Disputes Matter – Summer 2014
Print newsletter24/07/2014

Do you want to arbitrate or litigate? Is your contract clear about that?
Where parties agree to arbitrate their disputes, and one party breaches that agreement by starting […]
Where parties agree to arbitrate their disputes, and one party breaches that agreement by starting court proceedings, a court has power to uphold the arbitration agreement and ‘stay’ (i.e. transfer) the proceedings to be dealt with by arbitration unless the agreement is found to be ‘null and void, inoperative, or incapable of being performed’.
In Kruppa v Benedetti & Anor [1], the claimant started court proceedings but the defendant argued there was a valid agreement to arbitrate. The defendants applied to have the court action stayed to arbitration under section 9 of the Arbitration Act 1996 (the Act). In so doing they relied on a ‘Governing Law and Jurisdiction’ clause (which was identically drafted in each of the 3 relevant agreements in dispute) as being an ‘arbitration agreement’ for the purposes of section 6(1) of the Act.
Section 6(1) states:
“an ‘arbitration agreement’ means an agreement to submit to arbitration present or future disputes (whether they are contractual or not).”
The clause relied on by the defendant (the clause) stated:
“Laws of England and Wales. In the event of any dispute between the parties pursuant to this Agreement, the parties will endeavour to first resolve the matter through Swiss arbitration. Should a resolution not be forthcoming the courts of England shall have non-exclusive jurisdiction.”
The key issue for the court was whether the clause constituted an arbitration agreement for the purposes of the Act. There were few authorities on the point but it was proposed by the claimant (and the defendant did not disagree) that the clause should be construed in the same way as other contractual clauses by ascertaining the parties’ intentions and considering what a reasonable person, with the same background knowledge, would have understood the parties to mean.
The defendants stressed that the court should give effect to all parts of the clause to arrive at an harmonious result. They argued that the word arbitration should be given its ordinary and natural meaning unless there are other provisions in the contract which make it plain that it was not intended to give rise to binding arbitration and that the use of the word ‘arbitration’ is sufficient for an English Court to find a binding arbitration agreement.
The court disagreed: the clause was not an arbitration agreement under the Act. In particular:
- the wording of the clause was crucial: “the parties will endeavour to first resolve the matter through Swiss arbitration”. There was no agreement to refer to arbitration; rather the agreement was to endeavour to resolve the matter through arbitration. This was a two stage process. If their attempts to try arbitration failed, the parties were to seek a binding solution by litigating in the English Courts;
- the clause did not deal with the number and identity of arbitrators nor did it specify which Swiss canton was to have jurisdiction or act as the seat of arbitration. Disagreement on these issues was likely – and the parties had provided for such disagreement by stipulating litigation as a binding fall back;
- the mere use of the word ‘arbitration’ in this case was not sufficient to show that the parties intended their disputes to be dealt with in arbitration;
- it was not logically possible to have a two tier dispute resolution clause where each tier was binding. The court therefore concluded that the parties had in mind to try to agree Swiss arbitration – but if that failed, the English Courts were to have non-exclusive jurisdiction to deal the dispute.
Practical Points – draft your dispute resolution clause carefully
Arbitration proceedings result in a binding award which a successful party can enforce through the courts if necessary. If arbitration – rather than litigation in the courts – is your dispute resolution procedure of choice, it is important to ensure that your contract reflects your choice.
Multi-tier dispute resolution clauses are common but must be used with care. They often escalate the procedures from, for example discussion or negotiation, through to mediation and then to procedures which lead to binding results such as arbitration or litigation (but not both of the latter). Trying to use both, as in this case, might lead you to become embroiled in a procedure not of your choosing.
Ascertaining which court or tribunal has jurisdiction to hear your dispute is an important first step in any dispute. An uncertain jurisdiction clause (such as the referral to Swiss arbitration in the Kruppa case) can only lead to extra arguments and costs in the first stages of a dispute. It is far more cost effective to ensure your dispute resolution and jurisdiction clauses are well drafted at the outset. It might have seemed a good idea to specify Swiss arbitration in the present case – but the reality gave rise to complexities which the parties did not appear to have considered.
