The Dekagram: 2nd February 2026

In this week’s Dekagram Bethany Hutchison considers the consequences of failing to acknowledge service, failing to apply for permission to be heard on an application for summary judgment, and failing to attend the hearing of the application. Spoiler: it didn’t go well for the defendant in the case she examines. Meanwhile Megan Bithel-Vaughan looks at expert evidence, and in particular those cases where the expert’s independence may be called into question. Second spoiler: it’s not good.

You’ve got to be in it to… have any right to be heard in Part 8 proceedings – key lessons on participation from Mr Justice Calver

Mr Justice Calver’s recent decision in ADS Securities LLC v Windhorst [2026] EWHC 81 (Comm) is a sharp reminder of the rules when it comes to acknowledging service in Part 8 proceedings. The Claimant had issued Part 8 proceedings. The underlying facts of the claim are unimportant for this discreet procedural point but crucially, the Defendant had failed to acknowledge service within the 14 days allowed by the rules. Accordingly, the Claimant applied for summary judgment.

The CPR is very clear on the consequences of not filing an acknowledgment of service of Part 8 proceedings – so clear, it seems, that even those without legal representation can be expected to understand and take appropriate action. Indeed, the heading of CPR 8.4 is, helpfully, ‘Consequence of not filing an acknowledgment of service’. The rule provides that where a defendant has failed to file an acknowledgment of service and the time for doing so has expired the ‘defendant may attend the hearing of the claim but may not take part in the hearing unless the court gives permission’. However, not all defendants heed the CPR’s clear warning.

The Defendant, Mr Windhorst, appears not to have fully appreciated this small but punchy rule. The listing of the Claimant’s summary judgment application hearing rolled around. The afternoon before the hearing, the Defendant emailed the court explaining that he was in his office in UAE. He stated his understanding that ‘it would be unlawful, both under the law of England and Wales, and under the law of the UAE, for [him] to conduct court proceedings in England by video link from [his] office in the UAE without special permission from the Foreign Ministry in Dubai’, which there wasn’t time to obtain before the hearing. He sought an adjournment, to allow him to seek permission, or to travel back to the UK to represent himself and make submissions in person. Little did the Defendant realise that it was not only any rules about participating from a foreign jurisdiction that prevented him from defending this application – it was something much closer to home; CPR 8.4.

The Court, no doubt with CPR 8.4(2) firmly in mind, sent the Defendant a video link by which he could attend – but not participate – in the hearing. He turned the opportunity down. Reinforcing his miscomprehension of the rules, the Defendant responded to that invitation to say: “I am not looking simply to watch the court hearing by video link, but to conduct the proceedings, representing myself and making submissions to the court.” Regrettably for the Defendant, he required the permission of the court to do so, permission that Mr Justice Calver noted was neither sought, nor granted.

Mr Justice Calver’s response to the Defendant’s request to adjourn was as follows:

“In the circumstances, it seems to me that there is no basis for adjourning these proceedings. It was open to the defendant to attend by video link if he wished to; he has chosen not to. The application was made at the 11th hour — indeed, at the 12th hour — without merit, and the claimant has pointed out that this has become a bit of a pattern in this action on the part of the defendant and related companies.

In all those circumstances, I refuse to adjourn this application and I will go on to hear the application for summary judgment.”

About the Author

Bethany Hutchison was called in 2021. Prior to joining chambers she gained a broad range of experience working in the legal advisory teams in the Cabinet Office and the Ministry of Housing, Communities and Local Government, following successful completion of her pupillage with the Government Legal Department, advising on high profile commercial, immigration and contractual matters during that time. She is now developing a busy common law practice across the full range of chambers’ specialisms. 

Experts and Conflicts: Fenech & Anor v Financial Conduct Authority [2026] UKUT 20 (TCC)

This Upper Tribunal case concerns an Applicant’s objection to the Local Authority’s proposed expert, Ms Prestage, on the grounds that first, she was not an expert, and second, even if she was an expert, she was conflicted as she had worked for a firm which had carried out a review of the Local Authority’s documentation at a material time in the case’s chronology.

The case reiterates what may be thought of as obvious, that an expert should be independent and cannot “mark their own homework”.  If an expert has a financial or other conflict due to prior employment or involvement in the factors of the case, their evidence is likely to be inadmissible as expert evidence, although it may be admitted as evidence of fact.

Moreover, an expert must remember that their primary duty is always to the Court, and avoid being conflicted by their own instructions: referencing the well-known metaphor in Vernon v Bosley (expert evidence) [1998] 1 FLR 297, “the area of expertise in any case may be likened to a broad street with the plaintiff walking on one pavement and the defendant walking on the opposite one. Somehow the expert must be ever-mindful of the need to walk straight down the middle of the road and to resist the temptation to join the party from whom his instructions come on the pavement.”

However, this case does more than simply state the obvious, it reminds legal professionals of important factors that must be considered when considering an expert who may be conflicted:

• When the report / status of the expert was challenged.  The Court considered it relevant that the Applicant in these proceedings had challenged the status of the expert as soon as they were made aware that she was the nominated expert, rather than simply waiting to challenge it at trial.
• The extent to which the expert is conflicted.  An interest may not, in itself, be sufficient to preclude the expert from giving expert evidence, however, even if the evidence is not excluded, it will be taken into account in terms of weight, meaning that it is preferable to ensure that the expert is entirely independent.
• The importance of disclosure and case management.  Where there is the potential of a conflict, the facts surrounding that potential conflict should be bought to the other side’s and the Court’s attention as soon as possible.
• The potential need for a relief from sanctions application.  Should a party be debarred from relying upon evidence as expert evidence, it does not automatically follow that they will be able to rely on it as evidence of fact.  In this case, a relief from sanctions application was necessary, as the deadline for evidence of fact had long passed.

About the Author

Megan Bithel-Vaughan gained tenancy having completed pupillage at Deka Chambers. She has already been led by Sarah Prager KC in a case of significant value involving complex issues around the interpretation of the Montreal Convention, and in particular the interplay between the operation of the partial compensation cap and contributory negligence.