DESTINATION OF APPEALS FROM A DISTRICT JUDGE ALLOCATED A CIRCUIT JUDGE’S WORK: IMPORTANT WORDS ON COMMUNICATING WITH THE COURT
The judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB) is of considerable importance in relation to the correct route for appeals. It was held that the correct route of appeal from a district…
PROVING THINGS 65: : ASSUMPTIONS ARE NOT EVIDENCE: (IF THE COURT OF APPEAL HAVE TO ASK FOR THE MATTER TO BE MADE SIMPLE YOU ARE IN SERIOUS TROUBLE)
The case of Ted Baker Plc & Anor v Axa Insurance UK Plc & Ors [2017] EWCA Civ 4097 could serve as a parable of modern litigation. The claimant won the first trial on this matter, establishing the defendant insurers were…
STOPPING PROBLEMS WITH SERVICE OF THE CLAIM FORM SPRINGING UP: 10 KEY POINTS
In Caretech Community Services Ltd v Oakden & Ors [2017] EWHC 1944 (QB) Master McCloud described how the Masters’ Corridor is plagued by “a dry and unlovely crop of procedural service issues. Despite efforts by numerous courts at all levels to prevent their…
ARRANGEMENTS FOR VULNERABLE WITNESSES: HURDLES IN THE WAY OF SENSIBLE ARRANGEMENTS
The very title of the case Ajayi v Abu & Anor (labour exploitation : human trafficking : modern slavery) [2017] EWHC 1946 (QB) gives a clue that this is going to be an important and difficult issue. The judgment, however, highlights…
BLUEBELLS, THE MASTERS’ CORRIDOR AND THE CLAIM FORM: “A DRY AND UNLOVELY CROP OF PROCEDURAL SERVICE ISSUES”
There are numerous cases about service of the claim form on this blog. They are clearly a major issue in the Masters’ Corridor. Witness the opening words of Master McCloud’s judgment in Caretech Community Services Ltd v Oakden & Ors [2017]…
LATE (BUT NOT VERY LATE) AMENDMENTS ALLOWED: LIMITATION DEFENCE WAS NOT “MUCKING AROUND AT THE LAST MOMENT”
In Vilca & Ors v XSTRATA Ltd & Anor [2017] EWHC 2096 (QB) Mr Justice Stuart Smith allowed a late, but not “very late” application by the defendant to allow it to plead limitation. “To my mind… all of the…
A GOOD REASON WHY YOU SHOULD LOVE (OR AT LEAST MEDIATE WITH) THY NEIGHBOUR: INDEMNITY COSTS OF £200,000
The Court of Appeal judgment in Dickinson & Anor v Cassillas [2017] EWCA Civ 1254 serves as a warning for anyone involved in a neighbour dispute. The Court dismissed the appellants’ appeal in relation to findings against them after a trial….
COSTS BUDGETING: IMPORTANCE GUIDANCE FROM MASTER MCCLOUD: HOW SHOULD THE COSTS OF BUDGETING BE DEALT WITH IN FORM H AND THE FINAL BILL?
Important guidance was given this morning by Master McCloud (sitting as Deputy Costs Judge) in Woodburn v Thomas (Costs budgeting) [2017] EWHC B16 (Costs).It relates to how the costs of budgeting should be dealt with in Precedent H and any in…
WHAT DO YOU DO WHEN IT ALL GETS TOO MUCH (OR IT IS YOU THAT HAS TO PICK UP THE PIECES): A RECAP
I am repeating, in large part, an earlier post. I do so without apology. Part of my job involves, periodically, dealing with cases (sometimes multiple cases) where someone has “gone off the rails” leaving numerous practical and procedural problems…
ISSUING NOTICE OF COMMENCEMENT OF COSTS PREMATURELY: CAN CAUSE PROBLEMS: CLAIMANT SUCCESSFUL ON THE THIRD ATTEMPT
There is an article on the Temple Garden Chambers website of the decision of Master Gordon-Saker of the judgment in Austin -v- East Sussex Fire and Rescue Service (08/08/17). The report concentrates upon the Master’s decision that he would not…
MORE ON FISH FILES: “LEAVE THEM IN THE CORNER UNTIL THEY START TO SMELL”: RECOGNISING THE PROBLEM AND SOLUTIONS
Everyone, at some stage, has a “fish file” – a file that has been left for so long it has started to smell (sometimes literally). Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe….
