COSTS: NOT EVERY DEFENDANT NEEDED REPRESENTATION ON APPEAL
There are some important observations about costs made by Mrs Justice Carr DBE in RSPCA -v- McCormick & others [2016] EWHC 928 (Admin). THE CASE The RSPCA brought an appeal by way of case stated as to the meaning of…
COURT OF APPEAL OVERTURNS REFUSAL TO SET ASIDE JUDGMENT AFTER DEFENDANT FAILED TO ATTEND TRIAL
Given the many strictures relating to the sanctity of the trial date the decision of the Court of Appeal in TBO Investments Ltd -v- Mohun-Smith [2016] EWCA Civ 403 may be viewed as a surprising one. The defendant failed to…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT BY THE TRIAL JUDGE
In Elliston -v- Glencore Services (UK) Ltd [2016] EWCA Civ 407 the Court of Appeal took the unusual step of overturning findings of fact by the trial judge. (It is perhaps important that I emphasise how rare this is. There…
UNCERTAINTY AS TO DAMAGES: JUST HOLD ONTO THE MONEY UNTIL FULL TIME
In Gibbs -v- Leeds United Football Club Ltd [2016] EWHC 960 (QB) Mr Justice Langstaff made an order that dealt with the question of uncertainty in relation to the assessment of damages. Rather than speculate on sums to be paid…
HILLSBOROUGH AND WITNESS STATEMENTS 1: THE INITIAL PROCESS AND SUBSEQUENT AMENDMENTS
Hopefully we will never have another Hillsborough. It is possible (even probable) that there will be circumstances in which lawyers are involved in the large scale collection of evidence. The recent inquest has put the evidence gathering that took…
WHAT IS MEANT BY A "SIGNIFICANT DEVELOPMENT"? AMENDING THE COSTS BUDGET WHEN CLAIM DOUBLES IN SIZE: CLAIMANT GETS THE BOOT
I am grateful to barrister Colm Nugent for his notes of the decision of Mr Justice Picken in Churchill -v- Boot (22/04/2016) in relation to costs budgeting (a summary of this case is also available on Lawtel). KEY POINTS A…
PROVING THINGS 16: IF YOU DON'T PROVE IT YOU DON'T GET IT
In Undre & Down to Earth (London) Limited -v- the London Barrow of Harrow [2016] EWHC 931 a claimant failed, totally, to prove any loss. The judge found that there was a total failure by the claimant to prove…
A BASIC THING THAT ANYONE PREPARING A WITNESS STATEMENT SHOULD KNOW: THE DIFFERENCE BETWEEN FACTS AND OPINION
This blog has often observed that many litigators could make life a lot simpler if lay witnesses statements stopped trying to give expert evidence and expert witnesses stopped trying to determine issues of fact. I am grateful to Jeff…
TAKING TECHNICAL POINTS AS TO SERVICE: JUDICIAL "DISMAY" THAT THE MATTER WAS PURSUED
One of the most difficult decisions that litigators now face is whether to take “technical points”. Technical points, particularly as to service of the claim form, can potentially bring proceedings to a premature end. However there are risks as well…
QOCS AND DISHONESTY: YOU CAN TRY TO CHECK OUT ANY TIME YOU LIKE BUT YOU CAN’T ALWAYS LEAVE
Thanks to Sintons LLP there is now a copy available online of the judgment of HH Judge Gosnell in Rouse -v- Aviva Insurance Limited (15th January 2016). This is another case that relates to discontinuance by the claimant in a…
PROVING THINGS 15: DAMAGES & EVIDENCE: GOING BACK TO COLLEGE
One harsh shock for many litigants occurs when they are asked to prove their damages at trial. We have looked several times when a litigant has come to grief at this stage, largely because there is no evidential support for…
