BANKING ACT CASE -- ERROR IN THE RULESAn application under s.93 Banking Act 1987 is subject to Civil Procedure Rules (CPR) part 7: any suggestion to the contrary in sections A and C, tables 1 and 3 CPR part 8 is erroneous.

Financial Services Authority v Malcolm Peter Millward LTL, August 17 1999, Ch.D (Blackburne J).CASE MANAGEMENT -- SAVING COSTS BY AVOIDING SECOND ACTIONWhere a matter comes before a judge having jurisdiction to decide it, he or she should do so rather than order the parties to take their case elsewhere.

Re Dicksmith Ltd.

(in liquidation), The Times, July 7 1999.COSTS AND CONDUCT -- APPLYING THE NEW RULESNeuberger J has provided guidance on how the courts are likely to exercise their power to consider the conduct of the parties when assessing costs in favour of a successful party:(1) The starting point is CPR r.44.3(2)(a) but under the new regime the matter does not stop there.(2) On the facts of the particular case, the court took into account the fact that the claimant council had left everything to the last minute, which meant an expedited trial was needed.(3) Also considered (per CPR r.44.3(5)(a)) was the claimants' conduct before proceedings as they had 'stuck their head in the sand' during 1996 and much of 1997 and had only half-heartedly attempted negotiations with the other side.(4) The matter would have been dealt with more quickly and cheaply if, among other things, the pressure of time had not been so great.(5) In the circumstances, the right order was that the successful claimants were to have half their costs but, in relation to the preparation of bundles, they were only to have five-eighths of their costs as it was their fault that the bundles had included excessive documents.Liverpool City Council v (1) Rosemary Chavasse Ltd (2) Walton Group Plc (1999) LTL, August 19, Ch.D (Neuberger J).EVIDENCE -- NO CASE TO ANSWERThe CPR have abolished the old rule that a defendant making a submission of no case to answer will be at risk of being precluded from calling evidence if the submission is unsuccessful.Ronald Mullan V Birmingham City Council, The Times, July 29 1999, QBD (David Foskett QC).

(The key issue at trial was whether the defendant should have been put to his election in making a submission of no case to answer at the conclusion of the claimant's case.

The defendant invited the judge to entertain the submission without risk of it being precluded from calling any evidence if that submission failed on the basis of the new wider powers given to the court by the CPR to ensure that cases were dealt with justly.

The judge upheld the defendant's submission).CASE MANAGEMENT UNDER THE CPR -- COURT OR LAWYERS?While the CPR encourage the court to take an active part in case management, this includes by CPR r.1.4(2)(a), encouraging the parties to co-operate with each other in the conduct of the proceedings.That such encouragement is not inconsistent with the CPR is further evidenced by CPR r.29 which on the one hand advocates court case management in r.29.2, but, on the other hand, envisages the parties' agreement on proposals for case management subject to court approval (r.29.4).

Re Rotadata Ltd (1999) N.L.D., September 14, Ch.DSETTING JUDGMENT ASIDE -- DELAY -- CPR 13.3In a recent case a judge refused to set aside judgment in default of defence on the ground that the defendant company had failed to explain why there was a period of delay on its part before issue of proceedings -- but this ruling was reversed on appeal.

The CA could find nothing in CPR r.13.3 or in the overriding objective in part 1 to suggest that, if a defendant does not give a reason for delay, that is somehow a 'knockout blow' in favour of the claimant which removes the court's discretion to set the judgment aside.Kathleen Macdonald & Peter Macdonald v Thorn plc (1999) L.T.L., September 1, CA.COSTS CLAIMED FROM NON-PARTY -- SUPREME COURT ACT 1981, s.51 -- JURISDICTION AND PROCEDUREThe following points emerge from this case in the Court of Appeal:(1) Where the English court is dealing with a case over which it has jurisdiction, it will also have jurisdiction to decide whether a non-party has become so involved in the case that a section 51 order for costs should be made against him.(2) This will be so even if the non-party is outside the jurisdiction.(3) This will still be so even if the non-party is domiciled in an EU state so that the Brussels Convention applies.

Article 2 (defendant to be sued in courts of his domicile) does not apply because the non-party is not being 'sued'.

Even if this is wrong, he can be brought before the English courts under the 'third party' rules in article 6(2).(3) There is a possible lacuna in part 48 of the CPR; it is unclear whether the initial section 51 application is to be served on the non-party or only on the other parties to the action.Constantine Emanuel Comninos v Prudential Assurance Co.

Ltd (also reported as Nacional Justice Compania Naviera SA v Prudential Assurance Co.

Ltd) The Times, October 15, 1999, CA.EXPERTS -- EVIDENCE SERVED LATE -- EFFECT OF CPRIn this case the court had to consider whether to admit evidence which had been served late owing to a genuine mistake.

The following points emerge from the judgment:(1) The preliminary issue (namely the admissibility of expert evidence prepared and served late) was a classic illustration of a situation which the CPR were designed to prevent.(2) The CPR provide for an early isolation of the issues on which expertise is required and an identification of the experts who will be asked to advise the court.

In theory, therefore, the present situation should not arise under the CPR.(3) Common to both sets of rules (ie, the old rules and the CPR) is the principle that justice should be done.(4) The overriding objective of the new procedural code is 'to deal with cases justly' and under CPR r.1.1(2)(a) this includes putting the parties on an equal footing.

This will scarcely be the case if one party can spring on the other expert evidence which could not reasonably have been foreseen and which the other party has had no reasonable opportunity to counter.(5) On the particular facts of the case the evidence was not so prejudicial to the claimant that the only fair solution would be to exclude it.

Consequently the evidence should be admitted.Scott William Jenkins (by and through his next friend Janet Jenkins) v.

(1) Anthony Grocott (2) Michael John Hoyle, L.T.L., September 22, QBD.