General civil law

Question 1

Abiola v Abiola [2004] EWHC 709 (Ch)

Answer 1

For the purposes of the Civil Procedure Rules 1998 Part 39 r39.3 the defendant was able to demonstrate that she had a good reason for failing to attend an earlier trial and that she had a reasonable prospect of success on certain issues at a subsequent trial. GCv

Question 2

Afzal and others v Ford Motor Co Ltd and other appeals [1994] 4 All ER 720, CA

Answer 2

Gives an example of “unreasonable behaviour” such that the judge can assess costs. Also holds that the small claims track is suitable where the facts are complex or a question of law is involved - it is only where the facts are exceptionally complex and the question of law “difficult” that the small claims track is inappropriate. GCv

Question 3

Amru Butani v London Borough of Camden, 31st July 2001

Answer 3

In respect of allocation to a track, the Claimant wished the claim to be allocated to the multi track. In what was essentially a disrepair claim, he pleaded £3,000 in special damages not exceeding £25,000. The claim was allocated to the small claims track at forst instance. The court held on appeal that there were other fators than value of the claim to be taken into account, including those factors set out under CPR 26.8(1). Per Lord Justice Peter Gibson at para 29, upholding the allocation of the claim to the small claims track. GCv

Question 4

Anderton v Clwyd County Council [2002] EWCA Civ 933

Answer 4

The deemed date of service under CPR 6.7 is irrebuttable, even by evidence from the Defendant of receipt on a different date. GCv SAJ

Question 5

Anfield (UK) Limited v Bank of Scotland Plc

Answer 5

The High Court found that Bank of Scotland was entitled to be subrogated to the earlier Halifax Charge to the extent that it had redeemed the same from its mortgage advance and that the intermediate lenders would have been unjustly enriched by the fact that Bank of Scotland had repaid the Halifax charge. The fact that Bank of Scotland had failed to ensure that its charge was properly registered did not defeat its claim for subrogation.gcv

Question 6

Benesco Charity Ltd v Kanj [2011] EWHC 3415 (Ch)

Answer 6

This was a possession claim brought under CPR Part 55 on the basis that the defendants were trespassers. A defence was filed, supported by a witness statement, asserting a tenancy or sub-tenancy. At the first hearing of the claim, a judge granted possession. The issue for the judge had been whether the claim was “genuinely disputed on grounds which appear to be substantial”: CPR 55.8(2). The High Court allowed an appeal. A person is entitled to trial of their defence and the content of a witness statement should not be rejected at a summary stage “unless the evidence is incredible”. LandT GCv

Question 7

Bloomfield v Roberts [1989] C.L.Y. 2948

Answer 7

Costs; unreasonable conduct; objective test test to decide unreasonable conduct GCv

Question 8

Bradford & Bingley v Rashid

Answer 8

The Claimant Mortgagee was seeking judgment on a shortfall following possession and sale of the Defendant’s property. The Defendant wished to raise a Defence of Limitation, saying the Claim was now statute-barred. The Claimant wished to rely on two letters as acknowledgment of the debt, which the Defendant said were unadmissable as they were impliedly part of without prejudice negotiations. One letter had been written by an advice centre on the Defendant’s behalf, explaining that he could not afford to pay “the outstanding balance”. A second letter offering a lesser sum in settlement had been written impliedly without prejudice. HELD- Both letters were admissable and constituted an acknowledgment of the debt. Therefore, under s. 29(5) of the Limitation Act 1980, time had begun to run afresh from the date of the letter and the proceedings were not statute-barred. GCv

Question 9

Cranfield v Bridgegrove Ltd [2003] 3 All ER 129

Answer 9

Approves Anderton. Further, states service at ‘usual or last known address’ is valid under CPR 6.5 even if Claimant knew Defendant was no longer residing there and no address for service is given and no solicitors acting. GCv SAJ

Question 10

Dockerill v Tullett, Macefiled v Bakos, Tubridy v Sarwar

Answer 10

Decision in relation to recovering costs of attendance in infant settlements valued under £1k.

