APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT
On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It…
A DRAFT JUDGMENT IS NOT AN OPEN INVITATION TO TAKE A SECOND BITE AT THE CHERRY: AN OVERUSED TACTIC
In Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWHC 227 (TCC) Mr Justice Fraser made it clear that draft judgments were not to be taken as an invitation to the parties to embark on a second round of submissions….
MISTAKES, APPEALS, DENTON AND LITIGANTS IN PERSON: “JUDGES DIFFER, ONE FROM ANOTHER, IN SMALL, HUMAN, WAYS”
In EDF Energy Customers Ltd v Re-Energized Ltd [2018] EWHC 652 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) carried out a comprehensive review of the authorities relating to the latitude to be afforded to litigants in person. It…
CIVIL LITIGATORS AND THE SECRET BARRISTER 4: WHY WE CAN’T TRUST THE GOVERNMENT (OR OURSELVES)
SB’s book sales plough on. It has reached the top 10 in the best seller list. The Criminal Bar Association have set up a fund to send a copy of the book to every MP. You can donate here. …
PART 36: ADDITIONAL AMOUNTS AFTER DEFENDANT FAILS TO BEAT CLAIMANT’S 36 OFFER: OFFER “IN THE BAG” SO DECISION CAN BE DEFERRED
We have already looked at the decision in JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB) where Foskett J decided that a 90% offer on liability was a…
SERVICE OF THE CLAIM FORM AT THE “OLD ADDRESS”: THE HIERARCHY OF MEASURES A CLAIMANT HAS TO TAKE
A search term arrived on this blog today “Service of claim form at old address”. This is an interesting issue to look at following the earlier posts on service. In particular the hierarchy of measures a claimant is required to…
THE SECRET BARRISTER AND CIVIL LITIGATORS 3: “WHAT ABOUT OUR STATISTICS: “AN OUTRAGEOUS INTERFERENCE WITH THE RULE OF LAW
Chris Dale has done a proper. full-blown, review of SB’s book. I’m still looking at it piecemeal. Here I want to look at “targets”, statistics and the dangers they pose to the administration of justice. SB ON STATISTICS SB gives…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
THE SECRET BARRISTER AND CIVIL LITIGATORS 2: THE ESSENTIAL ROLE OF THE LITIGATION SOLICITOR
I am back to my review of the book that everyone is reading, the Secret Barrister’s “Stories of the Law and how its Broken”. I’ve already have people ask me not to give too much away – “don’t spoil the plot”. I…
THE TIME FOR CHALLENGING A BILL HAS PROBABLY LONG GONE: AN IMPORTANT FACTOR IN REFUSING AN APPLICATION FOR DELIVERY UP
There is a battle (or a series of skirmishes) going on at present in relation to solicitors charging success fees to their clients in personal injury cases. This has led to numerous applications to the courts for disclosure. The former…
ROUND ONE: WHAT IS A”WIN” UNDER A CFA? ROUND TWO: THE ASSIGNMENT OF CFAS: FORMER CLIENT DOES NOT SCORE A KNOCKOUT BLOW
In Warren v Hill Dickinson LLP [2018] EWHC B6 (Costs) Master Leonard considered what was meant by the term “win” in a conditional fee agreement. He also considered whether a CFA was properly assigned. The former client (the claimant in this…
EXPERT WATCH: AN EXPERT WHO “SIGNALLY FAILED TO COMPLY WITH HIS BASIC DUTIES AS AN EXPERT”
Brilliant though it is the Secret Barrister’s book has not tempted me to write about criminal law. However it is always worthwhile keeping a weather eye on the behaviour and conduct of experts. Problems with experts are very similar across…
THE SECRET BARRISTER – WHERE DO I START? (1) LETS TRY LISTING
Like many of the legal fraternity I have spent this weekend reading the Secret Barrister’s “Stories of the Law and how its Broken”. The book is about criminal law and criminal procedure, however there is much for civil litigators to…
THE ADDRESS FOR SERVICE OF THE CLAIM FORM: HAVE YOU GOT A SYSTEM? LITIGATING OR WINGING IT?
