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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
Browse: Home » 2013 » November

DECISION OF THE COUNTY COURT FOLOWING MITCHELL: ROMANO –v-K PAPERS (BLACKBURN) LTD

November 29, 2013 · by gexall · in Appeals, Civil Procedure, Relief from sanctions, Striking out

The courts now have a clear basis upon which to consider applications for reinstatement following the decision in Mitchell.  The case of Romano –v- K Papers (Blackburn) Ltd an appeal heard at Manchester County Court today (29th November 2013) provides…

THE MITCHELL CRITERIA FOR RELIEF FROM SANCTIONS: A DETAILED EXAMINATION

November 28, 2013 · by gexall · in Avoiding negligence claims, Civil Procedure, Relief from sanctions, Striking out

There has been much comment about the effect of the Court of Appeal decision in Mitchell on litigation and litigators.  Here we look, in considerable detail, at the guidance given in relation to relief from sanctions and associated case law….

MITCHELL: THE COMMENTARY CONTINUES

November 28, 2013 · by gexall · in Appeals, Avoiding negligence claims, Civil Procedure, Relief from sanctions, Striking out

The commentary on the fallout of the Mitchell decision continues apace.  One of the most interesting comments, however, comes from Sir Henry Brooke, former Lord Justice who tweets at @HenryBrooke1. Here we look at those observations and other links to…

MITCHELL: 20 KEY POINTS OF JUDGMENT

November 27, 2013 · by gexall · in Avoiding negligence claims, Civil Procedure, Costs, Relief from sanctions, Uncategorized

The Court of Appeal gave judgment in Mitchell -v- News Group Newspapers [2013] EWCA Civ 1537 today.  The case has been much covered. The Claimant’s application for relief from sanctions was refused.  The key points of general importance are: 1….

NEW PRACTICE DIRECTION: RIGHT TO BUY CLAIMS

November 25, 2013 · by gexall · in Civil Procedure, Rule Changes

The Master of the Rolls has issued a Practice Direction dealing specifically with “right to buy” claims. That is negligence actions against solicitors in relation to mortgage broking. Those claims are now allocated to a specific Master. Any existing claims…

BIFFA WASTE SERVICES: RELIEF FROM SANCTIONS: FULL TRANSCRIPT NOW AVAILABLE

November 22, 2013 · by gexall · in Appeals, Applications, Civil Procedure, Relief from sanctions

 Biffa Waste Services Ltd –v- Ali Dinler [2013] is a case where the judge, on appeal, overturned an earlier order granting relief from sanctions. The full transcript is now available and is notable for its detailed consideration of the principles…

AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT

AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT

November 22, 2013 · by gexall · in Avoiding negligence claims, Damages, Personal Injury, Witness statements

Procter -v- Raleys Previous posts in this series have concentrated upon limitation issues.  This post looks at the recent decision  of Judge Gosnell in Procter –v- Raleys (Leeds County Court 6/11/2013). In particular what it demonstrates about the need to…

DO YOU HAVE TO FILE FORM H IN PART 8 PROCEEDINGS? SOMETHING YOU SHOULD BE SURE ABOUT

November 20, 2013 · by gexall · in Applications, Civil Procedure, Costs

 All litigators know (or should know) the central importance of Form H in civil procedure. If you don’t file the form in time then you don’t get paid. A colleague today asked me whether it was necessary to file a…

“AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED.”

November 20, 2013 · by gexall · in Applications, Civil Procedure, Expert evidence, Relief from sanctions

 It may be thought that commentary on issues of procedural default is in abeyance until the Mitchell decision from the Court of Appeal. However, as recent posts have shown, cases are still coming through thick and fast.  When a judge…

DEFAULT, DELAY AND EXPERT EVIDENCE: COURT OF APPEAL LAYS DOWN THE LAW

November 18, 2013 · by gexall · in Appeals, Civil Procedure, Expert evidence, Relief from sanctions

The case of Boyle –v- Commissioner of Police for the Metropolis provides another example of the problems caused by late service of evidence. The Court of Appeal set down clear guidance of the new culture of intolerance to delay.  THE…

