SERVICE BY E-MAIL: IMPORTANT DECISION IN INTEGRAL -v- SCU FINANZ ON CPR 3.10
There is an important discussion of the effect of serving by e-mail by Popplewell J in the case of Integral Petroleum SA -v- SCU Finanz SA [2014] EWHC 702 (Comm) The decision relates to serving process by electronic…
WAIVING PRIVILEGE BY MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT: A CASE IN POINT
A case reported on Lawtel this morning demonstrates the dangers of referring to legal advice in witness statements. The decision of Males J in Mid-East Sales -v- Engineering & Trading Co [2014] EWHC 892 (Comm) was made on 14/03/2004. THE…
SURVIVING MITCHELL 13: READ KERRY'S RULES OF SURVIVAL
At the end of the previous post on Surviving Mitchell I wrote that there were important issues of law firm management which needed to be addressed and that, perhaps, Kerry Underwood would be better placed than me to address them….
USE OF EXTERNAL REPORTS IN CIVIL PROCEEDINGS: HOYLE -v- ROGERS CONSIDERED
Can a party rely on an external report that contains opinion evidence? The Court of Appeal considered this question in a case reported today Hoyle -v- Rogers[2014] EWCA Civ 257. Important distinctions have to be drawn between admissibility and weight…
DUNHILL -v- TASKER: SUPREME COURT DECISION GIVEN TODAY: PROTECTED PARTY CANNOT SETTLE CLAIM WITHOUT APPROVAL. SUPREME COURT DECISION ATTACHED
I have attached a copy of the Supreme Court decision in Dunhill -v- Tasker which was given today UKSC_2012_0136_Judgment (1). The conclusion is that a compromise reached by a protected party cannot be valid unless approved by the court. …
ARGUMENT ABOUT TIME FOR SERVING COSTS BUDGET "MANIFEST NONSENSE": RATTAN -V- UBS CONSIDERED IN FULL
Highly technical points are now being taken as a matter of course. Some succeed. Some come to grief. This is what happened to the point in relation to service of the Precedent H costs budget in Rattan -v- UBS [2014] EWHC 665…
SURVIVING MITCHELL 12: READ LEGAL ORANGE AND LITIGATION FUTURES TODAY
The links section of this blog points readers to many and various useful posts and articles on procedure. Today, however there are two that need singling out as part of the “Surviving Mitchell” strategy. LEGAL ORANGE Reading Mitchell-Proofing your claim…
THREE NEW HIGH COURT CASES AND MITCHELL: A SUMMARY
Such is the all embracing nature of the Mitchell decision that decisions are coming through on a daily basis. There were two cases that referred to Mitchell on Lawtel this morning (11th March 2014) and another which was an application…
SURVIVING MITCHELL 11: BE PROMPT: BE VERY PROMPT
Two recent cases have emphasised the importance of a prompt response to procedural issues. Anything other than “promptness” courts danger with the courts. The duty to act “promptly” does not just apply to making applications for relief from sanctions. A…
THE MITCHELL CRITERIA AND AMENDING PLEADINGS: A NEW CASE TO CONSIDER
I have added the case of Hague Plant Ltd -v- Hague [2014] EWHC 568 (Ch) to the “Mitchell Watch” section. It concerned a second application to amend the Particulars of Claim in a complex and long running commercial case. I will…
TRIAL BUNDLES: ANOTHER VIEW FROM THE BENCH: WILL SEDLEY'S LAW BECOME BEHRENS' LAW?
