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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 » August

HIGHER COURT FEES IN THE (NOT TOO DISTANT) FUTURE: THE GOVERNMENT RESPONSE TO CONSULTATION

August 30, 2015 · by gexall · in Costs, Uncategorized

The government response to the consultation process on court fees is now available. WHAT IT SAYS (“FOR THE MOST PART WE HAVE IGNORED EVERYONE AND THE INCREASES WILL GO AHEAD IN ANY EVENT”). “Following a consultation launched by the Coalition…

ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)

August 30, 2015 · by gexall · in Civil evidence, Uncategorized, Witness statements

I am returning to the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA 2264 (QB).  Among other things this case emphasises the dangers of  leading questions when interviewing witnesses. There are dangers…

THE STATEMENT OF TRUTH: DOES IT NEED "BEEFING UP": THE POLICE SAY WITNESSES DON'T UNDERSTAND IT'S SIGNIFICANCE!

August 30, 2015 · by gexall · in Applications, Civil evidence, Uncategorized

The statement of truth is central to modern litigation, and at every stage of the litigation.  However it is worthwhile considering whether, in its current form, it is effective. THE ACCIDENT EXCHANGE CASE It is worthwhile reading the judgment in…

THE EFFECT OF QOCS ON LITIGATION: HERE'S THE THING: CASES WILL BE FOUGHT ON THEIR MERITS

August 30, 2015 · by gexall · in Costs, QOCS, Uncategorized, Witness statements

There has been much debate about the impact of QOCS on litigation. To date much of this has, inevitably, been speculative. However it is worthwhile reading George Riley’s article, Fundamental dishonesty and litigation in the post-Jackson landscape.  This shows, honestly…

"CONDUCT UNRAVELS ALL": INDEMNITY COSTS AND COSTS ON ACCOUNT: A FAMILY CASE

August 28, 2015 · by gexall · in Conduct, Costs, Uncategorized

In the judgment today in  Joy -v- Joy-Morancho (No 3) [2015] EWHC 2507 (Fam) Mr Peter Singer awarded indemnity costs against the respondent husband.  Many of the observations  in relation to costs are of general relevance to civil litigators as…

MISCONDUCT ON ASSESSMENT LEADS TO REDUCTION OF COSTS BY 50%: KERINS -V- HEART OF ENGLAND NHS FOUNDATION TRUST

August 26, 2015 · by gexall · in Assessment of Costs, Conduct, Costs, Uncategorized

There is a report on Lawtel today of the decision of District Judge Griffith in Kerins -v- Heart of England NHS Foundation Trust (Birmingham, 31st July 2015). The claimant’s costs were reduced by 50% because of misconduct in the assessment…

A FAILURE TO DISCLOSE CAN BE JUST AS TELLING AS DISCLOSURE ITSELF: EVIDENCE, INFERENCES AND THE BLUE ANGEL CASE

August 25, 2015 · by gexall · in Applications, Civil evidence, Civil Procedure, Disclosure, Uncategorized

The decision of Mr Robin Hollington QC (Sitting as a Deputy Judge of the Chancery Division) in Davy -v- Croxen [2015] EWHC 2372 (Ch) (“The Blue Angel case”) contains some illuminating observations about the practicalities and costs of disclosure and…

RELIEF FROM SANCTIONS IN THE TCC: LATE SERVICE OF THE PARTICULARS OF CLAIM

August 23, 2015 · by gexall · in Civil Procedure, Relief from sanctions, Uncategorized

The judgment of Mr Justice Edwards-Stuart in North Midland Construction plc -v- Geo Networks Ltd [2015] EWHC 2384 (TCC) provides an object lesson in the dangers of delaying service of the particulars of claim. THE CASE The claimant issued two…

LATE AMENDMENT OF PLEADINGS: A RELATIVE CONCEPT: HAGUE PLANT APPLIED

August 23, 2015 · by gexall · in Amendment, Statements of Case, Uncategorized

When is an application to amend pleadings made late, more particularly too late? This is something we have looked at several times before.  It was considered by H.H. Judge Keyser Q.C. in Hamizay Limited -v- Robin Swailes [2015] EWHC B14(Ch)….