DvT: (1) for infant approvals which would fall in the small claims track (ie

Question 11

Forceleux Ltd v Binnie [2009] EWCA Civ 854

Answer 11

A hearing to which CPR 55.8 applies and the Court decides the claim cannot sensibly be called a “trial” within the meaning of CPR 39.3. Therefore in a Defendant’s application to set aside a possession order, the provisions of CPR 39.3 do not apply. In such circumstances CPR 3.1(2)(m) is amply wide enough to give a Court power to set aside a possession order if, in its discretion, it considers that the interests of justice demand it. The need to act promptly is not an absolute requirement imposed on the Defendant but simply a factor to be taken into account. Mtp. GCv

Question 12

Forthright Finance Ltd v Ingate [1997] 4 All E.R. 99

Answer 12

I appealed against a decision, overturning the judge at first instance, that CF, as a third party, were not liable to indemnify her against a judgment in the sum of £3,135 including interest. I made a conditional sale agreement with FF to purchase a car and a year later agreed with a car dealer to purchase a newer model. The dealer agreed to take the first car in part exchange and to discharge the balance of £1,992 that was outstanding to FF. A new conditional sale agreement was made with CF for the second car, which involved I paying a deposit of £1,000. The dealer went into liquidation, having failed to pay FF, and the first car disappeared from the dealer’s premises. CF argued that the two transactions were entirely separate. It was held, allowing the appeal, that the mere fact that the agreed value for the first car cancelled out the amount still outstanding upon it did not mean that there had been two transactions. Where goods which would be the subject of a debtor, creditor, supplier agreement, were sold or proposed to be sold by a broker, then any negotiations relating to those goods would be deemed to have been made by the negotiator on behalf of the creditor RofG GCv

Question 13

G W by his litigation friend DA v BW & Others

Answer 13

This suggests that for a judge to invest a child settlement sum in the normal Special Investment Account “is an abrogation of judicial responsibility” at a time when the interest to be expected is as low as it currently is. This judgment recommends instead that the sum be paid directly to the Litigation Friend for investment, provided they can be entrusted to invest it on behalf of the child, because there are a number of Children’s accounts available on the market that would return considerably higher figures.GCv

Question 14

Gloyne v Richardson [2002] EWCA Civ 1967

Answer 14

Claim for indemnity reinstated because it was prudent in this fact-sensitive case not to have struck out the claim GCv

Question 15

GW v BW

Answer 15

This judgment recommends that the sum awarded be paid directly to the Litigation Friend for investment, provided they can be entrusted to invest it on behalf of the child, because there are a number of children’s accounts available on the market that would give considerably higher returns.Gcv

Question 16

H-S (Minors) (Chambers Proceedings:Rights of Audience) (1998) The Times, 25 February, CA

Answer 16

It was held that, subject to considerations of individual competence or behaviour under Courts and Legal Services Act 1990 s.27(4), the conditions of Courts and Legal Services Act, s.27(2)(e) conferred no discretion on the court to refuse to hear an advocate. GCv

Question 17

Homes v Smith [2000] Lloyd’s Rep. Bank. 139

Answer 17

Contract for sale of land; promissory notes; cheques; time of the essence; whether payment by cheque under promissory note constituted payment by agreed time GCv

Question 18

Huseyin Tasyurdu v Immigration Appeal Tribunal [2003] EWCA Civ 447

Answer 18

Legal advisers have a duty under the Civil Procedure Rules 1998 Part 1 r. 1.3 to assist courts in achieving the overriding objective, which included making appropriate use of court resources GCv

Question 19

Jarvis v Swans Tours Ltd [1973] 1 All ER 71

Answer 19

Contract – Breach – Damages – Measure – Mental distress and inconvenience – Vexation and disappointment – Contract to provide holiday – Brochure representing facilities available on holiday – Facilities lacking – Plaintiff entitled to compensation for loss of entertainment and enjoyment – Damages not restricted to physical inconvenience – Vexation and disappointment relevant considerations in assessing compensation – Holiday costing £63 – Plaintiff entitled to an award of £125 damages. GCv

Question 20

Jones v Williams [2002] EWCA Civ 897

Answer 20

In refusing to allow W to give evidence or to call evidence on his own part, the judge below erred in failing to consider the effect on the parties of granting relief from the sanction of exclusion GCv

