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…
MITCHELL PRINCIPLES APPLIED IN TAX TRIBUNAL
In Mr and Mrs B -v- Revenue & Customs the First Tier tribunal (tax) considered whether the Mitchell principles applied to permissions to appeal out of time in the first-tier tribunal tax chamber. “The law 42. There is no guidance in…
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….
WHAT WOULD THE SUPREME COURT THINK ABOUT MATTERS RELATING TO PROCEDURE? CLUES FROM THE PRIVY COUNCIL?
The Mitchell case was not appealed. Practitioners have no clue as to the approach of the Supreme Court to matters of procedure. However a decision of the Privy Council on the 3rd March makes interesting reading as to potential construction…
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…
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…
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…
DELAYING SERVICE OF THE CLAIM FORM: “DICING WITH PROCEDURAL DEATH”: ANOTHER EXAMPLE OF A CLAIMANT BUILDING PROBLEMS FOR ITSELF
There are real dangers in leaving service of the claim form until the last moment. The Lincolnshire case considered here exemplifies the problems. . The judge pulled no punches in relation to the risks being run by those who…
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…
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…
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…
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…
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…
HISTORIC AGREEMENTS TO EXTEND TIME: WHAT IS THE APPROPRIATE APPROACH OF THE COURT? CAROLINE MAEVE MEEHAN -v- JOSEPH MANLEY & CHURCHILL INSURANCE COMPANY LIMITED
The decision in Lloyd that it was not open to the parties to agree to extend time can cause a problem in relation to cases where service of documents has taken place late by agreement. This was a common occurrence…
MITCHELL IN THE CONTEXT OF A TAX APPEAL: HMRC HIT A STONE WALL.
As previous posts have shown the Mitchell criteria are being considered in wider contexts. In R&CC –v- McCarthy & Stone (Developments) Limited the Upper Tribunal (Finance and Tax) applied it to the government’s application to appeal a decision out of…
MITCHELL AND SANCTIONS IN THE CONTEXT OF JUDICIAL REVIEW: WAS IT WORTH THE CANDLE?
It is clear that the Mitchell principles are being applied widely. In The Queen on the Application of Royal Free London NHS Foundation Trust, Mr Justice Coulson considered the principles in the context of a late application in judicial review…
AN ASSESSMENT OF COSTS BITES THE DUST: COURT RESOURCES, PROPORTIONALITY AND COURT PATIENCE IN THE ASSESSMENT PROCESS.
The decision of Mr Justice Teare in Mount Eden Land Ltd –v- Speechly Bircham [2014] EWHC 169 (QB) is a case of the courts ending a detailed and lengthy costs assessment because of the behaviour of the claimant. It has wider…
THE COURT DIDN’T TELL ME TO FILE PRECEDENT H! WHAT HAPPENS WHEN THE PARTIES FAIL TO FILE COSTS BUDGETS BECAUSE OF BEING MISLED BY A COURT FORM?
The penalties for failing to file Precedent H in time are draconian. What happens if the parties do not file Precedent H because they are misled by the court directions? In Aliasghas Porbanderwalla –v- Daybridge Ltd HH Judge Worster allowed an…
SURVIVING MITCHELL 9: AGREEMENTS TO EXTEND TIME AGAIN! LLOYD & ITS PRACTICAL CONSEQUENCES
There is now a lot of evidence of parties taking “opportunistic” points in relation to procedure. That is pointing to historic breaches, often months before a hearing/application, and arguing that these breaches mean that the case/defence should be struck out…
SURVIVAL AFTER MITCHELL: 30 POINT PLAN: WEBINAR AVAILABLE ON DEMAND
The CLT Webinar I did last week on 30 points of avoiding problems after Mitchell is now available on demand from CLT. Not only is this an economic way to get you training done it is a whole lot cheaper than…
APIL: MONITORING OF COSTS BUDGETING AND RELIEF FROM SANCTIONS.
The Association of Personal Injury Lawyers is monitoring both costs budget and relief from sanctions. It has asked for information from members on these issues. If you are not a member (you could always join) APIL may still welcome input…
PUTTING THE POWER TO AGREE TO EXTEND TIME IN THE COURT ORDER: A SHORT NOTE
The question of whether the parties can agree to extend time for compliance with a court order is an open one at the moment. See the discussion in the earlier posts on this issue. There was a short tweet earlier…
MAKE SURE YOUR WITNESS STATEMENT PROVES YOUR CASE
The genesis of this article is a tweet earlier today where a solicitor reported that a claim for the cost of hire and storage had been struck out because the witness statement was deficient. “C entire hire, storage & recovery…
