FURTHER NEWS OF THE NEED TO COMPLY WITH THE COURT'S RULES, ORDERS AND DIRECTIONS

There is a little bit of good news in respect of non compliance as can be seen when you read this linked article http://www.lawgazette.co.uk/practice/high-court-bucks-mitchell-trend/5039233.article.   

Unfortunately almost in the same breath we have the case of  Durrant v. The Chief Constable of Avon & Somerset Constabulary details of which you can read at http://www.lawgazette.co.uk/analysis/comment-and-opinion/relief-from-sanctions-more-tough-action/5039240.article which shows that the Courts generally are following the much stricter approach set down in the Mitchell v News Group Newspapers Limited decision made earlier this month.

This article is for information purposes only

NOT COMPLYING WITH COURT ORDERS COULD BE FATAL TO YOUR CLAIM

Things have changed over the last few months and sadly you not complying with a Court Order could be fatal to your claim.

What does complying with a Court Order mean.  Simply if the Court has provided you with directions of how to conduct your case i.e. :-

"Both Parties to exchange List of Documents by the 5th May 2014 (or whatever date set down by the Court)

Both Parties to exchange witness statements by the 6th June 2014 (or whatever date set down by the Court)   etc"

AND YOU DO NOT DO WHAT THE COURT HAS ASKED YOU TO DO, BY THE TIME THE COURT HAS ORDERED YOU TO DO IT, YOU MAY LOSE YOUR OPPORTUNITY TO DO IT ALL.  

Think about it, its quite simple really, if you don't bother to submit your Statement by the date ordered by the Court, and you then apply to the Court to ask for permission to submit your Statement late, and, the Court refuses, that is your case over and done with no matter how good your claim.

So what happened well CPR 3.9 happened on the 1st April 2013 and the Courts were directed to consider "all the circumstances of the case, so as to enable the Courts to deal justly with an application for relief of sanction" (a relief of sanction is you making an application to the Court if you have missed complying with a direction, rule or order of the Court) however the Judges would now only consider two questions when deciding whether they should grant your application for relief of sanction) (give you extra time to comply with their original Order).  The questions the Judges HAVE TO  consider are:-

1.  Can litigation be conducted efficiently and at a proportionate cost 

2.  The necessity of  enforcing compliance with rules, practice directions and orders.

Judge Lewison giving his Judgment in the Court of Appeal in the case of Perry v. Brands Plaza Trading 2012 EWCA Cov 224 said the following:-

"Courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non compliance is inflicting on the civil justice system.   The balance therefore needs to be redressed"

Judge Lewison's comments have proved influential and in the subsequent cases of Venulum Property Investments Ltd and Space Architecture and others 2013  Mr Justice Edwards-Stuart cited Judge Lewinson by stating that he regarded the new addition to sub-paragraph (f) to the overriding objective "as requiring the court to take a more robust approach when exercising a discretion to extend time for service of a claim form or particulars of claim 

Venulum v, Space Artchitecture was a professional negligence claim in which the claim form had been served in time but the particulars of claim had not.  An application was made to extend the time of service of the PoC.

Mr Justice Edwards-Stuart found 3 factors where of particular importance in considering whether the application for relief of sanction should succeed:-

1.  There had been an unexplained delay of 5 years before the Claimant had instructed solicitors

2. On the information and documentation before the Court the Claimant's claim was not a strong one .

3. The claim was a vaguely pleaded claim for bad faith

The Judge stated the following:-

"In my judgement when the circumstances are considered as a whole particularly in the light of the stricter approach that must now be taken by the Courts towards those who fail to comply with the rules following the new changes to the CPR, this is a case where the Court should refuse permission to extend time"

Shortly after this case the Judges considered the matter of non compliance again in the case of Fons HF v. Corporal Ltd 2013.   This matter involved a late application to extend time for service of witness statements only three weeks after the deadline!!!!!!!!!. Although the application was successful the Judge presiding gave this stern warning that he had:- 

"come very close to refusing an extension to either of the parties" and referred to the fact that the "amended Civil Procedure Rules now require the Court to pay close attention on the failure of parties....a failure to comply with a rule direction or order is itself a clear breach of the overriding objective and is likely to result in severe sanctions".

So you can see the Courts are taking a much stricter approach, however if you are unfortunate enough to miss a direction etc set down by the Court you may still be able to obtain relief from sanction if you :-

Make an application as soon as possible after you realise your error and attach a copy of the document you were supposed to serve etc and a clear and detailed Statement in support of you application explaining why there has been a delay. The Court will consider that there are unforeseen factors which can lead to delays, but do substantiate your explanation with any physical evidence you may have i.e. copy of sick note from your GP.