COSTS AFTER CLAIMANT’S PART 36 OFFER ACCEPTED LATE: FIXED COSTS, ASSESSED COSTS OR INDEMNITY COSTS? CIRCUIT JUDGE DECISION
I am grateful to Jonathan Frith from Winns solicitors for sending me a copy of the decision of HHJ Walden-Smith in Hislop -v- Perde a decision made in the County Court at Central London. I set the decision out in…
PROVING HANDWRITING IN CIVIL CASES: EXPERT EVIDENCE NOT ALWAYS NECESSARY
I am returning to the decision of Chief Master Marsh in 44 Wellfit Street Ltd v GMR Services Ltd [2017] EWHC 1841 (Ch). We have already looked at that case in relation to false emails and the significance of CPR 32.19 ….
BULLOCK AND SANDERSON ORDERS IN PRACTICE: UNSUCCESSFUL DEFENDANT ORDERED TO INDEMNIFY CLAIMANT AGAINST SUCCESSFUL DEFENDANTS’ COSTS
One of the abiding memories of learning (and teaching) civil procedure is knowing the difference between a Bullock and a Sanderson order. Students (and practitioners) can see a Bullock order in practice in the decision of Mr Justice Nicol in Jabang…
EXPERT EVIDENCE: WHEN PART OF THE EVIDENCE IS “ABSURD” – THIS IS NO SMALL BEER
I am grateful to barrister Simon Mills for sending me a copy of the judgment of Judge Waksman QC (sitting as a judge of the High Court) in BHL -v- Leumi ABL Limited [2017] EWHC 1871 (QB). Here I look at…
COSTS BUDGETS:HOURLY RATES IN THE BUDGET ARE NOT DETERMINATIVE OF THE HOURLY RATES ON ASSESSMENT: A CAT AMONG THE PIGEONS HERE
In RNB v London Borough of Newham [2017] EWHC B15 (Costs) Deputy Master Campbell made an important decision in relation to hourly rates on assessment. The rates set out in the cost budget are not determinative of the rates allowed on…
THE STRENGTH OF ENGLISH LAW: GUIDANCE WHICH NEEDS TO BE GIVEN AT HOME NOT JUST ABROAD
The Courts and Tribunals service have today produced a short guide – essentially selling the English courts* and the UK Jurisdiction. In essence it is a marketing booklet to persuade foreign litigants to use court in the UK and to…
COMPLYING WITH DIRECTIONS IN THE FIRST-TIER TRIBUNAL: IT CAN BE A TAXING MATTER: PUBLIC BODIES SHOULD LIVE UP TO THE STANDARDS EXPECTED IN THE CONDUCT OF LITIGATION
The decision of the Supreme Court in BPP Holdings Ltd & Ors v Revenue and Customs [2017] UKSC 55 is interesting for a number of reasons. It is about the provision of textbooks (on law and accountancy presumably) to students….
COSTS AFTER A PART 36 OFFER AFFECTED BY THE CHANGE IN THE DISCOUNT RATE: CONDUCT OF DEFENCE ALONE SUFFICIENT TO JUSTIFY INDEMNITY COSTS
I have written several times about the judgment of Thirlwall LJ in Marsh -v- MOJ*. I have been provided with a copy of a note of the judgment on costs given on the 31st July 2017. I am grateful to…
THE JOB OF THE COURT IN CIVIL CASES: A USEFUL PRIMER: ADJUDICATION, THE BURDEN OF PROOF: THE JUDGE DOES NOT DECIDE WHO HAS THE MORAL HIGH GROUND
In Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) set out clearly and succinctly the principles by which the civil courts determine cases. They serve as a…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld…
FALSE EMAILS, METADATA AND CPR 32.19: A “PROCESS OF FALSIFICATION AND KNOWINGLY PUTTING FORWARD EVIDENCE THAT IS FALSE”
The case of 44 Wellfit Street Ltd v GMR Services Ltd [2017] EWHC 1841 (Ch) was described by Chris Dale as being “like one a much-expanded version of those old-style Finals questions with kitchen sink thrown in”. The judgment of Chief…
COSTS BUDGETING IN BIG CASES: COSTS BUDGETS DO NOT PREVENT REASONABLE AND PROPORTIONATE COSTS BEING RECOVERED
The short judgment of Mr Justice Birss in Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd & Ors [2017] EWHC 1433 (Pat) has some important lessons for litigators. “I entirely reject the submission that cost budgeting creates a problem…
FIXED COSTS: USEFUL LINKS: THE REPORTS AND THE COMMENTARY
