The Practical Lawyer


Charging order – mortgage debt

It seems that mortgagees are increasingly reluctant to disclose the balance due to them when asked to do so by a judgment creditor who is seeking an order for sale following a final charging order. A note in the NLJ asks what is the most efficient means of procuring this information (which should be supplied in the supporting evidence)?

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Electronic working – London

Since April, High Court litigators in London have been able to issue a claim electronically, 24/7, 365 days a year. This applies to the Commercial Court; Technology & Construction Court; Chancery Division; Patents Court; Bankruptcy and Companies Courts (although not yet in the county courts).

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Damages – from third party

If a defendant settles with a claimant, to what extent can a third party argue that the defendant over-settled? The answer is that the appeal court will not interfere if it thinks the settlement was ‘within the range of what was reasonable’.

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Arbitration – anti-suit

An anti-suit injunction prevents the other side from starting court proceedings in a different jurisdiction. This can be particularly important if the defendant is minded to launch spurious proceedings in a country where litigation is notoriously slow, as a way of stalling effective legal action by the claimant.

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Judicial review – ‘promptly’

It is well known that any application for judicial review must be made (a) promptly, and (b) in any event, not later than three months after the grounds first arose.

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Part 36 offer – replacement offer?

The claimant made a Part 36 offer, which the defendant rejected. Once proceedings had been issued, the claimant made an increased Part 36 offer, without expressly withdrawing, or even referring to, the first offer. At that stage, the defendant purported to accept the first, lower, Part 36 offer.

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Default judgment – ‘promptly’

A claimant can enter judgment in default if the defendant does not file an acknowledgment of service within 14 days of the date of service (or if a defence is not filed in the appropriate time period).

The court does, of course, have a discretion to set aside that judgment. Under r13.3 the defendant will have to show that there is ‘a real prospect’ of successfully defending the claim, and that there is ‘some other good reason’ why the judgment should be set aside. Furthermore, the court must consider whether the defendant has made his application ‘promptly’. It is that issue of promptness that has led to most litigation since the introduction of the Woolf reforms over ten years ago. The wording of the rules clearly leaves the interpretation of ‘prompt’ open to the court, and it is therefore dealt with on a case-by-case basis. But in Regency [2000] the CA held that a delay of 30 days was too long; in Hart [2006] the High Court said that a delay of 59 days was ‘at the outer limit of what could possibly be acceptable’.

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Expert witness – immunity?

Expert witnesses enjoy immunity from actions in negligence in relation to preparation, or for taking part in a trial, on the basis of public interest.

However, there are strong suggestions that this immunity will not survive much longer. In a recent case, a defendant expert witness had applied to strike out a claim brought against her for negligence, on the basis that she was protected by expert witness immunity.

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Without prejudice – exceptions

If a communication is ‘without prejudice’ then it will be inadmissible in evidence. But, there are eight exceptions, as set out by the CA in Unilever [1999]:

where there is a dispute as to whether negotiations have resulted in a concluded settlement;

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Success fee – for insurer?

A property owner sued for subsidence caused by the defendant’s trees. The claim was settled with costs to be assessed. As one would expect, the claim had really been brought by the claimant’s insurers under their right of subrogation, and those insurers instructed solicitors under a collective CFA with a success fee. But, was it right for an insurance company to benefit from a success fee?

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Page 41 of 48

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