CASE FAILS BECAUSE OF MATTERS NOT PLEADED: ANOTHER LESSON FOR PLEADERS
The decision of His Honour Judge David Grant yesterday in Bridgland -v- Earlsmead Estates Limited [2016] EWHC B9 (TCC) makes salutary reading for anyone who drafts pleadings. If the claimants had pleaded their case differently they may have won. It…
CAR HIRE CHARGES SHOULD STAY IN PROTOCOL: COURT OF APPEAL DECISION TODAY
In Phillips -v- Willis [2016] EWCA Civ 401 the Court of Appeal gave some clear guidance as to the appropriate approach of the courts when the issues relating to damages are “whittled down” by agreement. The normal procedure is for…
THE RISKS OF JOINING A THIRD PARTY INTO AN ACTION: THE DEFENDANT MAY NOT RECOVER THE COSTS
The judgment on costs in Axon -v- Ministry of Defence [2016] EWHC 883 (QB) highlights the risks of a defendant bringing a Third Party into an action. The defendant was successful, however the claimant was not ordered to pay all…
THE LIMITS OF QOCS: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED ON APPEAL. SEE THE POST ON THE APPEAL AVAILABLE HERE In Howe -v- Motor Insurers’ Bureau [2016] 884 (QB) Mr Justice Stewart considered the meaning of an action for “personal injury”. He held that…
A CASE YOU MUST READ IF YOU THINK PLEADINGS ARE NOT IMPORTANT
The opening paragraphs of the Court of Appeal decision today in The Prudential Assurance Company Limited -v- Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 376 should be compulsory reading for anyone who considers that pleadings can be…
ASSESSMENT OF COSTS CAN BE IN PRIVATE: DECHERT DECISION CONFIRMED BY THE COURT OF APPEAL
In Dechert LLP -v- Eurasian Natural Resources Corporation Ltd [2016] EWCA Civ 375 the Court of Appeal upheld a decision that an assessment of costs could be in private.” “The issue is clearly of importance for both parties. On the…
ANOTHER CASE OF TWITTER PROVIDING EVIDENCE: CLAIMANT CAUGHT OFFSIDE
There is a report in the Solicitors Journal of a sentence passed today for contempt of court. It is another example of the evidence coming from twitter and shows the growing importance of social media in many types of litigation….
ANOTHER COMMENT ON BUNDLES: TOO MUCH AND TOO BIG
I do not scour the law reports for complaints about trial bundles, they just keep occurring and I keep commenting. It is a matter that has a surprisingly large readership: the post on how to prepare a trial bundle has…
EXPERT REPORTS IN THE ADMINISTRATIVE COURT: PART 35 APPLIES
In the judgment today in Khaled -v- Secretary of State for the Home Department [2016] EWHC 857 (Admin) Mr Justice Garnham considered Part 35 of the CPR and the admissibility of expert reports in proceedings in the Administrative Court. “The…
£50,000 COSTS INCURRED: £500,000 ALLOWED: HOW DID THAT HAPPEN?
The decision of Mr Justice Spencer in Bolt Burdon Solicitors -v- Tariq [2016] EWHC 811 (QB) is an interesting consideration of non contentious business agreements.” The judge found that an agreement which meant that the solicitors recovered 50% of the damages…
PROVING THINGS 14: PROVING MITIGATION OF LOSS
The previous post in this series looked at the Court of Appeal decision in Bacciottini -v- Gotelee and Goldsmith [2016] EWCA Civ 170 where the court upheld an award of £250 in damages because of issues relating to mitigation of loss….
