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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: 

Relief from sanctions/failure to serve witness summary: In Whitby Specialist Vehicles Ltd v Yorkshire Specialist Vehicles Ltd & Ors (2014) Arnold J, sitting in the Chancery Division, held that a failure to serve a witness summary was significant, though not a serious failure, although the summary could have been served sooner and the application made more promptly. Going on to apply the three stage test in Denton, the Judge concluded that relief from sanctions should be granted and that the evidence could be tested through cross examination.

The following are cases where the court had regard to the test in Mitchell and/or Denton, notwithstanding the fact that they were not applications for relief from sanctions per se:

Strike out applications/failure to deal with disclosure: In Walsham Chalet Park Ltd v Tallington Lakes Ltd (2014) the Court of Appeal confirmed that it was correct for a Judge to consider the test in Mitchell as “relevant and important” and having a “direct bearing” when considering an application to strike out, even though the Judge was considering whether to strike out the claim for non-compliance, rather than an application for relief from sanctions. The strike out application was dismissed.

Re-amendment of particulars of claim/pleading fundamentally recast: In Hague Plant Ltd v Hague & Ors (2014) the Court of Appeal refused leave to a claimant to re-amend their particulars of claim, where, if allowed, the amended pleading would have recast the particulars of claim and would have left the pleading five times longer than it had been. Although the application did not concern relief from sanctions, it was understandable that the judge at first instance had regard to the decision in Mitchell.

Extension of time to file notice of appeal/delay in filing notice: In R (on the application of Hysaj) v Secretary of State for the Home Department & Ors (2014) the Court of Appeal confirmed that applications for extensions of time to file notices of appeal had to be determined having regard to the principles governing relief from sanctions and CPR r.3.9 and the merits of any appeal should not determine whether an extension should be granted. Applying the three stage test in Denton, the application to extend time would be refused.

Late filing of witness statements/Part 8 claims: In Al Hamadani & Anor v Al Khafaf & Ors (2015), Warby J sitting in the QBD applied the test in Denton to a Part 8 claim, where a party had filed witness statements late. Whilst the breach was serious, the delay was less than three weeks and did not threaten the orderly process of the litigation. Relief would be granted.

By Marcus Davies

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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.

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