AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 11: PROCEDURE: AN EIGHT POINT SURVIVAL GUIDE
Here we have a short eight point guide on some of the key problem areas in relation to procedure once proceedings have been issued. Rule 1: Have everything ready pre-issue and have a plan. Effectively this means that you have,…
FUNDAMENTAL DISHONESTY – THE “SUBSTANTIAL INJUSTICE” ARGUMENT: THREE KEY CASES
Section 57 of the Criminal Justice and Courts Act 2015 introduced the concept of “fundamental dishonesty” and provides penalties when a claimant is found to be fundamentally dishonest. Section 57 (2) provides an exception if the court finds that the…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 10: “DEFENSIVE LITIGATION”: PROTECT AND SURVIVE
In the 10th post in this series we consider the concept of “defensive litigation”, that is what positive steps litigators can take to avoid problems occurring. THE LIST: DEFENSIVE LITIGATION This list is based on a talk I gave in…
JOB ADVERT: HAMMERSMITH AND FULHAM LAW CENTRE – OFFICE ADMINISTRATOR
Hammersmith and Fulham Law Centre is looking for an Office Administrator. If you want to work for these really nice people look below. Hammersmith & Fulham Law Centre Salary: £23 – £25,000 per annum plus pension Working hours: 35 per…
LAWYERS AND HOLIDAYS 2 – ADVICE FROM ALL OVER THE WORLD : GOOD READING FOR UNICORNS
Following on from the post yesterday where lawyers gave advice on avoiding stress on work when going on and coming back from holiday it is worthwhile looking at the general guidance that is available. “Lawyers have holidays without stress?…
LAWYERS – GOING ON HOLIDAY AND AVOIDING EXTRA STRESS: ADVICE FROM TWITTER
Since we are in the middle of the holiday season I have noticed how some people are reporting that going on, and coming back, from holidays is a stressful experience. I asked the lawyers (and others) on Twitter to give…
JOB VACANCY : HEAD OF LEGAL PRACTICE AT ANTI TRAFFICKING AND LABOUR EXPLOITATION UNIT
ATLEU job vacancy – Head of Legal Practice Hours: 35 per week (flexible and part-time working considered) Salary: circa £36,000 plus 5% employer pension contribution Leave: …
DE MINIMIS BREACH OF RULES DID NOT LEAD TO PART 36 OFFER BEING INVALID
In Momonakaya v the Ministry of Defence [2019] EWHC 480 (QB) HHJ Blair QC considered whether a claimant had properly accepted a Part 36 offer. It was held that an offer that breached the rules in a de minimis way was…
WHEN THE COURT LOSES IMPORTANT DOCUMENTS: ANOTHER EXAMPLE OF ADMINISTRATIVE PROBLEMS IN THE COURTS: “CIVIL JUSTICE: 2019 STYLE”
I am grateful to solicitor Aaron Pearson for giving me permission to post some comments he put on LinkedIn earlier today. It is small issue, but is an example of the administrative errors that occur daily within the court system,…
AN OFFER TO SETTLE FOR NO DAMAGES CAN STILL BE A VALID PART 36 OFFER: APPEAL AGAINST NO ORDER FOR COSTS ALLOWED (IN PART)
In MR v Commissioner of Police for the Metropolis [2019] EWHC 1970 (QB) Mrs Justice McGowan allowed an appeal as to costs in a issue relating to Part 36. She held that the trial judge had erred in making no…
THE EXPERT AS ADVOCATE AND PROVIDING “CRITICAL COMMENTARY”: IMPORTANT POINTS ON THE ROLE OF THE EXPERT WITNESS TO TAKE AWAY
There are some interesting comments on experts in the judgment of Matthew Gullick (sitting as a High Court Judge) in Pepe’s Piri Piri Ltd & Anor v Junaid & Ors [2019] EWHC 2097. “It is not part of the duty…
THE COURT CAN ORDER PARTIES TO TAKE PART IN AN EARLY NEUTRAL EVALUATION: COURT OF APPEAL DECISION
I am grateful to barrister Christopher Buckingham for pointing out that the Court of Appeal decision in Lomax v Lomax [2019] EWCA Civ 1467 is now on BAILLI. The Court of Appeal held that the consent of both parties was…
CIVIL PROCEDURE BACK TO BASICS 59: WHEN A CLIENT DISOWNS THEIR OWN WITNESS STATEMENT? SELF PROTECTION FOR THE LAWYER
There has been much discussion on Twitter tonight in relation to the language used in witness statements. That led to this account being given by “Sweary Expat” a lawyer based in the Cayman Islands (some people clearly have to suffer…
BOTH SIDES LATE WITH WITNESS EVIDENCE: BOTH SIDES REFUSED RELIEF FROM SANCTIONS: DEUCE IN A JUICE CASE
There are many interesting aspects of the judgment in Goknur Gida Maddeleri Enerji Imalat Ithalat Ihracat Ticaret VE Sanati A.S (Goknur) v Organic Village Ltd [2019] EWHC 2201 (QB), not least that both sides were in default in relation to…
AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?