To avoid the stress of making such an application COMPLY WITH THE COURT'S DIRECTIONS and if you can't apply to the Court PRIOR TO THE EXPIRY OF THE COURT'S ORIGINAL ORDER and seek the consent of your opponent.

GOOD LUCK 

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY

What happens if you refuse to engage in Mediation

Failing to engage in mediation could result in your paying your opponent's costs even if you win your case.

You need to seriously consider when involved in litigation the costs consequences that can result from refusing to engage in the mediation process as can be seen from the outcome of the recent case of PGF II SA –v- OMFS Company 1 Limited (2013) 

The  case of PGF related to dilapidations to a property and concerned a landlord and tenant of a commercial property in London. During the course of proceedings, the defendant made a part 36 offer to settle the claim. The claimant replied in a detailed letter suggesting dates, possible mediators and a suggestion that the parties engage in the mediation process,  The Claimant's Solicitors received no reply to their request from the Defendants or their Solicitors and forwarded a chaser letter which was also ignored

The day before the trial, the claimant accepted the defendant's Part 36 offer  and both parties made representations to the Court in respect of costs.  The claimant’s argument was that the ordinary rules on Part 36 offers to settle claims (that the claimant would be liable for the defendant’s costs from 21 days after the offer) should not apply because the defendant had ignored their suggestion to mediate and that that refusal was  unreasonable.

Initially the Judge, Mr Furst QC, who was sitting at the Construction and Technology Court upon considering the question of costs in relation to this case considered the case of Lumb –v- Hampsey which concerned the court’s exercise of its discretion under CPR 36.10 (5) (b) and  applied the recommendations made in Halsey –v-Milton Keynes General NHS Trust. 

Judge Hurst considered that the defendant’s failure to respond to the claimant’s requests to mediate was an unreasonable failure to mediate on the basis of the recommendations set out in the case of Halsey. He ordered that the usual costs consequences of part 36 would not apply, and ordered both parties to be responsible for their own costs for the period following the 21 days after the defendant’s part 36 offer.

The defendant appealed against Judge Hurst's order and argued that they had not acted unreasonably in not engaging in the mediation process and that their silence did not amount to a refusal to mediate. They further argued that mediation between the parties would not have been successful because of the difference in  the claimant and defendant's valuations of the claim.  They also argued that the order in respect of costs made by Judge Furst initially was too harsh because the judge had not carefully taken into consideration the claimant’s responsibility in not accepting the defendant’s offer sooner.

Guy Featherstonehaugh for the defendant argued that the test in Halsey for reasonableness of a refusal to mediate was to be considered  by reference to the relevant facts about the litigation at the time and as the test was an objective one,  it made no difference whether the party refusing to mediate gave its reasons at the time, or later during the trial.

The Court of Appeal did not agree with Mr Featherstonehaugh but rather agreed with the argument submitted by Jonathan Seitler QC on behalf of the claimant that the courts should strongly encourage parties to consider Alternative Dispute Resolution before progressing to trial. Lord Justice Briggs said that:-

 “the time has now come for this court firmly to endorse the advice given in chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable…”

The Court provided reasons for a small extension to the Halsey guidelines and recommended that parties to actions should provide any objection to mediation/ADR at the time it was discussed and confirmed that responding to a request to mediate with silence did not agree with the courts objective of encouraging parties to consider and use ADR.

The Court stated that silence to a request to mediate could not be regarded as anything other than refusal to mediate, and this refusal would be considered unreasonable conduct which would be sufficient to attract a costs sanction.

The Court did qualify its extension of the Halsey principles by stating that a refusal to engage in a discussion about mediation did not produce an automatic costs penalty as their might be situations in which a refusal to mediate was reasonable or occurred due to a  misunderstanding, and therefore it should be part of the balancing exercise for the court when making a decision in respect of a costs order.

To avoid a cost order being ordered against you for your failing to engage in mediation you need to consider the following:-

• If you refuse to engage in mediation or other ADR, you should take care to provide a good and sensible reason for your refusal when mediation is discussed. The court will not look be impressed with excuses given at trial that have not been mentioned previously.

• If the court states that a case appears suitable for mediation, and you fail to engage in mediation this could result in a harsh costs sanctions and you could end up being responsible for some of your opponents costs.

