DEFENDANT ORDERED TO PAY AFTER THE EVENT PREMIUM OF £533,017.13 : EYE-WATERING DECISION FOR INSURERS
In Percy v Anderson-Young [2017] EWHC 2712 (QB) Mr Justice Martin Spencer held that an after the event premium of £533,107.13 was recoverable. There was no sympathy for the defendant. “… in my judgment, any sympathy for the Defendant here…
LEGAL QUACKERY & AN “OVERWHELMING MIASMA OF FAKE LAW” : OBSTRUCTING JUSTICE AND OBSTRUCTING THE COURT SYSTEM
I usually confine this blog to cases relating to the law in England and Wales. However the judgment of Noonan J in Bank of Ireland Mortgage Bank -v- Martin & anor [2017] IEHC 707 was brought to my attention by an…
CLINICAL NEGLIGENCE: RECOVERABILITY OF PREMIUMS & PROPORTIONALITY: COURT OF APPEAL DECISION TODAY
In Peterborough & Stamford Hospitals NHS Trust v McMenemy & Ors [2017] EWCA Civ 1941 the Court of Appeal considered the position in relation to the payment of insurance premiums in clinical negligence cases. The Court decided that it is appropriate…
RELIEF FROM SANCTIONS NOT NEEDED: A DECISION “POUR ENCOURAGER LES AUTRES”: A SOLICITOR CAN RELY ON A LETTER FROM THE COURT
In his judgment today in Freeborn & Anor v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 (TCC) Mr Justice Coulson had some telling observations on whether a party needed relief from sanctions and whether relief should be granted. He held…
CLAIMANT BEATS HIS OWN PART 36 OFFER: INTERESTS, COSTS AND HOW THE ADDITIONAL 10% IS CALCULATED
In Mohammed v The Home Office [2017] EWHC 3051 (QB) Mr Edward Peperall QC (sitting as a Deputy High Court Judge) considered the appropriate award for interest and additional damages when a claimant had beaten their own Part 36 offer. …
PROPOSED NEW RULES FOR DISCLOSURE: LINKS AND COMMENTARY
There is a consultation process going on at present in relation to disclosure. THE PROBLEM The issues of concern are summarised in the Briefing Note “(i) Since the CPR came into force 18 years ago the volume of data that…
FABRICATING DOCUMENTS AND MISLEADING THE JUDGES: WHEN KEY DOCUMENTS ARE HIDDEN BEHIND THE CURTAINS IN COURT
The judgment of Mr Justice Henry Carr in Ghassemian v Chatsworth Court Freehold Company Ltd & Ors [2016] EWHC 872 (Ch) illustrates the lengths to which some litigants will go. The judge found that the applicant had forged documents, backdated applications…
LEGAL AWARDS: HOW TO COME SECOND: A PRACTITIONER’S GUIDE: 10 KEY POINTS
If you play the mandolin then, by law, you have to learn a tune known as ’O sole mio. This is a tune made famous, to a certain generation, as “Just one Cornetto”. It was even a hit for Elvis Presley,…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 5: REMEMBER JUDGES MAY BE TALKING ABOUT YOU: ADVICE FROM THE STREETS OF SAN FRANCISCO
Here we look at an interview with San Francisco Superior Court Judge, Curtis Karnow. The interview was about a book the judge had written “Litigation in Practice”, which is available in the UK. The original interview by is Ros Todd….
HOW MANY LITIGANTS HAVE REGRETTED STARTING THE CASE? POISE AND POLISH IS NEVER ENOUGH IN A COURT ROOM
This one paragraph from a judgement yesterday gives pause for thought. “The Claimant observed somewhat wistfully towards the conclusion of the trial that had he anticipated what was entailed, he would not have brought this claim in the first place….
AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
I WANT AN ADJOURNMENT BECAUSE I’M ILL: AN APPLICATION NOT GUARANTEED BE SUCCESSFUL
The issue of adjournments because of ill-health is one of the most common search terms that leads to this blog. (I am not certain whether to be surprised at this or not). For those searching today the relevant principles are…
SIXTY YEARS OF MUNKMAN ON DAMAGES: A PICTORIAL HISTORY
It is now sixty years since the first edition of Munkman on Damages was published, it is now in its 13th edition. Looking at how it has changed over the years says a lot about how the law has developed…
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
PROVING THINGS 76: A RECAP – I DIDN’T EXPECT TO GET THIS FAR…
Today saw the 75th in the series “proving things”. I never anticipated that the series would run so long, I initially planned around 10 posts. Now we have reached 75 (and with no plans to stop) this is an appropriate…
PROVING THINGS 75: PROVING CAUSATION ON AN UNDERTAKING TO PAY DAMAGES: THE INJUNCTION THAT COST THE APPLICANT TENS OF MILLIONS OF DOLLARS: ROUND 2
We have looked before at the decision in Fiona Trust & Holding Corporation -v- Yuri Privalov & others [2016]. An applicant for a freezing order was found to have obtained the order wrongly. Consequently they were ordered to pay damages that stretched…
A DUMPER TRUCK IS COVERED BY THE MIB AGREEMENT: STATUTORY CONSTRUCTION AND DIRECTIVES
In Lewington v The Motor Insurance Bureau [2017] EWHC 2848 (Comm) Mr Justice Bryan considered whether a stolen dumper truck being driven on a public road was covered by the MIB agreement. There was a clear, and unequivocal finding that it…
SOME FEEDBACK – WHEN DEFENCE TURNS TO COUNTERCLAIM
Feedback from readers is rare. I received a letter today which the author has given be permission to reproduce. Just a quick note of thanks. I’m an LIP, having been involved in litigation as defendant for the last 3…
Proving things 74: WHEN YOUR EVIDENCE IS FAR FROM FABULOUS AND COMES WITH A “HEALTH WARNING”: APPLICANT’S CASE PUT BACK IN THE BOX
There is an interesting discussion of the evidence in the Upper Tribunal decision in Fabulous Collections Ltd v Smith (Valuation Officer), Re: 3 Poplar Arcade [2017] UKUT 452. A central part of an applicant’s case essentially disappeared on the morning of…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
LIMITATION, THE CARE ACT, COUNTY COURT JURISDICTION AND DIFFICULT TRANSITIONAL PROVISIONS.
In Nottinghamshire County Council v Belton, The Estate of & Anor [2017] EW Misc 26 (CC) His Honour Judge Godsmark QC considered an issue of jurisdiction and limitation in a claim being brought by a local authority to recover fees paid…
SERVICE BY EMAIL: WHO ARE YOU SERVING? A POINT TO WATCH
The judgment in Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 highlights a crucial point about service by email. If you are (and are allowed to) serve by email – check that the address being used is the the…
APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally. “The case followed the pattern of many…
PRO BONO COSTS ORDERS: NOT JUST FOR CHRISTMAS
I had an email this morning from Sue Nash asking me to publicise the ability of the court to make pro bono costs orders. Here is a reminder. It is important that those representing a party pro bono is aware…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 4: THREATENING YOUR OPPONENT WITH A “PROCTOLOGY EXAMINATION” AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
This series is about learning from judges. Here I advocate (hopefully in a civil way) learning from one judgment. That is the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC….
PROVING THINGS 73: FORESEEABILITY: NOT A TEST SET IN STONE BUT A MATTER OF COMMONSENSE
Foreseeability of damages is one of those topics that takes up a lot of space in text books but is rarely an issue in practice. The question of foreseeability of damages did, however, form a part of the judgment we…
FINDINGS OF FACT AND EXPERT EVIDENCE: A JUDGE MAKES THE FINDINGS FIRST AND CONSIDERS THE EXPERT EVIDENCE NEXT
In Graham & Anor v Campfield & Anor [2017] EWHC 2746 (Ch) Mr Justice Birss made some important observations about findings of fact and expert evidence. It shows the importance of primary findings of fact and the limitations of expert evidence. …
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 3: SKELETON ARGUMENTS, PREPARATION AND PRESENTATION: AN ABSOLUTE GOLDMINE
This blog has many posts that record cases where judges have been critical of the contents (and usually length) of skeleton arguments. A remedy for most of these issues has been available since 2004. Gray’s Inn prepared a paper “Skeleton…
SERVICE BY ALTERNATIVE MEANS, THE ABSENT DEFENDANT, DEFAULT JUDGMENT AND COSTS: ABSENCE OF DEFENDANT DOESN’T CAUSE THE COURT TO MISS A GEAR
In Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) Mr Justice Warby considered several procedural issues. These are of wider interest, particularly issues relating to the method of service, proceeding in the defendant’s absence, summary judgment and costs. …
SORRY SILKS: IMPORTANT AS YOU ARE THE CASE IS NOT BEING HELD UP FOR YOU: THE TAIL IS NOT GOING TO WAG THE DOG
The judgment of Mr Justice Fraser in Bates & Ors v Post Office Ltd [2017] EWHC 2844 (QB) contains some telling observations about case management, listing and the need to comply with the overriding objective. “Fitting hearings around [counsel’s] availability has…
SUING THE WRONG DEFENDANT? SHOULD HAVE GONE TO SPECSAVERS?