There have been several posts about the proper preparation and collation of trial bundles. An interesting comment from HHJ Behrens in the case of Burnard -v- Burnard [2014] EWHC 340 (Ch) indicates that, bundles remain far from perfect. BURNARD Judgment…
AMENDED CASE MANAGEMENT CONFERENCE NOTICE: BIRMINGHAM MERCANTILE COURT: A WHOLE HOST OF USEFUL LINKS FOR CASE MANAGEMENT CONFERENCES
Following the 69th amendment to the Civil Procedure Rules Birmingham Mercantile Court has revised its Case Management Conference Notice. This deals with the new statement of truth from the 22nd April. The Notice is worth reading even if you don’t…
CHANGES TO STATEMENT OF TRUTH ON PRECEDENT H: NOT APRIL THE FIRST – THE MOJ GOT THE DATE WRONG
There has been a lot of publicity surrounding the new statement of truth on the Form H. The situation has not been helped by the fact that the MOJ gave the wrong date for implementation of the change. The date…
NO JUDGMENT IMMEDIATELY AFTER APPLICATION FOR RELIEF FROM SANCTIONS: MIAH V JALIL CONSIDERED
The case of Miaj –v- Jalil (CA 6/3/2014) is reported briefly on Lawtel today. It involves the correct approach of the Court after granting relief from sanctions. More detailed commentary, will follow once the full transcript is available. THE FACTS…
EXCLUDING WITNESSES FROM COURT IN CIVIL AND FAMILY HEARINGS: THE APPROPRIATE APPROACH: LUCKWELL V LIMATA CONSIDERED
In civil proceedings witnesses are commonly present throughout the entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the…
CHANGES TO CIVIL PROCEDURE RULES ON APRIL 1st: USEFUL GUIDANCE AND LINKS
I have already written a post on the rule changes that come into force on 1st April. In particular the new “stakeholder” provisions which replace the interpleader rules. There are other sources which summarise the rule changes and should be…
LATE SERVICE OF WITNESS STATEMENTS: CHARTWELL -v- FERGIES CONSIDERED IN DETAIL
The case of Chartwell Estate Agents Ltd -v- Fergies Properties Ltd [2014] EWHC 438 (QB) has been dealt with in an earlier post. At that stage a Lawtel summary of the case was available. The full transcript is now released. CHARTWELL:…
DELAY IN MAKING APPLICATIONS CAN BE FATAL: SAMARA -V- MBI APPLICATION TO HAVE JUDGMENT SET ASIDE REFUSED ON GROUNDS OF DELAY
The case of Samara –v- MBI & Partners EWHC 563 (QB) considers whether the “Mitchell” criteria is relevant to applications to have judgment set aside. THE FACTS The claimant entered judgment in default. It was more than a year later, after…
ANOTHER HIGH COURT DECISION: RELIEF FROM SANCTIONS REFUSED: CLARKE –V- BARCLAYS BANK CONSIDERED
The Clarke –v- Barclays Bank [2014] EWHC decision is interesting for a number of reasons. Among other things it provides object lessons in the dangers of failing to make prompt applications and assuming cases will settle. It also highlights the…
COSTS BUDGETING, CASE MANAGEMENT & TECHNOLOGY: FREE BUNDLE PREPARATION FOR CASE MANAGEMENT HEARINGS: USEFUL DOCUMENTS AND LINKS
Case management and costs budgeting remain one of the Jackson innovations we are still getting used to. There are several useful guides that assist, plus one company offers a free service providing the bundle for the Case Management Conference. This…
SERVICE OF DOCUMENTS BY E-MAIL: A USEFUL BLAST FROM THE PAST
The problems of serving by e-mail have been discussed several times on this blog. The need for the recipient to “opt in” to receipt coupled with potential problems in proving service can give rise to difficulties. I know from e-mails…
HOW TO COMPLAIN ABOUT PROBLEMS WITH THE COURT SERVICE: A MODEL LETTER
Following the blog posts about troubles with the court about issue and secret letters which appear to govern how proceedings can be issued came the following comment from Dominic Cooper of I E Legal. “It surprises me that any of…
REFUSAL OF EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM: AEI –v- ALSTOM UK CONSIDERED
Cases relating to relief from sanctions are being reported on a daily basis. Here we look at the decision yesterday of Mr Justice Smith in Associated Electrical Industries Ltd –v- Alstom Ltd [2014] EWCA Civ 4330 (Com). A case where…
TROUBLES WITH THE COURT: REFUSING TO ISSUE AND STRIKING OUT BECAUSE OF ALLEGED LIMITATION ISSUES: MORE EXAMPLES AND CASE LAW THAT MAY HELP
Hot on the heels of the complaint about the court wrongfully striking out an action came another, remarkable story about the court refusing to issue proceedings because of alleged limitation issues. THE REMARKABLE STORY Here it is in its original…
HEAD TURNING, NAVIGATION AND MITCHELL PART 2: A CLOSER EXAMINATION OF SUMMIT NAVIGATION
I set out the main part of the judgment of Leggatt J in Summit Navigation Ltd –v- Generali Romani [2014] EWHC (Comm) yesterday. Here I look at the salient parts of the judgment and highlight the very real dilemma that…
“STANDING MITCHELL ON ITS HEAD”: YOU SHOULDN’T EVEN BE TAKING THE POINT SAYS HIGH COURT JUDGE: WHY LITIGATORS ARE LIVING WITH THE MITCHELL DILEMMA