• If the party you have suggested mediation to does not respond then you may want to consider making  a complaint about the silence.

• You may want to consider suggesting mediation when you initially issue proceedings.

This article is for information purposes only 

     

DISMISSAL FOLLOWING LENGTHY ABSENCE DUE TO ILLNESS

Anyone who has been off work for a long time due to illness and feels their job may be at risk may be interested in the ruling in the recent Inner Court of Sessions case of BS v Dundee City Council  (2013) which provides useful guidance on the question of DISMISSAL FOLLOWING A LENGTHY ABSENCE DUE TO ILLNESS and the full report can be read at http://www.bailii.org/scot/cases/ScotCS/2013/2013CSIH91.html 

OBTAINING A CHARGING ORDER AGAINST YOUR DEBTOR

If you have a Judgment against your Debtor and you want to obtain a Charging order against them the first thing you will need to do is undertake a Land Registry Search against your debtor to establish whether they are on the title deeds of “their” property.  There are two stages to apply when applying for a charging order against a debtor’s property.

Stage I The first stage is for you to apply for an interim charging order by completing and issuing  an application notice. It will be necessary for you to provide copies of Land Registry  Entries when submitting your application notice to the Court. Your application will be considered, without a hearing, by a judge who will consider whether to make an interim order and fix a hearing date to consider making a final  charging order. If the interim order relates to land, it is usual, as a precaution to  to register the interim order as a pending action under the Land Registration Act 1925 or before it is served on the debtor. At least 21 days before the final hearing, the judgment debtor must be served with the interim charging order and an  application notice and any supporting documents   Service of an interim charging order effectively prevents any dealings with the assets charged pending the final hearing. Stage 2 The second stage of obtaining a Charging Order involves attending the hearing to where the Judge will consider making the order final. If service of the interim order was effected properly  on the judgment debtor, a certificate of service must be filed at least two days before the final Court hearing or produced at the Court hearing itself. Any person objecting to the order being made final must file and serve written  evidence setting out  the grounds of the objection not less than seven days before the hearing. At the hearing the court may: ·       make a final charging order or; ·       discharge the interim order or, ·       decide any  issues or ·       direct a trial of any issues.   .

You must attend the final hearing

If you need help in preparing your documentation when applying for a charging order.  Please don’t hesitate to contact us on 0203 005 3284

This article is for information purposes only.

WHAT IS INVOLVED IN BRINGING BANKRUPTCY PROCEEDINGS AGAINST A DEBTOR

If you are a  creditor who is owed more than £750 you can serve a 'statutory demand' for the money due to you and if it is not paid or secured (for example, by a guarantee to provide something else of the same value); or a settlement is not agreed, within 21 days, and the debtor has not applied for the statutory demand to be set aside, then you can apply to make your creditor bankrupt.  Below I have set out the procedure that will need to be complied with if you decide to apply to  make your creditor bankrupt.

    

The completed Statutory Demand must usually be served on your debtor in person. As you will need a certificate of service  it is usual to either employ a process server to carry out this function (an individual) or serve the document yourself. The court is not involved in the issuing of statutory demands, so no court fee is payable.

If you do not receive a response to the Statutory Demand your next step is to issue a Bankruptcy Petition. This  will need to be issued in the High Court  in London, or in a County Court that deals with bankruptcy matters. Generally, the petition for bankruptcy should be issued in a court that deals with the area where your debtor has lived or traded for the longest period in the previous 6 months. If your debtor lives in one court district and runs a business in another, it will be necessary for you to issue the Petition at a Court dealing with the district where your debtor’s business is, as this takes priority over their home address.

To prepare the Bankruptcy Petition, you will need to complete a statement of truth verifying the matters given rise to in the Petition and prepare a statement of truth verifying that the statutory demand has  been served on the debtor.

Once the Petition is prepared it will need to be filed at Court with three copies one to be served on the debtor, one to be attached to the statement of truth verifying the matters that led to the petition; and one to be filed at Court.

A deposit and court fee is payable on when submitting the documentation to the Court.  You will need to pay the Petition deposit of which is  £600  towards the costs of administration of the bankruptcy (an Insolvency Practioner will be appointed to deal with the bankruptcy in the event that your Debtor is made Bankrupt) and a further  fee of £220  will be payable to the Court.

Once the Petition has been issued the court will then fix the place and date when the petition will be heard. Normally there must be at least 14 calendar days between the petition being served on your debtor and the Bankruptcy hearing.  A copy of the petition must have been served on your debtor in person. If this is not possible the court can, on application by you, order that the petition be served on your debtor by alternative means, such as by post. This is known as 'substituted service.

