Legal News

Original news Eurasia Sports Ltd v Tsai and others [2016] EWHC 2207 ( QB) The Queen’s Bench Division declined an application by three Peru‑based defendants (the applicant defendants) to set aside the leave previously granted to the claimant, an online betting operator, to serve its claim form out of the jurisdiction. The applicants maintained that the court had no authority to hear the case, which alleged, among other matters, that they and eight further defendants had conspired to cause loss to the claimant. The court concluded that the claimant had made good that jurisdiction existed: it demonstrated a serious issue to be tried in relation to each head of claim, advanced a good arguable case that the claims fell within one of the jurisdictional gateways in paragraph 3.1 of the Civil Procedure Rules Practice Direction ( CPR PD), and showed that England was plainly or...

Original news Hall and another v Elia and another [2016] EWHC 1697 ( Ch), [2016] All ER ( D) 63 ( Jul) The Chancery Division refused a mother’s application for permission to appeal a registrar’s ruling that a deed, by which her son purported to assign his property interest to her, was a sham, or else should be set aside under sections 339, 340 or 423 of the Insolvency Act 1986 ( IA 1986). A Chancery judge held that, as the registrar had already debarred the mother from defending the claim, permission to challenge his decision on the assignment should be refused. What was the background to the appeal? The mother and son said a deed of assignment transferred his share to her before the bankruptcy order against him. His trustee in bankruptcy asserted a beneficial interest, as did his company’s...

Inconsistent pleading between court and arbitration claims permitted ( ED& F Man Sugar v T& L Sugar) Practical implications This judgment confirms that: A determination in arbitration or court proceedings between A and B does not bind A in separate arbitration or court proceedings between A and C ( Lincoln National). A statement of truth concerns only the party’s belief in the factual matters pleaded and not assertions of legal conclusion, while reiterating the significance of statements of truth and the penalty for abusing them (para [12]). Accordingly, in an arbitration between the claimant and SRB, the claimant could contend that title to the property had passed to SRB, whilst in parallel issuing court proceedings against T& L Sugars ( T& L) for conversion premised on reliance upon a retention of title clause in its sale contract with SRB. How did the...

Practical implications Mr Justice Knowles CBE reviewed how releases in a settlement agreement should be read, with a particular focus on provisions addressing fraud-based claims. He applied the approach articulated in BCCI and in Satyam. Allegations of ‘sharp practice’ levelled at those relying on the settlement to shut out future claims were rejected. Here, the releases were expressly identified and did not amount to a general release, the type of clause where any ‘sharp practice’ might call for relief. How did this construction issue arise? Kaupthing Bank had advanced a loan in exchange for security that was already, directly or indirectly, encumbered in favour of senior lenders. Mr Johannsson was appointed first to Kaupthing’s Resolution Committee and subsequently to its Winding Up Committee. Following Kaupthing’s collapse, the Serious Fraud Office opened investigations concerning Mr Tchenguiz and others, which included Mr...

Original news Broadhurst v Tan; Taylor v Smith [2016] EWCA Civ 94, [2016] All ER ( D) 219 ( Feb) The Court of Appeal, Civil Division, determined an issue of construction arising from an apparent clash between the rules that fix costs in most lower value personal injury matters, located in s IIIA of CPR Part 45, and the provisions in CPR Part 36 that specifically govern such claims. It decided that conflict between CPR 45.29B and CPR 36.14A must be settled in favour of CPR 36.14A. What problems did the litigation highlight, and why does it matter? The dispute concerned s IIIA of Part 45, which fixes the solicitors’ costs recoverable in all personal injury cases commenced through the RTA or EL/ PL portal. Part 45 states that the only solicitors’ costs to be recovered are those set out in that Part. By...

How is social media affecting the personal injury landscape? In essence, defendants are increasingly turning to social media to probe a claimant’s credibility. If a claimant declares 'my life is ruined' or ' I can't walk', yet their Facebook profile shows photographs from parties or other energetic pursuits, that mismatch is unlikely to go down well with most judges at trial. Defendants routinely rely on this kind of content to challenge what is being alleged. Have there been any recent cases that offer guidance on how the social media accounts of those involved in the case can play a crucial role? Social networks, particularly Facebook, have featured in cases for four or five years, and their use is becoming more common. Recent matters highlight Twitter and Facebook as significant in challenging the credibility of witnesses. Notably, in Saunderson & Others v Sonae Industria ( UK) Ltd [2015] EWHC 2264 (...

Does a criminal prosecution prevent civil contempt proceedings? ( First Capital East Limited v Ilmi Plana & Anor) Practical implications There is a steadily growing momentum across the wider insurance sector, especially in the personal injury sphere, to seek the toughest sanctions realistically available against those who attempt to advance fabricated or inflated claims. Although, to some, such measures may, at first blush, seem heavy-handed — and the PR dimension is ever-present — where the dishonesty is both clear and brazen, often shown by the deployment of covert surveillance, the urge to make examples of fraudsters is entirely understandable. The critical point in this matter appears to have been that the individual had been acquitted and there was no fresh evidence. In general, contempt applications ought to be brought as soon as possible after the civil proceedings and before any criminal...

