DENTON

Here is a link to a note that the lovely Jan Miller commissioned !
http://www.newlawjournal.co.uk/nlj/content/denton-deconstructed

Relief post Denton.

The  decision last week of Warby J in YEO V NEWS GROUP is a textbook example of how to deal with an application for relief.C was 3 months late in serving a notice of funding (N251 ) in a defamation action. The relevant information had been supplied by letter 3 months before issue. D wisely did not object to the application. Relief was granted having regard to the revised Denton test.See paras 140-148 of the judgment. Dead right.

THE COVENTRY DECISION

Here is a link to an excellent and typically thoughtful piece by Anton Smith.
http://abg-law.com/guidance-notes-precedents/

COVENTRY V LAWRENCE

I have just had a chat with an eminent claimant firm which tells me that overnight defendants have stopped paying additional liabilities. This is due to the remarks made by Lord Neuberger in COVENTRY V LAWRENCE.
It might be worth noting that;
1. Parliament legislated for recoverability and more recently again to terminate it ;
2. The extremely thorough Jackson inquisition criticised the logic but not the legality of recovery ;
3. All that the President said was that the paying party might want to make representations;
4. If the complaint is that it is unlawful because of the expense then why would base costs , court fees or any other expenditure not fall into the same basket?

ARE ADDITIONAL LIABILITIES ILLEGAL ( AND IRRECOVERABLE)?

Lord Neuberger has put the ravenous tiger amongst the pigeons in the very recent COVENTRY V LAWRENCE judgmenthttp://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0076_Judgment.pdf
At paras 32-48 inclusive he raises but does not answer a multi- billion pound question.Is it unlawful to require a paying party to stump up  a success fee and ate premium ? Might not these act as a burden such as would meddle with the right to a fair trial and also offend Article 1 to the first protocol (the right to respect for property , here one's  loot )?
The paying party has been given the opportunity to make submissions.
Is is odd that the point was not grasped by the same Judge in TRAFIGURA where the numbers were colossal , a bill just over £100m.
It may well all blow over .Only time will tell.

DENTON PODCAST

I spend an hour at 1pm Friday discussing the detail, a Lips Legal production. Book now ( please). 

DENTON - the key references.

A GUIDED TOUR OF  DENTON V WHITE .
Mitchell was an unimpeachable decision ( paragraphs 9 and 98 ).
Litigants need finality , not procrastination ( para89). The new thinking is that one abides by Orders and then there is a relentless push to trial.
Unless orders should not be flung around but rather confined to circumstances here they are truly necessary ( para 44).
Parties must return to the era of co-operation. The failure to agree sensible extensions and/ or the taking of bad points could result in " heavy costs sanctions " that could impact upon the entire action and not be confined to the specific application itself ( para43).
" Trivial  " is no longer part of the legal lexicon ( para26 ). Rather , the test is whether the breach is serious or significant . If so , one must , as before , look for a good excuse to explain the default ( para30).
The Mitchell examples  of a good reason remain of assistance but are neither exhaustive nor definitive ( para30).
The previous history of the defaulter is irrelevant at the outset. It only enters the equation at stage 3 when one has regard to all the circumstances of the case .
Delay in seeking relief ( see DURRANT ) also comes into play at stage 3 ( para36).
A gulf emerges upon interpreting all of the circumstances at stage 3 . The 2 explicit factors in the Rule must be given " particular weight " say the majority at para 38 whereas Jackson LJ considers that they are part off the general matrix and do not command additional weight .
" The new test is not intended to introduce a harsh regime of almost zero tolerance " concluded Sir Rupert ( para 96).  

http://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html