Kerry Underwood

COURT FEES, PART 8 APPLICATIONS AND INFANT APPROVAL

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In October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

The fee on a Part 8 application for infant approval is £308 and not the fee payable on the issue of a Part 7 claim, or a Stage 3 portal claim.

Ministry of Justice guidance saying that the full fee applies to all Part 8 claims is wrong; it only applies to Stage 3 claims.

 

The court has itself suggested that:

 

You may, in order to assist the court, specify that the Claim is for an infant settlement, in bold print.”

 

You may indeed.

I am grateful to Gordon Exall and his outstanding blog – Civil Litigation Brief – for the information in this piece. Here is the link to the longer post on this subject. The Correct Fee on a Part 8 Application: Don’t Let The Court Staff Make You Hand Over Money For Nothing

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Written by kerryunderwood

October 5, 2018 at 11:21 am

Posted in Uncategorized

INTERNATIONAL JURISDICTION AND EXTRA-TERRITORIAL ISSUES

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This blog first appeared on the Practical Law Dispute Resolution Blog on 27 September 2018.

In October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In an increasingly global world the issues of international and extra-territorial jurisdiction are becoming increasingly important, as a recent flurry of cases and developments shows.

The Netherlands Commercial Court has just circulated an update on the progress towards its creation, and this court, which will hear cases and publish judgments in English, is expected to launch in January 2019.

In a speech on 14 September 2018, Sir Geoffrey Vos, Chancellor of the High Court, said:

 

I believe the judges in our highest courts should consider carefully in every case how the common law is developing in different jurisdictions, with a view to seeing whether consistency can be achieved. There may even be case for more cross-jurisdictional debate between senior courts on a specific topic.”

 

It is not inconceivable that in the working lives of some of you reading this piece, we will have a World Commercial Court.

Judgment debtor can seek committal of party outside jurisdiction under CPR 81.4 for breach of order under CPR 71.2 

In Vik v Deutsche Bank AG [2018] EWCA Civ 2011

the Court of Appeal held that a party can make a committal application under CPR 81.4, in respect of a party outside the jurisdiction, to enforce an order to attend court made under CPR 71.2.

Deutsche Bank sought to enforce a judgment debt of around £300 million against a company owned by the appellant, who resided in Monaco.

It obtained an order under CPR 71.2 requiring the company to attend court to be cross-examined and produce documents.

Following the company’s failure to comply fully with the order, Deutsche Bank obtained an order for committal.

The appellant argued that the court had no jurisdiction to hear committal proceedings, asserting that it was not open to Deutsche Bank to make the committal application under CPR 81.4 rather than CPR 71.8, which contained a power to commit; and that the committal application was not incidental to the CPR 71 order, so permission to serve out was required.

In dismissing the appeal, the Court of Appeal observed that the decision highlights the tension between enforcing court orders on the one hand and keeping within the jurisdictional limits of the court, especially when individual liberty is at risk, on the other.

Deutsche Bank can now serve the order for committal on the appellant in Monaco, requiring him to attend court in England and provide information and documents about his assets, failing which the appellant could face imprisonment.

The Court of Appeal held that it was in the public interest that there should be a specific jurisdictional gateway in Practice Direction 6B permitting service on an officer of a company for contempt of an order made under CPR 81 or CPR 71, where the fact that he was out of the jurisdiction was no bar to the making of a committal application.

It noted that consideration of this issue by the Civil Procedure Rule Committee would be most welcome.

As well as providing Court of Appeal authority that a committal application can be made under CPR 81.4 to enforce an order under CPR 71.2, the decision confirms that the power to commit in CPR 71.8 is aimed at more straightforward cases, while the power to commit in CPR 81.4 is appropriate for more complex cases, including those involving a failure to comply with an order made under CPR 71.2.

Chapter 11 proceedings recognised re English company with UK centre of main interests 

In Re Videology Ltd [2018] EWHC 2186 (Ch),

the High Court granted recognition and discretionary relief under the Cross-Border Insolvency Regulations 2006 to an English incorporated member of a group of companies which was subject to Chapter 11 proceedings under the US Bankruptcy Code.

It held that that the Chapter 11 proceedings were foreign non-main proceedings, the company having its centre of main interests in the United Kingdom but an establishment in the United States.

The court also granted discretionary relief.

It did so on the basis of the moratorium applicable in an English administration to protect the company from claims by individual creditors and against the commencement of collective insolvency proceedings in the United Kingdom without court consent, and to allow the sale of its assets and the distribution of the proceeds to take place in the United States.

