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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 » 2017 » February
EXTENSIONS OF TIME UNDER THE HUMAN RIGHTS ACT:  LATE APPLICATION REFUSED

EXTENSIONS OF TIME UNDER THE HUMAN RIGHTS ACT: LATE APPLICATION REFUSED

February 28, 2017 · by gexall · in Limitation

In MLIA -v- The Chief Constable of Hampshire Police [2017] EWHC 292 (QB) Mr Justice Lavender refused the claimants’ applications for an extension of time to bring their actions under the Human Rights Act. THE CASE The claimants brought an…

MICROSOFT, SERVICE AND FULL AND FRANK DISCLOSURE: HIGH COURT JUDGE SAYS "NO"

MICROSOFT, SERVICE AND FULL AND FRANK DISCLOSURE: HIGH COURT JUDGE SAYS “NO”

February 28, 2017 · by gexall · in Applications, Civil Procedure, Service of the claim form

One feature of this blog  for this year has been the duty owed by litigants making without notice applications.  Another example of the problems caused can be seen in the judgment on Mr Justice Marcus Smith in Microsoft Mobile OY…

CHANGES TO THE DISCOUNT RATE: WITHDRAWING PART 36 OFFERS:  IMPORTANT FOR CLAIMANTS AND DEFENDANTS

CHANGES TO THE DISCOUNT RATE: WITHDRAWING PART 36 OFFERS: IMPORTANT FOR CLAIMANTS AND DEFENDANTS

February 28, 2017 · by gexall · in Civil evidence, Damages, Part 36

I wrote yesterday of the practical steps that need to be taken by both parties as a result of the changes to the discount rate (that post is on the Zenith PI Blog and is available here). One point that…

PREVENTING DEFENDANT FROM DEFENDING DAMAGES IS AN APPROPRIATE MEANS OF ENFORCING PEREMPTORY ORDERS: COURT OF APPEAL DECISION

PREVENTING DEFENDANT FROM DEFENDING DAMAGES IS AN APPROPRIATE MEANS OF ENFORCING PEREMPTORY ORDERS: COURT OF APPEAL DECISION

February 27, 2017 · by gexall · in Appeals, Damages, Peremptory orders

 Workman -v- Forrester [2017] EWCA Civ 73 is an important example of the courts using peremptory orders in an attempt to secure compliance.  The Court of Appeal upheld a decision to make a peremptory order that allowed the claimants to…

EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY

EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY

February 26, 2017 · by gexall · in Adjournments, Civil evidence, Injunctions, Witness statements

It is unusual to call evidence in Part 8 applications. This is made clear in the judgment of HH Walden-Smith in Wokingham Borough Council -v- Scott [2017] EWHC 294 (QB).  A party failed to make an application to call oral…

EVIDENCE IN HOLIDAY ILLNESS CLAIMS: COURSE IN LIVERPOOL: 13th MARCH 2017: 2 – 4.30

February 26, 2017 · by gexall · in Civil evidence, Witness statements

I am presenting a course on behalf of Diversify Law Limited on “Evidence in Holiday Illness Claims”,  in Liverpool on the 13th March 2017 2 – 4.30. VENUE (CLOSE TO THE CAVERN) It is at the “Hard Days Night” Hotel….

PROVING THINGS 54: GETTING £2 IN DAMAGES AFTER CLAIMING £15 MILLION: A MARATHON EFFORT WITH NO JACKPOT

PROVING THINGS 54: GETTING £2 IN DAMAGES AFTER CLAIMING £15 MILLION: A MARATHON EFFORT WITH NO JACKPOT

February 24, 2017 · by gexall · in Civil evidence, Damages

The judgment of Mr Justice Leggatt in Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) has already attracted some publicity. It involved an award for £2 in nominal damages after the claimants had sought £15 million. It is…

MERRIX ON APPEAL TO THE HIGH COURT JUDGE: COSTS BUDGETING IS AS DEFINITIVE FOR PAYING PARTY AS IT IS FOR RECEIVING PARTY: JUDGMENT TODAY

MERRIX ON APPEAL TO THE HIGH COURT JUDGE: COSTS BUDGETING IS AS DEFINITIVE FOR PAYING PARTY AS IT IS FOR RECEIVING PARTY: JUDGMENT TODAY

February 24, 2017 · by gexall · in Appeals, Costs, Costs budgeting

In the judgment today in Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) Mrs Justice Carr allowed an appeal about the significance of costs budgeting when it comes to assessment. “In my judgment, the answer to…

DISCLOSURE, CASE MANAGEMENT,  THE COLLATERAL USE OF DOCUMENTS AND  PROPORTIONALITY

DISCLOSURE, CASE MANAGEMENT, THE COLLATERAL USE OF DOCUMENTS AND PROPORTIONALITY

February 24, 2017 · by gexall · in Civil Procedure, Disclosure

There are some passages in the judgment of Mr Justice Knowles in Tchenguiz -v- Grant Thornton UK LLP [2017] EWHC 310 (Comm) which highlight, succinctly, the nature of disclosure and the scope of “collateral use protection” in relation to documents…

WITNESS STATEMENTS IN CLINICAL NEGLIGENCE CASES:  IDENTICAL WITNESS STATEMENTS DID NOT DAMAGE CREDIBILITY (THIS TIME)

WITNESS STATEMENTS IN CLINICAL NEGLIGENCE CASES: IDENTICAL WITNESS STATEMENTS DID NOT DAMAGE CREDIBILITY (THIS TIME)

