WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: “SHEER INCOMPETENCE” DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION
CPR 17.(4) is always one of the most “challenging” sections of the Limitation Act in practice. Amending the name of a party after the expiry of the limitation period is not always easy. The judgment in Best Friends Group & Anor…
SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL
An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence. This case emphasises the importance of witnesses not…
APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT
On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It…
STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”
In Brown & Anor (t/a Maple Hayes Hall School) v AB [2018] EWHC 623 (QB) Mr Edward Pepperall QC (sitting as a Deputy High Court Judge) struck out a defence that was . In giving the defendant another chance he made…
THE PROBLEM IN OBTAINING AN ORDER YOU HAVEN’T ASKED FOR:AN APPLICATION UNDER CPR 3.4 WILL NOT BE TREATED AS AN APPLICATION UNDER PART 24
The judgment of Chief Master Marsh in Saeed & Anor v Ibrahim & Ors [2018] EWHC 3 (Ch) contains several important observations in relation to making applications. The Master refused to treat an application, ostensibly made under CPR 3.4, as an…
STRIKING OUT THE CLAIM FOR NON-PAYMENT OF TRIAL FEE: THIS IS ALWAYS A POINT TO WATCH
In April this year the rules were amended to introduce a concept of “automatic striking out”. Put simply if a claimant does not pay the court fee by the relevant date. I have seen occasions where this has had effect….
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
INADEQUATE DISCLOSURE LEADS TO DEFENCE BEING STRUCK OUT – EVENTUALLY: CASE THAT WAS NOT A WALK IN THE PARK
There is a brief report on Lawtel today of the case of Powell -v- Watford Borough Council, a decision made yesterday by Mr Justice Jay (10th July 2017) in the Royal Courts of Justice . This post is based in…
WISEMAN -V- MARSTON: COURT FEES CASE: TRANSCRIPT NOW AVAILABLE
The transcript of the judgment in the Wiseman -v- Marston case is now available. I have included it as an attachment to the previous posts on the case. The links are also available here. THE JUDGMENT AND COURT OF APPEAL…
WISEMAN -V- MARSTON: THE UNDERPAYMENT OF COURT FEES: DEFENDANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
In December last year I reported on the decision in Wiseman -v- Marston’s PLC (Sheffield County Court 21st December 2016). His Honour Judge Robinson allowed the claimant’s appeal in a case relating to payment of court fees. The defendant applied for…
PARTICULARS OF CLAIM MUST BE IN A FORM THAT THE DEFENDANT CAN RESPOND TO: PLEADINGS STRUCK OUT ALTHOUGH THE CLAIM WAS NOT
In Kaplan -v- Super PCS LLP [2017] EWHC 1165 (Ch) Mrs Justice Rose struck out the particulars of claim because it was impossible for the defendants to respond to it. It is an object lesson that, even in a complex…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT? NOTHING
What is the position of a defendant whose action has been struck out? This was the question considered by Mr Justice Soole in Michael -v- Phillips [2017] EWHC 1984 (QB). The short answer is the defendant cannot dispute any aspect…
ISSUING PROCEEDINGS BEFORE LETTERS OF ADMINISTRATION ARE TAKEN OUT: A FATAL ERROR FROM THE OUTSET
In Qunintana -v- Surrey and Sussex Healthcare NHS Trust 28/03/2017 Master Cook upheld the established principle that an action cannot be brought by administrators of an estate before the letters of administration are taken out. Proceedings cannot later be amended…
A WITNESS IN THE COURSE OF GIVING EVIDENCE IS IN PURDAH: THE ROLE OF THE LAWYER
The Employment Tribunal decision in Chidzoy -v- BBC (available here) contains an important lesson to lawyers and litigants alike. A witness in the course of giving evidence is in “purdah” – in that they should not discuss the case with…
HIGH COURT WRITES AN OPEN LETTER TO LITIGANTS IN PERSON: STRIKING OUT CAN BE A BENEFIT NOT A BURDEN
There are aspects of the judgment of Mr Justice Walker in Chambers -v- Rooney [2017] EWHC 285 (QB) that amount to an open letter from the High Court to litigants in person. Some of the observations are aimed at everyone…
RASTIN RESURRECTED: DO THE NEW RULES RE-INTRODUCE AUTOMATIC STRIKING OUT?
There have been comments on Twitter, and now in the Gazette, that “automatic striking out” is being introduced by the rules coming into force on the 6th April 2017. This is true, however it is important that the rules are…
ADVERSE DECISION IN ARBITRATION PROCEEDINGS DID NOT RENDER AN ACTION AN ABSUE OF PROCESS: COURT OF APPEAL REVERSED STRIKING OUT DECISION
In Michael Wilson & Partners -v- Sinclair [2017] EWCA Civ 3 the Court of Appeal overturned a decision to strike out the claimant’s case. The fact that there had been earlier arbitration proceedings did not, in this case, render a second…
DELAY AND NON-COMPLIANCE: ACTION STRUCK OUT: A "GAME CHANGER"
The judgment of Master Matthew in Phelps -v- Button [2016] EWHC 3185 (Ch) emphasises the dangers of delay and non compliance. “…I will observe that the Court ethos has changed enormously since the days of Lord Denning and the two…
PAYING THE CORRECT COURT FEE, AMENDMENT & STRIKING OUT: ANOTHER DECISION
There have been a number of cases in relation to the consequences for a claimant when the correct court fee has not been paid upon issue. This issue was considered by His Honour Judge Robinson this week in an appeal…
THE DEAD CAN'T SUE: AN IMPORTANT REMINDER
In Kimathi & Ors -v- The Foreign & Commonwealth Office [2016] EWHC 3005 (QB) Mr Justice Stewart reviewed the principles in relation to bringing an action on behalf of a deceased party. It is an important reminder of some very…