Practical implications Although no witnesses were cross-examined in this matter, the court was able to dispose of it summarily, given the procedural steps already taken and the case management directions both in place, under which the appellants had repeated opportunities to advance their position. Disclosure had also occurred, and the court could rely upon witness material filed in earlier, related proceedings that had failed. While the appellants invoked comparisons with decisions discussed in the Tomlinson Report concerning banks’ lending behaviour, it was not the court’s role to permit a trial merely to ventilate issues of public interest where the underlying claims lacked viability. Accordingly, a summary determination was appropriate notwithstanding the absence of oral testing of the evidence. The court’s task is to assess viability, not to convene a forum for broader debate where the pleaded causes cannot...

Practical implications The court expressed disquiet that an incident underpinning the claim, said to have lasted only a few minutes, had spawned 13 lever-arch files of paperwork and statements. It was especially struck, and alarmed, that anyone might consider sizeable portions of that material relevant, not least because, as matters unfolded, nobody ever contended that any of it was relevant, and I was not taken to a single page or line during the evidence or the submissions. The court made clear it would not hold against the individuals the inclusion within their witness statements of plainly irrelevant material, as it could not tell whether they chose to include it, whether it appeared on advice from others...or whether shortcuts were adopted, with witness statements drafted for other proceedings...being repurposed for these proceedings. It did, however, state that it would take into account the needless...

Practical implications arising from this judgment Practical implications arising from this judgment include: When your opponent is a litigant in person, adopt an even more hands-on approach than in matters where both sides are represented, anticipating and dealing with knock-on issues. For example, when an extension to a revised timetable was requested, the respondent’s solicitors asked whether it was sought for all outstanding directions, including disclosure and inspection. Where the opposing party is unrepresented, and especially if there are potential mental health concerns, help the court to identify ways for the party to avoid having to participate in court hearings without being debarred. See below (under ‘ The appeal—background facts’) for how the court shaped its order to accommodate any difficulties the litigant might face in complying. Mental health considerations should be factored in to ensure the...

Why are the protocols being amended? In his Final Report on Civil Litigation Costs ( January 2010), Lord Justice Jackson proposed retaining the pre-action protocols, while introducing targeted changes to improve how they work and to keep pre-action costs proportionate. He also advised creating a specific protocol for debt claims where a business pursues an individual. In response, a CPRC sub-committee was established to review and recommend any necessary amendments to the pre-action protocols. Although the sub-committee is still considering drafts of some protocols, several have been issued and, subject to ministerial sign-off, are expected to commence on 6 April 2015. Below is a summary of the protocols being revised and the stage each has reached, with links to the latest drafts where available. We will provide further updates as the CPRC publishes more material and will revise our Practice Notes once the...

Original news Civil Procedure ( Amendment No 8) Rules 2014, LNB News 18/12/2014 152 SI 2014/3299: The Civil Procedure Rules 1998, SI 1998/3132 ( CPR) are revised to reflect established case law on Part 36 with effect from 6 April 2015. What are the principal amendments to CPR, Pt 36 arising from the Civil Procedure ( Amendment No 8) Rules 2014? The measures are wide-ranging in the circumstances they touch, and in several respects they codify existing case law. The key changes are as follows. CPR 36.2(3) clarifies that Part 36 applies to additional claims and to counterclaims, so a counterclaimant who makes an offer may rely on the claimant-offer consequences, including an entitlement to costs if the offer is accepted. CPR 36.4 states that a Part 36 offer can be made in both first-instance and appeal proceedings, but it is effective only in the...

Original news Re Harvest Finance Ltd ( In Liquidation); Jackson and another v Cannons Law Practice LLP and others [2014] EWHC 4237 ( Ch); [2014] All ER ( D) 216 ( Dec) Following relief obtained by the liquidators under the IA 1986, ss 234 and 236, the Companies Court considered whether it possessed the power to require payment of the costs incurred by the respondent solicitors in complying with an order to hand over papers and electronic material. The court concluded that, in the circumstances, it should, as a matter of discretion, refuse to allow the respondents to charge for the time expended. What was the background to the application? The applicants were liquidators of a company suspected of being used as a vehicle for a large-scale international fraud, involving loans secured on securities whose values appeared to have been artificially inflated. The...

News analysis Emerald Supplies Ltd v British Airways plc [2014] EWHC 3513 ( Ch), [2014] All ER ( D) 340 ( Oct) During proceedings about the defendant airline’s alleged participation in a cartel, the European Commission adopted a decision. A dispute arose over whether a redacted version of that decision should be made available to the parties for inspection and use in the case. The Chancery Division determined that a confidentiality ring between the parties ought to be established, permitting circulation of the decision among its members, together with a safeguard preventing the claimants from using it to launch any further proceedings. What is the background to this matter and the competing interests concerning disclosure of the Commission’s decision? The claim is brought by 565 claimants, following the European Commission’s air cargo cartel decision. In a press release dated 9 November 2010, the...