WHAT INFERENCES SHOULD THE JUDGE DRAW WHEN A WITNESS CLAIMS PRIVILEGE AGAINST SELF-INCRIMINATION?
The judgment of Mr Justice Nugee in Clydesdale Bank plc -v- Stoke Place Hotel Ltd (in administration) [2017] EWHC 181 (Ch) is another one of those cases we will look at twice. Both posts will be about the judge’s assessment…
AMENDMENT TO ADD NEW ISSUES THAT HAVE ARISEN SINCE ISSUE: CONSIDER THE OVERRIDING OBJECTIVE AND NOT THE RSC
I said that there would be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). The first looked at the lifting of the automatic stay. Here we look…
AMENDMENT PROVIDES A BRIDGE OVER TROUBLED WATERS: PERMISSION TO AMEND TO CLARIFY POSITION OF PARTY PERMITTED
Decisions on amendment and limitation arguments are cropping up at the moment. Here we look at the judgment of Master Kay QC in Highways England Company Limited -v- B.G. Rodwell Limited[2017] EWHC 118(QB). The defendant raised issues under Section 35…
CELEBRITY TITTLE TATTLE IS NOT NEWS: A DECISION AS TO COSTS
The case of Stone -v- Flynet Pictures Limited [2017] EWHC B3 (Costs) is likely to attract the headlines because the second claimant was David Walliams. It is also likely to attract the pun writers ( Litigation Futures has already done…
APPLICATION FOR INDEMNITY COSTS REFUSED: THE JUDGE LOOKS AT THE COSTS BUDGET OF THE LOSING PARTY
We have looked many times at cases where judges have considered granting indemnity costs. This issue was considered by Mr Justice Coulson in MacInnes -v- Gross [2017]EWHC 127 (QB). One interesting aspect is that the judge looked at the losing…
FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN
There are going to be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post…
ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE
In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias. This judgment emphasises the fact that the test is one of the fair minded and informed observer and not…
THE DUTY OF FULL DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: ANOTHER EXAMPLE OF PROBLEMS OCCURRING
The New Year’s resolution for litigators that I recommended this year came (apparently) as a surprise to many: “Think very carefully before, during and after, making an ex parte application of any kind.” The judgment of Mrs Justice Andrews DBE…
EXPERT EVIDENCE NOT NECESSARY ON AN QUESTION OF CONSTRUCTION: SNEAKING EXPERT EVIDENCE INTO WITNESS STATEMENTS: EVIDENCE IS STRUCK OUT
We have seen several examples of litigants attempting to give “expert” evidence in their witness statements. This practice was considered by Master Matthews in Change Red Limited -v- Barclays Bank PLC [2016] EWHC 3489 (Ch). The Master was considering whether…
BOOKS ABOUT ADVOCACY: MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is an advocate, whether they know it or not. Litigation is fundamentally about the art of persuasion. This is a litigator’s daily task: in correspondence, on the phone, with the court. This is best done by the careful…
E-DISCLOSURE: UNLESS ORDERS: STRIKING OUT, COMPLIANCE AND DENTON: DEFENDANTS COME TO GRIEF
There is a lot to consider in the judgment today of Mr Justice Green in Micheal -v- Phillips [2017] EWHC 42 (QB). It relates to inadequate disclosure; retention of electronic documents; peremptory orders and relief from sanctions. Things did not…
A COUNTERCLAIM IS SUBJECT TO THE SAME RULES AS LIMITATION AS A CLAIM: SECTION 35 OF THE LIMITATION ACT CONSIDERED BY THE COURT OF APPEAL
In the judgment today in Al-Rawas -v- Hassan Khan (A Firm) [2017] EWCA Civ 42 the Court of Appeal held that a counterclaim did not have any special status under the Limitation Act. It was subject to the same principles as…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
