TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS
We civil litigators cannot be left out of the, apparently universal, need for an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing. Here we look at poetry, carpet bombing and disappearing…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS 2: A USEFUL COUNTERBALANCE
A post earlier this month looked at a case where the judge favoured the witness evidence over a written medical record. The decision in Grimstone -v- Epsom & St Helier University Hospitals NHS Trust [2015] EWHC 3756 (QB) is a…
THE GAME MUST BE WORTH THE CANDLE: ACTION STOPPED IN ITS TRACKS BECAUSE THE CLAIMANT HAD NOTHING TO GAIN
In IG Index Ltd -v- Cloete [2015] EWHC 3698 (QB) HHJ Richard Parkes QC (sitting as a judge of the High Court) struck out an action on the grounds that the claimant had nothing to gain. KEY POINTS The court…
CORROBORATIVE WITNESSES : "SIMILAR FACT EVIDENCE" ALLOWED IN TEST CASE
We have already looked at the decision in Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) in relation to the issue of historians being called as witnesses. Here we look at the judgment in relation to corroborative/”similar fact” evidence. KEY…
SOME WITNESSES MAY NOT BE GOOD HISTORIANS BUT GOOD HISTORIANS CANNOT BE WITNESSES
In Kimathi -v- Foreign & Commonwealth Office [2015]EWHC 3432 (QB) Mr Justice Stewart considered a number of issues relating to witness statements. Here we consider whether the evidence of historians is admissible. Other aspects of this case will be examined…
PART 36: WHEN THE NORMAL COSTS PENALTIES MAY NOT APPLY
In Yentob -v-MGN Ltd [2015] EWCA Civ 1292 the Court of Appeal upheld a decision of the judge not to impose the normal penalties when a claimant failed to beat a Part 36 offer. KEY POINTS When a party fails…
WITNESS EVIDENCE AND CONTEMPORARY DOCUMENTS: THE RECORDS MAY NOT BE RIGHT
This blog has looked, many times, at the issue of witness credibility and the various criteria that judges use when assessing evidence. This issue was to the fore in the Court of Appeal judgment yesterday in Synclair -v- East Lancashire…
LATE AMENDMENT TO PLEADINGS SHOULD NOT HAVE BEEN ALLOWED: CLAIMANT COMES TO GRIEF ON APPEAL
In Ali -v- Siddique [2015] EWCA Civ 1258 the Court of Appeal overturned a decision granting permission to amend the Particulars of Claim. Consequently the defendant’s appeal was allowed and the claimant’s action failed. KEY POINTS There is a heavy…
SUPREME SANCTIONS IN THE SUPREME COURT: NO SECOND BITE OF THE CHERRY
The judgment of the Supreme Court in Thevarajah -v- Riordan [2015] UKSC 78 has been long anticipated since it related to the law relating to sanctions. In fact it is a decision in relation to a very narrow issues. The…
Thevarajah v Riordon and Others – Supreme Court Appeal Judgment
The Supreme Court this morning handed down judgment in Thevarajah (Respondent) v Riordan and Others (Appellants) [2015] UKSC 78. The bench unanimously dismissed the appeal. A full blog post will be up later today. In the meantime the full judgment…
YOU DON'T HAVE TO CLAIM INTERLOCUTORY RELIEF TO BE ENTITLED TO DAMAGES FOR BREACH
In Energysolutions EU Limited -v- Nuclear Decommissioning Authority [2015] EWCA Civ 1262 the Court of Appeal considered the issue of whether it is necessary for a party to litigate in order to be entitled to claim damages. The case concerns…
CHILDREN AND SUCCESS FEES 3: APPEAL WITHDRAWN
Earlier posts looked at the decision of Regional Cost Judge Lumb in A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015). The second judgment on costs is now available on Bailli. These posts deal with deduction of…
GOING ON A FISHING EXPEDITION? DON'T BANK ON AN ORDER FOR SIMILAR FACT EVIDENCE
In Claverton Holdings Ltd -v- Barclays Bank PLC [2015] EWHC 3603 (Comm) Mr Justice Phillips was highly critical of the claimant’s application for similar fact evidence. “The application has, at this point, in my judgment, become a fishing expedition, hoping…
