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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
Browse: Home » 2017 » March
WHEN THE EVIDENCE OF THE "INDEPENDENT" WITNESS IS NOT ACCEPTED: WHEN WE WILL EVER LEARN?

WHEN THE EVIDENCE OF THE “INDEPENDENT” WITNESS IS NOT ACCEPTED: WHEN WE WILL EVER LEARN?

March 30, 2017 · by gexall · in Appeals, Civil evidence, Witness statements

In a case where there are disputed facts a party that has an independent witness usually holds a strong hand.  However in Elson -v- Stilgoe [2017] EWCA Civ 193 today the Court of Appeal upheld a decision where the trial…

PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT "USURP THE FUNCTION OF THE COURT"

PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT”

March 30, 2017 · by gexall · in Applications, Expert evidence, Statements of Case

There is an interesting discussion of the purpose of pleadings and expert evidence in the judgment of  HH Parkes QC in PP -v- The Home Office [2017] EWHC 663 (QB). The fact that an expert report is referred to in…

LIMITING CLAIM TO £10,000 DID NOT PREVENT COURT AWARDING £140,000: CPR 16.3(7) IN USE

LIMITING CLAIM TO £10,000 DID NOT PREVENT COURT AWARDING £140,000: CPR 16.3(7) IN USE

March 30, 2017 · by gexall · in Civil Procedure, Court fees, Damages

In the judgment today in Harrath -v- Stand for Peace Ltd [2017] EWHC 653 (QB) Sir David Eady awarded £140,000 in a case where the claim form limited the claim to £10,000.  This is an interesting development in an environment where…

WHEN PUBLIC OFFICIALS MAKE WITNESS STATEMENTS: FAREPAK REVISITED

WHEN PUBLIC OFFICIALS MAKE WITNESS STATEMENTS: FAREPAK REVISITED

March 30, 2017 · by gexall · in Civil evidence, Witness statements

There was a  post earlier this week where a public official faced contempt of court proceedings that was “false and tended to mislead”, and was acquitted because the statement was “careless” rather than criminal.  This provides a good opportunity to…

INTERIM PAYMENTS ON ACCOUNT OF COSTS:  READ (AND CITE) THE CORRECT CHAPTER OF COOK ON COSTS

INTERIM PAYMENTS ON ACCOUNT OF COSTS: READ (AND CITE) THE CORRECT CHAPTER OF COOK ON COSTS

March 28, 2017 · by gexall · in Appeals, Costs, Interim Payments

 I am grateful to John McQuater for sending me a copy of an order from HH Judge Robinson,  It relates to an application on account of costs.  The appeal was (for obvious reasons) compromised. However the robust terms of the…

A JUDGE CANNOT GIVE PERMISSION TO APPEAL AFTER THE HEARING: MONROE -v- HOPKINS - SECOND ROUND

A JUDGE CANNOT GIVE PERMISSION TO APPEAL AFTER THE HEARING: MONROE -v- HOPKINS – SECOND ROUND

March 28, 2017 · by gexall · in Adjournments, Appeals

The case of Monroe -v- Hopkins [2017] EWHC 645 (QB) is the second judgment on the case. The judgment today related solely to the defendant’s application for permission to appeal. The judge ruled that he did not have jurisdiction to…

WHEN A PUBLIC OFFICIAL SIGNS A "CARELESS" WITNESS STATEMENT THAT WAS "FALSE AND TENDED TO MISLEAD": NOT IMPRESSIVE TO SAY THE LEAST

WHEN A PUBLIC OFFICIAL SIGNS A “CARELESS” WITNESS STATEMENT THAT WAS “FALSE AND TENDED TO MISLEAD”: NOT IMPRESSIVE TO SAY THE LEAST

March 28, 2017 · by gexall · in Civil evidence, Conduct, Witness statements

There are many cases that show a surprisingly insouciant approach to accuracy by those who draft, and those who sign, witness statements.  This  insouciance  is even more surprising when the person who has signed the statement is a public official,…

INTEREST ON DAMAGES AFTER FAILING TO BEAT A CLAIMANT'S PART 36 OFFER: THE AIM IS TO ENCOURAGE GOOD PRACTICE AND NOT SIMPLY TO COMPENSATE

INTEREST ON DAMAGES AFTER FAILING TO BEAT A CLAIMANT’S PART 36 OFFER: THE AIM IS TO ENCOURAGE GOOD PRACTICE AND NOT SIMPLY TO COMPENSATE

March 28, 2017 · by gexall · in Appeals, Costs, Damages, Part 36

In Ovm Petrom SA -v- Glencore International SA [2017] EWCA Civ 195 the Court of Appeal overturned a decision not to award 10% interest on damages in a case where a defendant failed to beat a claimant’s Part 36 offer….

