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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
Browse: Home » 2015 » February

MORE ON INDEMNITY COSTS AND THE SUMMARY ASSESSMENT OF COSTS AT TRIAL: INTERCITY TELECOMS -v- SOLANKI

February 27, 2015 · by gexall · in Applications, Civil Procedure, Costs, Costs budgeting

NOTE THAT THIS JUDGMENT HAS BEEN OVERTURNED BY THE COURT OF APPEAL, SEE THE POST HERE  In Intercity Telecom -v- Solanki [2015] Judge Simon Brown QC awarded indemnity costs and assessed costs at the end of a trial. It is…

THE LADD -v- MARSHALL TEST: WHAT IS MEANT BY "REASONABLE DILIGENCE": A TALE OF COMPUTERS IN COURT

February 26, 2015 · by gexall · in Appeals, Applications, Civil evidence, Civil Procedure, Witness statements

An appeal court will only consider new evidence on very limited grounds. The test in Ladd -v- Marshall [1954] 1 WLR 1489 is that the applicant can show that the evidence could not with reasonable diligence have been obtained for…

Y0UR OPPONENT'S WITNESS STATEMENT CANNOT BE DISCLOSED UNTIL AFTER IT IS USED AT A HEARING IN PUBLIC: A USEFUL REMINDER

February 26, 2015 · by gexall · in Applications, Civil evidence, Civil Procedure, Disclosure, Witness statements

The judgment of Mr Justice Warby in Barry -v- Butler [2015] EWHC 447 (QB) contains some important reminders about witness statements. The witness statements received from an opposing party cannot be disclosed generally until they are used at a hearing…

NO RE-ALLOCATION AT THE COURT OF APPEAL STAGE JUST TO GET COSTS: CONLON -v- ROYAL SUN INSURANCE PLC

February 26, 2015 · by gexall · in Appeals, Applications, Civil Procedure, Costs

In Conlon -v- Royal Sun Insurance plc [2015] EWCA Civ 92 the Court of Appeal refused to re-allocate a costs at the appeal stage when the application was made solely for the purpose of attempting to recover costs. THE ISSUES…

SETTING ASIDE JUDGMENT. DELAY AND THE DENTON CRITERIA: ANOTHER IMPORTANT CASE

February 25, 2015 · by gexall · in Applications, Civil evidence, Civil Procedure, Relief from sanctions

In Avanesov -v- Shymkentpivo [2015] EWHC 394 (Comm) Mr Justice Popplewell considered the issue of setting aside judgment after a long period of delay by the defendant and the relevance of the Denton criteria. THE CASE The defendant applied to…

MORE ON BUNDLES: THERE IS MUCH TIME & MONEY TO BE SAVED YET

February 24, 2015 · by gexall · in Applications, Civil evidence, Civil Procedure, Costs, Written advocacy

I have often commented (and been surprised) by the fact that a post on preparing trial bundles is always the most popular page on this blog.  Following a prompt from Dominic Regan it was interesting to watch the live feed…

INADEQUATE WITNESS STATEMENTS LEAD TO CASE BEING STRUCK OUT AT TRIAL

February 24, 2015 · by gexall · in Appeals, Applications, Civil evidence, Damages, Disclosure, Statements of Case, Witness statements

We have looked at the case of  Devon & Cornwall Autistic Community Trust -v- Cornwall Council before.  In the first report Mr Justice Green refused an application to adjourn a trial date but gave permission to serve witness evidence late….

ANOTHER EXAMPLE OF A SUCCESSFUL DEFENDANT NOT RECOVERING ALL OF ITS COSTS (AND OF THE ADVANTAGES OF A PART 36 OFFER)

February 24, 2015 · by gexall · in Applications, Civil Procedure, Costs, Risks of litigation

In Altus Group (UK) Limited -v- Baker Tilly [2015] EWHC 411 (Ch) HH Judge Keyser QC (sitting as a High Court Judge) made various orders in relation to the Defendant’s costs.  The Defendant did not recover all their costs of…

UNSUCCESSFUL APPEAL AGAINST GRANT OF RELIEF FROM SANCTIONS: HOME GROUP LIMITED -v- MATREJEK

February 24, 2015 · by gexall · in Appeals, Applications, Civil Procedure, Relief from sanctions, Written advocacy

There may be a few appeals pending where a party is arguing that relief from sanctions should be granted on the grounds of the Denton criteria which “modified” the Mitchell test.  The unusual aspect of the decision in Home Group…

DECIDING CASES ON PAPER: WOODLANDS, EVIDENCE & DECIDING CASES "ONLINE"

February 24, 2015 · by gexall · in Civil evidence, Civil Procedure, Witness statements, Written advocacy