STRIKING OUT FOR LACK OF JURISDICTION (OR HADRIAN'S WALL IS THERE FOR A PURPOSE YOU KNOW)
The Court of Appeal decision in Cook -v- Virgin Media Limited [2015] EWCA Civ 1287 is one that needs to be read very carefully. It is one of those cases that could lead to a whole new branch of satellite…
WAITING FOR LEGAL AID IS NOT A GOOD REASON FOR DELAY: COURT OF APPEAL DECISION
In R (Kigen) -v- Secretary of State for the Home Department [2015] EWCA Civ 1286 the Court of Appeal stated that delay caused by waiting for the Legal Aid Agency may no longer be accepted as a good reason for…
THAT DIFFICULT DISTINCTION BETWEEN AN EXPERT WITNESS AND AN ADVOCATE
In AAW -v- The Secretary of State for the Home Department [2015] UKUT 673 (IAT) Upper Tribunal Judge Southern made some telling observations on the role of an expert. The judgment is of general interest in relation to the role…
"TOTALLY HOPELESS" APPLICATION FOR DISCLOSURE;INADEQUATE WITNESS STATEMENTS;APPLICATION FOR EXTENSION REFUSED:ALL LEGAL LIFE IS HERE
The judgment of Mr Justice Edwards-Stuart in London Borough of Bromley -v- Heckel [2015] EWHC encompasses many of the themes regularly discussed in this blog. Proceedings were issued late;there was an inappropriate application for disclosure;the witness evidence was inadequate. Finally…
NO SPECIAL RULES FOR LITIGANTS IN PERSON: COSTS DO NOT FOLLOW THE EVENT FOLLOWING UNREASONABLE CONDUCT
Master Mathews faced an unusual scenario in Jones -v- Longley [2015] EWHC 3362 (Ch). This case highlights the fact that litigants in person are not subject to any special rules and are liable to have orders for costs made against…
ASSESSMENT OF COSTS & FAILURE TO MEDIATE: CLAIMANT BEATS OWN OFFER AND COSTS INCREASED BY 10%
The claimant beat its own Part 36 offer on costs in the case of Reid -v- Buckinghamshire Healthcare NHS Trust [2015] EWHC B21. Consequently costs were increased by 10% and additional interest accrued. “If the party unwilling to mediate is…
NUMEROUS BREACHES DO NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
In Commissioner of Police of the Metropolis -v- Abdulle [2015]EWCA Civ 1260 the Court of Appeal upheld a first instance decision not to strike out a claim because of numerous (and serious) breaches of non-peremptory orders. “… the behaviour of…
WHEN THE COURT FAILS TO SERVE: AN IRREGULAR JUDGMENT MUST BE SET ASIDE
In Tanir -v- Tanir [2015] EWHC 3363 (QB) Mr Justice Garnham found that the court had failed to serve the claim form and, consequently, a judgment had to be set aside. The court had no discretion to act otherwise. “The…
COSTS BUDGETING, PROPORTIONALITY AND GROUP LITIGATION
In Various Claimants -v- Sir Robert McAlpine & others [2015] EWHC 3543 (QB) Mr Justice Supperstone (sitting with Master Leslie & Chief Master Gordon Saker) considered costs budgeting within a Group Litigation Order. “Recognising that this is a complex case…
IS AN EXPERT REALLY NECESSARY? TWO RECENT CASES
The determination of the courts to restrict the use of expert evidence can be seen by the fact that the text of CPR 35.1 appears under the heading “duty to restrict expert evidence”. The rule itself states “Expert evidence shall be…
WHEN AN EXPERT FAILS TO DISCLOSE THAT THEY KNOW THE PARTIES
A recent high profile criminal case has identified the major problems that can arise when an expert called to give evidence has failed to disclose that they have had previous dealings with the parties. Here we look at how the…
LATE EXPERT EVIDENCE, DENTON AND WAVING A FINGER IN THE AIR
The decision of the Court of Appeal in O’Connor -v- The Pennine Hospitals NHS Trust [2015] EWCA 1244 will receive much attention for the important observations made as to evidence, proof and “res ipsa loquitur”. However here I want…
