363 (QB) Mr Justice Garnham found that the court had failed to serve the claim form and, consequently, a judgment had to be set aside. The court had no discretion to act otherwise. “The…
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