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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
Browse: Home » 2018 » February
TIME ESTIMATES: PROBLEMS WHEN THE ESTIMATES ARE TOO SHORT: STILL LOOKING FOR GUIDANCE

TIME ESTIMATES: PROBLEMS WHEN THE ESTIMATES ARE TOO SHORT: STILL LOOKING FOR GUIDANCE

February 28, 2018 · by gexall · in Applications, Case Management

I have been searching (so far unsuccessfully) for guidance to litigators and litigants to help provide accurate time estimates.  This may well be more of an art than a science. However it is a skill that needs honing. Not only…

WHO SHOULD PAY WHAT WHEN A PART 36 OFFER IS WITHDRAWN?  HIGH COURT DECISION: COSTS LIABILITY DOES NOT RUN FROM THE DATE OF AN OFFER THAT IS WITHDRAWN

WHO SHOULD PAY WHAT WHEN A PART 36 OFFER IS WITHDRAWN? HIGH COURT DECISION: COSTS LIABILITY DOES NOT RUN FROM THE DATE OF AN OFFER THAT IS WITHDRAWN

February 28, 2018 · by gexall · in Appeals, Part 36

In Ballard v Sussex Partnership NHS Foundation Trust [2018] EWHC 370 (QB) Mr Justice Foskett considered the impact of a Part 36 offer that had been withdrawn. He overturned an order that the claimant should pay the costs from the date…

ATTENDING A HMCTS REFORM ROADSHOW: "JUSTICE BY SNAPCHAT"?

ATTENDING A HMCTS REFORM ROADSHOW: “JUSTICE BY SNAPCHAT”?

February 27, 2018 · by gexall · in Applications, Litigants in person, Rule Changes

There have been a  series of HMCTS Reform Roadshows throughout the country. These are discussing reforms to courts and tribunals. Discussing “Virtual Hearings”; “Flexible Operating Hours” and “Scheduling and Listing”  I attended the Roadshow in Leeds. I made notes.  This…

EXTENSIONS OF TIME FOR SERVICE WERE PROPERLY GRANTED: APPLICATIONS TO SET ASIDE ARE A REHEARING NOT A REVIEW: HIGH COURT DECISION

EXTENSIONS OF TIME FOR SERVICE WERE PROPERLY GRANTED: APPLICATIONS TO SET ASIDE ARE A REHEARING NOT A REVIEW: HIGH COURT DECISION

February 27, 2018 · by gexall · in Appeals, Extensions of time, Service of the claim form

Another week, another case about service of the claim form. This time the claimant was more successful. In DDM v Al-Zahra (PVT) Hospital & Ors [2018] EWHC 346 (QB). Mr Justice Foskett allowed an appeal against a Master’s decision setting aside…

WHEN QOCS APPLY: COURT OF APPEAL DECISION: THE SWINGS AND THE ROUNDABOUTS

WHEN QOCS APPLY: COURT OF APPEAL DECISION: THE SWINGS AND THE ROUNDABOUTS

February 26, 2018 · by gexall · in Appeals, Civil evidence, Civil Procedure, Costs, QOCS

In Corstorphine (An Infant) v Liverpool City Council [2018] EWCA Civ 270 the Court of Appeal considered an important issue in relation to Qualified One Costs Shifting. What order should be made when the claimant has QOCS protection against some of…

PAYMENTS ON ACCOUNT OF COSTS: YOU CAN'T ALWAYS GET WHAT YOU WANT: THE COURT'S APPROACH WHEN THE COSTS SCHEDULES ARE "EYE-WATERING"

PAYMENTS ON ACCOUNT OF COSTS: YOU CAN’T ALWAYS GET WHAT YOU WANT: THE COURT’S APPROACH WHEN THE COSTS SCHEDULES ARE “EYE-WATERING”

February 25, 2018 · by gexall · in Costs

In Dana Gas PJSC v Dana Gas Sukuk Ltd & Ors [2018] EWHC 332 (Comm) Lord Justice Leggatt considered the principles relating to payments on account of costs.  In particular the approach the court should take when there were weighty commercial…

