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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
Browse: Home » 2019 » May
GUIDANCE ON INSTRUCTING EXPERTS (3): THE INSTRUCTION OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE

GUIDANCE ON INSTRUCTING EXPERTS (3): THE INSTRUCTION OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE

May 31, 2019 · by gexall · in Civil evidence, Expert evidence, Experts

We are returning to the Civil Justice Council “Guidance for the instruction of experts in civil claims”. This time the guidance on the instruction of experts. Remember this guidance is incorporated into the rules.  It provides a essential information as…

"VERY UNFORTUNATELY, ON TWO OCCASIONS... THE ... JUDGE FELL ASLEEP": APPEAL ALLOWED

“VERY UNFORTUNATELY, ON TWO OCCASIONS… THE … JUDGE FELL ASLEEP”: APPEAL ALLOWED

May 31, 2019 · by gexall · in Access to justice, Appeals

In Science Museum Group v Wess [2019] UKEAT 0260 HHJ Auberach made a finding that the Employment Judge had fallen asleep. The appeal was allowed on this ground alone. “I find as a fact that, very unfortunately, on the afternoon…

GUIDANCE ON INSTRUCTING EXPERTS (2): THE APPOINTMENT OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE

May 31, 2019 · by gexall · in Civil evidence, Credibility of experts, Expert evidence, Experts

The importance of the guidance given by the Civil Justice Council  “Guidance for the instruction of experts in civil claims” is often overlooked.  Not only are few people aware of exist of the guidance, fewer still are aware that it…

DRAFT JUDGMENTS "ARE NOT AN INVITATION TO TREAT": COURT OF APPEAL SEEKS TO PUT AN END TO REQUEST THAT ARE "CONFRONTATIONAL AND DISRESPECTFUL"

DRAFT JUDGMENTS “ARE NOT AN INVITATION TO TREAT”: COURT OF APPEAL SEEKS TO PUT AN END TO REQUEST THAT ARE “CONFRONTATIONAL AND DISRESPECTFUL”

May 31, 2019 · by gexall · in Appeals

In I Children [2019] EWCA Civ 898 the Court of Appeal gave clear guidance to practitioners who write to the court seeking “clarification” of a written judgment.  There are clear parameters and the parties should not use the draft judgment…

GUIDANCE ON INSTRUCTING EXPERTS (1): GUIDANCE FROM THE LAWYERIST: "MUCH LIKE A COWBOY HERDING CATTLE"

GUIDANCE ON INSTRUCTING EXPERTS (1): GUIDANCE FROM THE LAWYERIST: “MUCH LIKE A COWBOY HERDING CATTLE”

May 30, 2019 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure, Expert evidence, Experts

Instructing expert witnesses is an important step in many actions.  The advantages, and problems, caused by experts are well known and widely reported recently.  This is one of the matters that crosses boundaries and gives rise to common problems across…

WHO IS AN EXPERT? NOW THERE'S A QUESTION: DEFINITIONS OF "EXPERT" CONSIDERED

WHO IS AN EXPERT? NOW THERE’S A QUESTION: DEFINITIONS OF “EXPERT” CONSIDERED

May 29, 2019 · by gexall · in Civil evidence, Credibility of experts, Expert evidence, Experts

The collapse of the “carbon credit fraud” prosecution today because an “expert” was found out to have no actual expertise leads to consideration of how  exactly the courts define an “expert” .  This does not give rise to a straightforward…

PROVING THINGS 153: "YOU DO NOT WIN A CASE ON INCONSISTENCIES": WHEN THE APPLICANTS "PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE"

PROVING THINGS 153: “YOU DO NOT WIN A CASE ON INCONSISTENCIES”: WHEN THE APPLICANTS “PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE”

May 29, 2019 · by gexall · in Advocacy, Applications, Bundles, Case Management, Disclosure, Witness statements

Most cases are lost not on issues of law but on issues of evidence.  In  Stewart & Ors v Watkin [2019] EWHC 1311 (Ch) ICC Judge Barber was particularly scathing of the quality of the  applicants’ evidence.  The judgment contains…

"THIS WAS A DECISION TAKEN ON FACTS UNSUPPORTED BY EVIDENCE":  MASSIVE INCOMPETENCE BY THE PAROLE BOARD: WHERE TWO CASES GET CONFUSED - HOW CAN WE SLEEP AT NIGHT?