SOCIAL MEDIA: THE BLACK COUNTRY AND CRUISING FOR A FALL: DEFENDANT FILM THYSELF
It is easy to cause problems on social media. It is particularly easy to cause problems for yourself. We have looked several times at the role of social media in the courts. Another example can be found in the judgment…
DISMAL CORRESPONDENCE, COSTS AND CONDUCT: THE ADMINISTRATIVE COURT GIVES A WARNING
It is a rare to have a specific judgment from the Administrative Court on the question of costs. In Taylor -v- Honiton Town Council [2017] EWHC 101 (Admin) Mr Justice Edis considered issues relating to costs. “I consider that, generally,…
PROVING THINGS 50: TO PROVE BREACH OF CONTRACT YOU FIRST HAVE TO PROVE THAT THERE WAS A CONTRACT
The judgment of Mr Justice Stuart-Smith in Secker -v-Fairhill Property Services Ltd [2017] EWHC 69 (QB) may contain an important lesson about pleading as well as evidence. The claimant’s claim could not be put in negligence and her case based…
JUDICIAL ASSESSMENT OF WITNESS CREDIBILITY: “THE MOST DIFFICULT AND OPINIONATED WITNESS I HAVE EVER HAD THE MISFORTUNE TO ENCOUNTER”
We have looked at the process of judicial assessment of witness credibility many times on this blog. Many of the robust judgments we have looked at pale into insignificance next to the judgment of His Honour Judge Hodge QC in…
SUING THE “MAN OF STRAW”: WHY YOU NEED TO CHECK YOUR OWN CLIENT’S INSURANCE BEFORE GIVING UP ON A PERSONAL INJURY CASE
There was recently some comment, and quite a few readers, of a post on “suing the man of straw”. This was the second post ever on this site. There were comments on Twitter that people were surprised by the post…
COMMITTAL APPLICATIONS, PENAL NOTICES AND GOING TO PRISON
There are two lessons in the judgment of Mr Justice Cranston in Bunge S.A -v- Huaya Maritime Corporation [2017] EWHC 90 (Comm): (i) if you are applying for committal you should include a penal notice in the application; (ii) if…
PROVING THINGS 49: IT IS DIFFICULT TO PROVE DAMAGES WHEN THE OPINION EVIDENCE IN YOUR WITNESS STATEMENT HAS BEEN STRUCK OUT
The dangers of giving opinion evidence in witness statements are highlighted in the judgment today of Mr Justice Coulson in MacInnes -v- Gross [2017] EWHC 46 (QB). The opinion parts of the claimant’s witness statements were struck out. There was…
IF YOU DECIDE NOT TO TURN UP FOR COURT DON’T EXPECT MUCH SYMPATHY: COUNCIL TOLD TO GET ON ITS BIKE
The judgment of the Court of Appeal in Camden Borough Council -v- Humphreys [2017] EWCA Civ 24 illustrates the danger of a party deciding not to attend a hearing. THE CASE A recipient of a parking ticket, Mr Humphreys, had…
A FUNDAMENTAL CHANGE OF APPROACH NEEDED ON APPLICATIONS IN RELATION TO JURISDICTION: TOO MANY DOCUMENTS, TOO MUCH TIME
In his judgment in His Royal Highnss Emere Godwin Bebe Okpabi -v- Shell Petroleum Development Company of Nigeria Ltd [2017] EWHC 89 (TCC) Mr Justice Fraser observed that applications in relation to jurisdiction needed a different approach from practitioners. “This…
LIMITATION, EXTENSIONS AND THE HUMAN RIGHTS ACT: COURT OF APPEAL SAYS NO
For the second time within a week we have a case where the courts consider the discretion to extend time under s.7(5)(a) of the Human Rights Act 1998. In London Borough of Hackney -v- Williams [2017] EWCA Civ 26 the…
THE FIRST BUNDLE CASE FOR 2017: A BUNDLE THAT WAS NEVER DISCLOSED AND HAS GONE MISSING
At some time during the year there is bound to be a judgment about bundles. However the judgment of the Court of Appeal today in Iqbal -v-Iqbal [2017] EWCA Civ 19 contains a great surprise. Amongst other problems with the…
THOSE LETTERS: DEAR JUDGE – YOU WERE WRONG – PLEASE CHANGE YOUR MIND: ONLY IN THE MOST EXCEPTIONAL CIRCUMSTANCES