[1] Kruppa v Benedetti & Anor [2014] EWHC 1887 (Comm)

Guidance on making claims for defamation
Defamation is a serious allegation and there are strict rules about how parties should make […]
Defamation is a serious allegation and there are strict rules about how parties should make such a claim in formal legal proceedings. The court heard a defamation action brought by a litigant in person in the recent case of Mole v Hunter [1] and gave a helpful reminder of what must be dealt with in the claim.
The Background
The claimant, Ms Mole, was a tenant of the defendant, Ms Hunter, who owned a house which she rented out on a multiple occupancy basis. Relations between the two deteriorated with the result that Ms Mole terminated her tenancy and issued a claim against Ms Hunter for recovery of her deposit. Ms Hunter counterclaimed alleging that Ms Mole had published various defamatory statements about Ms Hunter in her capacity as a landlady both on the internet and via email. Ms Hunter claimed that this had damaged her reputation and made it more difficult for her to find new tenants.
Through no fault of her own, Ms Mole did not serve a defence to Ms Hunter’s counterclaim by the due date and the court granted Ms Hunter’s request to enter judgment in default on the counterclaim. Ms Mole applied to set judgment aside. She argued that the allegations of defamation in the counterclaim were insufficiently particularised and non-compliant with the Civil Procedure Rules (CPR) (and it is this issue we focus on below).
The judge agreed with Ms Mole, and set aside the judgment concluding that she had a real prospect of successfully defending the counterclaim at trial. He also decided that the overriding objective (the requirement to deal with a case justly and at proportionate cost) required the default judgment to be set aside not least because the counterclaim was so defective that he would not be able to assess the damages justly in any case.
How to claim for Defamation
The judge helpfully set out what a claim for defamation should include. The basic premise is that a party subject to a defamation allegation should be able to attend trial forewarned of that allegation. The CPR [2] require that:
- the [counter] claim must include a concise statement of the facts relied on by the claimant;
- where libel is claimed, the claim form must contain details of the publication which is the subject of the claim;
- where slander is claimed, the claim form must, so far as possible, set out the words complained of, who spoke them; to whom they were spoken and when; and
the claimant must explain in the particulars of claim the defamatory meaning that the words used convey. - The judge explained [3]: “In a defamation action the facts on which a claimant relies include (in addition to the matters set out in Practice Direction 53) the identity of the individuals to whom it is alleged that the words complained of have been published (this includes the readers who have accessed a website) and any facts on which it is alleged that the court should infer that there probably were such readers.”
The judge went on to remind the parties that damages for defamation are assessed on well known principles including the seriousness of the allegation and the identity and/or number of the individuals to whom the allegation has been published. The precise words used are therefore essential – as are who heard/read them so that the court can assess whether the [counter] claimant’s reputation has indeed been damaged by the publication.
In this case, the counterclaim did not include the material allegations: the claims made were bare and of a general nature. Nevertheless, the judge decided to give Ms Hunter the opportunity to apply for an amendment – but warned that this opportunity should not be read as an indication that he would grant leave to amend, particularly as Ms Mole did not allege that there was any truth in the allegedly defamatory statements. It was made clear to Ms Hunter that she would have to explain clearly why she thought Ms Mole responsible for the defamation and to prove that the alleged defamation was published to significant publishees. If Ms Hunter did not set this material information out clearly and her application to amend the counterclaim failed, the counterclaim would be struck out.
Practical points
To establish a defamation claim, a party must have a full grasp of all the key facts and set them out fully in its claim form and particulars. In this case, the judge thought that the defamation alleged was serious and could lead to the claimant recovering damages – but only if Ms Hunter could prove that Ms Mole was responsible for it – and that it had been published to significant publishees (like future tenants who might have been put off from renting the property in the future).
