Tag Archives: CPR 3.9

IF THE DEFENCE IS FILED LATE THE CLAIMANT IS STILL ENTITLED TO DEFAULT JUDGMENT: TWO POINTS TO WATCH

The decision of Deputy Master Pickering in Billington -v- Davies [2016] EWHC 1919 (Ch) illustrates two important principles that are often overlooked. A claimant that has applied for default judgment in default of defence is still entitled to default judgment even if the defence is filed between the date of the application and the date […]

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 is under £50,000 the costs budget has to be filed with the directions questionnaires. If […]

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 an earlier post) “In these circumstances, had the judge undertaken the process of considering the […]

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 prepared for them by solicitors tell the Judge that matters in the statement are not […]

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 should be taken to applications for relief from sanctions; it also highlights the significance of […]

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 some commentators (or certainly some headlines) indicate.  It is wise to read certain parts of […]

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 real prospect of successfully defending the claim. There had been some delay by the […]

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 behalf of a government agency should bear the clear warnings in mind. “I found the […]

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 Court disallowed: The defendants’ application to adjourn the trial date. The defendant’s application to amend […]

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 judge also considered the question of how far the court should consider the underlying merits […]