All Power to the Defaulting Party…

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Posted on: May 27th, 2015 by Sentio Costs

If there was ever needed proof that Mitchell has been turned entirely on it’s head it is the recent case of Viridor Waste Management v Veolia ES Ltd (2015). The Claimant in this matter was late in serving their Particulars of Claim by 1 day and the Defendant applied to the court to strike out the Claimant’s claim. The Claimant counter applied to extend the time for the service of the Particulars of Claim.

The Court applied the approach in Denton and determined that the breach was neither serious or significant and was in fact immaterial. Therefore the Claimant’s application was successful, the Defendant’s application failed and costs were awarded to the Claimant on the indemnity basis. The Court held that the Defendant was seeking to gain an unfair enrichment from the Claimant’s default and was acting unreasonably in applying for a strike out when it was obvious that relief would be granted.

I question whether there are any decisions of the Court that can, in foresight, be reasonably described as obvious and thus, is it really unreasonable conduct for not being able to second guess the judiciary? It certainly flies in the face of the Courts requirement to ensure compliance and Jacksons desire to enforce this. Still, Denton is here as the alternative extreme of the Mitchell decision and it is now left to us to hope that the luck is with us when opposing any application for relief!

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