If you think you have been defamed, you should take prompt action to deal with it. If in doubt about whether you have a claim for defamation or if you want to remove defamatory material from the internet, contact us using the details below.
A note on litigants in person
Finally, each party in this case was acting as a litigant in person and the judge made some interesting obiter comments on the procedural difficulties that can arise when parties do not have legal assistance with the preparation of their claim. Paragraphs 107 to 119 [1] are worth a read by those interested in the consequences of actions being conducted by parties without legal representation.
[1] Mole -v- Hunter [2014] EWHC 658 QB
[2] CPR 16 and Practice Direction 53
[3] Paragraph 74 of the judgment at [1]

Is an agreement to have ‘friendly discussions’ before going to arbitration or litigation enforceable? (It can be…)
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [1] is another case (like […]
Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [1] is another case (like Kruppa v Benedetti [2]) where the court had to examine the dispute resolution procedures agreed by the parties in their contract.
In this case, a dispute resolution clause which required the parties to seek to resolve a dispute by friendly discussions, in good faith and within a limited period of time before the dispute could be referred to arbitration, was enforceable. As it happened, the court found that the parties had in fact complied with the clause but the decision is an interesting demonstration that agreements to hold settlement discussions can be binding – if drafted properly.
Background
∫The claimant, (Emirates) had entered into a long term contract with the defendant (Prime Mineral) for the purchase of iron ore. However, Emirates failed to lift all of the iron ore expected to be taken up during the first shipment year and, under the terms of the contract, Prime Mineral sought liquidated damages in respect of the breach. Emirates continued to fail in its performance of the contract and on 1 December 2009, Prime Mineral served notice of termination and claimed liquidated damages in the sum of $45,472,800. In its notice, it stated that if this sum was not paid, it reserved the right to refer the claim to arbitration in accordance with the contract.
The contract provided the following in respect of the dispute resolution procedure:
“In case of any dispute or claim arising out of or in connection with or under this [contract] … the Parties shall first seek to resolve the dispute or claim by friendly discussion. Any party may notify the other Party of its desire to enter into [consultation] to resolve a dispute or claim. If no solution can be arrived at between the Parties for a continuous period of 4 (four) weeks then the non-defaulting party can invoke the arbitration clause and refer the disputes to arbitration.”
Some meetings took place to discuss the dispute but Prime Mineral went ahead and commenced arbitration proceedings. Emirates argued that the arbitration tribunal had no jurisdiction but the tribunal disagreed. Emirates therefore applied to the High Court for an order that the tribunal lacked jurisdiction to determine the claim brought by Prime Mineral. It argued that the dispute resolution clause required a condition precedent to be satisfied before referring the dispute to arbitration which involved the parties negotiating in good faith for a continuous period of 4 weeks. Emirates claimed that this condition had not been met.
The court first had to interpret the dispute resolution clause.
Prime Mineral argued that the agreement to try to resolve the dispute by friendly discussion was an agreement to agree or negotiate and therefore unenforceable. They relied on well established authorities such as Walford v Miles [3]. The court however distinguished the Walford case explaining that it was a material fact in the present case that the period for the agreed discussions was time limited [4]. The court went on to hold that the clause, properly construed, provided that if no solution could be found for a continuous period of four weeks, notwithstanding the friendly discussions, then arbitration could be invoked. The court then considered whether the dispute resolution clause was enforceable and held that it was: it was complete, certain and the obligation to negotiate had an identifiable standard namely a fair, honest and genuine discussion aimed at resolving a dispute. Moreover, the court found that enforcement of such a clause was in the public interest as commercial people expect the court to enforce obligations which have been freely undertaken and which have an objective of avoiding expensive and time consuming arbitrations.
While the clause was held to be enforceable, the court nonetheless found that the condition precedent had been complied with as the parties had met on a number of occasions over the course of several months following termination to try to resolve their differences. Emirates were therefore unsuccessful in their application: the arbitration tribunal did have jurisdiction.