There is an interesting postscript to the judgment of Mr Justice Mostyn in Goyal -v- Goyal [2017] EWFC 1. It relates to the practice of using letters to the judge in an attempt to alter the terms of a draft…
ADVISING ABOUT THE RISKS OF LITIGATION: YOU DON’T PAY ME TO TELL YOU WHAT YOU WANT TO HEAR: PROFESSIONAL NEGLIGENCE ACTION AGAINST SOLICITORS DISMISSED
In Seery -v- Leathes Prior (a firm) [2016] EWHC80 (QB) Sir David Eady dismissed a claim for negligence against a firm of solicitors. One of the issues considered was whether the claimant should have been encouraged to litigate. The claim…
RESTORING A COMPANY TO THE REGISTER, LIMITATION AND PROVING A CAUSAL LINK: COURT OF APPEAL JUDGMENT TODAY
Litigators are sometimes called upon the restore limited companies to the register and make a limitation direction. The decision of the Court of Appeal today in Pickering -v- Davy [2016] EWCA Civ 30 gives rise to additional problems. It emphasises…
LIMITATION, DISABILITY AND THE HUMAN RIGHTS ACT: COURT REFUSES TO EXTEND TIME: KEY DUTY ON LEGAL ADVISERS
In AP -v- Tameside Metropolitan Borough Council [2017] EWHC 65 (QB) Mr Justice King considered issues relating to limitation, disability and a claim under the Human Rights Act. KEY POINTS The fact that a party lacks capacity does not prevent…
PROVING THINGS 48: VALVES, FLOODS, MODELS AND CAUSATION.
If ever there were an object lesson in the need to prove every element of an action it is the judgment of HH Judge McKenna (sitting as a High Court judge) in Oldcorn -v- Southern Water Services Ltd [2017] EWHC. The…
EVIDENCE, PROPORTIONALITY AND PREMIUMS II: NO SAVING OF ENERGY HERE
We have already looked at the judgment of Master Haworth in Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) in relation to the admissibility of evidence. Here we look at the judgment in relation to calculation of…
DISCLOSING DETAILS OF COSTS INFORMATION PROVIDED FOR MEDIATION : DISCLOSURE ALLOWED: HIGH COURT DECISION
In Savings Advice Limited -v- EDF Energy Customers Ltd [2017] EWHC B1 (Costs) Master Haworth had to consider the issue of admissibility of evidence relating to a mediation. KEY POINTS Information provided about costs in the run up of a mediation…
PROPORTIONALITY AND ADDITIONAL LIABILITIES: A SCCO DECISION THAT DIFFERS FROM BNM
I am grateful Alan Mendham of Gadsby Wicks to for sending me a copy of the decision of Master Brown in Murrells -v- Cambridge University NHS Foundation Trust (SCCO 17th January 2017) a case that re-visits the issue of proportionality and…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL X: THE BEST OF THE REST
This series started as a series of tweets from a (cold) train station early last Friday morning. It is fitting I finish it on a Friday evening. Much ground has been covered and we have gathered advice from around…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL IX: IF THEY SAY IT’LL BE “GOOD EXPERIENCE FOR YOU” – WATCH OUT…
Here we have most (but I can’t guarantee all) of the tweets given on what they don’t teach you at law school. You will see it is an eclectic mix. The advice given can be world weary but, for the…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL VIII: BUNDLES, COURTESY & MINTS
This is the second review of guidance to young lawyers given on Twitter. There is lots of interest here. Some common themes appear to be: bundles; courtesy; be very nice to court staff; manage client expectations; don’t work too hard….
ISSUE BASED COSTS ORDERS: ITS NOT MONEY IN THE BANK
The judgment of Sir Anthony Edwards-Stuart in Lloyds Bank -v- McBains Cooper [2017] EWHC 30 (TCC) considers the question of issue based costs orders. What is interesting here is: Neither party appears to have made a valid Part 36 offer….