Question 21

Julian Hodge Bank v Hall [1998] C.C.L.R. 14

Answer 21

The question arose with reference to a regulated conditional sale agreement in respect of a car whether a third of the “total price” had been paid such that the goods had become “protected goods” within the Consumer Credit Act 1974 s. 90. The agreement recorded the total price as being £8,335. However, H had incurred liabilities for interest in respect of late payments and JHB therefore argued that those amounts should have been included within the term of “total price”. It was held that the contractual provision as to payments of interest and for the cost of communications provided for liquidated damages in relation to late payment and therefore could not fall within the definition of “total price “ within the 1974 Act s. 89. H had therefore paid more than one third of the total price. RofG GCv

Question 22

L’Estrange v Graucob [1934] 2 K.B. 394

Answer 22

It was held that as the buyer had signed the written contract, and had not been induced to do so by any misrepresentation, she was bound by the terms of the contract, and it was wholly immaterial that she had not read it and did not know its contents; and that the action failed and the sellers were entitled to judgment GCv

Question 23

Lagden v O’Connor [2004] 1 A.C. 1067

Answer 23

Consumer hire agreements; damages; hire of motor vehicle by impecunious hirer; no choice for hirer but to accept additional benefits (Dimond v Lovell distinguished) RofG GCv

Question 24

Lucrezia Duffel v Philip Davies Lawtel 3rd May 2001, Liverpool County Court (unreported elsewhere)

Answer 24

Holds that “whether there is unreasonable conduct by a defendant” is “a question to be considered objectively from the point of view of the Claimant”. GCv

Question 25

Regency Rolls Ltd v Carnall (unreported)

Answer 25

C appealed against the refusal of his application to set aside orders which declared that he had not been appointed as a director of R, that K, the second defendant, had not resigned his directorship of R, and which further prevented C from involvement in R’s management and ordered him to pay costs. C submitted that (1) he had acted promptly in his application to set aside the orders; (2) his case had a reasonable prospect of success in that it was supported by copies of the forms appointing him director and recording the resignation of K, and further witness evidence, and (3) that the judge had failed to take into account evidence regarding his credibility. The appeal was dismissed: C’s case had no reasonable prospect of success as his version of events were beyond belief and lacked the required level of credibility. SAJ GCv

Question 26

Ryder Plc v Beever [2012] EWCA Civ 1737

Answer 26

The Court of Appeal came to the conclusion that in the circumstances, the Claimant’s delay in serving a costs schedule (in breach of an unless order) did not justify striking out his claim. Gcv The court of Appeal held that the District Judge had not properly balanced the factors when considering if it was proportionate to refuse relief from sanctions. The District Judge had taken a mistaken view of the gravity of the delay, which amounted to eight days. Moreover, it was relevant to consider the circumstances in which the unless order had been made. If a court considered it desirable to make an unless order without an application on notice it should be slow to make such an order without giving the affected party the chance to be heard.

Question 27

Standard Bank Plc v Agrinvest International Inc

Answer 27

Moore Bick LJ obiter at Para 22. Whether an application to set aside judgment is made promtply is not a condition that must be satisfied before the court can grant relief, because other factors may carry sufficient weight to persuade the court that releif should be granted, even though the application was not made promptly. The strength of the defence may well be one.GCv

Question 28

Stansburys v Pashley (unreported)

Answer 28

In considering whether to grant the defendant permission to amend his defence and counterclaim the judge seemed to have focused on delay and not taken account of the fact that most of the amendments to the defence sought had been raised in earlier pleadings and affidavits. GCv

Question 29

Sunrule Ltd v Avinue Ltd Times Law Reports 5th December 2003, CA

Answer 29

Held that an employee of a company had a right to represent that company in small claim proceedings whatever the circumstances. GCv

Question 30

Tinkler v Elliott

Answer 30

In relation to an application under CPR 39.3, the Court of Appeal confirmed that the court must determine that the applicant did act promptly (as well as having a good reason for not attending and having a reasonable prospect of success) before exercising its discretion under CPR 39.3(5). Gcv