SERVICE OF A COMPANY UNDER THE COMPANIES ACT: MURPHY -V- STAPLES RE-VISITED
I am likely to be returning to the judgment of Master Bowles in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) several times on this blog. If the decision is appealed and upheld it is likely to…
RELIEF FROM SANCTIONS : A CLASSIC CASE FOR RELIEF TO BE GRANTED: NOTICE TO PROVE SERVED LATE
In Tuke v JD Classics Ltd [2018] EWHC 531 (QB) Mr Justice Julian Knowles granted a claimant relief from sanctions when a “Notice to Prove” was served late. It is a reminder, amongst other things, of the need to serve a…
LATE SERVICE OF NOTICE OF FUNDING AND RELIEF FROM SANCTIONS: THIS DOES NOT END WELL FOR THE CLAIMANT: COURT OF APPEAL DECISION
In the judgment today in Springer v University Hospitals of Leicester NHS Trust [2018] EWCA Civ 436 the Court of Appeal upheld a decision that refused to give relief from sanctions following late service of notice of funding. The case shows…
INTERPLEADER PROCEEDINGS: FILLING THE GAP IN THE RULES
In Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement) [2018] EWHC 219 (QB) Master McCloud had to look back at a few centuries of jurisprudence in order to find a solution to a very modern problem. What…
A “PART 36 OFFER” THAT ATTEMPTS TO VARY USUAL COSTS CONSEQUENCES IS NOT A PART 36 OFFER AT ALL: HIGH COURT DECISION
In James v James & Ors [2018] EWHC 242 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) determined an interesting issue in relation to an offer made in the course of proceedings. A “Part 36” offer which attempted to…
INAPPROPRIATE USE OF PART 8 PROCEDURE: “AN ENTIRELY UNSATISFACTORY WAY TO PROCEED”: HIGH COURT DECISION
In Victory House General Partner Ltd v RGB P&C Ltd [2018] EWHC 102 (TCC) Miss Joanna Smith QC (sitting as a Deputy) was clear in her view that a claimant had used the Part 8 procedure inappropriately. “In my judgment this…
THE PERILOUS STRATEGY OF SERVING EVIDENCE LATE: DENTON APPLIES: A RELEVANT FACTOR IN A SUMMARY JUDGMENT APPLICATION
The case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor [2018] EWHC 54 (TCC) highlights the dangers of waiting to serve evidence until the last moment. If it is served late then a party requires permission of the…
WITNESS STATEMENTS THAT DON’T COMPLY WITH THE RULES: 10 REASONS WHY THE GIVING THE SOURCE OF INFORMATION IS IMPORTANT: LITIGATION REQUIRES EVIDENCE NOT GOSSIP
There is a brief report on Lawtel that highlights the need for compliance with the rules relating to witness statements. The issue of failing to give sources of information and belief has been dealt with several times on this blog….
DENTON APPLIED WHEN THE OTHER SIDE DOES NOT SHOW UP FOR TRIAL
In Foreman v Williams [2017] EWHC 3370 (QB) Peter Marquand (sitting as a High Court judge) considered the application of the Denton principles in an unusual context. The claimant required relief from sanctions because he was unable to serve documents on…
CIVIL LITIGATION REVIEW OF 2017 (I): “SURVIVING THE EMOTIONS OF LITIGATION” & “THINGS THAT IRRITATE JUDGES”
This is the fourth annual review on this blog. This year I have decided to break it into a number of reviews. First it is interesting to look at what is being read on this site and the search terms…
CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 3: LATE WITNESS STATEMENTS AND “IMPLICIT” ORDERS FOR RELIEF FROM SANCTIONS
We have already looked twice at the “sparring” arguments in relation to procedure in the case of McGann v Bisping [2017] EWHC 2951 (Comm). A further procedural issue arose as to whether a party was debarred from calling evidence at all. The…
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…
RELIEF FROM SANCTIONS NOT GRANTED WHEN CLAIMANT ISSUES IN BREACH OF CIVIL RESTRAINT ORDER
In Couper v Irwin Mitchell LLP & Ors [2017] EWHC 3231 (Ch) Mr Justice Arnold refused the claimant’s application for relief from sanctions when the claimant had issued proceedings in breach of a civil restraint order. The claimant, however, was given…
ACCESS TO DOCUMENTS DEPLOYED IN COURT: A DETAILED CONSIDERATION
