AMENDING PLEADINGS: WELL I'M JUST GOING TO ISSUE SEPARATE PROCEEDINGS – IS THAT RELEVANT?
The earlier post looked at the general principles in relation to late amendment of pleadings. There was one further point considered in CIP Properties -v- Galliford Try [2015] EWHC 135 (TCC). The claimant argued that the amendments should be allowed…
AMENDING PLEADINGS : A REVIEW OF THE PRINCIPLES: WHAT IS MEANT BY "LATE"?
We have looked at the case of CIP Properties -v- Galliford Try twice before in the context of costs budgeting. The case came before Mr Justice Coulson again [2015] EWHC 1345 (TCC) on the topic of amendment of pleadings. It is…
INDEMNITY COSTS AGAINST RESPONDENT IN RELIEF FROM SANCTIONS APPLICATION: WHAT A WASTE?
There is a brief report on Lawtel* of the decision of Popplewell J in Viridor Waste Management Ltd -v- Veolia Es Ltd (QBD (Comm) 22/05/2015. THE CASE The claimant was bringing an action for £27 million unjust enrichment. The claim…
LATE APPLICATION FOR DISCLOSURE AND EXPERT EVIDENCE REFUSED: STOPPED AT THE DOCK
The judgment of His Honour Judge Stephen Davies in (sitting as a judge of the High Court) in William Clark Partnership Limited -v- Dock St PCT Limited [2015] EWHC B5 (TCC) illustrates the problems caused when applications are made late….
"TOUCH SENSITIVE" WITNESS STATEMENTS AND OTHER FORMS OF EVIDENCE: WHEN THE CLAIMANTS COLLECT THE EVIDENCE THEMSELVES
The decision of Recorder Amanda Michaels (sitting as a Deputy Enterprise Judge) in Minder Music Ltd -v- Sharples [2015] EWHC 1454 (IPEC) raises some interesting issues in relation to witness statements and evidence. In particular the problems when a party…
HELL IT WAS IN "THAT FEBRILE TIME": OSTRICHES, MITCHELL, DENTON AND THE "BRILLIANT READJUSTMENT"
There are some interesting observations made by Lord Dyson MR in The English Experience of Access to Justice Reform. In particular the look back at the “febrile” atmosphere that Mitchell created and the rationale of the subsequent “revision” in Denton….
INCREASED INTEREST AND COSTS AFTER CLAIMANT BEATS ITS OWN PART 36 OFFER: JUDGMENT FOR THREE TIMES MORE THAN CLAIMANT'S OFFER
In Thai Airways International Public Company Ltd -v- KI Holdings Co Ltd [2015] EWHC 1476 (Comm) Mr Justice Leggat made slight modifications to the additional amounts to be awarded to a claimant which had beaten its own part 36 offer….
DEFAULT JUDGMENT CAN BE OBTAINED WHEN ACKNOWLEDGMENT OF SERVICE IS SERVED LATE
NB THIS DECISION HAS SINCE BEEN OVERTURNED BY A CHANGE IN THE RULES, SEE THE POST HERE. A claimant can enter judgment in default of acknowledgement of service. What is the position if the acknowledgment of service is served late….
"TAKING THE STATEMENT OF TRUTH LIGHTLY": CONTEMPT OF COURT WHEN DOCUMENTS WERE "CREATED" LONG AFTER THE EVENT
In GB Holdings Ltd -v- Short [2015] EWHC 1378 (TCC) Mr Justice Coulson reviewed the authorities and principles relating to applications for contempt of court when it is alleged that a witness has forged documents in relation to the action….
GET AN INJUNCTION – PAY £27 MILLION IN DAMAGES: A POINT WORTH REMEMBERING
The judgment in AstraZeneca AB -v- KRKA dd Novo Mesto [2015] EWCA Civ 484 is one that should be read by anyone thinking of applying for an injunction and giving an undertaking in damages. The claimant obtained an injunction and…
PERMISSION TO CALL EXPERT WITNESS OVERTURNED ON APPEAL
I cannot recall the last time an appeal took place in relation to the question of permission to call an expert witness. The post yesterday discussed a case where permission to call an expert was upheld. Hot on its heels…
APPEALS AGAINST DECISION TO ALLOW EXPERT EVIDENCE: DEFENDANTS TOLD TO GET ON THEIR BIKE
Appeals against orders granting permission for parties to call expert witnesses are rare. It is worthwhile, therefore, reading the judgment of Mr Justice Green in Allen -v- Cornwall Council [2015] EWCA Civ 1461 (QB) with some care. THE CASE The…
A SORRY TALE OF MODERN LITIGATION: ALL AROUND THE HOUSES
There are some cases where the “reasonable bystander” may feel that all rationality has been lost by the litigants. Read the opening paragraph of Mr Justice Akenhead’s judgment in Mears Ltd -v- Shoreline Housing Partnership Limited [2015] EWHC 1396 (TCC)….