The decision in Woodland -v- Maxwell looked at in an earlier blog is interesting because it is one of the rare cases where the Court of Appeal carried out a (brief) analysis of the evidence in the case more than…

THE PROPOSED COURT FEE INCREASE: ACTION BY THE LAW SOCIETY – READ THE STATISTICS ABOUT ACCESS TO JUSTICE

February 22, 2015 · by gexall · in Applications, Civil Procedure, Costs

The Law Society has sent a pre-action protocol letter for judicial review to challenge the government’s proposed increase in court fees. “State provision for people to redress wrongs through the courts is the hallmark of a civilised society.’ THE LAW…

A GAME OF MORE THAN ONE HALF: THE COSTS ORDER IN HAMED -v- TOTTENHAM HOTSPUR

February 20, 2015 · by gexall · in Civil evidence, Costs

In Hamed -v- Mills & Tottenham Hotspur Football Club  [2015] EWHC 298 (QB)   Mr Justice Hickinbottom found negligence on the part of a doctor and football club in a claim brought by a professional football player. In a judgment, given…

PLEADINGS MUST BE CONCISE – OR ELSE! TOO MANY COUNSEL SPOILING THE BROTH?

February 20, 2015 · by gexall · in Applications, Civil evidence, Civil Procedure, Statements of Case, Written advocacy

We have looked before at problems caused by over-lengthy pleadings.  In Vincent Aziz Tchenguiz -v- Grant Thornton UK LLP [2015] EWHC 405 (Comm) Mr Justice Leggatt provides a virtual “cut out and keep” set of warnings of the dangers of not complying…

IF YOU THINK "BIG MONEY" CASES AMOUNT TO A LICENCE TO INCUR COSTS THEN READ THIS

February 20, 2015 · by gexall · in Costs, Costs budgeting

In  Kazakhstan Kagazy PLC  -v-  Baglan Abdullayevich Zhunus [2015] EWHC 404 (Comm) Mr Justice Leggatt  makes important observations about costs; the basis for assessing costs in “big money” cases (if not all cases) and interim costs in a case where  the defendants’…

CONSULTATION ON COURT FEES INCREASE : GET INVOLVED

February 20, 2015 · by gexall · in Applications, Civil Procedure

As we all know there are proposals to increase court fees to (frankly ridiculous) amounts. It is important that everyone takes part in the consultation process.  (Some may say that the MOJ is about to make the same counter-productive mistakes…

WHOLLY SUCCESSFUL DEFENDANT RECOVERS ONLY TWO-THIRDS OF COSTS BECAUSE OF FAILURE TO ENGAGE IN ADR

February 19, 2015 · by gexall · in Appeals, Applications, Costs, Mediation & ADR, Witness statements

In Christian -v- The Commission of Police for the Metropolis [2015] EWHC 371 (QB) Mr Justice Turner considered the costs applications of a failure to a defendant to engage in mediation. THE CASE The claimant was unsuccessful in an action…

LENGTHY BUNDLES AND INTERIM COSTS: OBSERVATIONS FROM THE TECHNOLOGY & CONSTRUCTION COURT

February 18, 2015 · by gexall · in Applications, Civil Procedure, Costs, Witness statements, Written advocacy

The two judgments of Mr Justice Akenhead in the Secretary of State for the Home Environment -v- Raythean Systems Limited [2014] EWHC 4375 (TCC) and [2015] EWHC 311 (TCC) contain some familiar motifs in relation to the size of bundles,…

ANOTHER CASE WHERE INDEMNITY COSTS AWARDED – FOR PART OF THE CLAIM

February 18, 2015 · by gexall · in Applications, Civil evidence, Civil Procedure, Costs, Disclosure

There are now several posts on this blog considering the importance of an award for costs on an indemnity basis and cases where judges have considered this issue. Another example can be found in the decision of Stephen Jourdan QC…

PROVING MATTERS BY EVIDENCE: A LESSON FROM THE FAMILY COURT

February 17, 2015 · by gexall · in Applications, Civil evidence, Witness statements, Written advocacy

It is certain that most lawyers involved in childcare matters will read the decision of Sir James Munby in Darlington Borough Council -v- M [2015] EWFC 11.  However there are points made in that judgment of general relevance to all…

SHOULD A SECOND ACTION BE STRUCK OUT AS AN ABUSE OF PROCESS? AN ISSUE COMING TO THE COURT OF APPEAL SOON

February 17, 2015 · by gexall · in Civil Procedure, Second set of proceedings, Striking out

There is an important note in the news section of Hardwicke Chambers website.  The Court of Appeal has granted permission to appeal in a case where the judge refused to strike out a second action issued after a first action…

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