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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 » August
FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS

FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS

August 30, 2016 · by gexall · in Avoiding negligence claims, Civil evidence, Professional negligence,, Uncategorized, Witness statements

A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…

OBTAIN AN INJUNCTION: PAY TENS OF MILLIONS IN COMPENSATION: ANOTHER WARNING LESSON

August 29, 2016 · by gexall · in Applications, Conduct, Injunctions, Uncategorized

This blog has looked several times at the dangers of obtaining injunctions. A particular danger is the undertaking in damages that has to be given when obtaining an injunction to freeze assets.  The judgment of Mr Justice Males in Fiona…

NON-SOLICITOR LITIGATION ENTITIES AND WASTED COSTS: WANT TO BE £102,000 OUT OF POCKET?

August 29, 2016 · by gexall · in Costs, Uncategorized, Wasted Costs, Witness statements

An earlier post looked at the issues relating to litigation being conducted by an non-authorised entity.  In M A Lloyd & Son Ltd -v- PPC International Limited [2016] EWHC 2162 (QB) issues of wasted costs arose in relation to a…

STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE

August 24, 2016 · by gexall · in Applications, Civil evidence, Uncategorized, Witness statements

There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…

A BLUEPRINT FOR TROUBLE? A CAUTIONARY TALE FOR ANYONE CONSIDERING "ALTERNATIVES" TO SOLICITORS IN LITIGATION

August 24, 2016 · by gexall · in Civil Procedure, Costs, Uncategorized

The judgment of Master Matthews in Lyons -v-Kerr-Robinson [2016] EWHC 2137 (Ch) contains a cautionary tale for anyone proposing to use an alternative to solicitors to conduct their litigation.  The defendant in this case used licensed conveyancers. Their charges were…

THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED

August 24, 2016 · by gexall · in Appeals, Applications, Uncategorized

The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change.  There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court. Coincidentally…

ANOTHER ROUND IN THE CFA ASSIGNMENT BATTLE: CFA CAN BE ASSIGNED

August 23, 2016 · by gexall · in Applications, Conditional Fee Agreements, Uncategorized

In Azim -v- Tradwise Insurance Services Limited [2016] EWHC B20 (Costs) Master Leonard found that a conditional fee agreement could properly be assigned. KEY POINTS An assignment of a CFA between solicitors was valid. The validity of an assignment did…

AN EXPERT DISPLAYING ZEALOTRY IS NO HELP AT ALL (AND USUALLY HARMFUL)

August 23, 2016 · by gexall · in Civil evidence, Expert evidence, Experts, Uncategorized, Witness statements

In the Matter of F (a Minor)  EWHC 2149 (Fam)Mr Justice Hayden had to consider whether an expert report should be admitted in a family case.  The comments on the expert evidence are of general relevance. “The overall impression is…

PAYING THE CORRECT COURT FEE: ACTION STAYED: SANITY IS BREAKING OUT

August 23, 2016 · by gexall · in Applications, Costs, Court fees, Uncategorized

There are several interesting issues arising out of the judgment of Master Clark in Lifestyles Equities C.V. -v- Sportsdirect.Com Retail Limited [2016] EWHC 2092.   In particular the fact that the decision in Richard Lewis & Others -v- Ward Hadaway [2015]…

COSTS BUDGETING IS APPROPRIATE AND NECESSARY IN A HIGH VALUE CASE : BUT IT WAS NOT APPROPRIATE TO ORDER A SPLIT TRIAL

August 22, 2016 · by gexall · in Assessment of Costs, Costs, Costs budgeting, Proportionality, Uncategorized

In Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) Chief Master Marsh considered two issues relating to case management: whether costs budgeting should apply and whether a split trial was appropriate. KEY POINTS Costs budgeting A…

REVISITING WHITEHOUSE -v- JORDAN 2: ON THE LAWYERS DRAFTING THE EXPERTS' REPORTS

August 19, 2016 · by gexall · in Appeals, Clinical Negligence, Expert evidence, Uncategorized

The first post in this series on the judgments in Whitehouse -v- Jordan in the Court of Appeal and House of Lords  looked at the point that, at the appeal stage, the courts were only concerned with whether they could…

WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 3: A NUANCED APPROACH

August 19, 2016 · by gexall · in Case Management, Civil evidence, Civil Procedure, Damages, Default judgment,, Uncategorized

