Judgment call: 16th January 2012

Steven Gee QC
Steven Gee QC

Civil Procedure
Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG & Ors; and Brit UW Ltd v Starlight; and Brit UW & Ors vImperial (2011) EWHC 3381.
| Commercial Court Queen’s Bench Division. Burton J.

19 December 2011

The terms of a settlement agreement embodied in a Tomlin order could be enforced by way of summary relief without lifting the stay in the order and without the need to issue fresh proceedings.

Applications granted in part, cross-applications refused

For claimant Starlight Shipping Company

7KBW’s James Drake QC and Emma Hilliard; Lax & Co partner Tom Crampton

For defendants Allianz Marine & Aviation Versicherungs AG; Royal & Sun Alliance Insurance Plc; Assicurazioni Generali SPA; Rembrandt Insurance Co

Brick Court Chambers’ Michael Swainston QC and Tony Singla; Clyde & Co partner Angela Haylett

For defendants Brit UW Ltd (sued on its own behalf and on behalf of all underwriting members of Lloyd’s Syndicate 2987 for the 2006 year of account); Nicholas Burkinshaw (sued on his own behalf and on behalf of all underwriting members of Lloyd’s Syndicate 2003 for the 2006 year of account); Hiscox Dedicated Corporate Member Ltd (sued on

its own behalf and on behalf of all underwriting members of Lloyd’s Syndicate 0033 for the 2006 year of account)

Stone Chambers’ Steven Gee QC and Tom Whitehead; Norton Rose partner Chris Zavos

For intended defendants Hill Dickinson; Hill Dickinson International; Michael Mallen; Alexandra Tytheridge; Maria Moisidou

7KBW’s David Bailey QC and Jocelin Gale; Mayer Brown partner Will Glassey

Tim Martin Interiors Ltd v Akin Gump LLP. (2011) EWCA Civ 1574. Court of Appeal Civil Division (CA Civ Div). Ward LJ; Senior Costs Judge Hurst; Kitchin LJ; Lloyd LJ. 21 December 2011

A third-party assessment of costs under the Solicitors Act 1974 s.71 was of limited use to a third party, since it only allowed the costs judge to eliminate items that ought not to be laid at the door of the third party at all because they were outside the scope of its liability, and items that were only allowable as between client and solicitor on a special arrangement basis within the terms of Civil Procedure Rules r.48.8(2)(c). Where there was a dispute between mortgager and mortgagee as to what was owed by the one to the other, including legal costs, the proceedings should be conventional proceedings for an account of what was due under the mortgage.

Appeal dismissed

For appellant Tim Martin Interiors

Thomas More Chambers’ Geoffrey Cox QC, Faisal Saifee; Candey partner Andrew Dunn

For respondent Akin Gump

4 New Square’s Nicholas Bacon QC instructed directly


AXA UK Plc v Revenue and Customs Commissioners (2011) EWCA Civ 1607. CA Civ Div.Arden LJ; Ryder J; Rimer LJ.

20 December 2011

The provision of a payment-handling service to dentists

was covered by the term ‘debt collection’ and was thus excluded from the exemption from VAT in Directive 77/388 art.13B(d)(3) and the Value Added Tax Act 1994 Sch.9 Pt II Group 5 item 1.

Appeal allowed

For respondent Axa UK

11 New Square’s Jonathan Peacock QC; Forbes Hall partner Peter Drinkwater

For appellant Revenue and Customs Commissioners

Monckton Chambers’ Raymond Hill instructed directly

Administration of justice

Hutcheson (formerly WER) v Popdog Ltd (formerly REW) and News Group Newspapers (2011) EWCA Civ 1580. CA Civ Div. Lord Neuberger MR; Gross LJ; Etherton LJ. 19 December 2011

Save in exceptional circumstances, an appeal that was academic as between the parties would not be allowed to proceed unless: the court was satisfied that it would raise a point of general public importance; the respondent agreed to it procee-ding or was at least completely indemnified on costs and was not otherwise inappropriately prejud-iced; and the court was satisfied that both sides of the argument would be ventilated properly.

Permission refused

For appellant Hutcheson

Matrix Chambers’ Hugh Tomlinson QC; Schillings partner Gideon Benaim

For additional party NGN

5RB’s Adrienne Page QC; Farrer

& Co partner Mike Patrick


Lictor Anstalt (a company registered in Liechtenstein) v Mir Steel UK Ltd; Libala Ltd (registered in Cyprus); Christopher Morris; Mark Fry; David Hudson and AlphasteelLtd (2011) EWHC 3310. Chancery Division. David Richards J. 13 December 2011

There was considerable force in submissions made during a summary judgment application that the defence of justification should be extended to circum-stances where administrators of a company in administration sold assets in breach of contract while discharging statutory functions. It was an entirely new point on which there was little reference and no authority. It would therefore be inappropriate to determine it summarily and without any accompanying findings of fact.

Applications refused

For claimant Lictor Anstalt

Serle Court’s Alan Boyle QC and Thomas Braithwaite; Fox Williams partner Gavin Fogg

For proposed part 20 claimant/ defendant Mir Steel UK

2 Temple Gardens’ Paul Downes QC and Stewart Chirnside; Clyde & Co partner Michael Swangard

For proposed part 20 defendent Alphasteel

South Square’s Lloyd Tamlyn; Withers partner Jeremy Scott


Sprunt Ltd v Camden LBC (2011) EWHC 3191. Technology & Construction Court QBD. Akenhead J. 6 December 2011

A construction contract was in writing within the meaning of the Housing Grants, Construction and Regeneration Act 1996 s.107 since it had been recorded in a letter and accepted by the parties’ subsequent conduct. Furthermore, an adjudicator had been validly appointed by the Royal Institute of Chartered Surveyors and therefore his decision was enforceable.

Judgment for claimant


For claimant Sprunt

3PB’s James Davison; Blake Lapthorn partner Hamish Gray

For defendant London Borough of Camden

Keating Chambers’ Justin Mort instructed directly