Mandatory ADR
The Court of Appeal held that the court can order the parties to engage in alternative dispute resolution, or stay the proceedings to enable them to engage in ADR. This is provided that the order does not impair the essence of the claimant’s right to a fair trial and it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost. ADR was described by the court as “a non-court-based dispute resolution process” (Churchill v Merthyr Tydfil County Borough Council).
Injunctions
The Supreme Court held that the court has power to grant “newcomer” injunctions against “persons unknown”. “Newcomers” are people who haven’t yet done anything in breach of the injunction and so cannot be identified, or participate in the proceedings, at the time when the injunction is made. Equity is flexible enough to cater for new requirements and developments of this kind (Wolverhampton City Council v London Gypsies and Travellers).
Evidence in claims alleging fraud
The claimant insurer deliberately breached a standard disclosure order by delaying disclosure of Facebook evidence showing that those involved in a road traffic accident knew each other. It withheld the evidence until after witness statements were exchanged in the hope of catching the defendant out in a lie. The court gave the claimant relief from sanctions and allowed it to amend its claim to plead the Facebook point. However, to mark its disapproval of the deliberate breach of a court order, the court imposed costs sanctions and refused to allow the claimant to amend its claim to seek exemplary damages (Axa Insurance UK PLC v Kryeziu).
Default judgment
CPR 12.3(1)(a) provides that a claimant may obtain judgment in default of an acknowledgment of service only if, "at the date on which judgment is entered", the defendant has not filed an acknowledgment of service or a defence. In this case, the first defendant filed an acknowledgment of service on the same day as a judge decided to enter default judgment. Entry of judgment is not completed until the order or judgment is sealed. Here, the order was sealed on the day after the judgment was drawn and after the acknowledgment of service. Accordingly, the court set aside the default judgment as of right (Galliani v Sartori).
Uncontroverted evidence
The Supreme Court allowed a holidaymaker’s appeal in a gastric illness claim. The defendant had not called any witness or expert evidence of its own and did not require the claimant’s expert to be called for cross-examination. Instead, the defendant made closing submissions criticising the claimant’s expert’s report. The judge accepted the submissions and held that the claimant had failed to prove his case. The Supreme Court held that the trial judge’s decision was wrong. A judge is generally bound to accept the evidence of an expert if it is not controverted by other expert or factual evidence, and the opposing party could have cross-examined the expert on the point but chose for tactical reasons not to do so (TUI UK Ltd v Griffiths).
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