Default judgment—still no definitive answer as to jurisdiction to enter where acknowledgement of service or defence filed late (Hanson v Carlino)

CA 1137 – Hanson & Ors v Carlino & Anor [2019] EWHC 1940 (Ch) (24 May 2019)

This article was first published by Lexis®PSL on 02/08/2019

A question which has troubled the courts in recent years is whether or not default judgment can be entered in circumstances in which an  acknowledgment of service has been filed late, but prior to the court determining the application for default judgment. Unfortunately, the judge in Hanson, rather than deciding this point, held that relief from sanction principles applied in the instant case as no defence had been filed at all, such that default judgment should be entered upon the failure of the defendant’s application for an extension of time to file his defence. This analysis considers this case alongside other recent judgments which have grappled with this question but, until such a case reaches the Court of Appeal, or the rules are clarified, this is an issue which is likely to prove highly contentious, with a large body of conflicting first instance decisions.

 

 

Award on effect of company restoration on termination clause upheld on appeal (Bridgehouse (Bradford No.2) v BAE)

CA 1101 – Bridgehouse (Bradford No.2) v BAE Systems plc [2019] EWHC 17668 (Comm)

In the Commercial Court, Mrs Justice Cockerill upheld, on appeal pursuant to section 69 of the Arbitration Act 1996 (AA 1996), a sole arbitrator’s decision that a contract was validly terminated based upon a ‘Default Event’, namely, that Bridgehouse (Bradford No.2) (BB2) was struck off the register of companies. While BB2 was restored to the register shortly after, the arbitrator had correctly decided that BB2 had defaulted the moment it was struck off. It was not appropriate for the effective termination to be reassessed retrospectively by way of the company’s restoration. Such default event clauses clearly operate as a useful risk management tool in respect of termination of contracts in the event of a party falling into a state of administrative disarray, and the case provides certainty in terms of when and how such a clause can be utilised.

This article was first published by LexisNexis on 15/7/2019

My recent article: Limitation—revisiting the date of knowledge under section 14A (UK Insurance Ltd v Carillion).

CA 1093 – UK Insurance Ltd v Carillion

The case UK Insurance v Carillion Specialist Services provides a helpful reminder of the courts’ approach to determining the requisite date of knowledge for the purposes of section 14A of the Limitation Act 1980. The court held that the application of this provision resulted in the relevant claim in this case being wholly time-barred and awarded summary judgment in favour of the second defendant.

First published by LexisNexis on 04/07/2019

Double derivative claims, indemnities, and injunctions (Tonstate Group Ltd v Wojakovski)

LexisPSL 1047 – Tonstate Group Ltd & Ors Wojakovski

The background to the case surrounds claims by Mr Wojakovski’s wife’s family, that he unlawfully extracted £14.5m from Tonstate Group Ltd (TGL), of which he was a former chief-executive. While this case does not delve into the substance of those claims to any great extent, it provides a helpful reminder of the availability of a double derivative claim at common law in contrast to a statutory derivative claim, as well as applications for indemnities in respect of the costs of such claims. Mr and Mrs Matyas sought to continue actions brought by various companies as double derivative actions and sought an indemnity out of the assets of those companies in respect of the costs of pursuing those claims. Mr. Wojakovski sought an injunction preventing various of the companies involved from using their assets to fund the personal costs of Mr and Mrs Matyas, as well as restraining TGL from using their assets to fund the main action.

First published on 29 May 2019 by Lexis®PSL

No automatic right to a renewed oral permission to appeal hearing—an unlawful restriction of access to justice? In short, no. (R on the application of Faiz Siddiqui v Lord Chancellor)

Case analysis 1010 – R on the application of Faiz Siddiqui v Lord Chancellor

The Civil Procedure Rules 2016 removed the automatic right to a renewed oral application for permission to appeal to the Court of Appeal. The change was primarily aimed at reducing the court’s growing workload and was not without criticism from commentators concerned that it would operate as a constraint on access to justice. This case considers the balance between ensuring access to justice in light of the restriction on the right to an oral hearing. It was determined that such a restriction, which was subject to a number of safeguards contained both within the justice system and the Civil Procedure Rules, did not lead to a breach of Article 6 of European Convention on Human Rights, nor a breach of the common law right of access to justice.

First published by LexisNexis on 12 April 2019