Some of the (repeatable) epithets used to describe the consequence of the Mitchell judgment are “mayhem” “madness” and “mess”. In Summit Navigation Ltd-v- Generalia Romonia [2014] EWHC 398 (Comm) Mr Justice Legatt was critical of a party who took a…
RELIEF FROM SANCTIONS GRANTED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: CHARTWELL MAY BODE WELL IN SOME CASES
The case of Chartwell Estate Agents –v- Fergies Properties Ltd (QBD Globe J 18/02/2014) is reported in brief on Lawtel this morning. It is an example of the court granting relief from sanctions following late service of witness statements. This…
HAVE YOU BEEN "MITCHELLED"? THE PROBLEMS OF WITHOUT NOTICE ORDERS: A WORKING EXAMPLE
I am grateful to Simon Baskind from Cohen Cramer solicitors in Leeds for the following account of a “Mitchell” problem. ACTION STRUCK OUT BY THE COURT FOR NO GOOD REASON “I know we are all probably suffering from Mitchell overload…
FREEZING ORDERS AND THE DUTIES OWED ON EX PARTE APPLICATIONS: NUCLEAR WEAPONS THAT CAN BLOW UP IN YOUR FACE
COOKE -v- VENULUM PROPERTY INVESTMENTS LTD [2013] EWHC 4288 Freezing orders are part of the “nuclear weapons” of civil litigation. As such they should be approached with extreme care. This case illustrates the dangers involved when a party seeks a…
RELIEF FROM SANCTIONS GRANTED: DID THE COURT OF APPEAL TURN A BLIND EYE TO MITCHELL? NELSON -v- CIRCLE CONSIDERED
It is unusual to see the Court of Appeal granting relief from sanctions without reference to CPR 3.9 or the decision in Mitchell. That is precisely what happened in Nelson –v- Circle Thirty Three Housing Trust Ltd [2014] EWCA Civ…
HAVE YOU COMPLIED WITH A PEREMPTORY ORDER? A FURTHER HIGH COURT DECISION ON BREACH & SANCTIONS
WAHID AND SHADKAM –V- SKANSKA UK PLC AND RIVERSTONE INSURANCE [2014] EWHC 251 (QB) (Mrs Justice Slade DBE). (This case has not yet been reported on Bailli and I will deal with the facts in some detail). THE FACTS This…
REMEMBERING THAT CASE MANAGEMENT HAS A POINT AND PURPOSE: A WORKING EXAMPLE OF PROBLEMATIC PREPARATION
In the furore that now surrounds civil procedure it is often forgotten that the rules of civil procedure are a means to an end. That end being that there IS a fair trial on the disputed issues between the parties,….
SURVIVING MITCHELL 10: AGREEMENTS TO EXTEND TIME YET AGAIN: NEW STANDARD DIRECTIONS
The problems surrounding agreements to extend time remain a constant headache for litigators ever since the decision in Lloyd stated that it was not open to the parties to agree to extend time by consent. Here we look at the…
MAKING SURE YOUR COMPLIANCE IS SHIP SHAPE: LAKATAMIA SHIPPING CO LTD –V- NOBU SU CONSIDERED IN DETAIL
This decision by Hamblen J and reported at [2014] EWHC 275 was dealt with briefly last week. Here we take a detailed look at the case which involves several issues, including: Time for compliance with an order. The meaning of…
LAKATAMIA SHIPPING -v- NOBU SU: A TRIVIAL BREACH CONSIDERED
Relief from sanctions was granted by Hamblen J in the case of Lakatamia Shipping -v- Nobu Su [2014] EWHC 275 (Comm). A full blog post on the case will will follow. For the time being I will note his conclusion….
SCHEDULE OF COSTS SERVED 18 MINUTES LATE DOES NOT LEAD TO COSTS BEING DISALLOWED
I have already commented on the highly technical points being taken as a result of the Mitchell decision. In Devon County Council -v- Celtic Bioenergy Ltd [2014] EWHC 309 (TCCStuart-Smith J considered the effect of a schedule of costs being…
NEWLAND CONSIDERS NEW GROUND: LOSS OF LEGAL REPRESENTATION NOT A “GOOD REASON” FOR OBTAINING RELIEF FROM SANCTIONS.
The case of Newland –v- Toba Trading involves some complex facts. However it is important that it is reviewed n detail because there are important observations on civil procedure. In particular whether a party should apply for a review or…
FAILING TO SIGN STATEMENT OF TRUTH DOES NOT MEAN COSTS BUDGET WAS FILED OUT OF TIME: HIGH COURT DECISION
It has to be recognised that the decision in Mitchell means, inevitably, that parties will take issue with minor breaches. Indeed it may be negligent for them not do so. In The Governor and Company of the Bank of Ireland…
SANCTIONS: EXTENDING TIME AND DISPUTING THE JURISDICTION: PART 11 AND THE MITCHELL CRITERIA
The Mitchell criteria were considered by Mr Justice Blair in S.E.T. Select Engineering GMBH –v- F&M Bunkering Ltd [2014] EWHC 192 (Comm). There are some interesting observations about whether relief from sanctions applies when an application to dispute jurisdiction is…
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…
DILATORY CONDUCT BY DEFENDANT CAUSES IT TO BE REFUSED PERMISSION TO RELY ON EXPERTS
There is an important decision of Master Cook in the case of Chambers -v-Buckingham Healthcare NHS Trust available at dropbox The case highlights the fact that defendants too can fall foul of the problems caused by Mitchell. I will prepare…
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…