MORE ABOUT SERVICE OF THE CLAIM FORM: GOOD REASONS, DELAY AND A FAILURE TO PAY THE PROPER COURT FEES
In TMT Asia LImited -v- BHP Billiton Marketing AG [2016] EWHC 287 (Ch) Mr Justice Burton considered several issues relating to late service of the claim form and failure to pay the correct court fee. KEY POINTS The defendant’s application…
"IN TIME" APPLICATION TO EXTEND TIME FOR PEREMPTORY ORDER REFUSED: CLAIM STRUCK OUT
I am grateful to Charles Bagot of Hardwicke Chambers for bringing my attention to the decision in Kranniqi -v- Watford Timber Company Ltd (District Judge Parfitt 13/04/2016). It is a working example of (i)the dangers of failing to comply with…
COSTS SHOULD NOT NORMALLY BE REDUCED WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: COURT OF APPEAL DECISION
|n Webb -v-Liverpool Women’s NHS Foundation Trust [2016]EWCA Civ 365 the Court of Appeal overturned an “issue based” decision on costs in a case where a claimant had beaten there own Part 36 offer. “It is a sad fact that…
DOES COSTS BUDGETING APPLY TO A FATAL ACCIDENT CLAIM WHERE A CHILD IS A DEPENDANT? SOME MORE DETAIL
Over the weekend I heard two speakers on costs budgeting mention my view that costs budgeting may not now apply to fatal accident claims where children are dependants. Given the potential significance of this, it is worth expanding my concerns….
"AMPLIFYING" WITNESS STATEMENTS AT TRIAL: IT IS PROBABLY FAR TOO LATE
Anyone giving a talk, particularly to a group of lawyers, always has a fear that someone will ask the “unanswerable” question. There was a good question today at the PIBA conference after a talk I gave about witness statements. The…
WITNESS STATEMENTS: THE LAWYER'S DUTY NOT TO MISLEAD
There are some important observations by Mr Justice Leggatt in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773 (Admin). The case relates to witness statements and the duty of the lawyer when they know that…
WITNESS STATEMENTS AND CREDIBILITY: LATE CHANGE OF MIND DOESN'T HELP
There are many aspects of the judgment today of Mrs Justice Lang DBE in Sparrow -v- Andre [2016] EWHC 739 (QB) that are of interest. Here I concentrate upon one aspect – witness credibility. “In my view, such a late…
MORE ON BUNDLES: VERY DIFFICULT TO USE
I worry that it is unfair on judges for me to select a small part of a carefully crafted judgment for discussion. However comments on practice and procedure are clearly made, within a judgment, for a reason. So…
LEGAL AID IN CONTEMPT PROCEEDINGS: A HAPPIER ENDING
On the 8th March there was a short post on this blog discussing the judgment in Brown -v- London Borough of Haringey [2015] EWCA Civ 483 about the availability of legal aid in committal proceedings. This included the passage ” The…
LEGAL PROFESSIONAL PRIVILEGE: APPLIES TO LECTURE POWERPOINT NOTES
There is an interesting decision about the scope of legal professional privilege by the First Tier of the General Regulatory Chamber (Information Rights) in the Ministry of Justice -v- The Information Commissioner & Shaw EA/2015/0160. THE CASE The applicant made…
NEW RULES AND PRACTICE DIRECTIONS TOMORROW: THE TRANSITIONAL PROVISIONS
Following the post about the rule changes coming into force tomorrow there was some discussion about the transitional provisions. The confusion comes about partly because the SI introducing them says the same thing in different ways. However further confusion arises…
IN-HOUSE COURSES ON WITNESS STATEMENTS AND CIVIL PROCEDURE
In response to several e-mails over recent months I have prepared two courses, available in-house only: one on drafting witness statements, the other on “avoiding procedural pitfalls”. WITNESS STATEMENTS “Too often (indeed far too often) witnesses who have had statements…
RULE CHANGES COMING INTO FORCE: 48 HOURS TO GO
A short, but timely, reminder that new rules come into force on the 6th April 2016. These include: No costs budgeting where the claim is brought on behalf of a child. Normally no costs budgeting when the claimant has limited…
COSTS BUDGET SERVED LATE: RELIEF FROM SANCTIONS ALLOWED ON APPEAL
In a judgment given today His Honour Judge Peter Gregory allowed an appeal against a decision to confine a claimant’s costs budget to court fees following late service of the costs budget. The case indicates that a more nuanced approach…
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