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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 » July

PROVING THINGS 27: BURDENS OF PROOF, HEARSAY EVIDENCE AND…. ATTEMPTED MURDER

July 31, 2016 · by gexall · in Civil evidence, Uncategorized, Witness statements

In Daley -v- Bakiyev [2016] EWHC 1972 (QB) Mr Justice Supperstone dealt with issues relating to the burden of proof where there very serious allegations.  The fact that a central witness for the claimant did not attend court, and his…

THE ARROYO JUDGMENT 3: WITNESSES AND CREDIBILITY

July 31, 2016 · by gexall · in Civil evidence, Uncategorized, Witness statements

This is the third in the series of posts on the  judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages; the second at the…

THE ARROYO JUDGMENT 2: EXPERTS, OH EXPERTS.

July 28, 2016 · by gexall · in Civil evidence, Credibility of experts, Expert evidence, Experts, Uncategorized

This is the second in the series of posts on the  judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages. Here we look…

THE ARROYO CASE WAS A BIG & COMPLEX ACTION: THE PROBLEMS WERE SIMPLE (AND COMMON) 1: UNCHECKED SCHEDULES OF DAMAGES

July 28, 2016 · by gexall · in Civil evidence, Damages, Uncategorized

The judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC is 1885 paragraphs long.  The trial lasted from the 15th October 2014 to the 5th March 2015, that is 62 court days.  The judgment actually…

INCREASED COURT FEES FROM THE 25th July 2016: AN OVERVIEW & USEFUL LINKS

July 28, 2016 · by gexall · in Costs, Court fees, Uncategorized

There have been requests, via twitter, that I publicise the increase in court fees that came into effect on the 25th July.  These are not universal increases (they do not increase issue fees in Part 7 claims for instance –…

UNNECESSARY MATERIAL, DUPLICATION AND INFORMATION OVERLOAD: ANOTHER JUDGE'S LAMENT

July 28, 2016 · by gexall · in Bundles, Case Management, Civil evidence, Uncategorized, Written advocacy

The observations of Mr Justice Kerr at the end of his judgment in Kimmance -v- General Medical Council [2016] EWHC 1808 (Admin) contains some familiar themes in relation to the preparation of cases: bundles, citations and skeletons. “The parties should…

CLAIMANT ESTOPPED FROM RELYING ON QOCS: THE NEED TO BE ACCURATE

July 27, 2016 · by gexall · in Costs, QOCS, Uncategorized

I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor &  Company Limited (16th June 2016).  This is the second judgment in the…

HAS A PART 36 OFFER BEEN BEATEN WHEN THE VALUE OF CURRENCY CHANGES? A HIGH COURT DECISION

July 27, 2016 · by gexall · in Costs, Part 36, Uncategorized

The judgment of Mr Justice Leggatt today in Novus Aviation Ltd -v- Alubaf Arab International Bank BSC (c) [2016] EWHC 1937 (Comm) contains some interesting observations on Part 36 offers. KEY POINTS A claimant “beat” its own Part 36 offer…

FAILING TO FILE A COST BUDGET AND REFUSAL TO GRANT RELIEF FROM SANCTIONS: A HARSH LESSON

July 26, 2016 · by gexall · in Appeals, Assessment of Costs, Case Management, Clinical Negligence, Costs budgeting, Relief from sanctions, Uncategorized

If a litigation solicitor is ever given the job of designing wallpaper here are the three key things that should form the recurring motif. The costs budget is due 21 days before the first case management conference. Where the claim…

"SECOND" ACTION FOR CLINICAL NEGLIGENCE NOT STRUCK OUT AS AN ABUSE OF PROCESS

July 26, 2016 · by gexall · in Applications, Civil evidence, Civil Procedure, Clinical Negligence, Striking out, Summary judgment, Uncategorized

In the judgment today in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) Mr Justice Edis refused the defendant’s application to strike out the claim or for summary judgment on the grounds that the claimant had settled an…

PAYING THE "CORRECT" COURT FEE AND AMENDMENT: AN IMPORTANT CASE REVIEWING THE PRINCIPLES

July 26, 2016 · by gexall · in Amendment, Applications, Civil Procedure, Court fees, Limitation, Striking out, Uncategorized

This blog has looked several times* at the cases and principles that have followed the decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch).   Applications around allegations of failure to pay the correct court fee have  become a new battleground…

REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER

July 19, 2016 · by gexall · in Civil Procedure, Statements of Case, Uncategorized

Two recent posts* have highlighted the difficulties that can exist with the filing of Replies and Defence to Counterclaim. Here is a short Primer. A REPLY If the Defence does not contain a counterclaim a Reply is not mandatory.  There…

IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY

July 17, 2016 · by gexall · in Amendment, Applications, Case Management, Statements of Case, Uncategorized

A post last month highlighted a case where a defendant obtained judgment in default on a counterclaim. The judge refused to set aside the judgment and, in effect, the claimant’s entire claim failed. There is a clear and obvious need…

PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID

July 17, 2016 · by gexall · in Civil evidence, Clinical Negligence, Professional negligence,, Uncategorized, Witness statements

There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence.  A surprising number of these have been in the context of clinical negligence claims….

ANOTHER CLAIM FORM CASE: WHY IT CAN BE DANGEROUS FOR A DEFENDANT TO TAKE TECHNICAL POINTS

July 15, 2016 · by gexall · in Civil Procedure, Service of the claim form, Serving documents, Uncategorized

The decision of Master Mathews in DB UK Bank Limited -v- Sinclair Solicitors [2015] EWHC B29 (Ch) has today been reported on Bailli.  It is a case that shows the dangers of taking technical points as to service. “if I…

KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION

July 14, 2016 · by gexall · in Applications, Civil evidence, Civil Procedure, Uncategorized

The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…

YOU CAN BE A TOUGH NEGOTIATOR- YOU CAN ALSO FALL FLAT ON YOUR FACE: HIGH COURT CASE EXAMINED

July 14, 2016 · by gexall · in Applications, Assessment of Costs, Conditional Fee Agreements, Costs, Risks of litigation, Uncategorized

The law of privilege prevents a close study of the negotiation process in most cases. That is why everyone involved in litigation could benefit from reading the judgment today of Mrs Justice Slade in FPH Law -v- Brown [2016] EWHC…

PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)

July 13, 2016 · by gexall · in Case Management, Civil evidence, Uncategorized, Witness statements

 There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…

COSTS BUDGETING – THE KEY DATES: A QUICK REMINDER TO AVOID A SHARP (BUT NOT NECESSARILY SHORT) SHOCK

July 10, 2016 · by gexall · in Assessment of Costs, Costs, Costs budgeting, Court fees, Relief from sanctions, Sanctions, Uncategorized

You would think that everyone involved in litigation would know that new rules as to cost budgeting came into force on the 6th April 2016. However, judging from some of the blank (and worried) looks I have seen recently when…

WANT TO WORK HARD, WIN AND STILL NOT GET PAID? WHEN THE CFAS DID NOT COVER THE COSTS: BAD NEWS FOR SOLICITORS AND COUNSEL

July 8, 2016 · by gexall · in Appeals, Applications, Assessment of Costs, Conditional Fee Agreements, Costs, Uncategorized

The judgment today of Mr Justice Warby in Radford -v- Frade [2016] EWHC 1600 (QB) contains an important warning in relation to the construction of CFAs both for solicitors and counsel. KEY POINTS A solicitor entered into a CFA with…

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