Do you know the address for service of all your cases? Are you sure? Looking at the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) brings out the point as to how insouciant litigators can be…
NO “GRANDSTANDING” PLEASE: THE COURT IS NOT ASSISTED BY RHETORICAL POINTS
It has been a week for the courts commenting on advocates. Earlier we had complaints of advocates interrupting each other. Today we have complaints of “grandstanding”. Reminding advocates that their task is to deal with the legal issues at hand…
STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”
In Brown & Anor (t/a Maple Hayes Hall School) v AB [2018] EWHC 623 (QB) Mr Edward Pepperall QC (sitting as a Deputy High Court Judge) struck out a defence that was . In giving the defendant another chance he made…
SERVICE OF A COMPANY UNDER THE COMPANIES ACT: MURPHY -V- STAPLES RE-VISITED
I am likely to be returning to the judgment of Master Bowles in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) several times on this blog. If the decision is appealed and upheld it is likely to…
OVER-LISTING HAS CONSEQUENCES : (SO DOES TALKING OVER YOUR OPPONENT): HEARINGS SHOULD NOT BECOME A “SHOUTING MATCH”
There is a page on this blog where I am attempting to collate problems with listing (across all jurisdictions). The judgment reported today in A v R & Anor (Appeal of Summary Determination) [2018] EWHC 521 provides a reminder that listing…
SERVICE OF THE CLAIM FORM: DEFENDANTS HAVE A DUTY UNDER THE CPR TO POINT OUT TECHNICAL ERRORS (OR WHY LIFE HAS SUDDENLY GOT A LOT HARDER FOR DEFENDANT LAWYERS)
NB THIS DECISION WAS OVERTURNED ON APPEAL – SEE THE POST HERE I wrote earlier this week about the “tantalising” judgment of Master Bowles in the case of Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch). At…
PROCEDURAL DEFECTS AND CPR 3.10: CONSIDERATION BY THE COURT
The judgment in Baxendale-Walker v APL Management Ltd [2018] EWHC 543 (Ch) covers several issues relating to procedure. Here I want to look at the assertions made in relation to procedural defects. The judge held that some procedural errors by the…
SUCCESSFUL CHALLENGE TO 100% SUCCESS FEE UPHELD ON APPEAL: HIGH COURT JUDGMENT TODAY: SOLICITOR AND OWN CLIENT ASSESSMENT OF COSTS
In Herbert v HH Law Ltd [2018] EWHC 580 (QB) Mr Justice Soole refused a solicitor’s appeal against a decision reducing the success fee from 100% to 15%. This is a very important decision for claimant personal injury lawyers who, habitually,…
COURT WATCH: DON’T SUFFER IN SILENCE: REPORT CANCELLATIONS AND LISTING ISSUES HERE
There have been constant, and consistent, grumblings on social media about problems with court listing. Cases are cancelled at the last moment. Courts are overbooked. There appears to be no, or very little, thought given to the expense involved and…
SERVICE OF THE CLAIM FORM AFTER BARTON: IS THERE A DUTY ON A DEFENDANT’S SOLICITOR TO POINT OUT A MISTAKE?
It was unlikely that the decision in Barton v Wright Hassall LLP [2018] UKSC 12 would put an end to all issues relating to service of the claim form. There is a tantalising judgment* of Master Bowles in Woodward & Anor v Phoenix Healthcare…
ADVOCACY THE JUDGE’S VIEW: SERIES 2 PART 8: EFFECTIVE WRITTEN SUBMISSIONS: “FIRST IMPRESSIONS COUNT” & THE “CHUNKIFICATION” OF ARGUMENTS
This series certainly takes us around the globe. Here I am looking at a paper written by Justice Susan Glazebrook, a judge of the Supreme Court of New Zealand. Her paper on “Effective written submissions” written in 2014. As always…
RELIEF FROM SANCTIONS : A CLASSIC CASE FOR RELIEF TO BE GRANTED: NOTICE TO PROVE SERVED LATE
In Tuke v JD Classics Ltd [2018] EWHC 531 (QB) Mr Justice Julian Knowles granted a claimant relief from sanctions when a “Notice to Prove” was served late. It is a reminder, amongst other things, of the need to serve a…
THE LIMITATION PERIOD IS JUST ABOUT TO EXPIRE AND YOU ARE NOT READY: FIVE KEY POINTS FOR WHEN YOU DICE WITH PROCEDURAL DEATH
No matter how hard litigators try (and how many warnings are given) it appears inevitable that, sooner or later, you are going to have a case where the limitation period is about to expire but you are not ready. The…
