WHEN IS AN APPLICATION "MADE"? A MATTER THAT COULD BE OF SOME IMPORTANCE
The case of In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards. An application made after the…
SURVIVING MITCHELL 17: MAKE ANY APPLICATION BEFORE DEFAULT AND OBTAIN REALISTIC DIRECTIONS
It is no coincidence that Rule 17 is identical to Rule 3. In fact I could easily, and without apology, repeat this principle as rules 10 – 20. If you cannot comply with a court order, direction or rule then…
MAKING AN APPLICATION BEFORE THE DATE OF DEFAULT SAVES THE DAY: KANERIA -v- KANERIA CONSIDERED
The Mitchell principles govern what happens when a party requires relief from sanctions. An open question remained as to the principles that apply when a party applies for an extension of time before the expiry of the date for compliance….
THE CONSEQUENCES OF CHARTWELL 1: JUST DON'T EVER SERVE WITNESS STATEMENTS LATE
It is highly dangerous for litigators to view the decision of the Court of Appeal in Chartwell -v- Fergies as any kind of step away from the Mitchell principles. The case has already been outlined in detail in an earlier post….
TWO CASES WHERE RELIEF FROM SANCTIONS REFUSED: (I) LATE WITNESS STATEMENTS (II) NO SCHEDULE OF COSTS
There are two cases reported on Lawtel this morning which exemplify problems of modern litigation and relief from sanctions. The first involves late service of a witness statement in a fatal accident case; the second the failure to file a…
SIR JACK JACOB QC AND THE FABRIC OF ENGLISH CIVIL JUSTICE: LESSONS FOR TODAY?
With the speed in which modern litigation is conducted it is often difficult to pause and reflect, let alone look back to assess whether experts from the past can assist. For some time I have been looking for a copy…
CAN MITCHELL BE UTILISED IF THERE ARE SEVERAL MINOR BREACHES? UTILISE -v- CRANSTOUN CONSIDERED: LATE FILING OF COSTS BUDGETS CAUSES ANOTHER PARTY TO COME TO GRIEF
In Utilise -v- Cranstoun [2014] EWHC 834 (Ch) Judge Hodge QC, sitting as a judge of the High Court, considered another issue arising out of the Mitchell criteria – in essence what is the effect of two trivial breaches on…
"PAPER MUST VANISH FROM THIS COURT": CANADIAN JUDGE ORDERS E-TRIAL TO PREVENT COURTS BECOMING MUSEUM PIECES
At a time when increased resources are promised to the court it is interesting to read the observations in the Canadian Courts of Brown J in the case of Broome Financial Corporation -v- Bank of Montreal 2014 ONSC 2178 (CanLII). Essentially…
ACTION STRUCK OUT FOR FAILURE TO GIVE DISCLOSURE: RELIEF FROM SANCTIONS REFUSED
In Medical Supplies and Services Ltd -v- Acies & Gosling [2014] EWHC 1032 (QB) the claimant came to grief because of a failure to comply with a peremptory order for disclosure. Relief from sanctions was refused. It provides another object…
COST BUDGET REQUIREMENT DOES NOT APPLY TO PART 8 CASES: A CASE IN POINT
There has been considerable discussion about whether the requirements to lodge a costs budget applies to Part 8 cases. Part 8 cases are automatically allocated to the Multi Track and the requirements to lodge a budget was thought to apply….
SURVIVING MITCHELL 15: SHARE THE PAIN
Most of the burden of complying with time periods and court orders lies with the solicitor. However a solicitor’s life can be made easier by making sure that all those concerned with the litigation process know of the deadlines involved…
AMENDMENTS TO THE CPR TO ALLOW A BUFFER: THE TIMETABLE
There has been some discussion about whether, and when, the Civil Procedure Rules will be amended to allow the parties to agree to vary directions. I am grateful to Katherine van Aardt of Plxus Law for sending me information which…
THE DANGERS OF LETTING WITNESSES GIVE THEIR OPINIONS: IT HINDERS RATHER THAN HELPS YOUR CASE
A post yesterday reviewed the comments on witness statements made in the Jackson Report. One major criticism was that witness statements were being used to advance matters of opinion and not fact. A case decided yesterday exemplifies that problem. It…
REPORT OF A CASE WHERE RELIEF FROM SANCTIONS WAS GRANTED ON APPEAL TO CIRCUIT JUDGE
Reports of decisions in relation to procedure, particularly relief from sanctions, are always welcome. I am grateful to Simon Young of Kings Chambers for his report of the case of Cook -v- Danter. It is a case where a circuit…
WHAT THE JACKSON REPORT SAID 4: PROBLEMS WITH WITNESS STATEMENTS: LENGTHY, IRRELEVANT AND RAMBLING
The Jackson Reforms made only minor amendments to the rules relating to witness statements. However the Reports, particularly the Preliminary Report, disclosed a real issue in relation to over-extensive report. THE “TWO NATIONS” OF WITNESS STATEMENTS The preliminary report demonstrated…
WHAT THE JACKSON REPORT SAID 3: CASE MANAGEMENT AND EXTENSIONS OF TIME