The Jackson Report on fixed costs has already led to a great deal of controversy. Here are links to some of the most useful posts and articles. These include links to the report itself, Guidance and the extensive commentary (including…
THE SERVICE OF PROCEEDINGS WAS PHOTOGRAPHED AND FILMED : AND THIS TURNED OUT TO BE IMPORTANT
In Yukos Finance BV & Ors v Lynch & Ors [2017] EWHC 1812 (Comm) the claimants were so concerned about the defendant’s attempt to evade service that they arranged for the process to be photographed and filmed. As it turns out…
“THE CONSTITUTIONAL RIGHT OF ACCESS TO THE COURTS IS INHERENT IN THE RULE OF LAW”: THE JUDGMENT OF THE SUPREME COURT: EDITED HIGHLIGHTS
The decision of the Supreme Court in UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51 may have wide ramifications. Certainly its impact will go well beyond employment law. The Supreme Court set out, in clear and absolute…
MEMORIES, WITNESS STATEMENTS AND EVIDENCE: A SCIENTIFIC VIEW: WHAT EXPERTS WISH YOU KNEW
I have written before about the issue of memory and witness evidence. I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts…
BANGING A DRUM FOR YORKSHIRE: THE BEST LAWYERS AND THE BEST CRICKETERS (I’LL KEEP QUIET ABOUT FOOTBALL)
Having spent yesterday seeing concrete evidence of the depth and breadth of talent in Yorkshire (as one of judges on the Yorkshire Legal Awards) I arrived home to find information about the development of the courts and legal profession in…
QOCS: THE TRANSITIONAL PROVISIONS CONSIDERED BY THE COURT OF APPEAL: CLAIMANTS CANNOT BLOW HOT AND COLD
In the judgment today in Catalano -v- Espley Tyas Development Group Limited [2017] EWCA Civ 1132 the Court of Appeal considered the transitional provisions relating to QOCS. “We cannot accept that Mr McGee is right. Not only does he seek…
YOU OFFERED ME £100,000: I’VE ACCEPTED £15,000- OH AND I WANT MY COSTS: THE DANGERS OF NOT NEGOTIATING AND WHY THE CLAIMANT HAD TO PAY INDEMNITY COSTS
I tried to summarise the judgment of Mr Justice Mann in Jordan -v- MGN Limited [2017] EWHC 1937 (Ch) and I found it difficult. Every word of the judgment is important. It shows, at least, a very insouciant, approach by the…
TEN MINUTES IS A LONG TIME IN LITIGATION: SOLICITOR AND OWN-CLIENT ASSESSMENT OF COSTS CONSIDERS BILLING PRACTICES IN DETAIL
I am grateful to Shimon Goldwater for sending me a copy of the judgment of Master Rowley in Breyer Group Pie -v- Prospect Law Limited (A copy of which is attached Costscase). There are significant observations made in relation to…
THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010 IS NOT RETROSPECTIVE: PARLIAMENT COULD EASILY HAVE SAID OTHERWISE
In Redman -v- Zurich Insurance PLC [2017] EWHC 1919 (QB) Mr Justice Turner held that the provisions of the Third Party (Rights Against Insurers) Act 2010 are not retrospective. “If Parliament had intended the 2010 regime retrospectively to apply to…
WITNESS STATEMENTS DIRECT: MEMORY, GESTMIN £15 MILLION AND QUITE A LOT OF ALCOHOL: A HEADY BREW
There is a certain appropriateness in one of the last major first-instance judgments of Mr Justice Leggatt being about witness credibility and the Gestmin criteria. In Blue -v- Ashley [2017] EWHC 1928 (Comm) Gestmin figured heavily. Everyone believed they were…
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
WHY LIFE IS NOW DANGEROUS FOR DEFENDANTS (ESPECIALLY THOSE WHO DON’T FILE A DEFENCE ON TIME)
The judgment of Mr Justice Coulson in ADVA Optical Networking Limited -v- Optron Holding Limited [2017] EWHC 1813 (TCC) highlights what a dangerous world this can be for defendants. A defendant who is late filing a defence, and where judgment has not been…
PROTECTING YOURSELF AGAINST A WITNESS THAT BLAMES YOU: A CASE TO POINT
I have written before about the problems that can arise when a witness “turns” on the person who prepared their witness statement. An errant witness will often blame the person who took the statement. This issue can be seen, with…
