Whitelaw Twining’s Post

The Appellate Division, Second Department, is changing its process regarding applications for extensions of time to file an appeal and to respond to an appeal. As of November 18, 2024, the Second Department will no longer publish orders approving extensions of time. Instead, the parties will receive an electronic notification regarding whether the application was approved, and of the new deadline. This is similar, if not identical, to the general procedure of the Appellate Division, First Department. And this re-emphasizes the immense importance of the practitioner appropriately calculating the deadlines, instead of relying on the soon to be defunct extension orders. Here is the full announcement from the Court: https://lnkd.in/e5Wvh_A4

Deletion first stage of appeal is highly unjustified because it will create many problems like the following: 1. There will be only one fact-finding forum which is ATIR 2. ATIR cannot go into detail of the facts of the cases.  3. Imposition of Time limitations for ATIR will result in deciding cases within a short time. This will also curtail time to find facts by ATIR 4. If this amendment is implemented, ATIR will just set aside or reject the appeals 5. The cost of Justice will be very high when the appellant is required to file second appeal before the High Court.  6. It will take a longer time to finalize when cases will be transferred to the High Court 7. There will be no benefit of doing this whole practice because the burden of the First stage of appeal will be shifted to an alternative Dispute Resolution Committee-- which will create more complications We propose to use other means to expedite justice like allowing certain time limitations to decide cases at both levels

The court will hear two cases today. The first is In re Troy Xavier Kelley.  The court will consider whether to uphold the WSBA Disciplinary Board’s recommendation for disbarment. It can be seen live and will be archived on TVW at https://lnkd.in/gq-JZ4AB. The second case is In re Disciplinary Proceedings Against Stephen Kenneth Monro. This case asks whether the Discipline Board had the authority to remand to a hearing examiner to clarify findings of fact and to perform a proportionality review. It can be seen live and archived on TVW at https://lnkd.in/gbUGZaBi. 

In the latest in our ongoing series of case reviews and analysis published today, we review a Court of Appeal case which considered an appeal against the striking out of a claim where lengthy delays were partly attributable to the court’s own errors. The review highlights that the decision very much turned on its facts, and is a useful guide on the application of CPR 3.4(2)(b) - and a timely reminder of the procedural issue in ensuring that matters remitted to the FTT are transferred correctly. Read the article in full here: https://lnkd.in/e8gsUSWt

Ask and you shall get There are two types of Judges. One, who proactively thinks about the possibility of granting relief is and the repercussions of the same. This judge goes out of the way to grant a relief which the case deserves and facilitates the closure of the case. The second is tricky. One must plead the relief sought and the continuation of interim measures if any. One cannot pin the blame on them as it is for the counsels to argue the measures and seek the relief. But it may so happen that in the heat of the moment, one may forget to submit the follow on measures. It is natural. Unfortunately, in the judicial system, there is no process of going back to the podium to submit additional points once the order is dictated. Hence, as a matter of procedure, always ask. When in doubt, ask. When in certainty, ask. It is possible that one gets admonished. However, it is better to be admonished than waiting for the next date to submit what you could have submitted earlier.

See below my note on the DIFC Court of Appeal decision of Sandra Holding Ltd & Ors v Al Saleh & Ors [2023] DIFC CA 003! The decision has potentially interesting ramifications on the issue of jurisdiction in the DIFC Court.

A further comment about the coming into force of subsection 23(1.1) of the Ontario Courts of Justice Act. In my view, subsection 23(1.1) will be ineffective unless section 97 of the Act is also amended. Section 97 states that equitable relief cannot be granted by the Small Claims Court. Such relief can only be granted by the Court of Appeal and the Superior Court of Justice. Opportunistic counsel will no doubt try to stickhandle around subsection 23(1.1) by including putative yet bogus claims for equitable or declaratory relief,

When P’s civil claim is compromised, a deputy will have to consider telling P about the value of their claim. It can be a difficult decision particularly where P is vulnerable to financial exploitation and the settlement is significant. Three authorities have previously attempted to grapple with the issue of whether P ‘should be told’ about the value of their claim: EXB v FDZ [2018] EWHC 3456 (QB) PBM v TGT [2019] EWCOP 6 DXB v PXL [2019] EWHC 2579 The very clever Tom Young and Sam Firth (and I!) didn’t consider that formulation of the capacity decision was quite right so Hayden J was asked to provide guidance in two linked cases. Hayden J has now handed down judgment in https://lnkd.in/eaYXErhf where he considers this issue of importance to property and affairs deputies. I will hopefully be holding a seminar on the decision next week! #courtofprotection #kingschambers #deputies #capacity

𝗖𝗢𝗦𝗧 𝗕𝗜𝗧𝗘𝗦 𝟭𝟴𝟵: 𝗖𝗢𝗦𝗧𝗦 𝗢𝗙 𝗢𝗩𝗘𝗥 £𝟭 𝗠𝗜𝗟𝗟𝗜𝗢𝗡 𝗙𝗢𝗥 𝗔𝗥𝗚𝗨𝗜𝗡𝗚 𝗔𝗕𝗢𝗨𝗧 𝗪𝗛𝗘𝗧𝗛𝗘𝗥 𝗧𝗛𝗘𝗥𝗘 𝗦𝗛𝗢𝗨𝗟𝗗 𝗕𝗘 𝗔 𝗧𝗥𝗜𝗔𝗟 𝗢𝗙 𝗔 𝗣𝗥𝗘𝗟𝗜𝗠𝗜𝗡𝗔𝗥𝗬 𝗜𝗦𝗦𝗨𝗘 There are a number of important observations in the judgment of HHJ Pelling KC, sitting as a High Court Judge, in Viegas & Ors v Cutrale & Ors[2024] EWHC 2778 (Comm). In particular the reminder to commercial litigants that the touchstone for reasonable costs is the lowest amount that they could reasonably have been expected to spend.

Exceptions to the general rule that a consent decree is final and binding, where an appeal is possible, are as follows: 1.⁠ ⁠A person who was not a party to the suit may appeal. (2007 MLD 331) 2.⁠ ⁠The decree was not passed with mutual consent. (1994 CLC 54) 3.⁠ ⁠The court lacked jurisdiction to hear the case. (1986 SCMR 419) 4.⁠ ⁠Where there was a dispute about the nature of the agreement. (1977 SCMR 586) 5.⁠ ⁠Where the decree exceeded the terms of the agreement. (1976 SCMR 519) 6.⁠ ⁠Where consent was obtained through fraud or misrepresentation of facts. (1993 MLD 640) 7.⁠ ⁠Where consent was impossible or unlawful. (1994 CLC 54) 8.⁠ ⁠Where the order was not made in accordance with the spirit of Rule 23(3). (1989 SCMR 1752)"