INDEMNITY COSTS AND REDUCED INTEREST ON DAMAGES BECAUSE OF DELAY: COURTS WILL STAY ON THE RAILS
There is a short interesting judgment by Mr Justice Akenhead in Network Rail Infrastructure Ltd -v- Handy [2015] EWHC 1460 (TCC) which deals with the principles relating to indemnity costs and interest. A further interesting point is that the claimant…
FAILURE TO COMPLETE PRE-TRIAL REVIEW QUESTIONNAIRE FULLY LEADS TO DEFENCE AND COUNTERCLAIM BEING STRUCK OUT
In Waterman Transport Ltd -v- Torchwood Properties Ltd [2015] EWHC 1446 (TCC) Mr Justice Akenhead entered judgment for a claimant and struck out a counterclaim after the defendant failed to file a completed pre-trial review questionnaire properly. THE CASE The…
I DIDN'T MEAN IT WHEN I SIGNED THE JOINT REPORT: WHAT HAPPENS WHEN EXPERTS CHANGE THEIR MINDS?
The judgment of Mr Justice Leggatt in Iraqi Civilians -v- Ministry of Defence [2015] EWHC 1254 (QB) contains some interesting passages in relation to an expert reneging from the contents of a joint report. In particular what is the appropriate…
PROOF OF FACTS: THE BASIC PRINCIPLES SUMMARISED (BORROWING FROM THE FAMILY COURTS)
In a short judgment BR (Proof of Facts) [2015] EWFC 41 Mr Justice Peter Jackson provides a summary of key issues in relation to evidence. The judgment is specifically in relation fact finding in children cases. However part of the…
MORE ON "CHANGING" WITNESS STATEMENTS AND CREDIBILITY: A CLINICAL NEGLIGENCE CASE
A post yesterday commented upon the difficulties caused when a witness produces two (sometimes contradictory) witness statements. Another example of witness evidence leading to problems at trial can be seen in the judgment of HH Judge Collender QC (sitting as…
THAT "DIFFICULT SECOND STATEMENT": IT IS HARDLY EVER GOING TO BE A HIT
The judgment in Buswell -v- Symes [2015] EWHC 1379 (QB) illustrates the dangers of “supplementary “witness statements. Real problems can occur for the party putting in the new evidence. THE CASE The claimant was seriously injured when his motorcycle was…
CIVIL COMMITTAL PROCEEDINGS IN THE COUNTY COURT: THE RISK OF INJUSTICE RUNNING RIFE
Committal proceedings in the civil courts are a serious business. Respondents can, and often do, go to prison. The legal costs incurred by the applicant are often extremely high. However those responding have real and fundamental difficulties in obtaining representation….
LATE WITNESS EVIDENCE AND WITNESS CREDIBILITY IN THE INTELLECTUAL PROPERTY & ENTERPRISE COURT: HANDED OVER ON A PLATE?
The Intellectual Property Enterprise Court is likely to be a model of good practice. Basically designed to ensure the SMEs can protect their intellectual property rights without going broke in the process it has a fairly robust approach to procedure…
COURT OF APPEAL UPHOLDS AWARD OF INDEMNITY COSTS: RAYMOND -v- YOUNG
In Raymond -v- Young [2015] EWCA Civ 456 the Court of Appeal upheld an award of indemnity costs, awarded as a result of the conduct of the defendants. THE CASE The appeal concerned the award of £155,000 for diminution in…
WITNESS STATEMENTS AND FUNDAMENTAL DISHONESTY: NOW THERE REALLY IS ONE LAW FOR THE RICH: THE PRACTICAL IMPLICATIONS FOR CLAIMANT LAWYERS
There has been much debate about the impact of the “fundamental dishonesty” law. One practical effect it must have, however, is to ensure that claimant lawyers consider and explain the importance of the witness statement. THE ISSUE The problem with…
WASTED COSTS HEARING: NOT JUSTIFIED BECAUSE OF LIKELY COSTS INVOLVED: CAVEAT LITIGATOR
In Kagalovsky -v- Balmore Invest Limited [2015] EWEHC 1337 (QB) Mr Justice Turner turned down a wasted costs application at the first stage. “A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should…
CASE PROJECT MANAGEMENT: PRESENTATION BY H.H. JUDGE SIMON BROWN QC.
Attached to this post – Case Project Management (1) – are the slides that HH Judge Brown used in his recent address on Case Project Management to the Association of Cost Lawyers. Reproduced with his permission. KEY POINTS The slides take…
COURT OF APPEAL UPHOLDS ORDER STRIKING OUT CLAIM FOR FAILURE TO SERVE EXPERT REPORT: DON'T PARK THE LORRY WHEN THE TIDE IS AGAINST YOU
In Elliott -v- Stobart Group Ltd [2015] EWCA Civ 449 the Court of Appeal upheld a decision to strike out an application for damages because of a failure to serve a medical report. “In my judgment Judge Platts was correct…
APPEALING ON THE JUDGE'S FINDINGS OF FACTS: A TRIAL IS NOT A DRESS REHEARSAL BUT "THE FIRST AND LAST NIGHT OF THE SHOW"
In the decision in Watson Farley and Williams -v- Ostrovizky today [2015] EWCA Civ 457 the Court of Appeal emphasised the difficulties of a party appealing findings of facts by the trial judge. “The aptness of the metaphor relating to…
VERY IMPORTANT DECISION ON PART 36 OFFERS, ASSESSMENT OF COSTS AND ADDITIONAL AMOUNTS WHEN OFFERS NOT BEATEN
The decision of Mrs Justice Slade DBE in Cashman -v- Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB) deals with the additional sums that a party may have to pay when it fails to beat a Part 36 offer….
