ANOTHER SORRY TALE – FORGING SIGNATURES ON WITNESS STATEMENTS: A “PRECEDENT” WITNESS STATEMENT CAN RARELY BE A GOOD THING
The Law Society Gazette carries an account of a solicitor struck off for “forging” the signature on witness statements. I want to concentrate on the way that the witness statements themselves were produced. This was not dishonest but is worrying….
ESTIMATES OF COSTS AND THE FINAL BILL: SOLICITOR AND OWN CLIENT COSTS: CLIENT (PARTIALLY) SUCCESSFUL ON APPEAL
In Harrison v Eversheds Llp [2017] EWHC 2594 (QB) Mrs Justice Slade allowed, in party, a client’s appeal in relation to estimates of costs and final costs. It is a case that emphasises the importance of giving full information in relation…
BEING A WITNESS IN COURT: “AVOIDING HUMILIATION”: USEFUL LINKS (VIDEOS TOO)
This idea for this post comes from another blog. Pink Tape has a recent post giving parents tips on giving evidence in court. This caused me to look at the assistance available generally. This is one part of the legal…
A LESSON FOR ANYONE DRAFTING WITNESS STATEMENTS: GO ON – HAVE A BIT OF A DIG: WHAT CAN POSSIBLY GO WRONG?
The judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC) contains further examples of the dangers of making comments in witness statements. A witness statement is for facts, comments and stage…
LIMITATION MYTHS 10: THE FINAL COUNTDOWN: 9 MYTHS BUSTED AND SOME HELPFUL POINTS
The idea of this series is to be a short, sharp “shock”, just to ensure key issues of limitation are lodged – somewhere – in the busy practitioner’s mind. Here, in the final post in the series, I try to…
INFERENCES TO BE DRAWN FROM ABSENT WITNESSES: RIVA PROPERTIES -v- FOSTER AGAIN
I am returning (and not for the last time) to the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). This time on the issue of the inferences that the…
A CLINICAL NEGLIGENCE LAWYERS SURVIVAL GUIDE: MANCHESTER 5th DECEMBER 2017: “SCHADENFREUDE FOR CLINICAL NEGLIGENCE LAWYERS”
Along with Stephen Grime QC I am talking on the afternoon of the 5th December 2017 in Manchester. “A Clinical Negligence Lawyers Survival Guide” looks at avoiding substantive and procedure problems during the course of a clinical negligence action. Included…
TRAVEL LAW AND LIMITATION: AN UPDATE AND HELPFUL REMINDER
The aim of the series on limitation “myths” is to be succinct and point out dangers. This is only a starting point. Be aware of the dangers – but there can be exceptions. I am grateful to Julian Chamberlayne from…
SECTION 33 DISCRETION UPHELD ON APPEAL: DEFENDANT ORDERED TO PAY COSTS OF LIMITATION HEARING
In Mossa v Wise [2017] EWHC 2608 (QB) Mrs Justice Yip upheld a Master’s decision under Section 33 of the Limitation Act 1980. The Master’s decision that the defendant pay the costs of the issue of limitation was also upheld. THE…
LIMITATION MYTHS 9 (A): A BIT MORE ABOUT AVIATION, AIRPORTS AND HOT AIR BALLOONS: A POINT WORTH REPEATING
What has been interesting in the series on Myths and Limitation has been the response, mainly on Twitter. “That happened to me”, or “I sued someone who missed that point”. This even found its way into the “Halloween for Litigators”…
“YOU ARE ONLY HERE BECAUSE YOU HAVE A CFA”: THERE IS NOT MUCH USE IN ATTACKING THE SOURCE OF YOUR OPPONENT’S FUNDING
In an earlier post we looked the judge’s views in relation to witness credibility in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Here we look at the judge’s view on the defendant’s attack on the…
MYTHS ABOUT LIMITATION 9: DISABILITY DOES NOT SUSPEND THE LIMITATION PERIOD: ONCE THE GENIE IS OUT OF THE BOTTLE IT CAN’T GET BACK IN
I wrote about this issue recently. It makes sense to include it in this series. This myth considered here is that disability “suspends” a limitation period. This is a safe assumption if a claimant has never had capacity since the…
ATTACKING THE OTHER SIDE’S CREDIBILITY: DEFENDANTS ARE THE ARCHITECTS OF THEIR OWN DOWNFALL: SELF-SERVING STATEMENTS ARE TO NO AVAIL
There are a lot of reasons why litigators should read the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). Not least is the judge’s assessment of the witness evidence…
