Summary of Recent Cases – Civil Procedure

An action by an insurance company alleging that the settlement of an earlier PI action was obtained by fraud and/or misrepresentation should not have been struck out

Zurich Insurance Co Plc v Colin Richard Hayward, CA, 27/05/11

An insurance company appealed against a decision to strike out its claim for fraud and/or misrepresentation following the settlement of a personal injury action. Following settlement, new information came to light that the Claimant had made a complete recovery a year before settlement. It was held that a consent order created an estoppel if the parties to the second action were the same as the parties to the first and the issues raised in the second action were necessarily compromised in the first action. Although an allegation that a disability was being exaggerated for gain amounted to fraud and that allegation of fraud was similar to the allegation made in the second action, it was not the same allegation and it was not clear exactly what was compromised in the first action. The insurance company was not estopped from alleging that the settlement was obtained by fraud. The second action was not an abuse of process. Finality of litigation was desirable for many reasons but in the context of the instant case the principle was designed to protect a litigant from being vexed more than once by the same allegations. The public interest in the integrity of the administration of justice and the private interests of the insurance company in seeking the investigation of the allegations of fraud far outweighed the public interest in the finality of litigation and the Defendant’s wish to avoid a second action (per Smith LJ).

In determining relief from sanctions the court should not apply a formulistic approach

Walid Khatib v Ramco International & 6 Others, CA (Ch), 18/05/11

The applicant appealed following the striking out of his claim for breach of an Unless Order. The CA held that the judge was not wrong in failing to go through each of the factors set out in r.3.9 and ticking them off and assigning them to one side of the balance or the other. Too rigorous an approach to the manner in which they had to express their reasoning was undesirable in principle and unnecessary in practice. A trial judge had to be aware of rule 3.9 and of the particular factors said on either side to be relevant, according the evidence and the circumstances of the particular case and conduct an appropriate review and balancing exercise.

Where the Claimant had chosen to waive legal privilege in a summary judgment application it would be appropriate to order him to give specific disclosure of all the relevant material under the principle of collateral waiver.

Boris Abramovich Berezovsky v Roman Arkadievich Abramovich, QBD (Comm), 06/05/11

In circumstances where a party had deliberately chosen, in the context of the summary judgment application, to waive legal professional privilege by referring extensively to the contents of a former business associate’s interviews with his former solicitors in order to support his case on the merits of his claim, it would not be just, fair or consistent with the principles expounded in the authorities to permit him, on the simple pretext of saying, that he had not made up his mind whether to refer to such evidence at trial, to withhold disclosure of the underlying privileged materials relating to such interviews. To allow him to do so would amount to cherry-picking of the worst kind. It would give him the unjust advantage of deploying privileged and possibly selective (or partial) materials for the purposes of surmounting the summary judgment hurdle, but not requiring him to give full disclosure of the underlying materials for the purposes of trial, in circumstances where there was no dispute that, if the evidence were indeed deployed at trial, such disclosure would have to be made.

The Court could order service of a claim form by email on US Companies

Louis Bacon v (1) Automattic Inc (2) Wikimedia Foundation (3) Denver Post LLC, QBD, 06/05/11

The court gave permission to the applicant to serve a Norwich Pharmacal Order via email. The power to exercise service by an alternative method should be exercised under r. 6.15 rather than r.6.37. There had to be good reason within the meaning of r.6.15(1) for service by an alternative method. In the proceedings, the first and second respondent consented to the service of an order by email and therefore by inference, if they had been asked, would have probably consented to the service of a claim form in the same way.

July 1, 2011 В· Editorial Team В· Comments Closed
Posted in: Cases