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
"FUNDAMENTAL DISHONESTY" AND STRIKING OUT IN PERSONAL INJURY CASES: TEN KEY PROCEDURAL POINTS
The rule as to “fundamental” dishonesty has attracted a lot of attraction (and a lot of heated debate). However there has been very little examination of the details of the Act and the consequent procedural implications. There are 10 key…
ASHLEY -v- TESCO STORES: FULL TRANSCRIPT NOW AVAILABLE: CLAIMANT HAS SIX MONTHS TO SERVE ON A SCOTTISH COMPANY
The case of Ashley -v- Tesco Stores [2015] EWCA Civ 1423 has been looked at earlier in this blog. The full transcript is now available. THE JUDGMENT OF LADY JUSTICE ARDEN This appeal from the order of Patterson J dated…
PERMISSION TO APPEAL NOT NEEDED FROM JUDGE AT FIRST INSTANCE (BUT YOU SHOULD STILL ASK).
In P -v- P [2-15] EWCA Civ 447 the Court of Appeal held that it is not mandatory for a party who wishes to appeal to seek permission from the judge at first instance. THE CASE The Court of Appeal…
MORE COMMENTS FROM THE COURT OF APPEAL ON BUNDLES: THIS TIME IN THE COURT OF PROTECTION
In the matter of MN (Adult) [2015] EWCA Civ 411 the Court of appeal had some words to say about delay and procedure in the Court of Protection. Here, however, we concentrate upon the one matter that attracts more readers…
AN EXPERT MUST DISCLOSE DETAILS OF PROFESSIONAL RELATIONSHIP WITH A PARTY OTHERWISE THE CONSEQUENCES CAN BE DIRE: EXP -v- BARKER
The facts in relation to the Defendant’s expert witness in the case of EXP -v- Barker [2015] EWHC 1289 (QB) are quite remarkable. The case shows the importance of an expert disclosing their history of dealing with the person on…
TRIAL HAD NOT "COMMENCED" : ADDITIONAL LIABILITY NOT 100%: HIGH COURT DECISION ON COSTS
In James -v- Ireland [2015] EWHC 1259 (QB) Mrs Justice Slade DBE overturned an earlier decision that a trial had commenced and the claimant was entitled to 100% uplift in costs. (The uplift in costs resulted in a sum of…
TRIAL BUNDLES, SEDLEY'S LAWS AND DOCUMENTARY CARPET BOMBING
“Sedley’s Laws” of trial bundles were mentioned by Mr Justice Turner in Griffiths -v- The Secretary of State for Health [2015]. Another example of over-sized trial bundles. “CPR 1.3 imposes a duty upon the parties to help the court to…
APPLICATION TO SET ASIDE JUDGMENT MADE LATE IN THE DAY: APPEAL AGAINST REFUSAL TO SET JUDGMENT ASIDE ALLOWED
In Priestley -v- Dunbar [2015] EWHC 987 (Ch) H.H.Judge Behrens (sitting as a judge of the High Court) overturned an earlier decision refusing to set judgment aside on the grounds of delay. THE CASE The claimant had obtained default judgment…
WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION
In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility. It is an example of a court dealing with a witness who, the judge finds, has “convinced…
AMENDING PLEADINGS LATE 2: ANOTHER MATTER OF INTEREST? (AND ANOTHER LATE WITNESS STATEMENT)
An earlier post looked at an application where a bank successfully opposed an application to amend pleadings. In Monks -v- National Westminster Bank [2015] EWHC 1172 (Ch) the defendant bank made a late application to amend its defence. This was…
AMENDING PLEADINGS LATE 1: WANI LLP -v- RBS: A MATTER OF INTEREST?
There have been a few cases recently relating to fairly last minute attempts to amend pleadings. The principles governing applications were considered by Mr Justice Henderson in Wani LLP -v- The Royal Bank of Scotland [2015] EWHC 1181 (Ch). It…
YET MORE ON BUNDLES : BREACH OF ORDER MADE ON "MITCHELL" GROUNDS UPHELD ON "DENTON" GROUNDS
The case of Patel -v- Mussa [2015] EWCA Civ 434 is, in essence, another sorry story about bundles. It is also an example of the Court of Appeal upholding a case management decision made by a judge who applied “Mitchell”…
COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because…
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