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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
Browse: Home » 2018 » March
APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT

APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT

March 30, 2018 · by gexall · in Appeals, Applications, Striking out, Summary judgment

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

A DRAFT JUDGMENT IS NOT AN OPEN INVITATION TO TAKE A SECOND BITE AT THE CHERRY: AN OVERUSED TACTIC

March 29, 2018 · by gexall · in Appeals, Applications, Judgment

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"

MISTAKES, APPEALS, DENTON AND LITIGANTS IN PERSON: “JUDGES DIFFER, ONE FROM ANOTHER, IN SMALL, HUMAN, WAYS”

March 29, 2018 · by gexall · in Appeals, Applications, Extensions of time, Litigants in person

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)

CIVIL LITIGATORS AND THE SECRET BARRISTER 4: WHY WE CAN’T TRUST THE GOVERNMENT (OR OURSELVES)

March 28, 2018 · by gexall · in Access to justice, Book Review, Civil evidence, Witness statements

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

PART 36: ADDITIONAL AMOUNTS AFTER DEFENDANT FAILS TO BEAT CLAIMANT’S 36 OFFER: OFFER “IN THE BAG” SO DECISION CAN BE DEFERRED

March 28, 2018 · by gexall · in Civil Procedure, Part 36

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

SERVICE OF THE CLAIM FORM AT THE “OLD ADDRESS”: THE HIERARCHY OF MEASURES A CLAIMANT HAS TO TAKE

March 27, 2018 · by gexall · in Appeals, Civil Procedure, Service of the claim form, Serving documents

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

THE SECRET BARRISTER AND CIVIL LITIGATORS 3: “WHAT ABOUT OUR STATISTICS: “AN OUTRAGEOUS INTERFERENCE WITH THE RULE OF LAW

March 27, 2018 · by gexall · in Access to justice, Book Review, Civil Procedure

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

WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS

March 27, 2018 · by gexall · in Appeals, Civil evidence, Civil Procedure, Conduct, 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

THE SECRET BARRISTER AND CIVIL LITIGATORS 2: THE ESSENTIAL ROLE OF THE LITIGATION SOLICITOR

March 26, 2018 · by gexall · in Access to justice, Book Review, Case Management, Civil Procedure

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

THE TIME FOR CHALLENGING A BILL HAS PROBABLY LONG GONE: AN IMPORTANT FACTOR IN REFUSING AN APPLICATION FOR DELIVERY UP

March 26, 2018 · by gexall · in Applications, Assessment of Costs, Conditional Fee Agreements, Costs

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

ROUND ONE: WHAT IS A”WIN” UNDER A CFA? ROUND TWO: THE ASSIGNMENT OF CFAS: FORMER CLIENT DOES NOT SCORE A KNOCKOUT BLOW

March 26, 2018 · by gexall · in Conditional Fee Agreements, Costs

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"

EXPERT WATCH: AN EXPERT WHO “SIGNALLY FAILED TO COMPLY WITH HIS BASIC DUTIES AS AN EXPERT”

March 25, 2018 · by gexall · in Expert evidence, Experts

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

THE SECRET BARRISTER – WHERE DO I START? (1) LETS TRY LISTING

March 25, 2018 · by gexall · in Access to justice, Book Review, 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?

THE ADDRESS FOR SERVICE OF THE CLAIM FORM: HAVE YOU GOT A SYSTEM? LITIGATING OR WINGING IT?

March 24, 2018 · by gexall · in Avoiding negligence claims, Case Management, Civil Procedure, Service of the claim form, Serving documents

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

NO “GRANDSTANDING” PLEASE: THE COURT IS NOT ASSISTED BY RHETORICAL POINTS

March 23, 2018 · by gexall · in Advocacy, Applications, Conduct

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"

STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”

March 23, 2018 · by gexall · in Case Management, Civil evidence, Civil Procedure, Statements of Case, Striking out

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

SERVICE OF A COMPANY UNDER THE COMPANIES ACT: MURPHY -V- STAPLES RE-VISITED

March 23, 2018 · by gexall · in Service of the claim form, Serving documents

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"

OVER-LISTING HAS CONSEQUENCES : (SO DOES TALKING OVER YOUR OPPONENT): HEARINGS SHOULD NOT BECOME A “SHOUTING MATCH”

March 22, 2018 · by gexall · in Appeals, Civil evidence, Civil Procedure

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)

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)

March 21, 2018 · by gexall · in Abuse of Process, Civil Procedure, Service of the claim form, Serving documents

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

PROCEDURAL DEFECTS AND CPR 3.10: CONSIDERATION BY THE COURT

March 21, 2018 · by gexall · in Civil evidence, Civil Procedure, Sanctions

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…

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