The Practical Lawyer


Part 36 offer – counterclaim

The CA has held that a defendant can be treated as a claimant in respect of its counterclaim. This means that the defendant can have made a claimant’s Part 36 offer, even if the defendant’s counterclaim has not yet been pleaded. Moreover, the offer can then take into account the claimant’s original claim – so the costs consequences of the defendant’s ‘claimant’s offer’ will apply to both the claim and the counterclaim.

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ATE insurance – disclosable?

The normal rule is that a defendant’s insurance policy will not be disclosable to the claimant. However, there is a clear distinction emerging between BTE (‘before the event’) policies, and ATE (‘after the event’) policies.

The traditional approach has been to regard BTE liability insurance policies as non-disclosable. But, an ATE policy is different – if the litigation only exists because of the ATE policy then the likelihood is that the court will agree to its disclosure.

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Non-EU courts – parallel proceedings

There is considerable confusion as to whether the English Courts should stay proceedings (in England) when there are existing parallel proceedings in a non-EU country.

Under the Judgments Regulation, the basic rule is that a defendant domiciled in an EU member state must be sued in that country of domicile. Based on that rule, the ECJ held in Owusu [2005] that English courts had no jurisdiction to stay English proceedings if a defendant was domiciled in England – even if a non-EU jurisdiction (in that case, Jamaica) was clearly the more appropriate forum, and even though proceedings had not been commenced there.

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EU judgments – freezing injunctions

The Brussels Regulations requires EU member states to recognise and enforce the judgments of other member states. The only exceptions are:

The problem is that those two exceptions can cause great difficulties when enforcing freezing injunctions. For instance, a company took action in Greece against a guarantor and obtained a worldwide freezing injunction in Greece, which was subsequently registered in England and Wales (where the defendant had some assets).

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Mediation –non-attendance

A party who fails to attend mediation may be liable for the other side’swasted costs.

In a recent Technology & Construction Court case, the pre-action protocol had not been complied with because of limitation problems; accordingly, the court granted a stay, so that the protocol could be followed, with a date being set for mediation.

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Service – by fax

New rules on the service of claim forms were introduced in October 2008. As far as service by fax is concerned:

the defendant, or his solicitors, must have confirmed in writing that he is willing to accept service by fax;

a fax number on notepaper can be sufficient indication that the defendant is willing to accept service by fax;

service must be on the defendant’s solicitor, if the defendant’s solicitor has notified the claimant in writing that he is instructed by his client to accept service.

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Unless orders – strict approach

To further ‘the overriding objective’, the court has an inherent power to manage cases under CPR 3.1(2)(M). Taken with Parts 3.1(3) and 3.4(2) this means the court may make ‘unless orders’ which, if broken, may result in a statement of case being struck out. The criteria the court applies when deciding whether to grant relief from breach of an unless order will include:

the interests of the administration of justice;

whether the application for relief was made promptly;

whether the failure was intentional;

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Claim form – service

What is the deadline for putting a claim form in the post (or DX, etc)? CPR 7.5(1) says it is ‘before 12 midnight on the calendar day four months after the date of issue of the claim form’.

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Defendant – date of birth

The form of acknowledgment of service (revised Form N9) contains a box in which the defendant is asked to record his date of birth. What happens if the defendant does not do so?

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Limitation – third-party debt orders

Section 24(1) Limitation Act 1980 says that no action can be brought on any judgment after the expiry of six years from the date on which the judgment became enforceable.

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