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL VII: FLAT SHOES & DOUBLE STUFFED OREOS: SOME OF THE CONTRIBUTIONS FROM TWITTER
This series started off as a series of Twitter interactions. I am gradually making my way through them. Not all the contributions received were serious. However most have a underlying truth. I will try to put the remainder of the…
FIXED RECOVERABLE COSTS SEMINAR WITH LORD JUSTICE JACKSON: LEEDS, 6th FEBRUARY 2017
There are a limited number of places available for solicitors at the : Fixed Recoverable Costs Seminar with Lord Justice Jackson – Monday 6 February 2017 – 1.30pm to 5pm at DAC Beachcroft St Paul’s House. DETAILS Fixed Recoverable Costs…
INDEMNITY COSTS ORDER AGAINST DEFENDANT UPHELD BY COURT OF APPEAL: OFFERS AND CONDUCT: MANNA II
The second post on the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 relates to the Court’s upholding of the trial judge’s award of indemnity costs. “A judge should in my view be…
APPEALS, COUNTER-SCHEDULES AND A RESERVE POSITION: NOT MANNA FOR THE DEFENDANTS
We will be looking at the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 twice today. Here I want to look at the difficulties the defendant had in arguing a point in…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL VI: NEVER WRITE ANYTHING DOWN THAT YOU WOULDN’T WANT READ OUT IN OPEN COURT
One rule that every lawyer should learn is that if you write, type, email or text anything you live with the risk that it could end up being read out in court. There are plenty of examples of emails, attendance…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL V: WEAR SUNSCREEN AND HAVE A PLAN: GUIDANCE FROM KUALA LUMPUR
I said at the outset of this series that we would draw inspiration from the world. Here we go to Kuala Lumpur. I am encouraging you to read a report of a talk in 2010 given by Brendan Navin Siva…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL IV: OWNING AND FIXING YOUR MISTAKES
The Fourth in this series goes to Pennsylvania and looks at an article by Elizabeth Collura in Lawyerist.com – Recognisizing, Owning and Fixing Your Mistakes. This is short but to the point. Mistakes happen, they are rarely disastrous. It is…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL III: THRIVE & SURVIVE: GUIDANCE FROM NEW SOUTH WALES
This series is designed to help lawyers, and litigators in particular, in the initial stages of practice. We will be looking at guidance from around the world. Many of the problems that young lawyers face are universal. In this…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL II: PARETO, PARKINSON AND YOU’ll BECOME WHAT YOU THINK YOU’LL BECOME
The first post in this series looked at a number of writers who had given guidance to the tyro lawyer. Here I want to recommend a specific article by Susan Carter Liebel written on “Solo Practice University”. “9 Things I…
ADVERSE DECISION IN ARBITRATION PROCEEDINGS DID NOT RENDER AN ACTION AN ABUSE OF PROCESS: COURT OF APPEAL REVERSED STRIKING OUT DECISION
In Michael Wilson & Partners -v- Sinclair [2017] EWCA Civ 3 the Court of Appeal overturned a decision to strike out the claimant’s case. The fact that there had been earlier arbitration proceedings did not, in this case, render a second…
EXPERT WATCH II: ATTEMPTS TO SNEAK THE EVIDENCE IN
There are some examples of ingenious attempts to introduce expert evidence into cases. Mr Justice Arnold commented on this in his judgment in Teva UK Ltd -v- Gilead Sciences Inc [2017] EWHC 13 (Pat). A “factual” report from an expert is…
COUNSEL’S DUTY IS TO THE CLIENT: GUIDANCE FROM THE UPPER TRIBUNAL
There have been strong words issued by the Upper Tribunal (Immigration and Asylum) Chamber recently in relation to non-compliance and the imposition of sanctions. The Tribunal has more problems in imposing sanctions than most because of the overwhelming need for…
WHAT THEY DON’T TEACH YOU IN LAW SCHOOL: TURNING THE OTHER CHEEK
I have written several times on the risks, and advantages, of using social media for litigators. It carries risks and advantages in equal measure for litigants and litigators. I should not, therefore, have been surprised when a few tweets from…
EXPERT WATCH: SOURCE OF INFORMATION CLARIFIED (AND OF CRUCIAL IMPORTANCE)
There are aspects of the judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) that justify closer examination. In particular the source of information of the expert’s information was illustrative. It highlights the importance of examining…
You must be logged in to post a comment.