Jurisdiction over claim under 2001 Brussels Regulation for losses incurred by Austrian investor in relation to bearer bonds (ECJ)

In Löber v Barclays Bank plc (Case C-304/17) EU:C:2018:701

the European Court of Justice ruled that, for the purposes of Article 5(3) of the 2001 Brussels Regulation, in a tort claim by an individual Austrian investor for losses arising out of bonds purchased in reliance on a prospectus issued by Barclays Bank plc, the courts of the Austrian investor’s domicile had jurisdiction as the place where the harmful event occurred, where the damage consists of financial loss which occurred directly in an Austrian investor’s bank account.

The European Court of Justice referred to

Kolassa v Barclays Bank plc [2015] EUECJ C-375/13

in which it ruled that the courts of the investor’s domicile (Austria) had jurisdiction under Article 5(3) because the alleged damage materialised directly in the investor’s Austrian bank used to pay for the bonds.

It also referred to

Universal Music International Holding BV v Tetreault Schilling (C-12/15)

in which it held that the “place where the harmful event occurred” will not normally be the place where damage occurred if the damage consists exclusively of financial damage materialising directly in the claimant’s bank account, and directly resulting from an unlawful act committed in another member state.

The court in Universal Music noted that Kolassa reflected the specific context of that case, in particular the existence of circumstances contributing jurisdiction to those courts, and that purely financial damage occurring directly in the investor’s bank account cannot, in itself, be a relevant connecting factor pursuant to Article 5(3).

Here, the court concluded that, taken as a whole, the specific circumstances of the case contributed to attributing jurisdiction to the Austrian courts.

In particular:

  • All payments were made from Austrian bank accounts.
  • The Austrian investor acquired the certificates on the Austrian secondary market.
  • The information supplied to Löber about the certificates was in the prospectus as notified to the Austrian supervisory bank and on the basis of that information, the Austrian investor signed the contract in Austria.

The ruling is relevant to claims under Article 7(3) of the Recast Brussels Regulation, which is materially the same.

Supreme Court refuses permission to appeal judgment on territorial jurisdiction in damages actions based on LCD and CRT cartels

The Supreme Court has refused the defendants permission to appeal against a Court of Appeal judgment that ruled on jurisdiction issues in two separate damages actions, brought by the claimants, based on the liquid crystal display cartel and on the cathode ray tube cartels.

The Court of Appeal ruled that the actions should not be struck out nor summary judgment given.

The claimants were claiming damages due to the allegedly higher purchase prices that they paid due to the cartels.

However, the cartel products had first been supplied to entities outside the European Union/ European Economic Area then to a claimant holding company also outside the European Union/ European Economic Area, which then supplied the products to claimant subsidiary companies within the European Union/ European Economic Area for onward sale and distribution within the European Union/ European Economic Area.

The defendants had argued that the claimants would not be able to establish that they had suffered losses as a consequence of a breach of Article 101 of the Treaty on the Functioning of the European Union and that the High Court, therefore, had no territorial jurisdiction to hear the actions.

The Court of Appeal held that the issue of territorial jurisdiction could not be determined adversely to the claimants on a summary basis.

It held that the analysis of the territorial application of Article 101, in accordance with the qualified effects doctrine, would depend on a full examination of the intended and actual operation of the cartels as a whole.

The Court of Appeal also held that it was reasonably arguable that the cases were governed by the European Union law and that the forum to hear the actions should be England and Wales.

The actions should proceed to trial.

Final text of UNCITRAL Model Law on recognition and enforcement of insolvency-related judgments published

The United Nations Commission on International Trade Law has now published the final, adopted text of the United Nations Commission on International Trade Law Model Law on recognition and enforcement of insolvency-related judgments.

The Model Law on the recognition and enforcement of insolvency-related judgments is a legislative framework capable of adoption into countries’ domestic legislation and allows for the recognition of judgments arising out of insolvencies in cross-border situations.

It addresses the concern that, though there are various cross-border frameworks for the recognition and enforcement of judgments in civil and commercial matters, such frameworks generally do not cover insolvency-related legal proceedings.

The new model law is drafted as a standalone legislative framework but may also supplement the United Nations Commission on International Trade Law Model Law on Cross-Border Insolvency, adopted by United Nations Commission on International Trade Law on 30 May 1997, which provides for the recognition of, and cooperation in, cross-border insolvency proceedings.

The 1997 Model Law does not, however, provide for the cross-border recognition and enforcement of judgments arising out of the insolvency proceedings generally.

The new model law is intended to plug gaps in the existing United Nations Commission on International Trade Law framework for cross-border insolvency cooperation.