“THIS WAS A DECISION TAKEN ON FACTS UNSUPPORTED BY EVIDENCE”: MASSIVE INCOMPETENCE BY THE PAROLE BOARD: WHERE TWO CASES GET CONFUSED – HOW CAN WE SLEEP AT NIGHT?

May 29, 2019 · by gexall · in Access to justice, Appeals, Civil evidence

It is unusual for this blog to look at decisions relating to Parole Board. However the careful gathering and analysis of evidence is central to every litigator’s role.  A remarkable set of facts is outlined in the judgment of  HHJ…

COURT OF APPEAL: NOT TOO KEEN ON PERMISSION BEING GRANTED FOR "ACADEMIC" ARGUMENTS

COURT OF APPEAL: NOT TOO KEEN ON PERMISSION BEING GRANTED FOR “ACADEMIC” ARGUMENTS

May 29, 2019 · by gexall · in Appeals, Applications

In J-S (Children) [2019] EWCA Civ 894, the Court of Appeal declined to hear an argument that was “academic”. It also gave guidance to judges when considering applications for permission to appeal on the “other compelling reason for an appeal”…

PART 36 OFFER ON HOURLY RATE WAS VALID: HOWEVER INJUSTICE TEST MEANT CLAIMANT WOULD NOT RECOVER AN ADDITIONAL AMOUNT: MERE GAMESMANSHIP SHOULD BE AVOIDED

PART 36 OFFER ON HOURLY RATE WAS VALID: HOWEVER INJUSTICE TEST MEANT CLAIMANT WOULD NOT RECOVER AN ADDITIONAL AMOUNT: MERE GAMESMANSHIP SHOULD BE AVOIDED

May 28, 2019 · by gexall · in Assessment of Costs, Costs, Part 36

In White & Anor v Wincott Galliford Ltd [2019] EWHC B6 (Costs) Deputy Master Friston considered the effect of a Part 36 offer on the hourly rates to be applied on an assessment of costs.  It was held that the…

PERMISSION TO APPEAL: THE RELEVANT TEST: NO REQUIREMENT THAT SUCCESS BE PROBABLE  OR MORE LIKELY THAN NOT

PERMISSION TO APPEAL: THE RELEVANT TEST: NO REQUIREMENT THAT SUCCESS BE PROBABLE OR MORE LIKELY THAN NOT

May 28, 2019 · by gexall · in Appeals

In  R (A Child) [2019] EWCA Civ 895 the Court of Appeal set out the criteria for permission for appeal. “The test for the grant of permission to appeal on an application to the Court of Appeal or to the…

HOUSING AND LEGAL WORK IN NON-PROFIT VOLUNTARY ORGANISATIONS: ADVERTISE YOUR JOBS HERE

HOUSING AND LEGAL WORK IN NON-PROFIT VOLUNTARY ORGANISATIONS: ADVERTISE YOUR JOBS HERE

May 27, 2019 · by gexall · in Access to justice

One of the doyennes of legal bloggers, Giles Peaker, has taken a short break. This leaves at least two gaps in the provision of the valuable services he gives the legal community. HOUSING AND VOLUNTARY SECTION LAWYERS – PLACE YOUR…

CIVIL PROCEDURE BACK TO BASICS 47: THE FORMAL (AND MANDATORY) REQUIREMENTS OF A WITNESS STATEMENT:  A CHECKLIST

CIVIL PROCEDURE BACK TO BASICS 47: THE FORMAL (AND MANDATORY) REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST

May 27, 2019 · by gexall · in Avoiding negligence claims, Civil evidence, Witness statements

Another short post caused by a discussion on Twitter about the number of witness statements that fail to comply with the most basic, mandatory, obligations in the Rules.  The formal requirements of a witness statement are overlooked at the litigator’s…

CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET

CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET

May 27, 2019 · by gexall · in Advocacy, Civil evidence, Civil Procedure

There is an ongoing debate going on on Twitter at the moment about “how to instruct counsel”. More particularly the problems caused by “instructions” being sent in a chain of emails (or other electronic communication) with major difficulties in finding…

PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT...

PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT…

May 26, 2019 · by gexall · in Civil evidence, Witness statements

Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) is an example of a case that rested on a very thin strand of , as it turned out extremely flimsy, evidence. “He is giving evidence about events…

ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION

ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION

May 26, 2019 · by gexall · in Abuse of Process, Appeals, Conduct

In  Hilson v McCarthy [2019] EWHC 1110 (Admin) the Divisional Court confirmed that the appellants had harassed a judge unlawfully and amounted to harassment. It is an important case for anyone involved in the legal system.   “in examining the nature…

RESILING FROM ADMISSIONS - ISN'T THAT EASY : WITH A HOMAGE TO  THE WIT AND WISDOM OF  RALPH GUIDE DOG (RETIRED)

RESILING FROM ADMISSIONS – ISN’T THAT EASY : WITH A HOMAGE TO THE WIT AND WISDOM OF RALPH GUIDE DOG (RETIRED)

May 25, 2019 · by gexall · in Admissions, Appeals, Applications

I got nudged into writing this post on withdrawing from admissions by  Ralph Guide Dog, (Retired).   So, especially for Ralph – who has always taken a keen interest in all things legal,  the latest High Court decision on resiling from…

ANOTHER TRIAL BUNDLE CASE: ACTION STRUCK OUT FOR FAILURE TO PREPARE TRIAL BUNDLE: APPEAL AGAINST STRIKING OUT DISMISSED

ANOTHER TRIAL BUNDLE CASE: ACTION STRUCK OUT FOR FAILURE TO PREPARE TRIAL BUNDLE: APPEAL AGAINST STRIKING OUT DISMISSED

May 24, 2019 · by gexall · in Appeals, Applications, Bundles, Civil Procedure, Relief from sanctions

In Al-Balhaa v Raphael & Ors [2019] EWHC 1323 (QB) Mr Justice Nicol upheld a finding that the action was struck out because of the claimant’s failure to prepare a trial bundle and relief from sanctions should not be granted. …

A CAVALCADE OF COSTS CASES:  HOLIDAY READING:  SOMETHING TO CHEER UP COST LAWYERS OVER THE BANK HOLIDAY WEEKEND...

A CAVALCADE OF COSTS CASES: HOLIDAY READING: SOMETHING TO CHEER UP COST LAWYERS OVER THE BANK HOLIDAY WEEKEND…

May 24, 2019 · by gexall · in Assessment of Costs, Conduct, Costs, Costs budgeting

A number of costs cases have arrived on BAILLI all are decisions of Master Rowley relating to costs. EXCLUDING INTEREST ON COSTS MEANS THAT THIS IS NOT A PART 36 OFFER Ngassa v The Home Office & Anor [2018] EWHC…

APPELLANT'S COSTS OF APPEAL WERE "MANIFESTLY UNREASONABLE" : COURT OF APPEAL  REDUCES £71,072 SCHEDULE TO £13,000

APPELLANT’S COSTS OF APPEAL WERE “MANIFESTLY UNREASONABLE” : COURT OF APPEAL REDUCES £71,072 SCHEDULE TO £13,000

May 24, 2019 · by gexall · in Appeals, Costs

A short postcript to the Court of Appeal judgment in Jofa Ltd & Anor v Benherst Finance Ltd & Anor [2019] EWCA Civ 899 makes some telling remarks about the cost of appeals. “the amount of costs claimed by the…

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