Practical points
This case reinforces the practical issues arising from Kruppa, that multi-tier dispute resolution clauses must be used with care. An agreement to start a dispute resolution procedure with discussions (friendly or otherwise!) can be enforceable but must be clearly and precisely drawn up. Adding in a time limited period for compliance with the initial procedures may be practical depending on your circumstances. You might also want to consider adding exceptions to allow for proceedings to be started swiftly, if for example, there is little time left before the statutory limitation period expires.
Those who include multi-tiered dispute resolution clauses in their contracts must also ensure they follow them if a dispute arises. Failure to do so may result in any consequent arbitration award being unenforceable.
One final note, this case is a further example of the courts’ continuing trend to uphold the concept of good faith obligations between contracting parties and it is interesting that the Court found that an obligation to undertake “friendly discussions” was an identifiable standard.
[1] Emirates Trading Agency LLC v Prime Mineral Exports Private Ltd [2014] EWHC 2104 (Comm)
[2] For our review of Kruppa v Benedetti, click here
[3] Walford v Miles [1992] 2 AC 128
[4] See Paragraph 59 of the judgment at [1]

Is legal professional privilege lost if a document is made generally available?
In a recent case [1], the High Court considered whether the claimant had waived privilege […]
In a recent case [1], the High Court considered whether the claimant had waived privilege in confidential documents simply because they had been seen by someone other than the claimant and his lawyer.
Background
An employee of Fulbright & Jaworski International LLP (FJI) forwarded confidential documents sent to her personal email address by the claimant, Mr Shepherd (with whom she was having a relationship) to her work email account. When she opened the documents at work, and unknown to Mr Shepherd, FJI’s server automatically stored a copy of the documents. During employment tribunal proceedings between FJI and the employee, the confidential documents were disclosed. The documents in question contained highly personal information in connection with Mr Shepherd’s divorce proceedings with his former wife. When Mr Shepherd found out about the disclosure, he brought a claim in the High Court for delivery up or destruction of the confidential documents on the basis that they were privileged and later made an application for summary judgment.
At the hearing of the application, the court considered several issues but for the purposes of this article, the key issue was whether Mr Shepherd’s act in emailing the documents to the employee amounted to a waiver of privilege.
The privilege in question was legal professional privilege – that which arises in correspondence between a client and his lawyer. For a document to be so privileged, it must be confidential and it might be said that the loss of confidentiality might also equate to a loss of privilege. However, loss of privilege will depend on how that loss of confidentiality arose. If a document is shared outside of the solicitor/client relationship or made available generally then privilege may be lost. FJI and its lawyers argued that confidentiality had been lost by virtue of the documents being forwarded to the employee’s work email account for which she could have had no expectation of privacy given the firm’s policies.
This argument was not accepted by Mrs Justice Simler DBE who stated that “the critical question is whether the document and its information remain confidential in the sense that it is not properly available for use… documents communicated to a third party in circumstances expressly or impliedly preserving confidentiality against the rest of the world are unlikely to lead to privilege being lost”.
The judge did not accept that Mr Shepherd could have waived privilege in circumstances where he was unaware that the employee had forwarded documents to her work email account without his consent. The documents were quite plainly of a personal nature and the way that Mr Shepherd had sent the documents to the employee did not suggest he intended to waive privilege. Further, in relation to an implied waiver allegedly arising as result of the firm’s IT policy regarding privacy of emails, the Judge commented that this would be akin to saying that Mr Shepherd could have waived privilege through the employee accidentally leaving copies of the privileged documents on her desk and a colleague having seen them.
The documents were generated in the course of a solicitor/client relationship and were presumed to be confidential. The privilege which therefore attaches to them is a fundamental substantive right. Mr Shepherd clearly communicated the documents to the employee in circumstances which suggested (whether expressly or impliedly) that she should treat them as confidential. Privilege was therefore maintained.