The judgment of Master McCloud in Dring v Cape Distribution Ltd & Anor (Constitution – access to courts – open justice) [2017] EWHC 3154 (QB) considers the issue of whether the public should have access to documents disclosed during the course…
BE WARY OF THE AUTOMATIC STAY – IF YOU SERVE AND DO NOTHING
CPR 15,11(2) provides for an automatic stay. The judgment in Citicorp Trustee Company Ltd & Anor v Al-Sanea & Anor [2017] EWHC 2845 (Comm) shows that it is normally not difficult to lift that stay. The key point is to know…
MYTHS ABOUT LIMITATION 3: THE DATE OF ISSUE FOR LIMITATION IS THE DATE ON THE CLAIM FORM
Once or twice a month I receive a phone call from practitioners in a panic. They sent the claim form to court in good time but the date of issue is outside the limitation period. Further some defendants still take…
COST BUDGET SERVED TWO MONTHS LATE: RELIEF FROM SANCTIONS ALLOWED: DELAY DOES NOT ALWAYS GIVE RISE TO A SIGNIFICANT BREACH
I am grateful to my colleague Colin Richmond for sending me a copy of the decision of His Honour Judge Gosnell In Hewitt -v- Smith (Bradford County Court 16th June 2017) relating to a successful appeal from a refusal to…
LATE SERVICE OF THE PARTICULARS OF CLAIM: RELIEF FROM SANCTIONS REFUSED: DETAILS OF CLAIM DO NOT CONSTITUTE PARTICULARS OF CLAIM
In Chelsea Bridge Apartments Ltd -v- Old Street Homes Ltd (Deputy Master Cousins, 4th September 2017*) Deputy Master Cousins refused the claimants’ application for relief from sanctions in failing to serve Particulars of claim on time. “I find that the…
ANOTHER CLAIM FORM CASE: PUTTING IN THE POST ON REQUISITE DATE IS GOOD SERVICE: NO SAFE HARBOUR FOR DEFENDANTS ON THIS ISSUE
Master McCloud has already made observations about the ” dry and unlovely crop of procedural service issues” that are regularly coming before the Masters. Another issue was considered in Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270. “… the correct…
RELIEF FROM SANCTIONS FOLLOWING BREACH OF A PEREMPTORY ORDER: APPLICATION REFUSED: A WORKING HOLIDAY IS NO EXCUSE
In The Financial Conduct Authority v Da Vinci Invest Ltd & Ors [2017] EWHC 2220 (Ch) Mr Justice Snowden rejected a defendant’s application for relief from sanctions for breach of a peremptory order. It is unusual in that the court considered…
SERVICE OF PROCEEDINGS WITHOUT PERMISSION: THE COURT HAS POWER TO RECTIFY THE POSITION RETROSPECTIVELY
Can the court rectify the situation when a claimant, who requires permission to continue proceedings, has issued and served without such permission? That was the question considered by His Honour Judge Davis-White QC in Wilton UK Ltd v Shuttleworth & Ors…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
WHEN CIRCUMSTANCES CHANGE AFTER A BUDGET IS CONFINED TO COURT FEES: DECISION TO ALTER BUDGET UPHELD
In Asghar -v- Bhatti[ 2017] EWHC 1702 (QB) Mr Justice Lewis considered an issue in relation to varying a budget that was confined to court fees. The court considered “change of circumstances” – this is also a case that shows…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT? NOTHING
What is the position of a defendant whose action has been struck out? This was the question considered by Mr Justice Soole in Michael -v- Phillips [2017] EWHC 1984 (QB). The short answer is the defendant cannot dispute any aspect…
DELAY, DENTON, APPEALS AND CROSS-APPEALS: EXTENSION OF TIME WOULD HAVE BEEN GRANTED
In Pinisetty -v-Manikonda [2017] EWHC 838 (QB) Mr Justice Langstaff considered an issue relating to an appeal (and cross-appeal) being out of time. Although the judgment on this issue is largely academic (the appeal failed in any event), it contains…
RELIEF FROM SANCTIONS GRANTED TO DEFENDANT WHO APPEARED BY COUNSEL: A “SURPRISING STATE OF AFFAIRS” PUT RIGHT
There may well be a term for the process by which a number of decisions, which appeared sensible at the time they were made, lead to a ridiculous result. This principle may well apply to what happened in Falmouth House…
KNOW (AND FOLLOW) THE RULES – OR ELSE: DPP COPS IT.