The minutes of the United Nations Commission on International Trade Law session also indicate that legislative text in the form of a further model law, addressing the cross-border insolvency of enterprise groups, as well as recommendations and commentary on the obligations of enterprise group directors in the period before insolvency, are likely to come before it for approval in 2019.

The former defined term “insolvency-related foreign judgment” has been changed to “insolvency-related judgment” although the law still only comes into play where a judgment given in one enacting state is to be recognised or enforced in another state (article 1, Model Law).

The Model Law draftsmen expressly chose not to define “insolvency-related judgments” by using similar wording used in the Recast Insolvency Regulation ((EU) 2015/848).

That Regulation defines the types of legal actions that are sufficiently connected with insolvency proceedings that they should be subject to the same jurisdiction as the insolvency proceedings being “any action which derives directly from the insolvency proceedings and is closely linked with them” (Article 6, Recast Insolvency Regulation).

Instead, the Model Law uses the formula “arises as a consequence of or is materially associated with an insolvency proceeding”.

This change was intentional, to avoid confusion with European Union terminology and to avoid suggestions that it should be interpreted in the same way.

This is helpful, as the purpose of the Model Law to regularise the cross-border recognition of insolvency-related judgments is different from the purpose of the Recast Insolvency Regulation to allocate jurisdiction over the underlying actions.

 

 

Written by kerryunderwood

October 4, 2018 at 8:05 am

Posted in Uncategorized

CHALLENGES TO SOLICITORS’ BILLS BY CLIENT: KEY HIGH COURT DECISION

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Kerry discusses this and similar cases in this course

In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In Hanley v JC & A Solicitors and Green v SGI Legal LLP [2018] EWCA 2095(Civ)

the Queen’s Bench Division, on appeal from the Senior Courts Costs Office, held that the court had no power to order a solicitor to make and supply to her or his client, or former client, copies of documents which are the property of the solicitor, even if the client/former client was prepared to pay reasonable costs for that tasks.

The court held that it neither had any inherent jurisdiction in its capacity as a court supervising officers of the court, nor under section 68 of the Solicitors Act 1974.

Thus the High Court upheld the decisions of the Senior Courts Costs Office in each of these cases and overruled the decisions in

 

Swain v JC & A Ltd [2018] EWHC B3 (Costs) ; and

The Mortgage Business PLC and others v Taggart [2014] NICh 14

 

a decision of the High Court in Northern Ireland.

 

These cases are parts of a body of cases involving low value personal injury claims funded by Conditional Fee Agreements, and which have attracted significant judicial attention.

 

Section 68 of the Solicitors Act 1974 provides:

 

“(1) the jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.”

 

Here, in each case, the clients/former clients retained the solicitors in relation to the recovery of compensation for injuries sustained in a road traffic accident and the retainer was a Conditional Fee Agreement entered into after recoverability and limiting the solicitors’ recovery of their success fee to the statutory maximum of 25% of the relevant damages recovered.

Upon settlement of each claim that total percentage, and the After-the-Event premium in addition, was deducted.

In each case the clients instructed fresh solicitors for the initial purpose of obtaining advice on whether to exercise their right to a detailed assessment of the solicitors’ fees pursuant to section 70 of the Solicitors Act 1974 which allows the High Court to make an order for assessment of the solicitor’s bill by the court.

Although the specific facts of the request for documents varies, in the Hanley case JC & A offered to supply copies of documents belonging to them for a fee of £644, based on 4 hours’ work at £161 an hour, and the former clients refused to pay that sum.

In the other case the solicitors refused to supply any documents belonging to themselves.

The case sets out the authorities in detail, both in relation to the Solicitors Act 1974 and the court’s inherent jurisdiction over solicitors in their capacity as officers of the court.

The court held that it had no jurisdiction to make orders under the inherent jurisdiction and/or section 68 of the Solicitors Act 1974 in respect of documents which are the property of the solicitors.

It said that, as a matter of principle, an order for delivery up or otherwise in relation to property belonging to another must have an explicit legal basis.

The powers in section 68 are derived from the inherent jurisdiction of the court, and not from the Solicitors Act itself.

The section simply extends the reach of the jurisdiction to cases in which no business has been done in the High Court.

It reflects the provisions of successive statutes governing solicitors.

Thus the scope of the jurisdiction is to be identified from case law, rather than interpretation of the statute itself.

Here, the High Court found that case law gave no authority for the proposition that the court has a discretion under its inherent jurisdiction to order up delivery of, or make other orders in respect of documents, which belong to the solicitor.