HALLOWEEN FOR LITIGATORS: WHAT KEEPS LAWYERS AWAKE AT NIGHT? DEADLINES, SKELETONS, IMPOSTER SYNDROME & DEFENDANTS RISING FROM THE DEAD
I am not a great fan of Halloween. However when Jenna Kisala suggested there should be a post on “Halloween for Litigators”. I couldn’t resist the challenge. I then promptly delegated the task to Twitter. Here are the tweets so…
MYTHS ABOUT LIMITATION 8: THE LIMITATION PERIOD FOR A CHILD ALWAYS STARTS ON THEIR 18th BIRTHDAY
The previous posts on this subject set out examples where different limitation periods apply. It is worth noting that often these limitation period often apply to children. An assumption that a child’s limitation period always starts on their 18th birthday…
PROVING THINGS 68: CLAIM £4,177,782 RECEIVE £46,815: LEASE SAID SOONEST MENDED
If you are looking for a graphic example of a failure to prove damages you may well find it in the decision of Martin Rodgers QC in the Upper Tribunal (Lands) Chamber today in Bishop v Transport for London [2017] UKUT…
MYTHS ABOUT LIMITATION 7: A SECTION 33 APPLICATION REQUIRES AN “EXCEPTIONAL INDULGENCE” FROM THE COURT
I still come across arguments that a claimant seeking an order under Section 33 of the Limitation Act 1980 requires an “exceptional indulgence” from the court. This is another myth that has an historical basis, but has been dispatched to…
WHEN THE PLEADINGS SHOULD NOT NAME SOMEONE: HIGH COURT OBSERVATIONS
In Huda v Wells & Ors [2017] EWHC 2553 (QB) Mr Justice Nicklin made some observations that make it clear that it may be prudent for statements of case not to name vulnerable individuals. THE CASE The defendants set aside an…
MYTHS ABOUT LIMITATION 6: ABROAD IS A FOREIGN COUNTRY, THEY DO THINGS DIFFERENTLY THERE
It is now possible to bring actions in England and Wales for accidents that happened abroad. On the whole the Civil Procedure Rules apply. This has led to a myth that English and Welsh limitation periods also apply. In fact…
MYTHS ABOUT LIMITATION 5: EVERYTHING IS NEVER SHIP SHAPE IF YOU ASSUME A THREE YEAR PERIOD APPLIES
The previous post looked at the two year limitation period that applied in relation to air travel (and airports remember). Here we are going further to dispel the myth that every limitation period is two years. Be wary of anything…
MYTHS ABOUT LIMITATION 4: WHEN YOU REALLY BELIEVE THE THREE YEAR LIMITATION PERIOD CAN FLY
The view that all personal injury claims are subject to a three year limitation period is a myth. If any injury is suffered within or near an aircraft the safest assumption is that the limitation period is two years. The…
MYTHS ABOUT LIMITATION 3: THE DATE OF ISSUE FOR LIMITATION IS THE DATE ON THE CLAIM FORM
Once or twice a month I receive a phone call from practitioners in a panic. They sent the claim form to court in good time but the date of issue is outside the limitation period. Further some defendants still take…
MYTHS ABOUT LIMITATION 2: THE LIMITATION PERIOD FOR ASSAULT IS SIX YEARS
This is a myth I didn’t know existed until I heard it being propounded in a bar last week (and which led to the start of this series). Strangely, unlike some of the myths were are looking at, it has…
MYTHS ABOUT LIMITATION 1: IN A BREACH OF CONTRACT CASE THE LIMITATION PERIOD IS ALWAYS SIX YEARS
This is the first of a series of short posts about “myths” about limitation that sometimes exist in litigation, in personal injury in particular. Myth 1 is that if you are bringing a claim based on breach of contract the…
A SHORT POINT ON CLAIMANTS WITHOUT CAPACITY AND LIMITATION: ONCE A LIMITATION PERIOD STARTS RUNNING IT NEVER STOPS
I was lecturing earlier this week on the issue of disability in personal injury cases. One of the principles of law I was lecturing on proved to be “controversial”, that is it appeared to come as a surprise to many…
STRIKING OUT THE CLAIM FOR NON-PAYMENT OF TRIAL FEE: THIS IS ALWAYS A POINT TO WATCH
In April this year the rules were amended to introduce a concept of “automatic striking out”. Put simply if a claimant does not pay the court fee by the relevant date. I have seen occasions where this has had effect….