It is always embarrassing to find out you are suing the wrong defendant and have to apply for substitution (although we have looked at cases in which the wrong claimant has issued proceedings). This issue was considered by Mr Justice…
COSTS BUDGETING AND PROPORTIONALITY TEST APPLY – EVEN IN A CASE FOR £350 MILLION
in Sharp & Ors v Blank & Ors [2017] EWHC 141 (Ch) Mr Justice Nugee considered the issue of proportionality in a case where £350 million was at stake. Mr Justice Nugee decided that the requirement for costs budgeting, and proportionality,…
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
PROVING THINGS 72: THE BARRISTER’S LAMENT: BUNDLES WHEN THE CLAIMANT DOES THE DEFENDANT’S JOB FOR THEM
Much has been written on this blog about the preparation of bundles. Some bundles are prepared on the basis that every single disclosed document should be included. In doing so many claimants are causing harm to their own case. Disclosed…
BE WARY OF THE AUTOMATIC STAY – IF YOU SERVE AND DO NOTHING
CPR 15,11(2) provides for an automatic stay. The judgment in Citicorp Trustee Company Ltd & Anor v Al-Sanea & Anor [2017] EWHC 2845 (Comm) shows that it is normally not difficult to lift that stay. The key point is to know…
COURT OF APPEAL OVERTURNS SECTION 33 ORDER IN CLINICAL NEGLIGENCE CASE
In The Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711 the Court of Appeal overturned an order under Section 33 of the Limitation Act 1980. The trial judge found in favour of the claimant. This was held…
SOCIAL MEDIA, DOCTOR FREUD AND “MARINATING IN A MUTUAL HATRED”: THE JUDICIAL USE OF FOOTNOTES
Regular readers of this blog will need little introduction to the work of Canadian judge J.W. Quinn. J. Here I look at the use of footnotes in his judgment in a family case of Bruni -v- Bruni in 2010 (this…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
THE DENTON CRITERIA AND DISHONESTY: TELLING A LIE MAY NOT BE “SIGNIFICANT” BUT IT IS ALWAYS SERIOUS.
I am grateful to John McQuater for sending me through a copy of the judgment of His Honour Judge Robinson in the case of Wadsley -v- Sherwood Forest Hospitals NHS Foundation Trust (a copy of that judgment is available here Wadsley…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT
The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a…
WHO WAS TELLING THE TRUTH? BOUDICCA, POSSESSORY TITLE AND THE JUDGE’S ROLE AS FACT FINDER: “DETERMINED COMPETITORS IN AN IMPLAUSIBILITY CONTEST”
In McClelland v Elvin & Ors [2017] EWHC 2795 (QB) Mr Justice Turner considered an appeal where the trial judge had found against a party claiming adverse possession. There are some interesting observations in relation to Roman Britain, grounds of…
ADVOCACY – THE JUDGE’S VIEW: SERIES 2, PART 2: BEING PERSUASIVE: “CONVOLUTED ARGUMENTS ARE SLEEPING PILLS ON PAPER”
The second post in this series takes us to Washington. A detailed article by Judge Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBridet called “How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two…
ADVOCACY: THE JUDGE’S VIEW: THAT DIFFICULT SECOND SERIES 1: LEARNING FROM THE MASTERS
Last year I wrote a series on Advocacy the Judge’s view. There were ten posts which culled guidance from judges around the world. I had no plans to write another. However I read the article by Master David Cook “Advocacy…
BLACKPOOL CASE SHOWS THAT MEMORY IS NOT A ROCK – IT DEGRADES OVER TIME: “EMBELLISHMENT” OF A WITNESS STATEMENT RARELY HELPS
There have been 398 people who have looked at this blog directly from a link at Fansonline.net. This has little to do with the intrinsic fascination that football fans obviously have for civil procedure. It is more do do with…
BNM -v- MGN: A DECISION OF LIMITED PROPORTION
The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. In particular it says little, if anything, about the proportionality itself. THE CASE The Court of Appeal were deciding an appeal following an…
WIKIPEDIA IN THE COURTS (SO FAR): MUSIC, BREWERIES, CANALS, DOG WHISTLE POLITICS AND GETTING TO THE HEART OF THE MATTER: SOME QUESTIONS TO BE ASKED
I have had to apologise in the past for taking small parts of a judicial judgment and scrutinising them closely in relation to matters of procedure or evidence. This apology is particularly apposite in relation to the judgment in Oldham Metropolitan…
PROVING THINGS 71: NO EVIDENCE AT ALL: NO DAMAGES AT ALL
In Khan v Stockton-On-Tees Borough Council [2017] UKUT 432 (LC) we see another examples of a total failure to prove damages. I include it as another example of a party attending a hearing with no evidence at all to prove a…
LEAVING ISSUE UNTIL THE LAST MOMENT – ALWAYS DANGEROUS : PARTICULARLY WHEN A CLAIMANT IS ON NOTICE OF POTENTIAL PROBLEMS
In Hall v Environment Agency [2017] EWHC 1309 (TCC) His Honour Judge Havelock-Allan QC pointed out the dangers of leaving issue until the last moment, particularly in cases where there were likely to be procedural issues relating to jurisdiction. THE CASE…
FONTS, LAWYERS AND THE RULES: NEVER, EVER USE COMIC SANS
There was a recent discussion on Twitter about the appropriate fonts for lawyers to use. At times it was a heated discussion. This led me to look at the rules and guidance as to the use of fonts in litigation,…
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
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