QOCS IN HYBRID CASES: CLAIMANT NOT ENTITLED TO FULL EXTENT OF QOCS PROTECTION: ORDERED TO PAY 25% OF THE COSTS
In the judgment today in Siddiqui v University of Oxford [2018] EWHC 536 (QB) Mr Justice Foskett considered an issue as to costs where the claim brought was partially a personal injury claim. The judge held that the claim, for…
CHANGING FROM LEGAL AID TO A CFA: JUDGMENT IN THE COURT OF APPEAL: DEFENDANTS’ APPEAL ALLOWED: ADDITIONAL LIABILITIES NOT RECOVERABLE
I am grateful to Sean Linley of PIC costings for sending me a copy of the Court of Appeal judgement in Surrey -v- Barnet and Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451. This is the latest in the…
DELAY IN GETTING TO TRIAL – AND ITS NOT THE COURT’S FAULT: COUNSEL’S AVAILABILITY AND DELAYS – A REMINDER OF THE JIGSAW PROBLEM…
There is often much criticism about the length of time it takes to obtain a trial date. The observations of Mr Justice Fraser in Dacy Building Services Ltd v IDM Properties LLP [2018] EWHC 178 (TCC) indicate that it is not…
LATE SERVICE OF NOTICE OF FUNDING AND RELIEF FROM SANCTIONS: THIS DOES NOT END WELL FOR THE CLAIMANT: COURT OF APPEAL DECISION
In the judgment today in Springer v University Hospitals of Leicester NHS Trust [2018] EWCA Civ 436 the Court of Appeal upheld a decision that refused to give relief from sanctions following late service of notice of funding. The case shows…
HOURLY RATES, INCURRED COSTS AND THE COST BUDGET: AGREED BUDGETS HAVE NO SPECIAL STATUS: HOURLY RATES NOT A GOOD REASON TO DEPART FROM THE BUDGET
The judgment of Master Nagalingam in Nash v Ministry of Defence [2018] EWHC B4 (Costs) covers several issues relating to costs budgets. The Master found that a reduction in hourly rates in relation to incurred costs did not lead to any…
SKELETON ARGUMENTS: GET THE FONT SIZE RIGHT, AND THE LENGTH CORRECT: OR IT COULD COST YOU
The Administrative Court Clerks Users Group has sent out an email to many chambers in relation to the format of skeleton arguments. If you did not receive this it is worth reading. THE EMAIL: SIZE AND FONTS OF SKELETON ARGUMENTS…
THE DENTON PRINCIPLES: CAN YOU BLAME A REPRESENTATIVE? SHOULD LITIGANTS IN PERSON BE TREATED MORE LENIENTLY?
The Denton principles were considered by the First-Tier Tribunal Tax Chamber in Clarke v Revenue and Customs (PROCEDURE : Other) [2018] UKFTT 123 (TC). Here we look at two particular parts of the judgment: (i) the relevance of reliance on an…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 7: HOW TO WIN YOUR CASE: GUIDANCE FROM SCOTLAND
This series looks at guidance on advocacy given by judges. We have looked at advice given from judges around the globe. Today we go to Scotland. The Lord President’s address to the Faculty of Advocates in an event to mark…
LITIGANTS IN PERSON: SUBJECT TO THE SAME LAW AS EVERYBODY ELSE (BUT CASE MANAGEMENT DIRECTIONS MAY BE DIFFERENT)
The judgment in Reynard v Fox [2018] EWHC 443 (Ch) has already been written about in the legal press. Indeed it bristles with procedural issues, I want to concentrate on the issue of the treatment of litigants in person. THE…
PARTIES MUST OBTAIN AN ORDER FOR A HEARING OF A PRELIMINARY ISSUE: (MORE ON LENGTHY SKELETON ARGUMENTS)
In Bokova v Associated Newspapers Ltd [2018] EWHC 320 (QB) Mr Justice Dingemans considered several important issues of procedure. Firstly the need for parties to obtain an order for a hearing on a preliminary issue rather than simply turning up on…
HOW A COURT ASSESSES WITNESS EVIDENCE: A SHORT PRIMER
We have already looked at the decision of the upper tribunal in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase of shares) [2018] UKFTT 82 (TC) in relation to issues of privilege and without prejudice discussions. The same judgment…
PROVING THINGS 87: FAILURE TO PROVE BASIC ELEMENTS MEANT THAT THE FULL PREMIUM WAS NOT RECOVERED
I am grateful to Dominic Regan for sending me a copy of the judgment of District Judge Baldwin in Nicolaou -v- Cass (Liverpool CC 1st November 2017). The claimant failed to recover a substantial figure for a stage 2 premium…
