Category Archives: Commercial and Chancery

Court of Appeal grants permission to appeal in default judgment case

Commercial and Chancery, Default Judgment - Practice & Procedure, Practice and Procedure, , ,

Default judgment –  Practice and Procedure

The Court of Appeal grants permission to appeal in a case of general public importance involving the 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, and that the Defendant was entitled to default judgment. The Circuit Judge proceeded to grant default judgment on the basis that the Claimant had failed to file a formally pleaded defence.

The Appellant appealed to the Court of Appeal. The Appellant 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 r 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 to 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.

Arfan Khan was instructed as lead Counsel on appeal and did not appear in the proceedings below.

The transcript of judgment will be available soon.

Chancery litigation in Construction Dispute

Chancery Litigation, , , , , , ,

Peak Construction (London) Ltd v Savva & Anor  [2016] EWHC 1295 (Ch)

Mrs Justice Asplin, sitting in the Chancery Division, delivered judgment in the above litigation. The case concerned three interlocutory applications. Two of these applications raised difficult issues, including an application for an extension of time to file a defence where non-compliance with a freezing injunction was alleged. The application raised multiple issues concerning adjournments; extensions of time; bank statements; compliance; costs; default judgments; penal notices; time limits; and unless orders. The Court granted the Applicant an extension of time to file a defence. Arfan Khan appeared for the Applicant who was granted the extensions.

The judgment can be viewed through the following link: http://www.bailii.org/ew/cases/EWHC/Ch/2016/1295.html

Click here: Peak Construction (decision)

 

Freezing Injunction granted by the Chancery Division

Commercial and Chancery, Commercial and International Law, Company, Insolvency

Freezing Injunction granted by the Chancery Division in a £1.25 million claim

Mr Justice Warren granted one of the world’s largest multi-national data telecommunications company a freezing injunction. The freezing injunction was granted against multiple  companies and their directors in a £1.25 million claim. The claim involves alleged transactions defrauding creditors, contrary to s.423 and s.424 of the Insolvency Act 1986. The freezing injunction was initially granted urgently on a without notice basis, and then continued at an on notice hearing. Arfan Khan, instructed by a City Law firm, appeared for the successful Applicant at both hearings and is instructed in the claim by the same firm. The case is ongoing.