If the document and its contents are the property of the solicitor, which the solicitor is entitled to retain, then there is no basis for circumvention of that proprietary right by some other form of order.

The court referred, with approval, to the publication by the Law Society – “Who owns the file?”

These critical requirements of ownership cannot be overcome by reference to section 68, or the overall purpose of Part III of the Solicitors Act 1974, nor by analogy with the pre-disclosure provisions of CPR 31.6, nor with the court’s powers on a section 70 application, nor with the rationale of the required ingredients of a Statute Bill or the requirements of Practice Direction 46, paragraph 6.4.

The inherent jurisdiction of the court does not provide a form of pre-action disclosure of documents belonging to the solicitor.

In so far as the Law Society’s letter of 28 June 2018 says otherwise, then it is wrong, as are the decisions in Swain and Taggart.

 

I am grateful to JC & A Solicitors, both for supplying me with the judgment, and for successfully protecting the legal profession.

 

Comment      

A helpful and practical decision which it is hoped will end these fishing expeditions and applications.

It is another example of the Superior Courts fighting desperately to preserve a legal and justice system on the point of disintegration.

 

 

Written by kerryunderwood

October 3, 2018 at 10:20 am

Posted in Uncategorized

MOTOR INSURERS’ BUREAU LIABLE FOR OFF-ROAD INJURIES

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here

In Lewis v Tindale (1), Motor Insurers’ Bureau (2) and Secretary of State for Transport (3) [2018] EWHC 2376 (QB)

the Queen’s Bench Division of the High Court held that the Motor Insurers’ Bureau was liable to indemnify the claimant who suffered serious injuries when he was struck by an uninsured 4×4 vehicle whilst walking on private land.

The claimant obtained judgment against the driver and the issue was whether the Motor Insurers’ Bureau was liable to indemnify him in those circumstances.

The High Court held that the Motor Insurers’ Bureau is an emanation of the state for the purposes of the European Union Insurance Directives and was therefore bound to indemnify the claimant at least to the minimum European Union cover of €1 million per victim.

The judgment is very long and reviews all of the authorities in detail and differs from earlier judgments of the High Court.

Although only binding on these particular facts there is now a powerful argument that all of the other exclusions in the Motor Insurers’ Bureau agreements, save for the one allowed by the European Union Directive, that is the exclusion for knowingly entering a stolen vehicle, are illegal, an argument that has long been made by many critics of the Motor Insurers’ Bureau Scheme.

 

Thus the decision follows that of the European Court of Justice in

 

Vnuk v Zavarovalnica Triglav dd (Case C-162/13) [2016] RTR 10.

 

The claim against that the Secretary of State was a Francovich claim, that is for alleged failure to implement the Directive, in accordance with the decision in

 

Francovich v Italian Republic (joined cases c – 6/90 and c – 9/90) [1995] ICR 722.

 

That claim was stayed pending resolution of the claim against the Motor Insurers’ Bureau.

 

 

Written by kerryunderwood

September 28, 2018 at 7:20 am

Posted in Uncategorized

FACEBOOK: DELETION OF DECEASED’S PROFILE

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here

In Sabados v Facebook Ireland [2018] EWHC 2369 (12 June 2018)

the High Court granted a Norwich Pharmacal order requiring Facebook to disclose the identity of the person unknown who requested deletion of the deceased’s profile.

The claimant, Sabados, had been in a close personal relationship with the deceased and deletion resulted in the irrecoverable loss of posts and messages including photos of the two together.

Some of the information on the deceased’s profile, such as messages the claimant sent to the deceased, contained her personal data and procuring deletion would amount to a breach of the Data Protection Act 1998.

Facebook did not acknowledge service and were not represented at the hearing.

The order was required because Facebook declined to reveal who made the deletion request.

The claimant satisfied the three conditions for a Norwich Pharmacal order:

 

  • there was a good arguable case that the deletion of the deceased’s profile amounted to breach of the Data Protection Act 1998 and misuse of private information.

 

It was also arguable that the requestor committed a breach of confidence/misuse of private information if they had access to the deceased’s profile prior to deletion.

 

  • The claimant did not have sufficient information to formulate her claims without the order.

 

  • Facebook was unequivocally mixed up in the unknown person’s wrongdoing.

 

Although the court was concerned by the proposition that it could take jurisdiction on the basis of distress suffered in England in respect of actions which took place in the Republic of Ireland, and possibly Bosnia, it held that there was an arguable case that the English court had jurisdiction under the Recast Brussels Regulation (RBR) to make the order on the basis that the alleged damage was suffered in England for the purposes of Article 7(2) of the Recast Brussels Regulation.