CLAIMANT CAN RECOVER COSTS AGAINST A DEFENDANT NOT NAMED IN THE CFA
In Engeham -v- London & Quadrant Housing Ltd & Academy of Plumbing Ltd (01/12/2015) * the Court of Appeal upheld a finding that a consent order which stated that damages and costs were to be paid by a defendant not named…
INSURERS MUST PAY SOLICITORS: GAVIN EDMONDSON SOLICITORS ON APPEAL
In November last year I posted a copy of the decision at first instance in Gavin Edmondson Solicitors -v- Haven Insurance [2014] EWHC 3062. In a judgment given today the Court of Appeal have allowed the claimant solicitors appeal and…
SENDING THE FEE WITH THE APPLICATION: FAILURE CAN BE FATAL
I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor Limited (Birmingham County Court 2nd October 2015). “… there [are] numerous authorities…
WHEN THE CREDIBILITY OF THE LAY AND EXPERT WITNESSES LIES IN SHREDS
The previous post in relation to Part 36 led me to examine the substantive judgment of Mr Justice Coulson in Van Oord UK Limited -v- Allseas UK Limited [2015] EWHC 3074 (TCC). It contains as damning an assessment of witness…
IS THIS A CLAIMANT'S OR DEFENDANT'S OFFER? ANOTHER IMPORTANT HIGH COURT DECISION ON PART 36
In Van Orrd Uk Limited -v- Allseas UK Limited [2015] EWHC 3385 (TCC) Mr Justice Coulson considered the appropriate consequences when the defendant had beaten its own Part 36 offer. These were unusual circumstances in that the court had to…
BE CAREFUL WHERE YOU SERVE A NOTICE OF COMMENCEMENT: PAYING PARTY ESTOPPED FROM TAKING A POINT AS TO SERVICE
In Edray Ltd -v- Canning [2015] EWHC 2744 (Ch) Stephen Jourdan QC (sitting as a Deputy High Court Judge) considered an issue relating to estoppel and waiver when a Notice of Commencement had not been properly served. “The bill of…
CLARIFICATION OF A PART 36 OFFER HAS A MAJOR EFFECT ON COSTS
CPR 36.8 STATES “(1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer”. In Bailes -v- Bloom (23/11/2015, Simler J QBD)* the fact that clarification had been provided had…
RELIEF FROM SANCTIONS REFUSED IN £30 MILLION CASE: NOT ALL SANCTIONS ARE EQUAL
In Sinclair -v- Dorsey & Whitney (Mr Justice Popplewell 20/11/2015)* an application for relief from sanctions was refused in a case that the claimant valued at £30 million. THE CASE The claimants had been ordered to provide security for costs….
PERSONAL INJURY LITIGANTS, LAWYERS & SOCIAL MEDIA
Social media is coming to play an increasingly important part in personal injury litigation. It is worthwhile taking a look at developments and the lawyer’s duties. There is no doubt at all that the close scrutiny of social media accounts…
WHEN TWO RULES COLLIDE:PART 36 OFFER DOES NOT OVERRIDE NEED TO SERVE THE CLAIM FORM
In The Former Owners of the Motor Vessel “Melissa K” -v- The Former Owners of the Motor Tanker “Tomsk” [2015] EWHC 3445 (Admlty) Mr Justice Males considered the interplay between Part 36 and the need to serve. It is an…
COMMENT POSING AS CROSS-EXAMINATION: "INAPPROPRIATE AND IMPROPER"
When does cross-examination turn to comment? That is a question all working advocates have to consider, both in relation to their own cross-examination of witnesses, and responding to their opponents. There are some important observations by Mr Justice McCloskey in…
THE YEO CASE: WITNESS EVIDENCE & CREDIBILITY: THERE'S A HOOK HERE SOMEWHERE
The decision of Mr Justice Warby in Yeo -v- Times Newspapers Limited [2015] EWHC 3375 (QB) is one of those cases that, obviously, will be of wider interest. It contains much of interest in relation to an analysis of the…
COSTS AS DAMAGES: SOME OBITER, BUT IMPORTANT, REMARKS
There are some important remarks on legal costs claimed as damages in Shaw -v- Kovac [2015] EWHC 3335(QB). (A case that is considered in more detail on Fatal Accidents Law. KEY POINTS In a fatal claim the costs of attending the…
DID YOU KNOW YOU CAN SUBSCRIBE TO THIS BLOG?