Both Jackson reports considered that case management was closely allied with costs management. Here I want to look at two aspects – the need for a realistic timetable and agreements to extend time. DIRECTIONS MUST BE REALISTIC At 6.5 of…
ANOTHER CASE STRUCK OUT BECAUSE WITNESS STATEMENTS WERE SERVED LATE
I am grateful to Michael Ditchfield of Kings Chambers for his sending me details of a recent appeal where the Circuit Judge overturned a decision where, initially, relief from sanctions had been granted. This emphasises the point that, although the…
COURT OF APPEAL DISMISSES APPEAL AGAINST RELIEF FROM SANCTIONS BEING GRANTED IN CHARTWELL ESTATES CASE
Relief from sanctions was granted by Mr Justice Globe in the case of Chartwell Estates -v- Fergies and this has been discussed, at length, in earlier posts in this blog. The Court of Appeal dismissed the defendant’s appeal today. Reasons…
SURVIVING MITCHELL 14: LITIGATORS MUST KNOW ABOUT CREDIBILITY
I am picking up on a point in Kerry Underwood’s article on Rules of Survival. In that article he emphasised the need for a client to “pass a test” of being able to be “Mitchell compliant” before the client is…
UPDATED GUIDANCE: LINKS TO HELP IN COMPLETING PRECEDENT H AND COSTS BUDGETING
Some blog posts always have a regular and large number of visitors each day. The post in January on “On-Line Guidance on filling in Form H” is one of these. Here I provide links to developments since January and to…
RELIEF FROM SANCTIONS CONSIDERED IN THE HIGH COURT AGAIN: MCTEAR CONSIDERED IN DETAIL
The case of McTear -v- Englehard [2014] EWHC 722 (Ch) was looked at briefly in an earlier post in relation to the number of cases cited to the Court. Here we look at the substantive decision in relation to applications…
THE COURTS SHOULD NOT MAKE PEREMPTORY ORDERS LIGHTLY: PORTER CAPITAL CORPORATION –V- ZULFIKAR MASTERS CONSIDERED
The fact that relief from sanctions is now more difficult emphasises the principle that courts should not make peremptory orders lightly. The case of Porter Capital –v- Zulfikar (19/3/1014) only on Lawtel at present) is a case to point. THE…
MITCHELL CRITERIA AND SETTING ASIDE DEFAULT JUDGMENTS
There is a discussion of the Mitchell criteria in the context of setting aside a default judgment in the case of Mole -v- Hunter [2014] EWHC 658 QB. (Tugendhat J). THE FACTS Judgment in default had been entered on a…
MITCHELL CASE IN THE NEWS AGAIN: THIS TIME ON NON-PARTY DISCLOSURE
Despite the costs order upheld by the Court of Appeal the Mitchell libel action continues. There is a report of a decision today by Tugendhat in relation to an application for disclosure [2014] EWHC 879 (QB). It concerned an…
LORD JACKSON'S RESPONSE TO THE CIVIL JUSTICE COUNCIL
The Civil Justice Council review of the Jackson reforms received 70 papers in total. The only ones generally available, to the best of my knowledge, are the ones available on this blog and the paper provided by Lord Jackson which…
LAW SOCIETY CIVIL JUSTICE CONFERENCE: 30th APRIL 2014: THE PLACE TO BE
I am one of the speakers at The Law Society Civil Justice Section Conference on the 30th April 2014, details of which can be found here. “Venue:The Law Society, 113 Chancery Lane, London WC2A 1PL Cost:From free Overview CPD Hours…
RELIEF FROM SANCTIONS APPLICATION: COSTS AWARDED AGAINST "INNOCENT" PARTY
The case of Lakatamia Shipping -v- Nobu Su [2014] EWHC 796 has been dealt with before on this blog in relation to a successful application for relief from sanctions. The judge’s comments on the costs of the application are now available…
WHAT THE JACKSON REPORT SAID 1: SANCTIONS: WHAT WAS SAID & WHAT HAS HAPPENED?
There are lots of events coming up dealing with the first anniversary of the Jackson reforms. It would be an opportune time to look back at the Jackson Report itself to remind us what it said on certain key issues….
SO CPR 3.9 HAS BEEN MADE EASIER? McTEAR COULD BRING A TEAR TO THE EYE
One of the avowed aims of amending CPR 3.9 was to make the judge’s job simpler. The case of McTear -v- Englehard [2014] demonstrates that it has precisely the opposite effect. THE JACKSON REPORT ON THE ISSUE OF SANCTIONS In…
READ LITIGATION FUTURES TODAY: VIEWS OF THE MASTER OF THE ROLLS ON MITCHELL
Anyone interested in how the Mitchell principles should be construed and may develop should read Litigation Futures today and its report of the Civil Justice Council of the 24th March 2014. CLOSING REMARKS FROM THE MASTER OF THE ROLLS In…
COULD CPR 3.10 BE THE LITIGATORS NEW BEST FRIEND? THE IMPLICATIONS OF INTEGRAL PETROLEUM CONSIDERED (AND THEY ARE ENORMOUS)
In Integral Petroleum SA -v- SCU Finanz AG [2014] EWHC 702 (Comm) Popplewell held that the provisions of CPR 3.10 meant that service of the particulars of claim by e-mail could be good service and the default judgment entered thereafter…
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…