If your debtor wishes to oppose the petition, they must give the court a statement of truth at least 5 business days before the hearing.   On the day of the hearing, you must provide a list of people intending to appear at the hearing for the court. At the hearing, you and your debtor and any supervisor of any voluntary arrangement all have the right to be heard. The court can then:

·       stay (delay or stop) the proceedings;

·       dismiss the petition;

·       adjourn (postpone) the hearing; or

·       make a bankruptcy order.

After making a bankruptcy order, the court usually appoints the official receiver (a civil servant in The Insolvency Service and an officer of the court)  to manage  the bankrupt person's affairs. The official receiver has responsibility from the date of the bankruptcy for administering the bankruptcy and protecting the bankrupt person's assets.  The official receiver will also act as trustee of the bankruptcy estate unless an insolvency practitioner is appointed. If this happens, the official receiver still has a duty to investigate the bankrupt person's affairs.   Two people may be involved in the bankruptcy, the Trustee, who is responsible for selling the bankrupt person's assets and distributing the money among the creditors; and the official receiver, who has a duty to investigate the bankrupt person's affairs.

If a person is declared bankrupt the court can 'annul' (cancel) a bankruptcy order on an application of the person who has been declared bankrupt if:-

·       the court did not have all the relevant facts when making the bankruptcy order and would not have made an order had it known those facts; or

·       the bankrupt can pay all the debts in full; or

·       the bankrupt enters into a voluntary arrangement with the creditors.

An application to annul the bankruptcy order can be made at any time (even after the bankrupt has been discharged).

A bankrupt  can apply for the cancellation of a bankruptcy order, if there has been a change in circumstances since the bankruptcy order was made. A cancellation will usually only be granted in exceptional circumstances and would normally require the consent of you  as the Petitioning creditor. A bankrupt can also 'appeal' against a bankruptcy order on a point of law. As a result of an appeal, the court can cancel the bankruptcy order or otherwise change its decision. A bankrupt has four weeks in which to appeal the order being made.

Bankruptcy proceedings can be 'stayed' (stopped) however the bankruptcy proceedings are usually only stayed:

·       while waiting for an application for an annulment,

·        an appeal or a rescission of the bankruptcy order,

·       or while an individual voluntary arrangement is being proposed.

If you are thinking of bringing bankruptcy proceedings against someone who owes you money and you need some help please do not hesitate to contact us on 0203  005 3284

WHAT TO DO IF YOU ARE CAUTIONED BY THE POLICE

We recently had to deal with a client who due to a caution received from an undercover cab enforcement officer unfortunately found that he had lost his PHV Licence. How had this occurred? Well he had been approached by the undercover cab enforcement officer and asked how much a fare was; the next thing he was aware of was being arrested and cautioned at a Police Station. He was assured by the Police that a caution would not be regarded as a criminal offence that could affect his PHV Licence, and in his hurry to have the matter resolved signed documents without first seeking advice from a Solicitor.

A caution is a tool used by the Police for low level offending.  In the event that you find yourself in a situation where you are cautioned and arrested by the Police REMEMBER YOU HAVE A RIGHT to free legal advice under the Police and Criminal Evidence Act 1984 (PACE).  If you have been cautioned but not arrested you cannot be prevented from speaking to a Solicitor.

A person cannot be invited to accept a caution unless he has first admitted the offence and there are strict guidelines set down by PACE regarding the method for obtaining and recording admissions and if these are not adhered to you may be able to challenge the police’s decision to caution you.

A caution is not appropriate if you have not made a clear and reliable admission of the offence or, in the event that you have raised a defence. As difficult and frustrating as it may be, if, you find yourself in this situation WAIT UNTIL YOU HAVE SPOKEN TO A SOLICITOR OR LEGAL REPRESENTATIVE BEFORE MAKING ANY ADMISSIONS

The effect of a person admitting their guilt and agreeing to accept a caution must be fully and clearly explained to any offender both verbally and in writing before they are cautioned.  Based on what our client told us the police did not provide a full and clear explanation of the effect of admitting to the offence prior to being cautioned and he may have been able to challenge the caution if he had been aware of this.

Though a caution is not a form of sentence (only a Court can impose a sentence) or a criminal conviction it is an admission of guilt and will form part of an offender’s criminal record, and, it may be disclosed for employment vetting and licensing purposes.

This article is for information purposes only