BANKRUPTCY AND THE PERSONAL INJURY LITIGANT: 10 KEY POINTS

August 23, 2015 · by gexall · in Applications, Avoiding negligence claims, Civil Procedure, Uncategorized

The post about Eatons -v- Mitchells & Butler PLC led to some interesting discussions and raises some important issues. The claimant had been made bankrupt after he was injured. His lawyers overlooked this, issued proceedings, succeeded in a trial on…

CASE MANAGEMENT, NECESSITY AND EXPERTS: BA -v- SPENCER: IS EXPERT EVIDENCE "REASONABLY REQUIRED"?

August 21, 2015 · by gexall · in Case Management, Expert evidence, Uncategorized

In his decision today in British Airways Plc -v- Spencer [2015] EWHC 2477 (Ch) Mr Justice Warren made important observations about the need for expert evidence.  The judge overturned a case management decision that expert evidence was not necessary and…

ASSESSING EXPERT EVIDENCE: GUIDANCE FROM VICTORIA

August 21, 2015 · by gexall · in Expert evidence, Uncategorized, Useful links

There are many cases where a judge has to determine differences between experts.  It is helpful for practitioners to know what factors are taken into account when assessing evidence . The Judicial College of Victoria puts all its guidance to…

BANKRUPTCY OF CLAIMANT DID NOT RENDER ACTION INVALID OR AN ABUSE OF PROCESS

August 20, 2015 · by gexall · in Applications, Civil Procedure, Uncategorized

In Eaton -v- Mitchells & Butler PLC (30th April 2015) (reported today on Bailli) His Honour Judge Keyser QC had to consider the effect of bankruptcy upon the validity of a claim. “It is remarkable that the case had proceeded…

"AGGRESSIVE CORRESPONDENCE" AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED?

August 20, 2015 · by gexall · in Case Management, Civil evidence

There is an interesting report by Chloe Smith in The Law Society Gazette “Solicitor reprimanded for email calling opponent a “plonker””.  The comments that follow that article are equally interesting with the usual mix of wry and witty observations.  The…

QOCS, STRIKING OUT AND THE LIABILITY TO PAY IN FULL: A COUNTY COURT DECISION

August 18, 2015 · by gexall · in Civil Procedure, Costs, QOCS, Uncategorized

I am grateful to Colm Nugent of Hardwicke Chambers for sending me a copy of the judgment in Wall -v- British Canoe Union. A decision of HH Judge Lopez in Birmingham County Court on the 30th July 2015.  The judgment…

PROPORTIONALITY, ASSESSMENT AND THE COSTS OF BUDGETING: SENIOR COURTS COSTS OFFICE DECISION TODAY

August 17, 2015 · by gexall · in Assessment of Costs, Costs, Uncategorized

In BP -v- Cardiff & Vale University Local Health Board [2015] EWHC B13 (Costs) Master Gordon-Saker considered several issues relating to proportionality; the format of bills and the costs of costs budgeting. “Having conducted an assessment of the reasonableness of…

CHILDREN, SUCCESS FEES AND DEDUCTIONS FROM DAMAGES : AN IMPORTANT JUDGMENT

August 14, 2015 · by gexall · in Assessment of Costs, Costs, Insurance premiums, Success Fees, Uncategorized

The question of child claimants and deductions from damages remains a live and controversial one. The judgment on this issue of the regional costs judge,District Judge Lumb in A & B -v- The Royal Mail Group  [2015] EW Misc B24(CC)(14th…

ORDERING SECURITY FOR COSTS, THIRD PARTY ACTIONS AND THE COSTS BUDGET

August 14, 2015 · by gexall · in Civil Procedure, Costs budgeting, Uncategorized

How important is an approved costs budget in determining the sum to be ordered by way of security for costs? This was an issue considered by Mr Justice Andrew Smith in Sarpd Oil International Ltd -v- Addax Energy [2015] EWHC…

WITNESSES WHO DID NOT DRAFT (OR UNDERSTAND) THEIR STATEMENTS, WOULD BE "EXPERTS" AND OTHER WITNESS WOES.

August 14, 2015 · by gexall · in Civil evidence, Uncategorized, Witness statements

Hot on the heels of my posing the question whether 278 years of judicial prompting on witness statements had led to any results comes the decision today of Mr Justice Andrew Smith in Michael Norcross -v- The Estate of Christos…

WITNESS STATEMENTS AND EVIDENCE: AFTER 278 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?

August 14, 2015 · by gexall · in Civil evidence, Uncategorized, Witness statements

Often (once a month or so but sometimes more frequently) this blog considers a case where the judge has been critical of the witness evidence in written form. Often because the evidence is irrelevant, argumentative and consists of submissions.  This…

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