Summary of Recent Cases – Civil Procedure

Insurance status of the Defendant from whom an interim payment is sought is irrelevant

Donald Berry (A protected party by his wife and litigation friend Carol Berry) v Ashtead Plant Hire Co Ltd & Others [2011], EWCA, Civ 1304, 10/11/11

The word “defendants” in CRP r. 25.7(2)(e)(ii) meant the Defendants against whom an order for an interim payment was sought. Therefore when a Claimant applied for an interim payment against a number of Defendants on the basis that one or another was liable and they were all insured, it was irrelevant that there was also another Defendant who was not insured. On the facts, the Appeal was allowed as it was far from certain that the parties against whom the interim order had been made would be found liable.

A DJ had not erred in concluding that a litigant should not be able to withdraw an admission

Satoshi Kojima v HSBC Bank Plc [2011], CA, 09/11/11, Extempore

The applicant appealed against a DJ’s decision not to allow him to withdraw an admission he had made that he was indebted to the respondent bank. At first instance the judge had ordered that unless he executed a charge over his flat, judgment would be entered against him for the admitted amount. The applicant was later informed by solicitors that he had a defence to the claim, however his application to have the unless order revoked was refused. The CA held that the DJ had considered all the principles in CPR PD14 had had made a value judgement. The CA would only displace the decision if they had gone wrong in principle and there was no evidence this had occurred. It was impossible to say that his decision was one that he was not entitled to reach.

Interim payment for property refused when judge not reasonably satisfied that it was necessary for the Claimant’s needs
Crispin v Webster [2011], QBD 04/11/11, Extempore

The Claimant who had been rendered quadriplegic sought an interim payment of ВЈ250,000 and ВЈ750,000 to buy a house in the centre of Winchester. She wished to be close to the centre of the City and live in a house with character as opposed to a bungalow. The amount of ВЈ250,000 was granted however following Eeles v Cobham Hire Services Ltd (2009), EWCA Civ 204, (2010) 1 WLR 409 the judge was not prepared to release the funds for the house. The issue for the judge was whether the judge was satisfied at an interim stage that the trial judge would award a lump sum to purchase that particular house, not just any accommodation to fulfil her needs. The judge at an interim stage had to look at the matter on a conservative basis and with a high degree of confidence. It was not possible to conclude that the trial judge would grant the requested accommodation costs based on that particular house. There was evidence of other housing stock which the trial judge might regard as a suitable yardstick by which to measure the capital sum to be awarded. It was a matter for the trial judge to decide the yardstick and to reconcile what the C wanted and needed with what was objectively reasonable. The issue needed to be the subject of evidence and cross-examination and was not an issue for determination on an interim application.

January 1, 2012 В· Editorial Team В· Comments Closed
Posted in: Cases