An analysis of disclosure obligations in respect of custodians and agents (BES v Cheshire West)

CA 1638 – An analysis of disclosure obligations in respect of custodians and agents (BES v Cheshire West)

This case provides a useful reminder of the relevant issues relating to requests for further disclosure in a complex multi-party case. It remains the position that a parent company does not merely by virtue of being a 100% parent have control over a document of its subsidiaries.

Each instance will be judged on a case by case basis taking into account a number of factors and, while the absence of any genealogical corporate relationship between the parties may not be fatal for an application for disclosure, it is distinctly unhelpful.

It also reconfirms that an agent of a company involved in litigation will be required to ‘produce to the principal upon request, or to a proper person appointed by the principal, all books, correspondence and documents (including emails and other electronic material) under his control relating to the principal’s affairs’.

This article was first published by Lexis®PSL on 01/04/2020

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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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‘Warehousing’ not automatically an abuse of process (Alibrahim v Asturion Foundation)


CA 1448 – Alibrahim v Asturion Foundation [2020] EWCA Civ 32

The recent case of Alibrahim v Asturion Foundation provides clarification in respect of the practice known as warehousing, that is to say, a party unilaterally placing legal proceedings on hold without the agreement of the other side or order of the court. The Court of Appeal unanimously held that such a practice would not automatically amount to an abuse of process such that the claim was liable to be struck out.

first published by Lexis®PSL on 29/01/2020

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Covert recordings and the variation of undertakings (DSM SFG Group Holdings Ltd v Kelly)

The recent case of DSM SFG Group Holdings Ltd v Kelly confirms that a party will not be able to rely upon confidential and covertly obtained information, prior to that party having established the legal right to use the same. It also serves as a useful reminder of the principles to be applied when considering whether or not to allow a party to vary undertakings previously given—in the absence of a material change in circumstances since the original undertakings were given, the alterations will ordinarily be refused.

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CA 1389 – DSM SFG Group Holdings Ltd and other companies v Kelly [2019] EWCA Civ 2256

This article was first published by Lexis®PSL on 06/01/2020

Adverse inferences where material evidence not available at trial (Mackenzie v Alcoa Manufacturing (GB) Ltd)

CA 1343 – Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110

Noise Photo

This case analysis considers the recent Court of Appeal decision in Mackenzie v Alcoa, in which the Court of Appeal considered the approach appellate courts should take in respect of a trial judge’s determination of fact. The court also considered the correct approach to the drawing of an adverse inference in respect of a historic industrial deafness case where there was noise in the workplace, but no noise survey was available from the material period.

This article was first published by Lexis®PSL on 03/12/2019

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CPR 14—permission to withdraw an admission (Sabbagh v Khoury)

PDF CA 1306 – Georgia Whiting

This case addressed the scope of CPR 14.1(1) in terms of what will amount to an admission for the purposes of the same. It also confirms the variety of forms in which such an admission can be said to have arisen pursuant to CPR 14. An analysis was also undertaken in respect of the checklist and relevance of considerations when a party, having made an admission, seeks permission to withdraw the same. Further, the defendant’s application for a strike out of a purported withdrawal of a concession made orally was unsuccessful, primarily on the basis that the claimant would suffer significant
prejudice were the application to succeed, but the defendants would not if the application failed.

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This article was first published by Lexis®PSL on 22/11/2019