SUMMARY JUDGMENT FOR DEFENDANT IN A NEGLIGENCE ACTION AGAINST SOLICITORS

SUMMARY JUDGMENT FOR DEFENDANT IN A NEGLIGENCE ACTION AGAINST SOLICITORS

February 25, 2018 · by gexall · in Civil evidence, Civil Procedure, Professional negligence,, Summary judgment

I am grateful to my colleague at Hardwicke, Laurence Page, for sending me a transcript of the judgment of District Judge Langley in the case of Wright -v- Rix & Kay Solicitors, Central London County Court, 30/11/2017 (available here Wrighttranscript)….

EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME "AGENDAS"

EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”

February 25, 2018 · by gexall · in Case Management, Civil evidence, Civil Procedure, Clinical Negligence, Expert evidence, Experts

There are several passages in the judgment of Mrs Justice Yip in  David John Saunders  -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports.  That is the problematic “agenda”. A …

THE ASSESSMENT OF EVIDENCE: DECLARATIONS FOR THE DEFENDANT IN A PERSONAL INJURY CASE

THE ASSESSMENT OF EVIDENCE: DECLARATIONS FOR THE DEFENDANT IN A PERSONAL INJURY CASE

February 22, 2018 · by gexall · in Applications, Witness statements

The judgment of Master Thornett in  Day v Bryant (declaratory relief – costs – QOCS) [2018] EWHC 158 (QB) is an example of a rare case where a defendant, in a personal injury case, obtained a declaration on a counterclaim. It…

AVOIDING PROBLEMS WITH SERVICE OF THE CLAIM FORM: WEBINAR 14th MARCH 2018

AVOIDING PROBLEMS WITH SERVICE OF THE CLAIM FORM: WEBINAR 14th MARCH 2018

February 22, 2018 · by gexall · in Service of the claim form, Serving documents, Useful links

The judgment yesterday in Barton -v- Wright Hassall LLP [2018] UKSC 12  shows how crucial correct service of the claim form can be.  There are dozens of examples on this blog  of  cases where service with the claim form goes wrong. In an…

LATE AMENDMENT: COURT OF APPEAL DECISION

LATE AMENDMENT: COURT OF APPEAL DECISION

February 22, 2018 · by gexall · in Amendment, Appeals, Applications, Statements of Case

We looked at the decision in  Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16) in an earlier post.  The defendant appealed to the Court of Appeal  Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018]…

12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW

12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW

February 21, 2018 · by gexall · in Appeals, Applications, Avoiding negligence claims, Civil Procedure, Service of the claim form, Serving documents

Today is all about service of the claim form. Following on from the Supreme Court decision in Barton -v- Wright Hassall LLP [2018] UKSC 12  this morning this is a good time to update your knowledge about basic points of procedure. TWELVE…

BARTON -V- WRIGHT HASSALL: JUDGMENT IN THE SUPREME COURT TODAY: A DETAILED BREAKDOWN OF THE MAJORITY JUDGMENT

BARTON -V- WRIGHT HASSALL: JUDGMENT IN THE SUPREME COURT TODAY: A DETAILED BREAKDOWN OF THE MAJORITY JUDGMENT

February 21, 2018 · by gexall · in Appeals, Service of the claim form, Serving documents

It is rare for issues relating to procedure to reach the Supreme Court. The judgment today in Barton -v- Wright Hassall LLP [2018] UKSC 12 concerned the issue of correct service of the claim form.  The claimant lost the appeal (albeit…

CLAIM FORMS IN THE SUPREME COURT: SERVICE BY EMAIL NOT GOOD SERVICE: NO SPECIAL RULES FOR A LITIGANT IN PERSON

CLAIM FORMS IN THE SUPREME COURT: SERVICE BY EMAIL NOT GOOD SERVICE: NO SPECIAL RULES FOR A LITIGANT IN PERSON

February 21, 2018 · by gexall · in Appeals, Service of the claim form

The Supreme Court dismissed the claimant’s appeal in Barton -v- Wright Hassall [2018] UKSC 12.  Service by email on a solicitor who had not confirmed they would accept service was not good service. A claimant would not be granted any…