"SOLICITOR FORCING ME TO SIGN AN INCORRECT WITNESS STATEMENT":  A VERY FRIGHTENING SEARCH TERM

“SOLICITOR FORCING ME TO SIGN AN INCORRECT WITNESS STATEMENT”: A VERY FRIGHTENING SEARCH TERM

March 27, 2017 · by gexall · in Civil evidence, Conduct, Witness statements

It is possible to see some of the search terms that lead people to this blog (I should stress that there are no details of who made the search). One of the search terms yesterday was “solicitor forcing me to…

PROVING THINGS 59: TO GET SPECIAL  DAMAGES YOU HAVE TO PLEAD THEM AND PROVE THEM (EVEN IN DEFAMATION CASES)

PROVING THINGS 59: TO GET SPECIAL DAMAGES YOU HAVE TO PLEAD THEM AND PROVE THEM (EVEN IN DEFAMATION CASES)

March 27, 2017 · by gexall · in Civil evidence, Damages, Statements of Case, Witness statements

In Lisle-Mainwaring -v- Associated Newspapers Ltd [2017] EWHC 543 (QB) Judge Parkes QC (sitting as a Deputy Judge of the High Court) declined to award the claimant special damages for financial outlay on the grounds that they were never properly…

RELIEF FROM SANCTIONS GRANTED AFTER SECRETARY OF STATE RELIED UPON AN OUTDATED REFERENCE IN THE WHITE BOOK

RELIEF FROM SANCTIONS GRANTED AFTER SECRETARY OF STATE RELIED UPON AN OUTDATED REFERENCE IN THE WHITE BOOK

March 26, 2017 · by gexall · in Appeals, Extensions of time, Relief from sanctions

In AM (Pakistan) -v- Secretary of State for the Home Department [2017] EWCA Civ 180 the Court of Appeal granted relief after an appeal was filed late.  The appellant had relied upon an out of date commentary in the white…

PROVING THINGS 58 : FAILURE TO PROVE CAUSATION LEADS TO AWARD OF NOMINAL DAMAGES

PROVING THINGS 58 : FAILURE TO PROVE CAUSATION LEADS TO AWARD OF NOMINAL DAMAGES

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

For the third time in recent weeks I write about a case where a claimant has spent much time, energy (and no doubt money) in bringing an action but only recovered nominal damages. In Plantation Holdings (FZ) LLC -v- Dubai…

NO ISSUE BASED COSTS ORDER WHEN UNSUCCESSFUL CLAIMANT HAD TURNED DOWN A PART 36 OFFER OF £500,000

NO ISSUE BASED COSTS ORDER WHEN UNSUCCESSFUL CLAIMANT HAD TURNED DOWN A PART 36 OFFER OF £500,000

March 23, 2017 · by gexall · in Assessment of Costs, Conduct, Costs, Part 36

In Lyons -v- Fox Williams LLP  [2017] EWHC 532 (QB) Mr Justice Turner considered issues relating to costs after a claimant had been unsuccessful in a claim for professional negligence. THE CASE The claimant had been unsuccessful in a claim…

ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS

ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS

March 22, 2017 · by gexall · in Adjournments, Appeals, Applications, Case Management, Relief from sanctions

In Dove -v- London Borough of Havering [2017] EWCA Civ 156 the Court of Appeal considered a number of procedural issues prior to giving judgment on the substantive point.  The defendants argued that they should have been granted an adjournment of…

APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB

APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB

March 21, 2017 · by gexall · in Appeals, Civil evidence, Witness statements

In Whyatt -v- Powell & the Motor Insurers Bureau [2017] EWHC 484 (QB) Mr Justice Lewis overturned the findings of the trial judge that three claimants had knowledge that a driver was not insured.  The judgment considers what inferences a…

WITHDRAWAL OF PART 36 OFFER BY EMAIL: CPR 3.10 SAVES THE CLAIMANT

WITHDRAWAL OF PART 36 OFFER BY EMAIL: CPR 3.10 SAVES THE CLAIMANT

March 21, 2017 · by gexall · in Applications, Case Management, Part 36

The change in the discount rate meant that many claimants withdraw Part 36 offers they had made.  This has led to the question – is an email withdrawing an offer sufficient.  I am grateful to Dominic Graham  from Holmes &…

AN INVITATION: LORD DYSON, LEEDS, 23rd MARCH 2017: “50 YEARS OF CHANGE IN THE LAW: EVOLUTION OR REVOLUTION”

March 21, 2017 · by gexall · in Education, Useful links

Lord Dyson, the former Master of the Rolls, is giving the annual Munkman lecture this Thursday the 23rd March in central Leeds. There are still some places available.   As always with a Munkman  Lecture Zenith Chambers invites all practitioners,…

PROVING SERVICE BY FAX: OPERATOR OF A FAX MACHINE IS A "RESPONSIBLE PERSON"

PROVING SERVICE BY FAX: OPERATOR OF A FAX MACHINE IS A “RESPONSIBLE PERSON”

March 20, 2017 · by gexall · in Serving documents

In  a judgment today in  LBI EHF -v- RAIFFEISEN ZENTRALBANK ÖSTERREICH AG [2017] EWHC 522 (Comm) Mr Justice Knowles CBE had to consider whether the fact that a party could not find a fax meant that it had not been served. This involved…

JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED

JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED

March 20, 2017 · by gexall · in Applications, Civil Procedure, Setting aside judgment

In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without…

"AGREED" COSTS BUDGETS NOT APPROVED BY THE COURT : THAT QC IS JUST TOO EXPENSIVE - THINK AGAIN

“AGREED” COSTS BUDGETS NOT APPROVED BY THE COURT : THAT QC IS JUST TOO EXPENSIVE – THINK AGAIN

March 18, 2017 · by gexall · in Assessment of Costs, Costs, Costs budgeting

In Brown -v- BCA Trading Limited [2016] EWHC 1464 (Ch) Mr Registrar Jones refused to approve “agreed” budgets. He held that the fees of leading counsel were too high and needed to be reconsidered. This shows that an agreement between…

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