This case was heard under the Data Protection Act 1998 but is a useful reminder of the care required when handling requests for deletion of personal data both to ensure the requestor has appropriate authority and in relation to any third party data involved.

 

 

Written by kerryunderwood

September 27, 2018 at 8:06 am

Posted in Uncategorized

JOINDER UNDER CPR 19.2(2) APPROPRIATE WHERE APPLICANT ESTABLISHES SUFFICIENTLY DIFFERENT PERSPECTIVE

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In September and October I am delivering my new course – Getting the Retainer Right – details and booking form here.

In Re LB Holdings Intermediate 2 Ltd (in administration) and Re Lehman Bros Holdings plc (in administration) [2018] EWHC 2017 (Ch) (24 July 2018)

D and L applied under CPR 19.2(2) to be joined as respondents to proceedings brought by the administrators of a company in the Lehman group (I2 proceedings).

Those proceedings had been conjoined with other proceedings (PLC proceedings) brought by the administrators of another group company (PLC).

D was a respondent in the PLC proceedings, as a subordinated creditor of PLC, and PLC’s administrators were respondents in the I2 proceedings.

D argued it had a “separate perspective” because it was the only party seeking to establish the relative priority for the payment of certain loans made by PLC to I2; PLC’s administrators were taking a neutral stance in the PLC proceedings and adopting a positive case in the I2 proceedings.

L argued that it also had a separate perspective, and that the neutrality of the PLC administrators might hamper the argument in the I2 proceedings.

Mann J granted D’s application to be joined but refused L’s.

Although both parties had sufficient economic interest to justify joinder, it would not be ordered speculatively and the parties had to make out a positive case.

For D, the neutrality of PLC’s administrators in the PLC proceedings was “technical”, and would not hamper them from adducing arguments in the I2 proceedings.

However, D had established, by a narrow margin, a sufficient difference in its perspective, and a vigour in relation to the proceedings, to make it appropriate to order joinder.

D’s undertakings not to duplicate effort or add to costs were important.

Although L demonstrated a strong economic interest, that was insufficient.

L had not identified any arguments not being advanced by another party, and did not have any further perspective to contribute.

The fruits of L’s document review work in the previous Lehman litigation could be made available “in a perfectly efficient and sensible manner without joinder”.

The decision emphasises that joinder will not be ordered on a speculative or precautionary basis; a positive case must be made out.

The court endorsed the approach taken in the Lehman Waterfall III proceedings (24 June 2016, unreported), namely that in complex insolvencies involving large numbers of parties, the court must be on its guard to keep representation within proper bounds, only allowing in parties who have some separate perspective or legal interest to illuminate for the benefit of the court.

Written by kerryunderwood

September 26, 2018 at 8:06 am

Posted in Uncategorized

BANKRUPTCY SET ASIDE AS SERVING NO USEFUL PURPOSE

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In September and October I am delivering my new course – Getting the Retainer Right –  details and booking form here.

In Lock v Aylesbury Vale District Council [2018] EWHC 2015 (Ch) (9 July 2018)

the High Court set aside a bankruptcy order based on a petition re unpaid council tax on the basis that the debtor had no assets to satisfy her liability in bankruptcy and no investigation of her affairs would bring anything to light and so there was no point in making her bankrupt.

The debtor served evidence that she was living in social housing, was dependent on financial support from her daughter, and that as she had no assets there was no useful purpose in a bankruptcy order.

The District Judge made the bankruptcy order as there had been liability orders which had not been set aside or challenged.

The debtor appealed, relying on section 266(3) of the Insolvency Act 1986, which gives the court a general discretion to dismiss a petition.

The local authority had prepared a bankruptcy checklist, not in evidence before the District Judge who made the bankruptcy order, which showed it was aware before presentation of the petition that the debtor was unemployed, did not receive benefits nor own a home and noted that the case was an unusual one as there were no clear assets but that the debtor may have come into an inheritance, although there were no documents to support that belief.

It had not put those unusual circumstances before the court to enable the debtor to address them in evidence.

The debtor argued at the appeal that she had not received any inheritance nor was she likely to.

Where a bankruptcy petition was founded on unpaid council tax, there was a burden upon a public authority to show a prima facie case that a bankruptcy order would achieve some useful purpose.

The local authority should have put the unusual circumstances to the court.

The District Judge had failed to consider the debtor’s argument that a bankruptcy order would serve no useful purpose.

It was unjust to make the bankruptcy order and the appeal was allowed.

 

Written by kerryunderwood

September 25, 2018 at 8:06 am

Posted in Uncategorized

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