MORE ABOUT SETTING ASIDE JUDGMENT AND CPR 3.9: NEWLAND -v- TOBA CONSIDERED
The question of whether CPR 3.9 and the Mitchell criteria apply to applications to have judgment set aside is an issue that has been considered several times on this blog. In a decision yesterday Newland -v- Trading FZC (& other)…
RELIEF FROM SANCTIONS FOLLOWING LATE FAILURE TO SERVE WITNESS STATEMENT: ONE OUT OF THREE MAY NOT BE ENOUGH
In Cranford Community College -v- Cranford College Ltd (16/06/2014 IPEC Judge Hacon) the court granted relief from sanctions following late service of a witness statement. (The case was reported on Lawtel on the 18th June 2014). THE FACTS The action…
WELL WHAT SHOULD THE TEST FOR RELIEF FROM SANCTIONS BE? YOUR CHANCE TO COMMENT
“Is there not a more imaginative way to encourage parties to co-operate? Looking at some of the circumstances litigation had been utterly derailed due to satellite litigation. This is inappropriate in 99% of cases. We need a message saying that…
LEEDS LAW SOCIETY MEET THE JUDGES EVENT: JACKSON ONE YEAR (AND A FEW MONTHS) ON
Yesterday evening Leeds Law Society held a “meet the judges” evening when practitioners met local judges and court staff to discuss issues arising out of the implementation of the Jackson reforms. Some of the issues were specific to Leeds but most…
COURT OF APPEAL SANCTIONS HEARING: SUBMISSIONS IN UTILISE -V- DAVIES
The final tranche of the notes taking at the hearing of the sanctions cases yesterday. The case of Utilise -v- Davies. Discussion of the first instance decision can be found in this blog as can a link to the transcript….
RELIEF FROM SANCTIONS FOLLOWING FAILURE TO FILE FUNDING INFORMATION AT START OF COSTS ASSESSMENT: MERCANTILE COURT DECISION
In Warner -v- Merrett (QBD Merc 12/6/2014) Judge Mackie QC granted relief from sanctions following a failure to serve documents relating to serve documents relating to additional liabilities at the outset of a detailed costs assessment. The case was briefly…
RELIEF FROM SANCTIONS GRANTED AFTER LATE SERVICE OF WITNESS SUMMARY: HIGH COURT CASE CONSIDERED
Whilst the Court of Appeal ruminates over the problems caused by Mitchell life goes on at the procedural coalface. Attached to this post is a decision of Mr. N. Strauss Q.C. sitting as a Deputy High Court Judge on the…
SANCTIONS CASE TODAY: SUBMISSIONS AND DISCUSSIONS FROM THE LAW SOCIETY AND BAR COUNCIL
The Bar Council and the Law Society were invited to make submissions at the sanctions hearings in the Court of Appeal today. The discussions between the Bar and the Bench make fascinating reading. (Mr Holland QC for both the Bar…
SANCTIONS HEARING TODAY: NOTES OF THE HEARING IN DECADENT VAPOURS
DECADENT VAPOURS LIMITED V BEVAN Heard by the Court of Appeal on 16th June 2014 (Lord Justice Dyson MR) (Lord Justice Jackson) (Lord Justice Vos) APPELLANT/CLAIMANT’S SUBMISSION In the present case the appellant appeals a decision to refuse relief from…
COURT OF APPEAL HEARING TODAY: DETAILED NOTE OF SUBMISSIONS AND DISCUSSIONS AT THE COURT
The Court of Appeal hearing on sanctions after Mitchell goes on. Here I outline, in detail, the submissions and discussions in Denton. Other cases will follow. DENTON AND OTHERS V T H WHITE LIMITED Heard by the Court of…
SANCTIONS CASES: SUMMARY OF ARGUMENTS THIS MORNING
Here is a very brief summary of the arguments considered by the Court of Appeal in the cases on sanctions this morning. A useful summary is also being provided by @JohnHyde1982 on twitter. Lord Justices Jackson, Dyson and Voss are…
