Litigation round-up January 2022

Service of claim forms

The Court of Appeal has confirmed that service of an unsealed claim form is defective service which cannot be cured as a procedural error under CPR 3.10. There is no lacuna in the Electronic Working Pilot even though there may be a lag between filing a claim form and its acceptance and sealing. Relief can only be granted under CPR 6.15 or 6.16 and was refused in this case (Ideal Shopping Direct Ltd v Mastercard Incorporated).

Part 36 offers and mistake

The common law doctrine of mistake can apply to a Part 36 offer where a clear and obvious mistake has been made which has been appreciated by the offeree at the point of acceptance.  Part 36 is a self-contained code intended to have clear and binding effect but this should not prevent the application of the overriding objective to prevent obvious injustice (O'Grady v B15 Group Ltd).

Part 36 offers and counterclaims

A pre-action offer could be a claimant’s Part 36 offer, even though the counterclaiming offeror was anticipated to be a defendant in due course and the offeree had already purported to make a claimant’s Part 36 offer. The emphasis should be not on a particular party’s title within the litigation but rather on their role in making the offer. A party who claims that they will recover a greater sum than the party named as claimant in the action can make a claimant’s offer (The Huntsworth Wine Company Ltd v London City Bond Ltd).

Witness statements 

The striking out of a witness statement is a very significant sanction which should be saved for the most serious cases. In this case, the defendant should not have brushed off the concerns raised by the claimant regarding its failure to comply with the requirements of PD 57AC. The claimant was also at fault for not identifying earlier its objections to the witness statement and explaining these to the defendant with a view to agreeing a revised version. The best way of doing justice in these circumstances was to require the original statement to be replaced with a version that complied with PD 57AC. The judge was minded to order the defendant to pay costs on the indemnity basis to mark the court's disapproval of its failure to comply with the practice direction (Prime London Holdings 11 Ltd v Thurloe Lodge Ltd).

Abuse of process and warehousing 

Commencement of litigation with no intention to bring matters to a conclusion can amount to an abuse of process. Once it is possible to show that the intention to pursue does not exist, the defendant does not have also to show that it is no longer possible to have a fair trial. Where the claimant is guilty of warehousing a claim, it is not incumbent on the defendant to incur cost so as to try to force the claimant to change its approach, as long as the defendant has not acquiesced in the claimant’s inaction so as to make striking out a disproportionate response (Alfozan v Quastel Midgen LLP).