Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB)

The Respondent wanted to oppose an appeal against a possession order, both on the ground relied upon by the first instance judge in his judgment, and/or upon a different basis rejected by the judge at first instance. The Respondent had not filed a Respondent’s Notice to uphold the lower court’s decision “for reasons different from or additional to those given by the lower court“, as it was required to do by CPR 52.13.

The Respondent therefore had to make an oral application, at the appeal hearing, to file a Respondent’s Notice out of time. Dingemans J held that the Respondent was indeed required to file a Respondent’s Notice, and whether permission to file one out of time should be granted was governed by the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906.

Despite the lateness of the application, it was granted. The breach was serious, and there was no good reason for it (the failure appeared to be founded upon the Respondent’s representatives’ misunderstanding of the function of a Respondent’s Notice and of CPR 52.13). However, the point had been ventilated previously and was taken by the Respondent in its skeleton argument, so the Claimant could not be said to be unaware of it; it was a point of pure law, so no further investigation was required in respect of it; and the Claimant’s representative were able to deal with it so there was no unfairness.

Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025:
The Court of Appeal held that there was no abuse of process where the Claimant failed to bring a deceit action at the same time as its claim for negligent misrepresentation.

The Claimant was a casino which had extended credit to a customer who had been provided with a good credit reference by an employee of the Defendant bank. The customer defaulted, and the casino brought an action against the bank alleging that the employee had negligently misstated the customer’s creditworthiness in his reference. At the time of bringing that claim, the casino was aware that it may have a claim in deceit against the bank, but considered that such a claim would be speculative and weak. At trial, material emerged in cross-examination which would substantially support a claim in deceit.

The claim in negligence was lost – on appeal, on the basis that the bank owed no duty of care in negligence to the casino, since the casino was not the addressee, but the addressee’s undisclosed principal: [2018] UKSC 43. Following the loss in the Supreme Court, the casino sought to being a further claim, this time in deceit. The deceit claim was initially struck out as abusive, but the Court of Appeal overturned that decision, noting that: (a) the negligence claim was substantially different from the deceit claim; (b) there was a good reason for not bringing the deceit claim previously, namely that the evidence to support it was circumstantial and weak, and it would have been inappropriate to plead allegations of dishonesty on such a basis; (c) the casino had not been acting tactically or ‘keeping its powder dry’; and (d) it would be a “rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process“.

November 28, 2018 В· Editorial Team В· Comments Closed
Posted in: Cases