This blog has a free subscription service whereby each post can be e-mailed to you directly when published. TO SUBSCRIBE On the right hand side of the blog there is a panel. If you scroll down to the bottom you…
DENTON: EXTENSIONS OF TIME AND COSTS: OPPOSITION TO APPLICATIONS IS NOT ALWAYS UNREASONABLE
In The Queen on the Application of IDIRA -v- The Secretary of State for the Home Department [2015] EWCA Civ 1187 the Court of Appeal made a number of observations in relation to extensions of time, the Denton criteria, and…
THE DUTY OF FULL AND FRANK DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: ANOTHER CASE ILLUSTRATING THE DANGERS
The duty of full and frank disclosure owed when a without notice application is made has been looked at many times on this blog. Another example can be seen in the judgment today by Sir Michael Tugendhat in Ahuja -v-…
GOOD WITNESS STATEMENTS ARE NOT JUST FOR CHANCERY LAWYERS: THE CHANCERY GUIDE TO WITNESS STATEMENTS
In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded “In so far as there is a criticism of the preparation it…
LITIGATION PRIVILEGE, DECEPTION AND THE ACCIDENTAL DISCLOSURE OF PRIVILEGED DOCUMENTS
In Property Alliance Group -v- The Royal Bank of Scotland PLC [2015] EWHC 3341 (Ch) Mr Justice Birss made some important observations on the scope of litigation privilege when evidence was obtained by deceit. Significant guidance was given on the…
DENTON, DOCUMENTS AND DELAY: FAILURES IN DISCLOSURE LEAD TO APPEAL BEING STRUCK OUT
In Walton -v- Allman [2015] EWHC 3325 (Ch) Mr Justice Snowden upheld a decision refusing relief from sanctions. It is a case that shows the importance of considering, and making full disclosure and the dangers of taking a “wrong-headed” view…
NO INDICATIONS GIVEN FROM TRIAL JUDGE IN RELATION TO EXCEEDING COSTS BUDGET: THE APPROPRIATE APPROACH TO INTERIM COSTS WHERE THE COSTS HAVE EXCEEDED THE COSTS BUDGET
Can (and should) the trial judge give any indication in relation to costs budgets at the end of a trial if the costs budgets have been exceeded. Further what is the appropriate approach to an application for interim costs when…
GOOD BUNDLES, GOOD ADVOCACY, POOR WITNESS STATEMENTS
The final paragraph of the judgment of HH Judge Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch speaks volumes. I will allow it to speak for itself. “I cannot leave this case without…
DEFENDANT NOT ALLOWED TO WITHDRAW FROM ADMISSION AND DEBARRED FROM RELYING ON FURTHER EVIDENCE: PLEADINGS ARE STILL IMPORTANT
In Clark -v- Braintree Clinical Services Limited [2015] EWHC 3181 HH Judge Burrell QC (sitting as a High Court judge) refused a defendant’s application to resile from an admission. He also granted the claimant’s application to debar the defendant from…
STRIKING OUT FOR DELAY: SOLLAND UPHELD ON APPEAL
We have looked before at the decision of Master Bowles in Solland International Ltd -v- Clifford Harris & Co [2015] EWHC 2018 (Ch) where the claimant’s action was struck out because of their failure to progress the action for 31…
"THAT PART OF MY WITNESS STATEMENT IS NOT TRUE": NEVER A GREAT START TO A CASE
In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank. “…it…