TWO DAYS LATE SERVICE OF NOTICE OF APPEAL IS A "TRIVIAL" ERROR: HIGH COURT DECISION CONSIDERED
In Harrogate Borough Council -v- Secretary of State for Communities & Local Government & Zammitt [2014] EWHC 1506 (Admin) the appellant was two days late in serving a notice of appeal. His Honour Judge Behrens (sitting as a judge of the…
MITCHELL CASE IN THE COURTS AGAIN (2): NON PARTY DISCLOSURE ISSUES
The substantive action in Mitchell goes on. A post on this blog in March considered the application for disclosure made against the police. This issue was considered again by Tugendhat J again yesterday when the judge made orders for…
PAY COURT FEES ON TIME AND DON'T RELY ON COURT STAFF FOR LEGAL ADVICE: ANOTHER REPORTED CASE WHERE RELIEF FROM SANCTIONS REFUSED:
The case of Decadent Vapours Ltd -v- Bevan et al (Judge Jarman Q.C. Cardiff District Registry, 18th February 2014) was reported on Lawtel this morning. It provides another warning of the dangers involved in not complying with court orders on…
PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE
I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings. However Jon Williams pointed out that the case has an…
73rd AMENDMENT TO THE CIVIL PROCEDURE RULES COMES INTO FORCE TODAY: FINAL TRIO OF LINKS
Monmouthshire Law Society’s twitter account announced Happy 73rd update to CPR day this morning. Here are three crucial links so you can join in the celebrations. CELEBRATORY LINKS A general summary and the rules themselves are here Guidance as to…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
COURT OF APPEAL TO HEAR THREE MORE CASES ON RELIEF FROM SANCTIONS
The Court of Appeal is to hear three cases on sanctions on the 16th & 17th June. One of the cases being considered is Utilise -v- Davies [2014] EWHC 834 (Ch) which was considered in an earlier post on this blog. The…
SURVIVING MITCHELL 20: THE GREAT BIG OVERALL CHECKLIST
I suspect that this series could go on indefinitely. It is drawn to a close with a round up of the key points. KEY POINTS 1. Know what happened in Mitchell and how it could have been avoided. 2. Assume…
SURVIVING MITCHELL 19: PRACTICE "DEFENSIVE LITIGATION" OR DON'T PRACTICE AT ALL
This is the 19th (and penultimate) in this series on “surviving Mitchell”. What the Mitchell case makes clear is that there is now precious little room for error in civil procedure. We have to develop systems of “defensive litigation”. That…
“MITCHELL BITES TO PENALISE LITIGANTS WHO FAIL TO COMPLY”: EXTENSIONS OF TIME, APPEALS AND BAHO.
The case of Baho & Ors –v- Meerza [2014] EWCA Civ 669 is a further example of a litigant coming to grief because they failed to file an application in time and make the application for an extension of time…
MITCHELL, APPLICATIONS TO EXTEND TIME AND INSOLVENCY: CONTRARIAN FUNDS -v- LOMAS CONSIDERED
The Mitchell case is cited in many different contexts. In Contrarian Funds LLc -v- Lomas et al [2014] EWHC 1687 (Ch) it was considered in the context of an application for a further extension of time in which to apply…
“FAILING TO SEE THE WOOD FOR THE TREES” AND LATE APPLICATIONS TO AMEND PLEADINGS : GROARKE –V- FONTAINE CONSIDERED
Groarke –v- Fontaine [2014] EWHC 1679 (QB) centred on a Road Traffic Accident that happened in November 2009. The central issue on appeal was whether a late application to amend the defence to plead contributory negligence should have been allowed….
