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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 » 2016 » April

COSTS: NOT EVERY DEFENDANT NEEDED REPRESENTATION ON APPEAL

April 29, 2016 · by gexall · in Costs, Uncategorized

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

April 29, 2016 · by gexall · in Appeals, Applications, Setting aside judgment, Uncategorized

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

April 28, 2016 · by gexall · in Appeals, Civil evidence, Uncategorized, Witness statements

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

April 28, 2016 · by gexall · in Applications, Case Management, Damages, Uncategorized

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

April 27, 2016 · by gexall · in Civil evidence, Uncategorized, Witness statements

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

April 27, 2016 · by gexall · in Appeals, Case Management, Costs, Costs budgeting, Uncategorized

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

April 27, 2016 · by gexall · in Civil evidence, Damages, Uncategorized

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

April 27, 2016 · by gexall · in Case Management, Civil evidence, Uncategorized, Witness statements

  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

April 25, 2016 · by gexall · in Relief from sanctions, Service of the claim form, Serving documents, Uncategorized

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

April 24, 2016 · by gexall · in Appeals, Applications, Costs, QOCS, Uncategorized

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

April 23, 2016 · by gexall · in Civil evidence, Credibility of experts, Damages, Expert evidence, Experts, Uncategorized

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

April 22, 2016 · by gexall · in Amendment, Applications, Statements of Case, Uncategorized

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

April 21, 2016 · by gexall · in Appeals, Applications, Civil Procedure, RTA Protocol, Uncategorized

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

April 20, 2016 · by gexall · in Applications, Assessment of Costs, Costs, Interim Payments, Uncategorized, Witness statements

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

April 20, 2016 · by gexall · in Costs, QOCS

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

April 19, 2016 · by gexall · in Appeals, Statements of Case, Uncategorized, Written advocacy

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

April 19, 2016 · by gexall · in Applications, Assessment of Costs, Uncategorized

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

April 18, 2016 · by gexall · in Civil evidence, Civil Procedure, Uncategorized, Witness statements

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

April 18, 2016 · by gexall · in Applications, Bundles, Uncategorized, Written advocacy

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

April 18, 2016 · by gexall · in Case Management, Conduct, Expert evidence, Experts, Uncategorized

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…

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