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…
THE DENTON PRINCIPLES: CAN YOU BLAME A REPRESENTATIVE? SHOULD LITIGANTS IN PERSON BE TREATED MORE LENIENTLY?
The Denton principles were considered by the First-Tier Tribunal Tax Chamber in Clarke v Revenue and Customs (PROCEDURE : Other) [2018] UKFTT 123 (TC). Here we look at two particular parts of the judgment: (i) the relevance of reliance on an…
DENTON CONSIDERED: ADDITIONAL ALLEGATIONS MADE IN RELATION TO A SOLICITOR FORGING A WITNESS STATEMENT
The Denton criteria were considered by Mr Justice Sweeney in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 94 (QB). These were considered in an an unusual context. There are allegations (and it must be stressed that these…
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…
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 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…
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…
DENTON PRINCIPLES LEAD TO APPLICATION FOR WASTED COSTS BEING STRUCK OUT: THE CONTINUANCE OF THE APPLICATION WAS DISPROPORTIONATE
The Denton principles were applied by the Administrative Court in Haigh v Westminster Magistrates Court & Or [2017] EWHC 3197 (Admin) when striking out an application for wasted costs. “It must not be forgotten that these are satellite proceedings, adjectival to…
NEW EXPERT EVIDENCE “BEYOND” THE 11th HOUR NOT ALLOWED: DENTON APPLIED IN THE TCC
In DPM Property Services Ltd v Emerson Crane Hire Ltd [2017] EWHC 3092 (TCC) Mr Justice Coulson overturned a decision giving a counterclaiming defendant permission to rely upon an expert report on quantum shortly before trial. The case is an example…
THE DENTON CRITERIA AND DISHONESTY: TELLING A LIE MAY NOT BE “SIGNIFICANT” BUT IT IS ALWAYS SERIOUS.
I am grateful to John McQuater for sending me through a copy of the judgment of His Honour Judge Robinson in the case of Wadsley -v- Sherwood Forest Hospitals NHS Foundation Trust (a copy of that judgment is available here Wadsley…
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…
COST BUDGETING: THE CASES AND POSTS IN ONE PLACE
There is a specific section on relief from sanctions on this blog which links to all the posts and related cases on CPR 3.9. Here I am starting to do the same for costs budgeting. Here, however, I aim to…
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…
RELIEF FROM SANCTIONS GRANTED: COMPLICATIONS WHEN ACTION AFFECTS PEOPLE NOT PARTIES TO THE ACTION
In Singh & Ors v The Charity Commission & Ors [2017] EWHC 2183 (Ch) His Honour Judge Purle QC granted relief from sanctions. The default was serious and significant and there was no good reason. The judge was faced with…
ANOTHER LATE COSTS BUDGET: RELIEF FROM SANCTIONS GRANTED TO ERRANT DEFENDANTS WHO SERVED BUDGET 10 DAYS LATE
In Mott & Anor v Long & Anor [2017] EWHC 2130 (TCC) His Honour Judge Grant (sitting as a judge of the High Court) considered a relief from sanctions application in relation to defendants who had served a costs budget ten…
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…
COSTS BUDGET ONE DAY LATE: RELIEF FROM SANCTIONS REFUSED: DON’T MAKE MOUNTAINS OUT OF MOLEHILLS BUT PUT THINGS RIGHT – QUICKLY
There are only two realistic options in relation to a relief from sanctions application: (i) do it properly and promptly; (ii) don’t do it all. The dangers of a hasty application are illustrated in the judgment in Lakhani -v- Mahmud…
GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the third of the series looking at the case more closely we…
APPEAL AGAINST REFUSAL TO ALLOW LATE WITNESS STATEMENTS AT TRIAL: CLAIMANT’S APPEAL DISMISSED
There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the…
GLADWIN & SANCTIONS – AN ANALYSIS 2: WHY (IN THEORY) THE DEFAULTING CLAIMANT COULD STILL RELY ON THE LATE WITNESS EVIDENCE
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the second of the series looking at the case more closely we…
GLADWIN & SANCTIONS – AN ANALYSIS 1: WHAT WENT WRONG
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In a series looking at the case more closely we look at what…
“THE DOG ATE MY COURTWORK”: REASONS, EXCUSES AND EXPLANATIONS IN APPLICATIONS FOR RELIEF FROM SANCTIONS
One thing that the the Denton decision did, without doubt*, was to put an end to the “mandatory” requirement for a “good reason” to explain a breach when applying for relief from sanctions. However it is always incumbent upon…
NO PLAYING OF THE ADVANTAGE RULE IN CIVIL LITIGATION: LATE WITNESS STATEMENTS LEAD TO CLAIMANT’S CASE BEING SENT OFF: GOOD TRY BUT NO TRIAL
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner uses the English language to its full effect when ruling that a claimant who served a witness statement late should not have been granted relief from sanctions. The case…
DEFERMENT OF PAYMENT OF COSTS NOT PERMITTED: RELIEF FROM SANCTIONS REFUSED: 7 DAYS LATE WAS “SERIOUS AND SIGNIFICANT”
In The Queen on the application of Bhandal -v- HM Revenue and Customs [2016] EWHC 3387 (Admin) Mr Justice Holroyde dismissed an application deferment of an order to pay costs and an application for relief from sanctions in making the…
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…
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…
E-DISCLOSURE: UNLESS ORDERS: STRIKING OUT, COMPLIANCE AND DENTON: DEFENDANTS COME TO GRIEF
There is a lot to consider in the judgment today of Mr Justice Green in Micheal -v- Phillips [2017] EWHC 42 (QB). It relates to inadequate disclosure; retention of electronic documents; peremptory orders and relief from sanctions. Things did not…
