Civil Focus blog
3rd October 2012 - Guidance for Civil Advocates on Standing Your Ground
The Court of Appeal has provided valuable guidance for advocates in civil proceedings on how far it is necessary to push a point, when the Judge hearing your case has indicated in clear terms that (s)he intends to reach a particular (albeit wrong) decision.
The case was Frey v Labrouche [2012] EWCA Civ 881. The defendants had applied to strike out claims in a complex multi-jurisdictional trust dispute. At first instance in the High Court, the judge hearing the application stated at the outset that with the benefit of five hours pre-reading he was “firmly of the view” that on the basis of the papers the application for striking out was “beyond the reach of sustained argument”. He therefore indicated, before hearing either party, that he simply intended to allow the claim to proceed and to make case management directions.
When addressed by the Defendant’s advocate, who said that he was prepared if necessary to spend the time allocated to the application in attempting to persuade the judge that his initial view was wrong, and that if he did not do so his only alternative would be to appeal the decision, the judge responded that “I do not intend to force you to try and persuade me to the contrary. It is a pointless exercise.” After further exchanges to no avail, the Defendants effectively acquiesced in the judge’s approach, but then sought and obtained leave to appeal from the Court of Appeal.
Before the Court of Appeal the other side argued that having acquiesced to the High Court judge’s approach, the Defendants could not now seek to challenge it. The Court of Appeal agreed that:
1. “it is the duty of an advocate to stand up to a judge who is proposing to take an inappropriate course”; and
2. if a judge states that he is proposing to take a certain course and a party’s advocate does not object to that course, an appeal by that party based on the proposition that the judge ought not to have taken that course would … be doomed to failure”
Nevertheless, in this case the Court’s view was that:
3. “where a judge makes it clear that he is resolved on taking a certain course and that there is no prospect of a party’s advocate being able to dissuade him from that course, it is hard to see what the party or his advocate can do other than to appeal against the judge’s decision.”
The Court of Appeal were at pains to stress that this decision should not be taken as a precedent authorise challenges by appeal to judicial conduct that was not adequately opposed at first instance. But their view was that, particularly where the Defendants had effectively been deprived of their right to be heard in
As such, the case provides an important reminder to all civil advocates to hold your ground when confronted with judges who have already made up their minds, but also to take comfort for the Court of Appeal’s willingness to recognise that “it is important to adopt a realistic approach to what is to be expected of an advocate (or indeed a judge…) in the heat of the moment in court.”
Will
28th February 2012 - Designated Money Claims - New Procedure from 19 March 2012
As some of you will no doubt already be aware, all “designated money claims” (being claims issued in the County Court for specified or unspecified sums of money only, and where no specialist procedures are applicable) will need to be issued centrally from 19 March 2012.
From that date, all Part 7 claim forms in designated money claims will need to be sent to County Court Money Claims Centre, PO Box 527 M5 0BY, for issuing in the
Claimants can specify a preferred Court when issuing the claim, and cases will continue to be automatically allocated to the home Courts of Defendants who are individuals/unrepresented. There will also remain the possibility of allocation to a different Court at Allocation Questionnaire stage.
Please see the Civil Procedure (Amendment No. 4) Rules 2011 (SI 2011/3103) for more details.
Will
28th February 2012 - Welcome!Welcome to the new Civil Focus blog. The intention is to collate relevant developments and practice updates in a convenient and accessible format. As such, if anyone becomes aware of new civil practice points of general relevance or interest, please do e-mail me and I will include them on the blog.
I will also be using the blog to highlight developments relevant to Civil Practitioner members of SAHCA. We are trying to make sure that the association continues to be alive to the needs of civil practitioner members, and to that end an e-mail will be circulating shortly asking you to take a few moments to provide basic details of your practice, and any particular areas of support or training that would be helpful for you. I do hope that you will take the time to respond and let me know a little more about the range of civil work and activities that our membership are involved in.
Looking forward to hearing from you all soon,
Kind regards,
Will
Will Richmond-Coggan (Chair of the Civil Practitioners Sub-Committee)