ERRANT EVIDENCE AND PHYSICAL EVIDENCE THAT GOES MISSING: CLAIMANT’S EXPERTS FEEL THE HEAT
I am returning for the fifth time to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have seen the judge’s views on the witnesses, the claimant’s disclosure and arguments that…
COUNSEL’S OPINION OF NO VALUE AT ALL: (ON THIS OCCASION ANYWAY)
I am returning for the fourth time (and still not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). The parties had exchanged written opinions of leading counsel…
INTERLOCUTORY APPEALS AND THE TIME FACTOR: DENTON, WITNESS STATEMENTS AND AMENDMENT: A HEARING WHEN SEVEN TIMES MORE TIME WAS NEEDED
The judgment of Mrs Justice May DBE in Myall -v- Ministry of Defence [2017] EWHC 1752 (QB) emphasises the point that many interlocutory appeals come about not so much because of judicial error but because of the lack of time…
THE DANGERS OF SELECTIVE WITNESS EVIDENCE: WITNESS EVIDENCE THAT WAS “UNSATISFACTORY” AND “SIMPLY NOT RELIABLE”
I am returning for the third time (and not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have already looked at the (relatively mild) criticisms of…
DEFICIENCIES IN DISCLOSURE: READING THIS JUDGMENT IS NOT LIKE WATCHING PAINT DRY
A case that concerns the fitting of specialist piping at a paint factory may seem an unlikely starting point for procedural controversy. However I am looking again in the judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit…
WITNESS STATEMENTS: SAYING “I AGREE WITH HIM” IS HARDLY GOOD PRACTICE
Large number of litigants pay large amounts of money to their lawyers to draft witness statements. This blog often documents the problems caused by witness statements that are simply inadequate. The issues of inadequate witness statements is seen again in…
BUNDLES WERE A DOG’S DINNER: MISSING WITNESSES AND AN EXPERT WITH NO CONCEPT OF HIS DUTY TO THE COURT
The judgment of Mr Justice Coulson in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) exemplifies many of the issues in litigation that are regularly covered in this blog: bundles, missing witnesses and errant experts. In particular…
INADEQUATE DISCLOSURE LEADS TO DEFENCE BEING STRUCK OUT – EVENTUALLY: CASE THAT WAS NOT A WALK IN THE PARK
There is a brief report on Lawtel today of the case of Powell -v- Watford Borough Council, a decision made yesterday by Mr Justice Jay (10th July 2017) in the Royal Courts of Justice . This post is based in…
ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE
In Coreix Ltd -v- Coretx Holdings [2017] EWHC 1695 (IPEC) the trial judge was faced with the approach that should be adopted in relation to witnesses that were not at trial. THE CASE The action was a for breach of trademark…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
WHEN CIRCUMSTANCES CHANGE AFTER A BUDGET IS CONFINED TO COURT FEES: DECISION TO ALTER BUDGET UPHELD
In Asghar -v- Bhatti[ 2017] EWHC 1702 (QB) Mr Justice Lewis considered an issue in relation to varying a budget that was confined to court fees. The court considered “change of circumstances” – this is also a case that shows…
MIB CLAIM IS SUBJECT TO QOCS: COURT OF APPEAL OVERTURN HOWE
“For the purposes of CPR Part 44.13, which describes the claims eligible for Qualified One-Way Costs Shifting (“QOCS”), what is a claim for damages for personal injury? As Stewart J said it is a simple question but does not yield…
COSTS BUDGET ONE DAY LATE: RELIEF FROM SANCTIONS REFUSED: DON’T MAKE MOUNTAINS OUT OF MOLEHILLS BUT PUT THINGS RIGHT – QUICKLY
There are only two realistic options in relation to a relief from sanctions application: (i) do it properly and promptly; (ii) don’t do it all. The dangers of a hasty application are illustrated in the judgment in Lakhani -v- Mahmud…
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