SETTING ASIDE A DEFAULT JUDGMENT IN RELATION TO SOLICITORS’ COSTS: INTEREST SET ASIDE, PRINCIPAL SUM REMAINS A DEBT
In RS v LS & LMP [2018] EWHC 449 (Fam) Mrs Justice Roberts considered an application to set aside a default judgment obtained in relation to a solicitor’s costs. There are issues in relation to a failure to serve the response…
COURT OF APPEAL UPHOLDS REFUSAL OF EXTENSION OF TIME IN FOREIGN JUDGMENTS CASE: JUDGMENT TODAY
A post in 2015 looked at the decision in In Christofi -v- National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB) Mrs Justice Andrews DBE held that there were very limited grounds for extending time in an appeal against the registration of…
WITHOUT PREJUDICE COMMUNICATIONS & WAIVING PRIVILEGE IN A WITNESS STATEMENT: TAXING MATTERS
A post earlier this week looked at the issue of privilege and the third edition of the standard work on the topic. It is worthwhile looking at the decision in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase…
STRESS, LITIGATION AND LAWYERS: USEFUL LINKS AND GUIDANCE
I have blogged on stress and the litigation process several times. This is because there are close links to the work I do on relief from sanctions. Being involved in a case where there is default inevitably causes stress. Further…
LITIGATORS – MISSED A DEADLINE? DON’T DIG BIGGER HOLES FOR YOURSELF: DIG YOURSELF OUT (WITH A LITTLE HELP FROM YOUR FRIENDS)
The decision in Wingate & Anor v The Solicitors Regulation Authority [2018] EWCA Civ 366 may well be Jackson L.J’s last judgment (certainly as a full time judge). It concerned the conduct of solicitors. I want to look at one aspect…
SIR RUPERT JACKSON ON THE DAY OF HIS RETIREMENT: A REVIEW OF SOME JUDGMENTS ON PROCEDURE
It is well known that Sir Rupert Jackson retires on the 7th March. There are several reviews of the work Sir Rupert has done in re-shaping civil procedure. Here I want to look at a few of his judgments that…
A PRIVILEGE TO READ : THE LAW OF PRIVILEGE 3rd EDITION: COUPLED WITH SOME RECENT EXAMPLES – TO SHOW WHY YOU NEED IT
The Law of Privilege is now in its third edition. I have been reading through it and planning a review for some time. I came across the decision, on BAILLI today in Fleming v East of England Ambulance Service NHS Trust…
“MISSING WITNESSES”- THE INFERENCES TO BE DRAWN: THE USE OF YOUR OPPONENT’S WITNESS STATEMENTS – ITS ALL OR NOTHING
In Property Alliance Group Ltd v The Royal Bank of Scotland Plc [2018] EWCA Civ 355 the Court of Appeal considered, amongst other things, two issues relating to witness evidence. Firstly in relation to the inferences a court should draw from missing…
COSTS ON APPEAL – TWO ISSUES: COSTS AWARDED WHERE THERE WAS NO SCHEDULE BELOW: INDEMNITY COSTS WHEN A PARTY HAD MADE AN OFFER TO COMPROMISE AN APPEAL
An earlier post dealt with the substantive decision in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017). A short supplementary judgment dealt with two issues as to costs. KEY POINTS The fact that a party did not have a…
THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
This blog has covered numerous cases relating to Section 33 of the Limitation Act 1980. It is worthwhile considering what causes a lawyer to miss a basic three year limitation period. In In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the…
WITNESS CREDIBILITY 3: A JUDGMENT FROM TODAY: CREDIBILITY A CENTRAL PART OF THE CASE
This is the third post today about the subject of the assessment of witness credibility. By a curious piece of good planning it comes from a judgment today in Jiangsu Shagang Group Co Ltd v Loki Owning Company Ltd [2018] EWHC…
WITNESS CREDIBILITY 2: ACADEMIC SCRUTINY: PSYCHOLOGICAL RESEARCH AND WITNESS EVIDENCE
Near the beginning of many judgments after a trial there is a section where the judge gives their view of the reliability and credibility of the witnesses. In about 98% of cases it is not necessary to read further to…
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