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Jackson in Action: case law

In our regular monthly round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms

QOCS / Part 20 claims:Wagenaar v Weekend Travel Ltd t/a Ski Weekend & Anor (2014) CA involved a personal injury claim where the defendant disputed the claimant’s claim and also made a third party claim. Both the claim and the third party claim were unsuccessful. The judge had ordered that the claimant should pay the defendant’s costs and the defendant should pay the third party’s costs but that applying QOCS, neither order was to be enforced. The Court of Appeal rejected arguments that the QOCS provisions are ultra vires, and that they should not be applied retrospectively. They held that the QOCS regime only has one specific transitional provision which provides that the regime does not apply where the claimant (as opposed to any other party) has entered into a pre-commencement funding agreement. Most significantly though, they held that CPR r.44.13 applies QOCS to a single claim against a defendant which included a claim for personal injury. It does not apply QOCS to the entire action in which any such claim for personal injury is made.  Therefore QOCS did not apply to the third party claim and the defendant would have to pay the third party’s costs. 31/7/2014

Part 36 additional award / non-monetary claim: In Elsevier Ltd v Munro (2014) HC Warby J had to consider the application of CPR r.36.14(3)(d)(i) and (ii) in a claim for an injunction where the claimant obtained a judgment more advantageous than its Part 36 offer. The claim was for an injunction and in the alternative damages. The claimant was awarded the injunction. The defendant contended that as the entire pleaded claim included a money claim, the claimant was not entitled to an additional amount on costs pursuant to CPR r.36.14 (3)(d)(ii). The judge rejected this: the language of the sub-paragraph directs attention to the time at which the court is deciding whether to order payment of an additional amount and “the claim” means the claim in respect of which the court has given the judgment which is more advantageous than the offer. Therefore CPR r.36.14(3)(d)(ii) applied. However the judge concluded that on the facts it would be unjust to order the defendant to pay the additional amount on costs. 31/7/2014

Relief from sanctions / failure to file new notice of funding: In Ultimate Products Ltd & Anor v Woolley & Anor (2014) HC Christopher Pymont QC upheld a master’s decision granting relief from sanctions when the claimants had failed to serve a new notice of funding after entering into new CFAs before trial. Applying the principles set out in Denton the failure to comply was neither serious nor significant and it did not imperil future hearing dates or otherwise disrupt the conduct of the litigation. The defendants were already aware that CFAs were in place and that success fees could be payable and had the claimants complied, the defendants would have been in exactly the same position. 31/7/2014

Relief from sanctions / breach of unless order: NNN v Ryan & Anor (2014) HC was possibly the first reported judgment applying the Denton principles, albeit it was only considered briefly in amongst a number of other issues. Default judgment, entered after the defendant failed to comply with an unless order for disclosure, was set aside: the list had been filed as soon as possible after the deadline which was a bank holiday; his failure to serve it on the claimant’s solicitors was an understandable error on the part of a litigant in person; and it was clear that there were not any material documents to disclose. Given the nature and reason of the breach and the very limited prejudice caused to the claimant, it was a proper case for relief from sanction. 23/7/2014

Relief from sanctions/failure to serve witness evidence: In Johnson v Bourne Leisure (2014) HC King J considered an appeal for an order to extend the time for service of a witness statement. The applicant had failed to exchange witness statements on the agreed date and sought to extend the time for service. Justice King considered the new three stage test imposed in Denton and considered that the conditions were met by the applicant. The respondent was also in default and their conduct meant that they should pay the costs of the appeal. 21/7/2014 (With thanks to Gordon Exall of Zenith Chambers for drawing our attention to this unreported case)

Relief from sanctions / failure to file defence: In Reachlocal UK Ltd & Ors v Bennett & Ors (2014) HC Justice Nicol granted relief from sanctions to one of two litigants in person who had failed to file a defence: that litigant had written to the court addressing the claimant’s allegations 3 days after the deadline to serve the defence. Relief was not granted to the other litigant, who Justice Nicol concluded had lied to both the claimant’s solicitors and to a judge. 3/7/2014

For more information please contact Simon Denyer, Partner on +44 (0)161 604 1551 or email simon.denyer@dwf.co.uk

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.