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…
FAILING TO FILE A COST BUDGET AND REFUSAL TO GRANT RELIEF FROM SANCTIONS: A HARSH LESSON
If a litigation solicitor is ever given the job of designing wallpaper here are the three key things that should form the recurring motif. The costs budget is due 21 days before the first case management conference. Where the claim…
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
IN-HOUSE COURSES ON WITNESS STATEMENTS AND CIVIL PROCEDURE
In response to several e-mails over recent months I have prepared two courses, available in-house only: one on drafting witness statements, the other on “avoiding procedural pitfalls”. WITNESS STATEMENTS “Too often (indeed far too often) witnesses who have had statements…
COSTS BUDGET SERVED LATE: RELIEF FROM SANCTIONS ALLOWED ON APPEAL
In a judgment given today His Honour Judge Peter Gregory allowed an appeal against a decision to confine a claimant’s costs budget to court fees following late service of the costs budget. The case indicates that a more nuanced approach…
BRITISH GAS HAS PRODUCED SOME HOT AIR: DENTON APPLIED NOT CONVERTED
I have already seen several headlines, and numerous commentaries, that mention the “hard line” taken by the Court of Appeal in British Gas Trading -v- Oak Cash & Carry Limited [2016] EWCA Civ 153. The case is not as draconian as…
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…
A "DISTURBING" APPROACH TO COMPLIANCE: STATE AGENCIES HAVE NO PREFERRED STATUS
The judgment of the Court of Appeal in BPP Holdings -v- The Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 121, contains some observations in relation to compliance that are of general relevance. Not least everyone litigating on…
LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN'T END WELL FOR THE DEFAULTING PARTY
In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late. KEY POINTS The…
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…
RELIEF FROM SANCTIONS APPLICATIONS: 10 POINTS TO IMPROVE THE ODDS
It is now just over 18 months since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. It is clear that default remains a problem and an issue within the civil courts. Further it…
RELIEF FROM SANCTIONS REFUSED: NO PERMISSION TO SERVE RESPONDENT'S NOTICE LATE
In Pipe -v- Spicerhaart Estate Agents Ltd [2016] EWHC 61 QB Mr Justice Sweeney refused permission to serve a Respondent’s notice late. “Against the background that this is a small claims case, the conduct of the Respondent in relation to…
SUPREME SANCTIONS IN THE SUPREME COURT: NO SECOND BITE OF THE CHERRY
The judgment of the Supreme Court in Thevarajah -v- Riordan [2015] UKSC 78 has been long anticipated since it related to the law relating to sanctions. In fact it is a decision in relation to a very narrow issues. The…
WAITING FOR LEGAL AID IS NOT A GOOD REASON FOR DELAY: COURT OF APPEAL DECISION
In R (Kigen) -v- Secretary of State for the Home Department [2015] EWCA Civ 1286 the Court of Appeal stated that delay caused by waiting for the Legal Aid Agency may no longer be accepted as a good reason for…
LATE EXPERT EVIDENCE, DENTON AND WAVING A FINGER IN THE AIR
The decision of the Court of Appeal in O’Connor -v- The Pennine Hospitals NHS Trust [2015] EWCA 1244 will receive much attention for the important observations made as to evidence, proof and “res ipsa loquitur”. However here I want…
RELIEF FROM SANCTIONS REFUSED IN £30 MILLION CASE: NOT ALL SANCTIONS ARE EQUAL
In Sinclair -v- Dorsey & Whitney (Mr Justice Popplewell 20/11/2015)* an application for relief from sanctions was refused in a case that the claimant valued at £30 million. THE CASE The claimants had been ordered to provide security for costs….
DENTON: EXTENSIONS OF TIME AND COSTS: OPPOSITION TO APPLICATIONS IS NOT ALWAYS UNREASONABLE
In The Queen on the Application of IDIRA -v- The Secretary of State for the Home Department [2015] EWCA Civ 1187 the Court of Appeal made a number of observations in relation to extensions of time, the Denton criteria, and…
COURT OF APPEAL REFUSES TO ALLOW APPEAL WHERE RELIEF FROM SANCTIONS GRANTED FOLLOWING FAILURE TO GIVE TIMEOUS NOTICE OF FUNDING
In its judgment today in Mischon De Reya -v- Caliendo [2015] EWCA Civ 1029 the Court of Appeal refused the Defendant’s appeal where a claimant had been granted relief from sanctions following a failure to give proper notice of funding….
RELIEF FROM SANCTIONS: LATE SERVICE OF NOTICE OF FUNDING
Relief from sanctions following late service of the notice of funding was granted by Mr Justice Simon in Jackson -v- Thompson Solicitors (& others) [2015] EWHC 549 (QB). THE CASE The claimant had failed in an action against multiple defendants…
RELIEF FROM SANCTIONS IN THE TCC: LATE SERVICE OF THE PARTICULARS OF CLAIM
The judgment of Mr Justice Edwards-Stuart in North Midland Construction plc -v- Geo Networks Ltd [2015] EWHC 2384 (TCC) provides an object lesson in the dangers of delaying service of the particulars of claim. THE CASE The claimant issued two…
POST MITCHELL PRE-DENTON RELIEF FROM SANCTIONS APPEAL: MITCHELL PRINCIPLES WERE NOT HERE TO STAY
The appeal in Michael Wilson & Partners Ltd -v- Sinclair [2015] EWCA Civ 774 involves the Court of Appeal considering the Mitchell/Denton divide. KEY POINTS The Court overturned a decision, made post-Mitchell but prior to Denton, where a judge refused…
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