CAPACITY TO LITIGATE : LITIGATION FRIEND CAN PROPERLY CONTINUE WITH ACTION WHERE CLAIMANT WAS WITHOUT CAPACITY AT BEGINNING OF CASE
I was speaking at the MASS conference yesterday about capacity and litigation. It is always the way of things that an interesting point on an issue comes up the day after a presentation. An issue on capacity to litigate arose…
LATE ACCEPTANCE OF PART 36 OFFER DID NOT TAKE THE HEART OUT OF THE USUAL RULES AS TO COSTS: PART 36.13 CONSIDERED IN DETAIL: CLAIMANT SURVIVES A HEATED ATTACK
I am grateful to Thomas Riis-Bristow from Irwin Mitchell solicitors for sending me a copy of the judgment of District Judge Truman in Knibbs -v-Heart of England NHS Foundation Trust (23/6/2017). It is an interesting (and important) consideration of…
PERMISSION TO APPEAL – TWO YEARS OUT OF TIME – SET ASIDE: COURT WAS “MISLED BY SERIOUS MISREPRESENTATIONS AND NON DISCLOSURES”
In Kovarska v Otkritie International Investment Management Ltd & Ors [2017] EWCA Civ 1485 the Court of Appeal set aside an extension of time for appealing. The order had been granted without a hearing. It was held that the Court…
COST BUDGET SERVED TWO MONTHS LATE: RELIEF FROM SANCTIONS ALLOWED: DELAY DOES NOT ALWAYS GIVE RISE TO A SIGNIFICANT BREACH
I am grateful to my colleague Colin Richmond for sending me a copy of the decision of His Honour Judge Gosnell In Hewitt -v- Smith (Bradford County Court 16th June 2017) relating to a successful appeal from a refusal to…
“BREATHTAKINGLY RUDE” LETTERS INDICATED AN INTENT TO ABUSE THE PROCESS: DEFENDANT’S CONDUCT IN FAILING TO PAY FOR PITCH CROSSED THE LINE
In Bernard Sport Surfaces Ltd v Astrosoccer4u Ltd [2017] EWHC 2425 (TCC) Mr Justice Coulson had strong words to say about correspondence and conduct which, he held, were simply attempts to avoid a debt that was lawfully due. “… all of…
CONDUCT AND LITIGATION: THE SEPARATION OF POWERS AND THE RULE OF LAW: A SECRETARY OF STATE DOES “NOT REQUIRE KINDERGARTEN-TYPE ELABORATION”
The headnote in R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC) appears relatively benign, Mr Justice McCloskey deciding that the upper…
THE BANK OF IRELAND CASE ROUND TWO: APPROPRIATE SUMS FOR AN INTERIM PAYMENT ON ACCOUNT OF COSTS: INDEMNITY COSTS ORDERED BECAUSE OF CONDUCT OF EXPERT
In an earlier post we looked at the judgment in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) where Mr Justice Coulson was particularly excoriating about the claimant’s expert. Having lost the case the bank had to pay the…
BEHAVIOUR IN THE COURTROOM – IT GOES FURTHER THAN YOU THINK: SOME CASES AND SOME GUIDANCE
The vast majority of studies on behaviour in the courtroom concentrate on the interaction between the judge, the advocates and the witnesses. However the courtroom is a big place. Twice in recent weeks we have seen judges refer to the…
THE ASSESSMENT OF EXPERT EVIDENCE: HANDWRITING EVIDENCE ADMISSIBLE : THE JUDGE FELT HE WAS IN SAFE HANDS
The judgment of Mr Justice Jay in ARB v IVF Hammersmith Ltd [2017] EWHC 2438 (QB) is one that has already made headlines. There is much of interest. However, that part of the judgment that deals with the analysis of…
NOT PROCEEDING WITH LITIGATION FOR ONE YEAR IS NOT AN ABUSE OF PROCESS: THE ACTION WAS NOT BEING “WAREHOUSED”: BUT STILL A POINT TO WATCH
In Grenda Investments Ltd v Barton [2017] EWHC 2371 (Comm)Mr Justice Picken considered (and rejected) an argument that the claimant’s failure to proceed with litigation for a year amounted to an abuse of process. Although the application failed this case does…
THE CIVIL STANDARD OF PROOF AND ALLEGATIONS OF DISHONESTY: AVOIDING HINDSIGHT
In Group Seven Ltd & Anor v Nasir & Ors [2017] EWHC 2466 (Ch) Mr Justice Morgan considered issues relating to the standard of proof when there are allegations of dishonesty and fraud. Part of the judgment also deals with the…
WHEN THE CLAIMANT WAS REFUSED PERMISSION TO ACCEPT £300,000: WHAT HAPPENED NEXT? (THIS DOESN’T END WELL FOR SOMEONE)