February 23, 2017 · by gexall · in Clinical Negligence, Witness statements

I spent a day this week giving a seminar to a specialist group of clinical negligence lawyers on the importance of witness statements.  I mention this because, as always happens, there is a clear example of this in the judgment…

REFORMS TO SOFT TISSUE PROCESS: LINKS TO OFFICIAL PAPERS AND COMMENTARY (FROM CLAIMANTS AND INSURERS)

February 23, 2017 · by gexall · in Damages, Rule Changes

The proposed reforms were set out in detail for the first time today.  Here are links to the relevant documents and some of the commentary: Official publications The 49 page paper from the government is here  The summary is here …

LEGAL COMPANY ENTITLED TO CHARGE FOR ITS TIME: SHACKLETON EXPLORES NEW GROUND

LEGAL COMPANY ENTITLED TO CHARGE FOR ITS TIME: SHACKLETON EXPLORES NEW GROUND

February 23, 2017 · by gexall · in Assessment of Costs, Costs

In Shackleton -v-Al Shamsi [2017] EWHC 304 (Comm) Mr Justice Teare considered the question of whether a company providing legal services  which was the claimant in the action could recover costs for the time of its “proprietor”  spent in bringing…

ALL THE WITNESSES SAY EXACTLY THE SAME THING 10 YEARS AFTER THE EVENT: DIFFICULT TO BELIEVE (AND NOT BELIEVED)

ALL THE WITNESSES SAY EXACTLY THE SAME THING 10 YEARS AFTER THE EVENT: DIFFICULT TO BELIEVE (AND NOT BELIEVED)

February 23, 2017 · by gexall · in Civil evidence, Witness statements

In Patel -v- Patel [2017] Andrew Simmonds QC (sitting as a judge of the High Court) was considering the credibility of witnesses.  The case is an interesting read in that it sets out detail of some of the cross-examination.  It…

SEXUAL ABUSE AND SECTION 33 OF THE LIMITATION ACT: COURT OF APPEAL OVERTURNS JUDGE’S ORDER

February 22, 2017 · by gexall · in Appeals, Limitation

In Archbishop Michael George Bowen -v- JL [2017] EWCA Civ 82 the Court of Appeal overturned a judge’s decision under section 33 of the Limitation Act 1980.  The judge had exercised the discretion in favour of the claimant. On appeal…

PROPORTIONALITY, ASSESSMENT AND PREMIUMS: THE NEED FOR CAREFUL CASE PLANNING: £72,320 REDUCED TO £24,604

February 20, 2017 · by gexall · in Assessment of Costs, Costs, Proportionality

In Rezek-Clarke -v- Moorfields Eye Hospital NHS Foundation Trust [2017] EWHC B5 (Costs) Master Simons upheld a decision to assess costs, claimed at £72,320.85 to £24,604.40.  The judgment emphasises the need for careful case planning, and consideration of proportionality, in…

AN ORDER UNDER THE ARBITRATION ACT IS NOT AN ORDER UNDER CPR 3.1(7)

February 20, 2017 · by gexall · in Applications, Civil Procedure

The judgment  of Popplewell J in H -v- L [2017] EWHC 137 (Comm) relates to an application to remove an arbitrator.   Most of the judgment considers the principles relating to the independence of arbitrators.  The judge also considered points…

PROVING THINGS 53: BECAUSE A SOLICITOR WAS DISHONEST SOME OF THE TIME IT DOESN’T MEAN THEY WERE DISHONEST ALL OF THE TIME

February 17, 2017 · by gexall · in Civil evidence, Damages, Witness statements

The case of Pemberton Greenish LLP -v- Henry [2017] EWHC 246 (QB) provides an interesting assessment of witness evidence and demonstrates the difficulty in proving dishonesty. Mr Justice Jeremy Baker held that the fact that a solicitor was negligent, breached…

BABIES, BUNDLES, HUMAN RIGHTS, PROPORTIONALITY, CONDUCT AND COSTS:ALL IN ONE JUDGMENT

February 17, 2017 · by gexall · in Assessment of Costs, Bundles, Conduct, Costs, Damages, Proportionality

The judgment of Mr Justice Cobb in AZ -v- Kirklees Council [2017] EWFC 11 contains much of interest to the legal profession generally.  It shows the danger of failing to comply with court directions; make or respond to appropriate offers…

ANODYNE WITNESS STATEMENTS: WHAT DOES IT TELL YOU WHEN A JUDGE PREFERS THE ORAL EVIDENCE OF A WITNESS- THAT CONTRADICTS THEIR WITNESS STATEMENT

February 16, 2017 · by gexall · in Civil evidence, Witness statements

There is an interesting observation in the judgment of Mrs Justice Rose in Singularis Holdings Ltd -v- Daiwa Capital Markets Europe Ltd [2017] EWHC 257 (Ch).  It may well show much about the way in which witness statements are prepared. “……

EXPERTS AND THE OVERRIDING OBJECTIVE: DEFENDANT ALLOWED TO RELY ON EXPERT ALSO USED BY CLAIMANT

February 15, 2017 · by gexall · in Civil evidence, Expert evidence, Experts

In Wheeldon Brothers Waste Limited -v- Millennium  Insurance Company Limited [2017] EWHC 218 (TCC) Mr Justice Coulson allowed the defendant to rely on an expert that had also been instructed by the claimant. The circumstances are unusual and the case needs…

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