Practical issues
The decision highlights the potential risks of forwarding emails and using work email accounts for personal or sensitive correspondence. The claimant was protected in this particular case but others might not be so lucky.
The decision does, however give reassurance that the Court will uphold a parties’ fundamental right to claim privilege in the legal advice it receives.
[1] Shepherd v Fox Williams LLP and others [2014] EWHC 1224 (QB)

Mitchell Take 2: revised guidance from the Court of Appeal on relief from sanctions
After 8 months of uncertainty and legal angst, the Court of Appeal has clarified the […]
After 8 months of uncertainty and legal angst, the Court of Appeal has clarified the Mitchell Guidance [1] and in so doing, introduced a fresh approach for those seeking relief from court sanctions. No longer is the post Jackson motto comply, comply, comply – or be sanctioned with very little hope of relief. Rather the Court of Appeal has introduced a 3 stage test to encourage a more practical and cooperative approach to compliance by those litigating and a more consistent and just approach by the courts.
A culture of compliance with an occasional, albeit rare need for court intervention satellite litigation remains the goal. There is also a clear message that there will be costs penalties for those wasting court time with applications that could have been dealt with by agreement and the straightforward appliance of the new 3 stage test.
Litigators and judges alike will welcome the clarification which many hope will reduce considerably the likelihood of disproportionate penalties and decisions. It might even make litigators more willing to cooperate with each other…
For those who have not already seen our review of the decision, click here.

Part 36 and costs liabilities when there are multiple defendants
Making a Civil Procedure Rules (CPR) Part 36 offer is one of the most useful […]
Making a Civil Procedure Rules (CPR) Part 36 offer is one of the most useful tools in litigation. It enables a party to make a formal settlement offer knowing that if the opposition rejects it and the offeror goes on to do better at trial, the opposition will have to pay the offeror’s costs from a prescribed date – as well as interest and potentially an additional discretionary payment. Not surprisingly, a properly drafted Part 36 offer letter and the consequent risk of costs liabilities, places considerable pressure on a recipient to consider the offer seriously.
But what happens when there are several defendants? If one of the defendants accept a Part 36 offer and settles and the others do not, who pays the offeror’s costs? Does the defendant have to pay the whole of the costs in the litigation – or just the elements that relate to its own defence? And what about the disbursements such as experts fees and travel expenses?
This was the issue that arose recently in the case of Haynes v Department of Business Innovation and Skills [1].
The claimant’s husband died from causes relating to asbestos exposure and she brought a claim for £195,000 against 10 of her husband’s former employers alleging that they were all severally liable for his death. She sent Part 36 offers to 6 of them suggesting she would accept £18,000 from each of them. Only the defendant, (who was defendant number 8), accepted. The claimant then abandoned the claims against the other defendants and claimed all her costs of £58,097.31 from the defendant.
The Costs Master and then Master Simons each held that the defendant should not bear the full costs liability. The claimant appealed and the High Court’s decision was based on the interpretation of the wording of Part 36 and the relevant case authorities – but also resounds of common sense.
CPR Part 36.10 (1) provides that where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings up to the date on which notice of acceptance was served on the offeror.
CPR Part 36.10 (3) provides that such costs will be assessed on the standard basis if not agreed.
CPR Part 44.9 provides that where such a right to costs arises, a costs order will be deemed to have been made on the standard basis.
The High Court split the claimed costs into types and dealt with each separately:
The costs attributable to the action (solicitors’ fees etc.). The judge was adamant as to the meaning of ‘the costs of the proceedings’ in Part 36.10(1): it referred to the costs of proceeding against the defendant against whom the deemed costs order has been made. The defendant was not therefore liable for the costs of the other defendants.
