Business and Property Court News from His Honour Judge Kramer – May 2019

1st  July 2019, a date to put in your diaries: Sir Geoffrey Vos, The Chancellor of the High Court, is visiting Newcastle on 1st July 2019. He will be giving a Business and Property Courts Forum  lecture at Northumbria University Law School. The event starts at  5.45pm registration for 6.15pm, with tea, coffee and biscuits  provided from 5.45pm. The talk will be on the rise of Smart Contracts, which one website describes as “The Blockchain Technology That Will Replace Lawyers”. The Chancellor does not take such a gloomy view. On the contrary, he sees that our jurisdiction is well placed to provide a legal infrastructure which gives  parties sufficient confidence as to their rights and enforceability  to enter into such agreements.  This is a very forward looking lecture, but in a fast changing world it may not be as far forward as we think. Mr Justice Snowden, who is to be our new VC, will also be at the lecture and, I am sure would like to meet as many of you as possible. The talk, with questions, and possibly some words from Snowden J,  is expected to last till 7.30.

Quite apart from the subject matter, this is a good opportunity to meet the judges, each other,  and exchange ideas. It would be good if the wider professional and business community could take part in Forum lectures and I encourage you to approach anyone from such sectors to come along; clearly the subject matter should be of interest to those in business and, for example, accountants. I look forward to seeing as many of you as can make it on 1st July. To register for the lecture click on the following link  https://www.eventbrite.co.uk/e/the-rise-of-smart-legal-contracts-legal-obligations-and-enforceability-tickets-61292960896 or look up the talk on events on Eventbrite and register through there.

Rules

CE Filing (PD51O) – I hope all solicitors are now aware that all cases issued from  30th April 2019 in the BPC lists  by those  represented by a legal representative , can only be issued on CE file. Cases which were issued in paper form before that date are not on CE File and thus any applications, filing  or communications in relation to such cases will have to be on paper or email, as appropriate. There have been enquiries to the office from solicitors asking why their attempts to issue applications on CE file in pre 1st May cases are not successful. Similarly, some firms have sought to issue in paper from 30th April and such requests have to be returned. Any correspondence concerning cases which are on CE file must be by uploading to the electronic file, letters and emails cannot be accepted.  There is an exception to the requirement for electronic filing to be found in PD51O para 3.5. Where the rules require original documents to be filed these cannot be filed using Electronic Working and must be physically filed with the court. For this reason, contentious probate claims cannot be issued using Electronic Working without the permission of the court. With this reminder, I trust that uncertainty as to how and what to file should  cease to be a problem.

A useful guide to CE filing is to be found on You Tube at the following link: https://www.youtube.com/watch?v=dRd1RRIJPC4

I have also come across some confusion as to County Court cases which are suitable to be dealt with as specialist work under PD57AA PD 4. These are issued in paper form as usual save that they can be issued in the County Courts identified in the PD, thus including Newcastle. They should be headed as a County Court claim but you have the option of marking it as Business and Property Work. I suggest you do so to identify it as one which can be issued out of the BPC hearing centre.

Disclosure Pilot-PD51U- The pilot has applied in the BPC since 1st January 2019. As those who have had cause to deal with a case under the pilot, it introduces a very different and more structured approach to disclosure. There are no transitional provisions under the pilot so it applies to cases whenever they were started. It was thought that it did not apply where there was a pre 1st January 2019 disclosure order in place, but , following UTB LLC v Sheffield United Ltd [2019] EWHC 914 (Ch), that is not the case.

Ann Ferguson of Northumbria University is doing research into the workings of the Disclosure Pilot and would like to hear from any solicitors who could, in due course, answer a questionnaire on the subject. This is a very worthwhile project as the pilot has the capacity to front load costs to a significant extent, which should require careful scrutiny as to its benefits in practice. Her email address is ann.ferguson@northumbria.ac.uk.

Another leading case from the North East: In Perry v Raleys Solicitors [2019] 2 WLR 636 the Supreme Court reviewed the law on the proof of causation in  professional negligence cases. At first instance, HH Judge Saffman, sitting in Leeds, dismissed a case of  solicitor’s negligence  for failure to advise on the availability of a loss of services/DIY as a head of damage in a VWF claim. Whilst negligence was admitted in failing to advise about the head of loss, the judge did not accept the evidence of the claimant and his supporting witness that he had suffered such a loss and, on the concession of counsel, held that in order to prove that he would have made a claim for loss of services/DIY it would have to have been an honest claim. After something of a mauling in the Court of Appeal, which reversed the judge’s findings of fact and decisions on the law, the judgment was restored in the Supreme Court, with no small praise for Judge Saffman.  Lord Briggs, with whom the rest of the court agreed, analysed what has to be proved as to causation in claims for professional negligence. In essence, in so far as the outcome depends upon what the client would do, they have to prove on the balance of probability what action they would have taken had they been properly advised. To the extent that the outcome depends upon the actions of another, such as the court or the defendant, the claimant has to prove a loss of a chance. The concession that, in order to succeed in proving that he would have made a claim, it would have to be an honest claim was held to have been rightly made.

Note of 24 May 2019 -CE Filing- following the production of my last newsletter I have discovered that cases issued from 7th  January 2019 on paper have been scanned onto CE file. Filing of documents in such cases and applications  will have to be made on CE file. You will know if your case has been scanned onto CE file as it will have a CE file number, i.e.  2019 NCL.

 I have also been asked by the administration that for those cases which are not on CE file,  you limit the filing of pleadings, applications and correspondence to one form of communication, i.e. email, hard copy or fax. You may feel more secure by filing in multiple formats but it can cause extra work for the staff, as happened earlier this week when two members of staff discovered they were working on the same piece of correspondence, one in hard copy and the other by email. The problem should not arise in CE file cases due to the  requirement to upload to the  CE file. 

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