Judgment Call 21 May 2012

An offer that did not specify a period of not less than 21 days, or any period, in compliance with Civil Procedure Rule r.36.2(2)(c) was not a Part 36 offer.

PHI Group Ltd v Robert West Consulting Ltd. [2012] EWCA Civ 588. Lloyd LJ; Rix LJ; Stanley LJ; Burton LJ. 10 May 2012

Appeal allowed


For the appellant PHI Group

Hardwicke’s Nigel Jones QC; Wright Hassall consultant Andrew Spooner

For the respondent Robert West Consulting

Atkin Chambers’ Martin Bowdery QC and Rónán Hanna; Mills & Reeve senior solicitor Matthew Hammond and associate Neil Davies



Hudson v Department for Work and Pensions. Unreported. EAT. Recorder Luba QC.

3 May 2012

A fixed-term employee who had been employed under a government training scheme for three years before commencing another fixed-term contract could rely on those periods of employment when claiming a declaration under Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 reg.9(5), even though those contracts fell within reg.18.

Appeal allowed

For the appellant Hudson

Barrister Jenny Andrews of a2emc Ltd instructed directly

For the respondent Department for Work and Pensions

No 5 Chambers’ Adam Farrer instructed directly


Sullivan (aka Rudey Soloman) v Bristol Film Studios Ltd.

[2012] EWCA Civ 570.

(Civ Div). Etherton LJ; Lewison LJ; Ward LJ.

3 May 2012

The mere fact that a claim was small should not automatically result in the court refusing to hear it; the real question was whether in any particular case there was a proportionate procedure by which the merits of a claim could be investigated; for example, allocating it to the small claims track in the County Court. It would only be right to strike out a claim as an abuse of process if there was no proportionate procedure by which it could be adjudicated.

Appeal dismissed

The appellant Tony R Sullivan appeared in person

For the respondent Bristol Film Studios Ltd

11 South Square’s Benet Brandreth; Charles Cook & Co partner Chris Scroggs

Landlord and tenant

Scottish Widows Fund and Life Assurance Society v BGC International (formerly Cantor Fitzgerald International). [2012] EWCA Civ 607. (Civ Div). Arden LJ; Davis LJ; Sir John Thomas (President).

9 May 2012

A judge had erred in his construction of a clause in a sub-sub-underlease, which was inconsistent with the relevant lease when read with the supplemental agreement. Statements made in the course of the precontractual negotiations were no more than statements of the negotiating stance at that point in time and could not be relied on as ­evidencing the parties’ objective aim in completing the transaction.

Appeal allowed, cross-appeal dismissed

For the respondent Scottish Widows Fund and Life Assurance Society

Maitland Chambers’ John McGhee QC; Dundas & Wilson associate Kate New

For the appellant BGC International (formerly Cantor Fitzgerald International)

Wilberforce Chambers’ Jonathan Seitler QC; Norton Rose partner Dorian Drew

Construction law

(1) Higginson Securities (Developments) Ltd; (2) Spiritualist National Union v Hodson [2012] EWHC 1052 (TCC) QBD (TCC). Akenhead J.

26 April 2012

The Pre-Action Protocol for Construction and Engineering Disputes did not say that it

was mandatory for parties to hold a without prejudice meeting prior to the commencement of proceedings. In the instant case, it had been unnecessary for the defendant to apply for a stay of the claimant’s proceedings in order to enable such a meeting to occur.

Application refused

For the claimants Higginson Securities (Developments) Ltd & Spiritualist National Union

Three Dr Johnson’s Buildings’ Anthony Allston; Hansells partner Tim Eagle

For the defendant Hodson

Beale & Company consultant and of counsel Alistair Pye


Zieleniewski v (1) Scheyd; (2) Pryor. Briggs J; Moses LJ; Rix LJ. 6 March 2012.

A judge had given inadequate reasons for deciding that a claimant had not suffered an interference with his agricultural right of way following the erection of a fence that made the right of way impassable by a hay-baling machine.

Appeal allowed

For the appellant Zieleniewski

Falcon Chambers’ Caroline Shea; Wilsons partner Ben Sharples

For the respondents (1) Scheyd; (2) Pryor

Unity Street Chambers’ Toby Huggins; QualitySolicitors Farnfields senior associate

Saul Kelleher

Legal profession

Singla v (1) Stockler; (2) Stockler Brunton [2012] EWHC 1176 (Ch). Briggs J. 10 May 2012

In the course of litigation conducted by the liquidator of a company and funded by the company’s major creditor, there had been such a high degree of cooperation and disclosure of confidential information between the two as to give rise to a strong inference that the ordinary duty of confidence owed to the liquidator by his solicitor had been displaced.

The solicitor had not acquired information that had to be kept confidential from the creditor and he could therefore act for the creditor in subsequent proceedings against the liquidator.

Appeal dismissed

For the claimant Singla

11 Stone Buildings’ Reuben Comiskey; Stephenson Harwood associate Judith Davidge

For the defendants (1) Stockler; (2) Stockler Brunton

4 Stone Buildings’ Donald

Lilly; Stockler Brunton partner William Stockler