A round-up of some recent litigation cases - October 2024

Relief from sanctions

CPR 17.2(2) allows a party to apply for an order disallowing amendments to a statement of case within 14 days of service of a copy of the amended statement of case on them. This rule contains no sanction, neither express nor implied, for failing to apply within 14 days. In consequence the defendants’ out of time application to strike out the claimant’s amendments did not require an application for relief from sanctions and the Denton principles did not apply directly. The Court of Appeal held, however, that the principles could still be relevant when deciding whether the overriding objective required the court to give permission for an out of time application (Viegas v Estate of Jose Luis Cutrale).

Freedom of information and privilege

Privilege provides only a qualified exemption to the requirement for public authorities to provide information requested by the public under the Freedom of Information Act. Privilege can be overridden in the public interest in this context, in contrast to the general rule in civil proceedings. The First-Tier Tribunal held that this qualified exemption for privileged material under the FOIA did not entitle a public authority to refuse to provide information requested by the Information Commissioner as part of its investigation and enforcement activities (Chief Constable of Northern Ireland v Information Commissioner).

Expert determination clauses

In a dispute concerning a contract for the sale of land, the contractual expert determination clause in the contract applied to all disputes arising under the contract. Given that the parties had created a one-stop shop expert determination clause, there was a presumption of separability, as there is with arbitration clauses. The clause was separable from the underlying contract, at least for the purposes of determining a dispute as to whether the contract had been terminated by a supervening event. The defendants’ application for a stay of proceedings to allow for expert determination was granted (Dandara South East Ltd v Medway Preservation Ltd).

Extensions of time

The claimants requested a seven-day extension of time to serve their evidence in response to the defendant’s application for a payment on account. The period in question encompassed the Christmas/New Year break. The defendant refused to agree to the extension so the claimants applied successfully to the court. The defendant’s refusal was held to be unreasonable and the claimants were awarded their costs of the application. Litigation requires parties to behave reasonably and to assist the court in managing proceedings proportionately consistent with the overriding objective (Invenia Technical Computing Corp v Hudson).

Freezing injunctions

The Court of Appeal considered the appropriate merits test for freezing injunction applications. This test should be the "serious issue to be tried" test already used in other interim injunction applications. The use of the expression "good arguable case" should be restricted to the determination of whether a claim falls within a jurisdictional gateway for the purposes of service out of the jurisdiction. The present position where "good arguable case" means something different in one context (freezing orders) from that in another (jurisdictional gateways) is likely to give rise to confusion and misunderstanding (Dos Santos v Unitel SA).