SERVICE BY E-MAIL: SETTING ASIDE JUDGMENTS AFTER MITCHELL AND MUCH MORE: BRETT –V- COLCHESTER HOSPITAL UNIVERSITY CONSIDERED
There is a considerable amount of interest in the judgment of Master O’Hare in this case. Firstly was service by e-mail good service when a party had not complied with the Practice Direction on service by electric means? Secondly what…
A DELIBERATE DECISION NOT TO FILE A WITNESS STATEMENT AND YET RELIEF FROM SANCTIONS GRANTED: MONDE PETROLEUM SA-V- WESTERNAZAGROS LTD CONSIDERED
In Monde Petroleum SA –v- Westernzagros Ltd (2014) QBD (Comm) (Hamblen J) 19/05/2014 a party intentionally failed to file a witness statement on time, yet relief from sanctions was granted. (The following is based on the Lawtel summary) THE FACTS…
CPR 3.9: MITCHELL AND APPLYING TO JOIN GROUP LITIGATION: HOLLOWAY -v- TRANSFORM MEDICAL GROUP
In Holloway -v- Transport Medical Group [2014] EWHC 1641 (QB) Mrs Justice Thirlwall DBE considered whether the “Mitchell” principles applied to late applications to join the register of claims following a Group Litigation Order. THE JUDGMENT The judgment is available…
A TWO DAY BREACH IS "TRIVIAL": ANOTHER CASE WHERE RELIEF FROM SANCTIONS GRANTED AFTER LATE SERVICE OF COSTS BUDGET
In Azure East Midlands Ltd -v- Manchester Aiport Group Ltd [2014] EWHC 1644 (TCC) His Honour Judge Grant made an order for relief from sanctions where a costs budget was served two days late. THE BREACH The claimant filed its…
MITCHELL CASES: HAVING A TAXING TIME? THREE CASES CONSIDERED IN THE TAX CHAMBER
The “Mitchell” principles have been adopted in other tribunals, not least the First Tier Chamber Tax Tribunal. There are three recent cases where the Mitchell principles have been considered extensively by the Tribunal. The principles have had a major impact…
SURVIVING MITCHELL 18: RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
There is a growing trend of “cannibalism” in the legal profession. Advertisements on my local radio station this morning were asking “do you want to sue your lawyer”? What is the legal profession doing to protect itself? The answer is…
THE CONSEQUENCES OF CHARTWELL 3: THE "LITIGATOR'S DILEMMA": DO YOU TAKE THE "MITCHELL" POINT?
This is the third in the series examining the practical consequences of the Chartwell decision. The first post looked at the importance of serving witness statements on time, the second at the effect on the criteria for reinstatement. Here we…
THE CONSEQUENCES OF CHARTWELL 2: OBTAINING RELIEF FROM SANCTIONS IS DIFFICULT BUT NOT IMPOSSIBLE
The Court of Appeal decision in Chartwell –v- Fergies Properties has already been considered in detail. An earlier article dealt with the importance of serving witness statements on time. Here we consider the implications for the principles relating to granting…
RELIEF FROM SANCTIONS: WHAT DOES “TRIVIAL” ACTUALLY MEAN? A LOOK AT THE CASES
If you attend one of the, numerous, “Jackson” and “Mitchell” conferences that abound at the moment you can easily make the lecturer sweat. Ask them to define “trivial”. Whether a breach is “trivial” or not is crucial to the way…
A BUDGET SERVED A DAY LATE IS A “TRIVIAL” ERROR: WAIN –v- GLOUCESTERSHIRE COUNTY COUNCIL [2014] EWHC 1274 (TCC) CONSIDERED
It was made clear in Mitchell that the courts should not concern themselves with “trivial” breaches, however what was meant by “trivial” was never defined. In Wain –v- Gloucestershire County Council Judge Grant, sitting as a judge of the High…
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…
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…
THE APPROPRIATE CRITERIA FOR REINSTATEMENT WHEN AN ACTION IS STRUCK OUT OF COURT'S OWN MOTION: HALEY -v- SIDDIQUE CONSIDERED
In Haley -v- Siddique [2014] EWHC 835 (Ch) Judge Hodge Q.C., sitting as a judge of the High Court, considered issues arising from a striking out order made of the court’s own motion. His judgment states that the case provides…
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…
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…
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…
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…
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…