The common or generic costs. These split into:
- costs such as court fees, medical reports and travel expenses. Such costs as these have to be incurred regardless of how many defendants there are. As there was a deemed costs order in the claimant’s favour, these costs were therefore to be met by the defendant in full. The judge added that had other defendants also accepted the offer, the claimant could have sought 100% of these particular costs from any of them – leaving the defendants to argue amongst themselves as to their apportionment; and
- non-specific costs such as counsel’s fees for advising on the liability of all the defendants. These costs can be identified and are divisible and the defendant should only have to pay what was attributable to his part in the proceedings. The Judge also addressed the issue of how to decide on what share should be paid. The Master had ordered a one tenth division to be paid on the basis that there were 10 defendants. An approach which simply divided between the number of defendants was rough and ready but the judge thought the Master justified given that the claimant had supplied no evidence on which to reach a more reasoned decision. The judge made clear, however, that the general rule required an evidence-based decision to be made on how to split the costs liabilities.
If you think a Part 36 offer is invalid – say so straight away
During the hearing, the defendant claimed for the first time that the claimant’s Part 36 offer did not comply with Part 36 and was therefore invalid. The judge said it was too late to argue this point at the trial: by not making the point on receipt of the offer, the defendant had effectively waived his right to rely on the claimant’s non-compliance with the strict requirements of Part 36.
This is a reminder that any problems with a Part 36 offer should be raised immediately. Not doing so could prove costly.
[1] Haynes v Department of Business Innovation and Skills [2014] EWHC 643 (QB)

Parties work together for summary judgment to rectify a pension agreement
In CitiFinancial Europe plc v Davidson and others, [1] the High Court made a practical […]
In CitiFinancial Europe plc v Davidson and others, [1] the High Court made a practical decision to correct inaccurate terms in two pension agreements to reflect what the parties had originally agreed. In doing so, the court endorsed the use of the summary judgment procedure to effect the rectification of the agreements thereby giving the parties a decision more quickly and cost effectively than might have been the case had the issues proceeded to trial. We consider the key issues reviewed by the court and explain the hurdles the Claimant had to jump (in this case with the help of the Defendants) to gain summary judgment for rectification.
The Facts
The facts were summarised succinctly in the first paragraph of the judgment by the judge:
‘1-This is an application for summary judgment for rectification of the provisions of two documents forming part of a pension scheme. The scheme is divided into two sections. One is a “final salary” section under which defined benefits are calculated by reference to salary and length of pensionable services; this section of the scheme closed to new members in 1999 (“the DB Section”). The other section is a “money purchase” section, under which defined contributions are calculated by reference to actual contributions paid by members (“the DC Section”); this section of the scheme was available to both old and new members upon closure of the other section. The reason for having two sections was historical and arose as a result of the amalgamation of two different schemes.’
A replacement scheme document was issued in 2003 and was followed by a deed of amendment in 2004. Unfortunately, the wrong definition of ‘salary’ was mistakenly given to the DC section despite the parties’ intentions to the contrary.
When the parties discovered the error, they started court proceedings to rectify the two documents. An application for summary judgment followed.
The Claimant applied successfully under CPR rule 19.7(2)(d) for the Third Defendant, who was one of the members of the DC section, to represent all his fellow members and beneficiaries.
The First and Second Defendants were trustees of the pension scheme and adopted a neutral position in relation to the application for summary judgment. Their role was to ensure that the Third Defendant had properly considered all the possible arguments on behalf of the members and beneficiaries. The Third Defendant reviewed the issues and concluded that the Claimant’s application for summary judgment could not be defended with a real prospect of success.
Could rectification be granted?
With all parties broadly supportive of the application, the judge then had to consider whether rectification could be granted on a summary judgment application. Only a court can rectify an agreement and in order to do so, a claimant has to show that the parties have a common and continuing intention from the point of the incorrect agreement being executed which would have been apparent to an outsider and that by mistake, the agreement did not reflect that intention [2].