We have looked several times before at the question of what a defendant can argue in relation to damages after judgment has been entered*.  The recent decision of Master Matthews in Merito Financial Services Limited -v- David Yelloly [2016] EWHC…

RE-VISITING WHITEHOUSE -v- JORDAN 1: THESE APPEALS WERE NOT ABOUT CLINICAL NEGLIGENCE AT ALL: IT’S ALL ABOUT THE FACTS

August 9, 2016 · by gexall · in Civil evidence, Clinical Negligence, Witness statements

The decisions of the Court of Appeal and House of Lords in Whitehouse -v- Jordan are often put forward as seminal cases in the law of clinical negligence.  However these appeals, in reality, were not about issues relating to clinical…

ADVOCACY - THE JUDGE'S VIEW V: TO PERSUADE A JUDGE THINK LIKE A JUDGE

ADVOCACY – THE JUDGE’S VIEW V: TO PERSUADE A JUDGE THINK LIKE A JUDGE

August 7, 2016 · by gexall · in Appeals, Uncategorized, Useful links, Written advocacy

This series looks at the views from judges around the world and the advice they give to advocates.  Here we look at the article from J. Frederic Voros, jr for the Utah State Bar: To Persuade a Judge, Think Like…

APPLICATION TO DISCLOSE THIRD PARTY FUNDER REFUSED

August 7, 2016 · by gexall · in Assessment of Costs, Costs, Third party funding, Uncategorized, Useful links

The opening passages of the judgment of H.H. Judge Keyser Q.C. in Dawnus Sierra Leone Limited -v- Timis Mining Corporation Limited [2016] EWHC B19 (TCC) deal with the issue of disclosure of details of third party funding. KEY POINTS A…

TOO LATE AND TOO LONG: OCEANS APART BUT TWO JUDGES HAVE THE SAME VIEW ON LAWYERS' LATE & LENGTHY SUBMISSIONS

August 5, 2016 · by gexall · in Applications, Uncategorized, Written advocacy

Some parts of the legal profession do not have a reputation for concision. It is interesting to see similar observations coming from two judges, in two very different jurisdictions, on the same day. “Sly lawyers take advantage of this institutional…

BILLING YOUR OWN CLIENT: FIVE IMPORTANT LESSONS FROM THE HIGH COURT

August 5, 2016 · by gexall · in Applications, Assessment of Costs, Costs, Uncategorized, Witness statements

There are number of important lessons to be drawn from the judgment yesterday of Master Gordon-Saker in Rahimian -v- Allan Janes LLP [2016] EWHC B18 (Costs). THE CASE The claimant sought an order that the defendant firm of solicitors deliver…

DELAY AND SETTING ASIDE DEFAULT JUDGMENT: BALD ASSERTIONS IN AN EXPERT'S REPORT

August 4, 2016 · by gexall · in Applications, Expert evidence, Relief from sanctions, Setting aside judgment, Uncategorized

The result in Gahir -v- Bansal [2016] EWHC 2041 (QB) (Sir David Eady) is perhaps surprising given the strength of the judge’s observations as to the defendant’s conduct. Despite major unjustified delay an application to set aside a default judgment…

CONSENT ORDERS, CONFIDENTIALITY AGREEMENTS, IMPLIED TERMS AND (LET'S BE HONEST) A PRETTY DETERMINED EFFORT TO AVOID PAYMENT

August 2, 2016 · by gexall · in Applications, Civil Procedure, Uncategorized

I am grateful to Tobias Haynes from Waterside Legal LLP  for sending me a copy of the judgment of His Honour Judge Cooke in Hartland -v- Buccament Bay Resort Ltd (7th July 2016) a copy of which is attached to…

ATTRITIONAL WARFARE; UNMERITORIOUS POINTS AND UNFOUNDED ALLEGATIONS OF BAD FAITH: SO MUCH (AND MORE) IN ONE JUDGMENT

August 2, 2016 · by gexall · in Applications, Assessment of Costs, Conduct, Damages, Default judgment,, Expert evidence, Experts, Uncategorized

The judgment today of Mr Justice Edis in  Hayden -v- Maidstone & Tunbridge Wells NHS Trust makes for uncomfortable reading on the issue of the general attitude of the lawyers towards the conduct of the litigation.   In addition to…

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