Pre-action conduct and the question of promptness when making an application to set aside a default judgment under CPR 13.3 (Core- Export v Yang Ming)

CA – Core-Export v Yang Ming

This case considers the question of pre-action conduct in respect of an application to set aside a default judgment. While finding that the delay of 23 days since the defendant became aware of the judgment was not prompt, the judge also considered that it was necessary to view the speed in which the application had been made in the context of what had gone before it; in this case, including pre-action conduct. On the face of it, this appears to sit uneasily in light of the Court of Appeal authority in the case of Macdonald v Thorn, in which the court held that it was not appropriate to consider pre-action conduct in such an application, as the ‘default’ (ie failure to file an acknowledgment/defence) was the trigger for such an application. However, the distinction is arguably that pre-action conduct will be taken into consideration where it is relevant to an evaluation of the explanation for any delay in making the application to set aside.

This article was first published by Lexis®PSL on 13/03/2020

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‘Judgments on judgments’ capable of registration under the Administration of Justice Act 1920 (Strategic Technologies v Procurement Bureau of the Republic of China Ministry of National Defence)

CA – Strategic Technologies PTE Ltd v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWHC 362 (QB)

This case confirms the importance of the formal steps relating to service outside of the jurisdiction. In particular, where such steps are not undertaken in accordance with the law of the country to which service is to be effected, enforcement steps taken are liable to be set aside as premature. It also confirms that the Administration of Justice Act 1920 (AJA 1920) is broad enough to allow the registration of judgments obtained without a consideration of the merits (ie judgments in default). As such, it is permissible to register a ‘judgment on a judgment’, as AJA 1920, s 12 is very broad and the word ‘any’, in particular, is powerfully inclusive. While there is an argument for deterring the ‘laundering’ of judgments, until parliament makes legislative change, such practices are acceptable.

This article was first published by Lexis®PSL on 05/03/2020

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High Court confirms that variation of a disclosure order under the disclosure pilot is governed by CPR PD 51U (Conversant Wireless Licensing v Huawei)

CA – Conversant Wireless Licensing SÀRL v Huawei Technologies Co Ltd and others [2020] EWHC 256 (Pat)

This case confirms that, in a case where the disclosure pilot for the Business and Property Courts (the disclosure pilot) applies, the applicable test for revoking or varying an order for disclosure pursuant to CPR 3.1(7) must give way to the specific requirements of CPR PD 51U, para 18, which expressly sets out a different test. In particular, a court may at any stage make an order varying or revoking a previous order for extended disclosure, provided that it is necessary for the just disposal of the proceedings and that it is reasonable and proportionate. There is nothing in the disclosure pilot to suggest that applications to vary orders for extended disclosure will only be granted where something out of the ordinary has occurred.

This article was first published by Lexis®PSL on 27/02/2020

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Inducing a breach of contract—clarification of what amounts to a sufficient state of mind (Allen v Dodd)

CA 1549 – Allen t a David Allen Chartered Accountants v Dodd and Anr [2020] EWCA Civ 258

The issue raised on this appeal was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract. It was confirmed that, if a defendant honestly believes that the act they procure will not amount to a breach of contract, they are not liable in tort even if their belief is mistaken in law. It matters not that a defendant’s erroneous belief is caused by their own ignorance or as a result of incorrect advice they receive from their lawyers.

This article was first published by Lexis®PSL on 2 March 2020

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High court gives guidance on issues for disclosure, disclosure models and cooperation between parties in relation to disclosure pilot (McParland v Whitehead)

CA 1506 – McParland and others v Stuart Whitehead [2020] EWHC 298 (Ch)

Sir Geoffrey Vos, Chancellor of the High Court, took the opportunity to provide helpful guidance on CPR PD 51U—which governs the disclosure pilot in the Business and Property Courts. In particular, he emphasised that issues for disclosure are very different to issues for trial, and issues for disclosure do not extend to every issue which is disputed in the statement of case by denial or non-admission. In many cases, the issues of disclosure need not be numerous, and they will almost never include legal issues or factual issues which are already capable of being resolved based upon documents available from initial disclosure. Parties ought to pay close attention to the various models of disclosure provided within the pilot scheme, and it may be appropriate for parties to each rely upon different models in respect of the same issue, but this must be assessed on a case by case basis. The importance of cooperation was also addressed, and it was made clear that parties must not seek to use the process to gain any litigation advantage; such conduct will be met with immediately payable adverse costs.

This article was first published by Lexis®PSL on 18/02/2020

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