On the facts, the judge concluded:
- there had to be convincing proof that the documents as executed did not correspond with the parties’ continuing intentions [3];
- for summary judgment to be granted, the Claimant had to show there was no realistic prospect of a successful defence to the claim. Further there had to be no other reason for a trial to take place [4];
- while the rules referred to 1 and 2 set a high threshold, the court has power to grant rectification in an appropriate case by way of an application for summary judgment [5];
- the test for rectification of a pension scheme (as set out in the IBM case of 2012 [6]) required the court “to be satisfied by cogent evidence, objectively manifested that the Claimant as Principal Employer and the Trustees as a collective body each had the same continuing intention which by mistake was not reflected in the documents” [7];
- it did not need to be proved that the members shared the same intention as the Claimant and the Trustees (members are not to be treated as bona fide purchasers for value [8]).(The judge was surprised by this but satisfied that the members’ handbook reflected the Claimants’ and the Trustees’ intentions and therefore the members could not have been reasonably misled about what was intended.)
The judge reviewed the evidence which included witness statements, draft agreements, correspondence and various notes of meetings and was persuaded that it amounted to the ‘convincing proof’ needed that the parties had always and still intended that the DB and DC sections would each have a different definition of salary.
One point the evidence did not make clear was how the error had come to be made. This did not prove fatal however despite the inadvertent change to the documents being a fundamental one: in the absence of specific evidence showing that the change was intended by the parties, the judge relied on the decision in Industrial Acoustics Co Ltd v Crowhurst [2012] PLR 371 paragraph 45: ‘where a party intends that a revised deed will continue the status quo, the court may infer the requisite intention from the absence of express evidence to make the change’.
The judge therefore granted rectification which meant that the agreements were amended with retrospective effect to reflect the intentions of the parties.
Summary judgment – a useful process if the parties agree
The hearing of this matter lasted only a day and the judgment is short despite the complex legal issues involved. This is largely due to the fact that the parties and their legal teams appear to have collaborated throughout the summary judgment procedure and were in broad agreement that the parties’ intentions had not been reflected in the two agreements. In granting summary judgment, the judge thought it particularly important that the Third Defendant had agreed there was no reasonable chance of successfully defending this matter. In order to be sure of this point, the judge had even read the Third Defendant’s counsel’s advice on the matter – albeit in private.
In short, in appropriate circumstances, the summary judgment procedure is an efficient way of obtaining a speedy and cost effective rectification of errors in your pension schemes.
[1] CitiFinancial Europe plc v Davidson and others [2014] EWHC 1802 (Ch)
[2] As set out in Daventry District Council v Daventry & District Housing Ltd [2011] EWCA Civ 1153
[3] Thomas Bates & Son ltd v Wyndham’s (Lingerie) Ltd [1981] 1 WLR 505, (at 521)
[3] Swain v Hillman [2001] 1 All ER 91
[4] Misys Ltd v Misys Retirement Benefits Transfers Ltd [2012] EWHC 4250 (Ch)
[5] Paragraphs [14] to [15] of IBM United Kingdom Pensions Trust Ltd. V IBM United Kingdom Holdings Ltd [2012] PLR 469
[6] Taken from paragraph 10 of the CitiFinancial judgment
[7] AMP (UK) plc v Barker [2001] PLR 77

Why it’s important to set out your claim properly
A recent decision gave a claimant a sharp reminder of why it is important to […]
A recent decision gave a claimant a sharp reminder of why it is important to ensure that the particulars of your claim are pleaded (i.e. described) fully.
In Thavatheva Thevarajah and others v Riordan [1], the defendant failed to provide information ancillary to an injunction and the claimant was successful in striking out the defendant’s defence and counterclaim. The defendant was debarred from taking any further part in the proceedings save to assist the court in understanding the claim and in relation to the valuation of the claims.
The claimant then applied for a declaration and other orders which had only been pleaded in the defendant’s struck out defence – but not in its own claim. The court refused the claimant’s application ruling that the defence no longer existed and the claimant could not therefore use it as the basis for its own applications.
An example of be careful what you wish for…
[1] Thavatheva Thevarajah and others v John Riordan and others [2014] EWCA 725 (Ch) (21 March 2014)