There is some irony in the decision of Mr Justice Fraser in R (RA) -v- The Director of Public Prosecutions [2017] EWHC 714 (Admin). The claimant, a litigant in person, complied with the rules. The defendant, a specialised government department…
FILE A SKELETON ARGUMENT – IT IS MANDATORY
Many of the posts about skeleton arguments on this blog have been about content (usually length), The surprising aspect of R -v- Secretary of State for the Home Department [2017] EWHC 639 (Admin) is that both sides decided not to file…
EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY
It is unusual to call evidence in Part 8 applications. This is made clear in the judgment of HH Walden-Smith in Wokingham Borough Council -v- Scott [2017] EWHC 294 (QB). A party failed to make an application to call oral…
AN ORDER UNDER THE ARBITRATION ACT IS NOT AN ORDER UNDER CPR 3.1(7)
The judgment of Popplewell J in H -v- L [2017] EWHC 137 (Comm) relates to an application to remove an arbitrator. Most of the judgment considers the principles relating to the independence of arbitrators. The judge also considered points…
EXPERTS AND THE OVERRIDING OBJECTIVE: DEFENDANT ALLOWED TO RELY ON EXPERT ALSO USED BY CLAIMANT
In Wheeldon Brothers Waste Limited -v- Millennium Insurance Company Limited [2017] EWHC 218 (TCC) Mr Justice Coulson allowed the defendant to rely on an expert that had also been instructed by the claimant. The circumstances are unusual and the case needs…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
RELIEF FROM SANCTIONS REFUSED(AFTER THE TRIAL)
In the judgment today in Schenk -v- Cook [2017] EWHC 144 (QB) Mr Justice Green upheld an order refusing relief from sanctions. However the appeal was heard in unusual circumstances. The judge considered the application for relief from sanctions striking…
NEW RULES COMING INTO FORCE: COSTS BUDGETING AND QADER RESULT CODIFIED
The Civil Procedure (Amendment) Rules 2017 were made on the 3rd February. Most of these come into force on the 6th April 2017. The new rules are available here COSTS BUDGETING The amendments set out below may be perplexing. However…
AMENDMENT TO ADD NEW ISSUES THAT HAVE ARISEN SINCE ISSUE: CONSIDER THE OVERRIDING OBJECTIVE AND NOT THE RSC
I said that there would be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). The first looked at the lifting of the automatic stay. Here we look…
FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN
There are going to be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
COURT FEES AND STEALTH TAXES: REPAYMENT OF TRIAL FEES TO END NEXT YEAR
Thanks to Kerry Underwood for pointing out the provisions of The Civil Proceedings Fees (Amendment) Order 2016 which comes into force on the 6th March 2017. There is a hidden “tax” in that the repayment of court fees has ended….
WHEN IS EXPERT EVIDENCE ADMISSIBLE: A MASTERLY EXPOSITION
The judgment of Master Matthews in Darby Properties Ltd -v- Lloyds Bank Plc [2016] 2494 (Ch) contains an important consideration of the rules relating to the admissibility of expert evidence. In particular when is expert evidence “necessary”? “… although I…
NO RELIEF FROM SANCTIONS WHEN COSTS BUDGET FILED LATE: THE DECISION IN DETAIL
We have looked, briefly, at the Court of Appeal decision in Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001. I am grateful to Aaron Vodden of Hempsons for sending me a copy of the transcript which…
PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley [2016] EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object…
SOLICITOR'S AGENT HAS NO RIGHT OF AUDIENCE AT STAGE 3 HEARING: COUNTY COURT DECISION CONSIDERED
Who has a right of audience at a Stage 3 hearing? This issue has been considered in the county court and I am grateful to barrister Jonathan Dingle for sending me a copy of the decision of District Judge Peake…
INVALID SERVICE OF CLAIM ON SOLICITORS: ANOTHER CLAIM FORM INCORRECTLY SERVED
Problems with service of the claim form are a regular feature of this blog. I have written, many times, about the dangers of leaving service of the claim form until the last minute. I have also written, many times, about…
MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY
In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 2: THE STRESS OF LITIGATION: GUIDANCE AND LINKS
The earlier post on looking at litigation from the litigant’s viewpoint led to some interesting comments, on the blog itself; on LinkedIn and on twitter. It was particularly interesting to hear from lawyers who had been involved in litigation…
ANOTHER ROUND IN THE CFA ASSIGNMENT BATTLE: CFA CAN BE ASSIGNED
In Azim -v- Tradwise Insurance Services Limited [2016] EWHC B20 (Costs) Master Leonard found that a conditional fee agreement could properly be assigned. KEY POINTS An assignment of a CFA between solicitors was valid. The validity of an assignment did…
REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER
Two recent posts* have highlighted the difficulties that can exist with the filing of Replies and Defence to Counterclaim. Here is a short Primer. A REPLY If the Defence does not contain a counterclaim a Reply is not mandatory. There…
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
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