UNDERSTANDING AND REDUCING THE COSTS OF LITIGATION: EDUCATING YOUR CLIENT

November 17, 2013 · by gexall · in Costs, Rule Changes

The previous post considered the case of Vitol Bahrain where the costs of the successful party on a one day application were reduced from £165,241.80 to £75,000. The amount of this shortfall highlights the need for the modern litigator to…

PROPORTIONALITY AND COSTS: IT APPLIES TO BIG CASES AS WELL

November 14, 2013 · by gexall · in Applications, Civil Procedure, Costs

The short judgment of Mr Justice Males in the case of Vitol Bahrain –v- Nasdec General Trading LLC makes it clear that the issue of proportionality in costs impacts upon cases of every size, even the most major multi-million dollar…

INTERESTING FIRST INSTANCE DECISION ON STRIKING OUT SPECIAL DAMAGES BECAUSE OF DILATORY CONDUCT BY THE CLAIMANT

November 13, 2013 · by gexall · in Appeals, Applications, Civil Procedure, Risks of litigation, Striking out

The 9sjs website has an interesting report of a decision in the Bow County Court where the judge struck out a claim for £220,000 on the grounds that the claimant had not complied with directions.  See the report at http://www.9sjs.com/assets/Uploads/ozbay.pdf It…

CHANGES TO PRACTICE DIRECTIONS GOVERNING APPEALS TO THE SUPREME COURT

November 12, 2013 · by gexall · in Appeals, Civil Procedure

Appealing to the Supreme Court is likely to an extremely rare event for most practitioners. The Supreme Court has its own specific rules. “The Supreme Court has its own Directions which replace the Civil, Criminal and Taxation Practice directions and…

WHAT CAN YOU DO IF THE PROPOSED DEFENDANT IS DEAD AND THERE IS NO GRANT OF PROBATE OR ADMINISTRATION?

November 12, 2013 · by gexall · in Applications, Civil Procedure

A recent post looked at the problems of issuing proceedings before letters of administration are taken out. Here we consider the problems when a proposed defendant has died and there are no executors or administrators.  THE PROBLEM  Probate is not…

DRAFTING WITNESS STATEMENTS: ESSENTIAL GUIDANCE FROM AN AUTHORITATIVE SOURCE THAT EVERY LITIGATOR SHOULD READ

November 9, 2013 · by gexall · in Civil evidence, Witness statements

The dangers of drafting argumentative and adversarial witness statements have been discussed several times on this blog.  A working example of the dangers of this, together with commentary on the results, can be found in the statement of Peter Smith…

MITCHELL -v- NEWS GROUP NEWSPAPERS: OUTLINE OF DEFENDANT'S SUBMISSIONS

November 7, 2013 · by gexall · in Appeals, Civil Procedure, Costs, Relief from sanctions

These notes come with same caveat as the Claimant’s notes in the previous post. They are  from handwritten notes taken in court today. They do not purport to be a transcript. All that can be done is to give a…

MITCHELL -v- NEWS GROUP NEWSPAPERS: OUTLINE OF CLAIMANT'S SUBMISSIONS

November 7, 2013 · by gexall · in Appeals, Civil Procedure, Costs, Relief from sanctions

There appeal in the Mitchell case was heard in the Court of Appeal case earlier today.  Judgment was reserved. I have a note of the arguments on behalf of the Claimant/Appellant.   The Defendant’s arguments will be posted later. I…

WITNESS STATEMENTS & COMPLYING WITH THE RULES 2: THE GROUNDS FOR THE WITNESSES’ KNOWLEDGE OR BELIEF

November 7, 2013 · by gexall · in Avoiding negligence claims, Civil evidence, Witness statements

  The previous post  at http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/ discussed  a case where the problems about the witnesses giving information as to source of belief and hearsay evidence.  The problems were avoided in that case.  However in some cases the failure to give…

THE IMPORTANCE OF DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES

November 4, 2013 · by gexall · in Applications, Civil Procedure, Relief from sanctions, Witness statements

The Civil Procedure Rules set out rigorous requirements for the structure and layout of witness statements.   The editors of the White Book note (at 32.4.5 of the latest supplement that) “Unfortunately, rules, practice directions and guidance as to the contents…

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