EXPERT EVIDENCE AS TO EARNINGS NOT NECESSARY (THOUGH NOT A CIVIL CASE): ASSESSMENT OF EVIDENCE IS THE JUDGE'S JOB NOT THE EXPERTS

EXPERT EVIDENCE AS TO EARNINGS NOT NECESSARY (THOUGH NOT A CIVIL CASE): ASSESSMENT OF EVIDENCE IS THE JUDGE’S JOB NOT THE EXPERTS

February 20, 2018 · by gexall · in Appeals, Applications, Case Management, Civil Procedure, Experts

I am trespassing into the area of family law to look at decision of Mr Justice Moor in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam). It is of general interest to civil lawyers because it involves the court considering whether expert…

PROPORTIONALITY AND CASE MANAGEMENT: THE OVERRIDING OBJECTIVE APPLIES ON A MACRO SCALE: "ACADEMIC" ISSUE SHOULD PROCEED TO A HEARING

PROPORTIONALITY AND CASE MANAGEMENT: THE OVERRIDING OBJECTIVE APPLIES ON A MACRO SCALE: “ACADEMIC” ISSUE SHOULD PROCEED TO A HEARING

February 20, 2018 · by gexall · in Applications, Case Management, Civil Procedure

In London Borough of Haringey v Simawi [2018] EWHC 290 (QB) Mr Justice Nicklen expressly considered the Overriding Objective when determining whether a human rights  issue that could be rendered “academic” should continue to a hearing. “Those rules are directed at…

PROVING THINGS 86: CLAIMANTS PROVE THE FACTS BUT FAIL TO PROVE CAUSATION: A SALUTARY TALE

PROVING THINGS 86: CLAIMANTS PROVE THE FACTS BUT FAIL TO PROVE CAUSATION: A SALUTARY TALE

February 20, 2018 · by gexall · in Civil evidence, Damages, Experts, Risks of litigation, Witness statements

The decision of His Honour Judge Simpkiss in O’Neill -v- Bull & Bull* (Canterbury County Court 5th February 2018) is an almost classical example of the need to prove things. It also provides a warning to non-contentious lawyers on the…

ANONYMOUS WITNESSES AND CONFIDENTIALITY CLUBS: HIGH COURT DECISION

ANONYMOUS WITNESSES AND CONFIDENTIALITY CLUBS: HIGH COURT DECISION

February 19, 2018 · by gexall · in Access to justice, Applications, Case Management, Civil evidence

In Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) Mr Justice Turner considered the issue of anonymous witnesses and confidentiality clubs. He granted six witnesses anonymity. This was subject to the identity of the witnesses being…

INTERPLEADER PROCEEDINGS: FILLING THE GAP IN THE RULES

INTERPLEADER PROCEEDINGS: FILLING THE GAP IN THE RULES

February 18, 2018 · by gexall · in Applications, Civil Procedure, Enforcement

In Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement) [2018] EWHC 219 (QB) Master McCloud had to look back at a few centuries of jurisprudence in order to find a solution to a very modern problem. What…

LIMITATION PERIOD RUNS FROM DATE OF COMPLETION OF WORK: AGREED TERMS FOR PAYMENT DO NOT EXTEND LIMITATION PERIOD

LIMITATION PERIOD RUNS FROM DATE OF COMPLETION OF WORK: AGREED TERMS FOR PAYMENT DO NOT EXTEND LIMITATION PERIOD

February 18, 2018 · by gexall · in Appeals, Limitation

In  Ice Architects Ltd v Empowering People Inspiring Communities (Rev 1) [2018] EWHC 281 (QB) Mrs Justice Lambert found that the six year contractual limitation period ran from the date of completion of work and not the date of invoice.   A…

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