Earlier this week there was a post on the case of Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) [2017] EWHC 1738 (Ch) in which a claimant was refused permission to accept an offer of £300,000 after…
EVIDENCE IN A CLINICAL NEGLIGENCE CASE: MISSING WITNESSES AND ERRANT EXPERTS: LIABILITY SHOULD HAVE BEEN ADMITTED EARLIER: ATTEMPT TO BACKTRACK FROM JOINT REPORT NOT SUCCESSFUL
The case of Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) is one where the defendant was, ultimately, successful on the issue of causation. However the judge had some interesting observations as to the expert evidence called by both…
YOU CAN’T APPEAL ON A POINT THAT YOU HAVEN’T PLEADED: DEFENDANT’S ARGUMENTS GO DOWN THE PAN
There are periodic reminders from the court as to how important the statement of case is. This can be seen in the judgment today in Watt v Dignan & Ors [2017] EWCA Civ 1390. “I do not agree that a…
ACCEPTING A PART 36 OFFER DURING A TRIAL: A MATTER OF JUDICIAL DISCRETION: CLAIMANTS HAD LOST THEIR CHANCE
I am grateful to barrister Simon Mills for sending me a copy of the judgment of Mr Justice Morgan in Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) 2017] EWHC 1738 (Ch). It relates to the question…
WITNESSES, SURVEILLANCE, DEMEANOUR AND EXPERTS – IT ALL COMES DOWN TO CREDIBILITY: A PERFORMER UNLIKELY TO FOOL ALL OF THE PEOPLE ALL OF THE TIME
We have already looked at judge’s observations as to the amount of material before the court in the case of Miley v Friends Life Ltd [2017] EWHC 2415 (QB). It was a case that rested upon credibility. Surveillance evidence, expert evidence and…
THIS IS A LOT OF MATERIAL FOLKS: ALL THIS INDUSTRY MAY NOT BE TO POINT: SEEING THE WOOD FOR THE TREES
In Miley v Friends Life Ltd [2017] EWHC 2415 (QB) Mr Justice Turner made some observations in relation to the volume of documentation and the subsequent judgment. It is important, he said, for a judge to keep sight of the wood…
FAILURE TO PAY INTERLOCUTORY COSTS LEADS TO PEREMPTORY ORDER BEING MADE: PAY UP OR BE STRUCK OUT
In Michael Wilson & Partners Ltd v Sinclair & Ors [2017] EWHC 2424 (Comm) Sir Richard Field (sitting as a Deputy Judge of the High Court) made a peremptory order following the defendants’ failure to pay interlocutory costs. The relevant defendants…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
LATE SERVICE OF THE PARTICULARS OF CLAIM: RELIEF FROM SANCTIONS REFUSED: DETAILS OF CLAIM DO NOT CONSTITUTE PARTICULARS OF CLAIM
In Chelsea Bridge Apartments Ltd -v- Old Street Homes Ltd (Deputy Master Cousins, 4th September 2017*) Deputy Master Cousins refused the claimants’ application for relief from sanctions in failing to serve Particulars of claim on time. “I find that the…
PROPORTIONALITY – A LITIGATOR’S SURVIVAL GUIDE V – A ROUND UP: 12 KEY POINTS TO TAKE YOU INTO OCTOBER (AND BEYOND)
The issue of “proportionality” is central to contemporary litigation. However it is rarely examined in detail and rarely discussed. Attempts to analyse how proportionality can be achieved are even rarer. For the fifth in this (slow burning) series I review…
COST BUDGETING: THE CASES AND POSTS IN ONE PLACE
There is a specific section on relief from sanctions on this blog which links to all the posts and related cases on CPR 3.9. Here I am starting to do the same for costs budgeting. Here, however, I aim to…
SOME WARNINGS AS TO EVIDENCE: A SYMPHONY REVIVED: HOW THE JUDGE CONDUCTS AN ASSESSMENT OF CREDIBILITY
The post yesterday on witness credibility in the case of Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) referred to a passage in the earlier case of EPI Environmental Technologies Inc v Symphony Plastic Technologies plc (Practice Note) [2005] 1 WLR 3456. This…
ASSESSING THE CREDIBILITY OF WITNESSES: PROBLEMS WITH INDEPENDENCE WHEN THE WITNESS REQUIRES A TRANSLATOR
Who is going to be believed? This is the central question in many (if not most) cases that go to trial. The judgment of Miss Amanda Tipples QC in Frenkel v Lyampert & Ors [2017] EWHC 2223 (Ch) shows many of…
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