REUTERS | Dominic Ebenbichler

Civil litigation summer round-up

Transfer out of Shorter Trials Scheme refused

In Sprint Electric Ltd v Buyer’s Dream Ltd and another, the Chancery Division of the High Court refused the claimant permission to transfer an intellectual property claim out of the Shorter Trials Scheme. The court was satisfied that it had power to transfer the case under CPR 3.1(2) (see Family Mosaic Home Ownership Ltd v Peer Real Estate Ltd), even though there was no express provision in Practice Direction 57AB. Otherwise, there was a “very real and regrettable danger” that claims inappropriately started in the Shorter Trials Scheme, without the defendant objecting, would have to remain there, even if that was unsuitable.

On the facts here, the court found that there were case management benefits for the court and both parties if the case remained within the scheme, although the court observed that split trials do not readily fit within Practice Direction 57AB. The stringency of controls and economy of procedures in the Shorter Trials Scheme would benefit the parties.

The court adopted a pragmatic approach to make the split trial work, but stressed that this ruling could not resolved that issue generally. Here, liability had been determined and the remedies and quantum stage had been reached. The claimant submitted that the complexity of the case, the likely volume of disclosure, the estimated hearing length and the limits on the length of witness statements made the Shorter Trials Scheme inappropriate, although it was the claimant who had voluntarily started the case there. The court removed the 25-page limit on witness statements and adjusted the time estimate.

Disclosure guidance hearings: the Disclosure Pilot Scheme

In Vannin Capital PCC v RBOS Shareholders Action Group Ltd and others, the Chancery Division of the High Court granted the claimant’s application under Practice Direction 51U.17 for an order requiring the second defendant to carry out further searches in order to comply with the extended disclosure order made, and refused the second defendant’s application under Practice Direction 51U.18.1 to vary the order to exclude one specified entity on the ground of proportionality.

This is one of the first cases under the Disclosure Pilot Scheme in Practice Direction 51U and the court gave useful guidance.

The court strongly encouraged the parties to seek guidance in disclosure guidance hearings, under Practice Direction 51U.11, before making formal applications, as this was likely to save time and costs. The court’s discretion to vary its own order for extended disclosure is not subject to the applicant satisfying the conditions in Tibbles v SIG plc; that is that there has been a material change of circumstances since the order was made, or a misstatement of facts on which the original decision was based.

In an appropriate case, the court would exercise its discretion to reduce the scope of extended disclosure orders, and, as with requiring additional disclosure, the question in an application to reduce would centre upon proportionality.

Claimant cannot be forced to either plead or abandon a claim

In Pixdene Ltd v Paddington and Company Ltd and another, the Intellectual Property and Enterprise Court held that it had no power to order the claimant either to amend its particulars of claim to include matters mentioned in the draft particulars, or formally to abandon those claims.

The real issue was whether the conduct was an abuse of process, and the court noted that:

  • The rule in Henderson v Henderson did not require a party to pursue a claim or abandon it.
  • It would not make a ruling on a hypothetical basis that the claimant would bring further proceedings.
  • It was not inevitable that any further claim would fall foul of the rule in Henderson v Henderson, which states that a party should pursue its entire case in one action.

The court considered and set out the relevant case law, including:

No default judgment where defence filed late

In Clements Smith v Berrymans Lace Mawer Service Company and another, the Queen’s Bench Division of the High Court held that a judgment in default of defence must be set aside as of right, because the court did not have jurisdiction under CPR 12.3 to enter a default judgment where a defence had been filed, albeit after the expiry of the relevant time limit.

Thus, to succeed in obtaining a default judgment, the claimant must obtain it before a defence is filed, even if that defence is late. The expiry date for the defence is therefore irrelevant. The Denton Principles did not apply and there was no need for relief from sanctions. The court granted permission to appeal to the Court of Appeal, given the absence of higher authority and inconsistent first instance decisions, and recognising the importance of the issue.

High Court enforcement

In Court Enforcement Services Ltd v Burlington Credit Ltd, the Queen’s Bench Division of the High Court held that where two creditors issue separate writs of control, priority will be given to the creditor whose writs are received first by a High Court enforcement officer, rather than to the creditor whose enforcement officer first gets money from the debtor. Thus, where there are two High Court enforcement officers, priority is determined by who first got the writ, and not who first gets the money.

On 22 July 2019, the Ministry of Justice published an update, in a written statement, on its review of the implementation of the enforcement agent reforms contained in the Tribunals, Courts and Enforcement Act 2007. Consultation is continuing, but it will be compulsory for High Court enforcement officers and certified enforcement agents to have body-worn cameras when enforcing. This change will not apply to county court bailiffs, as they are employed by HM Courts and Tribunal Service, and are outside the scope of the review.

Disclosure and internet service providers

In Mircom International Content Management & Consulting Ltd & Others v Virgin Media Ltd and another, the Chancery Division of the High Court considered the correct legal approach to granting Norwich Pharmacal relief requiring an internet service provider to disclose the names and addresses of tens of thousands of residential broadband subscribers, who had allegedly downloaded films in breach of copyright.

The court held that the General Data Protection Regulation had made no difference and that the approach set out in Golden Eye (International) Ltd v Telefónica UK Ltd and Golden Eye (International) Ltd v Telefónica UK Ltd (Open Rights Group intervening) remained applicable.

Wrong name did not invalidate notice of adjudication

In MG Scaffolding (Oxford) Ltd v Palmloch Ltd, the Technology and Construction Court held that using the respondent party’s trading name, instead of its correct name, did not invalidate the notice of adjudication, the test being how it would appear to a reasonable recipient and looking at the substance rather than the form.

Here, the position was certain, as the notice referred to a specific property and project, and was emailed to the person dealing with it. The court considered and set out the case law in this area.


In Gulf International Bank BSC v Aldwood, the High Court, in differing from several other first instance decisions, refused to stay proceedings in England and Wales against a defendant domiciled here, even though the bank’s claim was brought under a guarantee subject to Saudi Arabian jurisdiction.

The decision confirms that in Owusu, where the European Court of Justice held that the Brussels Convention prevented a court from declining jurisdiction on the ground that a court of a non-contracting state would be a more appropriate forum.

In Sabbagh v Khoury, the Court of Appeal held that an English/Welsh court had jurisdiction to grant an anti-arbitration injunction to prevent vexatious and oppressive conduct, even if the courts of England and Wales were not the natural forum for the dispute.

The power is contained in section 37 of the Senior Courts Act 1981.

The judgment analyses in detail the exceptional circumstances in which such a decision may be made.

The relevant foreign jurisdiction here was that of the Lebanon.

Tomlin order not a regulated credit agreement

In CFL Finance Ltd v Bass and others, the Chancery Division of the High Court held that a structured settlement clause, providing for a debt to be paid over time in the form of a Tomlin order, does not extend “credit” or “financial accommodation” under section 9(1) of the Consumer Credit Act 1974; therefore, the arrangements were not within the scope of consumer credit regulations.

Assessing recoverable after the event insurance premiums

In West v Stockport NHS Foundation Trust and Demouilpied v Stockport NHS Foundation Trust, the Court of Appeal held that a block-rated after the event (ATE) insurance policy, that is one where the premium is not fixed by reference to the individual case, is not subject to proportionality on assessment.

Although this case concerned premiums in clinical negligence cases, the principles will apply in defamation and privacy cases, where recoverability of success fees has been abolished but recoverability of ATE insurance premiums remains.

This may well be the model used in other areas of civil litigation going forward, as it provides access to justice, a point emphasised here by the Court of Appeal.

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