News

By Area of Practice
By Barrister
By Date -
News
St Philips Commercial

St Philips Commercial

Alexander Rozycki is instructed as led junior in a case in which the Court of Appeal granted permission to appeal in a case of general public importance involving practice and procedure surrounding default judgments.

The Claimant issued a claim against the Defendant for unpaid monies following the completion of construction works. The Defendant filed an Amended Defence and Counterclaim alleging that the works were defective and counterclaimed for damages. The Claimant served witness statement evidence denying the damages claimed, but not a formally pleaded Defence to the Counterclaim. At trial in the Central London County Court, where the Appellant was represented by alternative counsel, the Defendant contended that the Claimant had not filed a Defence to the Counterclaim, and that the Defendant was entitled to default judgment. The Circuit Judge proceeded to grant default judgment on the Counterclaim on the basis that the Claimant had failed to file a formally pleaded Defence.

The Appellant appealed to the Court of Appeal. He argued that there was a point of general public importance arising on the appeal, namely whether, in the absence of a formally pleaded Defence, a witness statement denying damages claimed in the Counterclaim constitutes a "Defence" for the purposes of default judgment under CPR 12.3(2)(b). This was argued in conjunction with para. 1.1 of Practice Direction 12, which states that a Defence includes "any document purporting to be a defence."

Lord Justice Christopher Clarke was persuaded to grant permission to appeal on the basis that the point was of general public importance, raising a point of practice or procedure, in respect of which the Appellant had real prospects of success. His Lordship allowed the appeal to proceed on the condition that the Appellant pay the outstanding interim costs order, which the Appellant agreed to do.

The transcript of the judgment will be available soon.

To view Alexander Rozycki's full CV, please click here.

Wednesday, 11 May 2016 00:00

JCT Banner 2

JCT Banner 2

Wednesday, 11 May 2016 00:00

JCT Banner 1

JCT Banner 1

Can you agree that a contract can only be varied in writing? This is a question upon which there are conflicting authorities.

The latest case to consider the point is Globe Motors Inc v TWR Lucas Varity Electric Streeting Ltd [2016] EWCA Civ 396. Beatson LJ suggested the answer was “no”.

Litigators should note two things:

1. The law remains uncertain

In Globe, Beatson LJ suggested that anti-oral agreement clauses were not effective. His comments were obiter, but they are likely to be highly persuasive because they followed full arguments and because Underhill and Moore-Blick LJJ expressly agreed with them.

However, the point is not settled. Indeed, it is arguable that a first-instance judge is bound to give effect to an anti-avoidance clause. This is because the Court of Appeal gave effect to an anti-oral agreement clause in United Bank Ltd v Asif (11 February 2000). Ordinarily this decision would bind first-instances judges and the Court of Appeal itself.

In Globe, Beatson LJ suggested that the Court of Appeal was not bound by Asif because Asif was inconsistent with the Court of Appeal's decision in World Online Telecom Ltd v I-Way Ltd [2002] EWCA Civ 413. Beatson LJ considered that, as the Court of Appeal had given two previous inconsistent decisions on the point, it was free to decide between them.

But are Asif and I-Way inconsistent? The ratio of I-Way was simply that it was inappropriate to decide on a summary judgment application whether an anti-oral agreement clause is effective. This is not – of itself – inconsistent with Asif, not least because a court has a discretion whether or not to grant summary judgment.

It remains open to parties to argue that courts of first instance and the Court of Appeal should follow Asif rather than Globe.

2. The evidential effect of anti-oral variation clauses is case sensitive

In Globe, the Court of Appeal suggested that courts would require “strong evidence” before finding that there had been an oral variation in the fact of a anti-oral variation clause.

However, this observation should not be elevated to a rule of law (or, even, a rule of thumb). Everything depends on context.

It is clear that the Court of Appeal did not intend to alter the burden of proof in these cases. The question still remains whether, on the balance of probabilities, the oral variation is proven. The Court of Appeal's point is that a first instance judge may consider that it is unlikely that the parties have made oral variation where they had previously agreed not to do this. But whether this is appropriate, will depend on the context. There may be very good reasons why it is likely that parties have agreed an oral variation although the written contract did not anticipate it. In long-term contracts variations may be required because of changing circumstances. They may, quite understandably, be dealt with less formality than the original negotiations: perhaps because of urgency, or because of increased trust, or because lawyers are not on hand.

Wednesday, 09 March 2016 00:00

Split Eclairs and the Proper Purpose Rule

James Morgan reviews the recent Supreme Court decision in Eclairs Group Plc v JKX Oil & Gas plc [2015] UKSC 71 in relation to the duty on directors under s.171, Companies Act 2006 to exercise their powers for proper purposes, with particular reference to the situation where the company is financial difficulty. A full copy of the article, which is reproduced with the kind permission of CRI, can be viewed by clicking here.

St Philips is delighted to announce that Her Majesty the Queen has approved the appointment of Professor Jonathan Harris as Queen’s Counsel Honoris Causa.

Lord Chancellor Michael Gove said of the announcement:  “Their appointments recognise the major contribution each has made to the law of England and Wales outside of practice in the courts, in some cases in careers spanning many years.”

Professor Jonathan Harris is an associate tenant barrister at St Philips and is Professor of International Commercial Law at King’s College, London.  He was called to the Bar (Lincoln’s Inn) in 2006 and has been recommended for his work on private international law and in particular for having written the law in several jurisdictions on firewall trusts. He is joint general editor of Dicey, Morris and Collins, The Conflict of Laws and is also responsible for eleven chapters of the book. He is the author of a widely cited book on the Hague Trusts Convention and of a co-authored work on International Sale of Goods and the Conflict of Laws. He has also contributed to various major works and written numerous influential articles. He is the co-founder of the Journal of Private International Law and of the Studies in Private International Law book series. He is a member of the Lord Chancellor’s Advisory Committee on Private International Law and has actively contributed to the Committee’s work. He has advised the Ministry of Justice on many occasions and, in particular, in negotiations on EU initiatives in the field of cross-border succession and wills.

His full CV can be viewed here.

An appeal from a first-instance decision in respect of whether a finance house would be estopped from asserting its rights in a vehicle after it had taken steps to alter the HPI register to demonstrate that its interest had been satisfied or extinguishe.

Ali Tabari

Disqualification proceedings against a director convicted in the Crown Court of forgery dismissed as being an abuse of process, on the linked grounds that the Crown Court had declined to make a disqualification Order and the SSBIS had written in terms which strongly suggested that no further proceedings would be commenced.

Reported at: http://www.bailii.org/ew/cases/EWHC/Ch/2014/2933.html

Ali Tabari

A decision which demonstrated how the harsh Mitchell-style sanctions can still be avoided in the right circumstances, in this case the sub-standard legal representation which the appellant had at the hearing at which her case had been struck out.

Reported at: http://www.bailii.org/ew/cases/EWCA/Civ/2014/106.html

Ali Tabari