The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence. However the claimant’s problems came largely from reliance on an…
CIVIL PROCEDURE BACK TO BASICS 58: HOW TO CALCULATE TIME IN THE CIVIL PROCEDURE RULES
The previous post on the errors made in relation to calculation of time highlight the need for practitioners to be aware of the precise rules in relation to calculation of time. In this respect this may be the easiest post…
WHY IT IS IMPORTANT LITIGATORS KNOW HOW TO COMPUTE TIME PROPERLY: 7 DAYS MEANS 7 DAYS: APPLICATION TWO DAYS LATE: CLAIMANT COMES TO GRIEF
In Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) Mr Justice Martin Spencer overturned a decision granting relief from sanctions. A major issue arose out of confusion by the claimant’s solicitors over the calculation of the time period. This…
“YOURS IS BIGGER THAN MINE”: COMPARISON OF COSTS NOT ALWAYS APPROPRIATE
In Monex Europe Ltd v Pothecary & Anor [2019] EWHC 2204 (QB) Clive Sheldon QC (sitting as a Deputy High Court Judge) did not accept an argument that the fact that defendants’ costs were much higher than the claimant’s figures…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 9: SERVICE OF THE CLAIM FORM (3): SERVICE AT THE LAST KNOWN ADDRESS
Staying with issues relating to service of the claim form we are looking at another common source of error – service at the “last known address”. The key point here is that a claimant cannot simply serve at the “last…
JOB VACANCY: HAMMERSMITH & FULHAM LAW CENTRE: CHILD POVERTY UNIT
There is a job vacancy and Hammersmith and Fulham Law Centre – a solicitor is needed. DETAILS “Salary: £36,000 per annum Working hours: 35 per week (flexible and job-share considered) We require a solicitor for our Child Poverty Unit….
BEING A LITIGATOR “WHAT I’D TELL A YOUNGER ME”: SUE HARRIS – DIRECTOR AT WALKER MORRIS
For this interview we move to Yorkshire, more specifically to Leeds and the offices of Walker Morris. Sue Harris is one of those energetic people who do a tremendous amount outside their work. A litigator who works in construction and…
WEBINAR ON THE 25th SEPTEMBER 2019: COURT FEES: AVOIDING THE PITFALLS
On the 25th September at 1.pm, I am giving a webinar “Court fees: Avoiding the pitfalls – fees, fee remission, abuse of process and striking out”. The webinar deals with practice and procedure relating to court fees, including failure to…
ADVOCACY THE JUDGE’S VIEW SERIES 4: PART 1: THE DEADLY SINS OF ORAL ADVOCATES: DON’T BE CONFUSING OR BORING (PLUS A RECAP OF THE PREVIOUS SERIES)
After a break of eight months I am starting a new series featuring the guidance the judges give to advocates. Here I am encouraging you to read The deadly sins of oral advocates: Part One, in the Lawyers Weekly. A…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 8: SERVICE OF THE CLAIM FORM (2) – SERVICE ON SOLICITORS (OR NOT)
We have looked at the problem of service on solicitors many times, including several cases where claimants have come to grief. Anyone proposing to serve on a solicitor must know the basic rules. In some circumstances it is mandatory to…
PART 8 PROCEDURE USED FOR CLAIM FOR £2.6 MILLION: THE CLAIMANT COMES TO GRIEF – IS ANYONE SURPRISED?
A common practice has occurred of issuing Part 8 proceedings under the MOJ Protocol and “parking” cases there for an extended period. This is an extremely dangerous practice. It is even more dangerous if the case that has been parked…
COURT OF APPEAL ORDER RETRIAL FOLLOWING JUDGE’S FAILURE TO GIVE ADEQUATE REASONS: THE “BUILDING BLOCKS” OF FACT FINDING
Attempts to appeal findings of fact are extremely common, so common that I have stopped writing about them. There is also a common theme – the judge should not have found that, says the appellant: it was a finding open…
WHAT IS THE APPROPRIATE TEST IF SOMEONE APPLIES IN ADVANCE TO EXTEND TIME TO COMPLY WITH A PEREMPTORY ORDER? HIGH COURT DECISION
In Everwarm Ltd v BN Rendering Ltd [2019] EWHC 2078 (TCC) Mr Alexander Nissen QC (sitting as a Deputy High Court Judge) considered the appropriate test to be applied when the court made a peremptory order and an application was…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of…
NO COSTS ORDER AGAINST SOLICITORS OR COUNSEL WHO WERE ACTING ON A CONDITIONAL FEE BASIS
In Willers v Joyce & Ors [2019] EWHC 2183 (Ch) Lady Justice Rose dismissed an application for costs against solicitors and counsel who had represented an unsuccessful party on a conditional fee basis. “… there is a strong public interest…
SUCCESSFUL APPEAL OF A DECISION NOT TO PROVIDE COURT FEE REMISSION: GUIDANCE ON HOW TO APPEAL REFUSAL TO GRANT REMISSION
I am grateful to solicitor Anthony McCarthy for sending me brief details of a successful appeal against a decision refusing remission of court fees. Anthony states that successful appeals are very rare. ANTHONY’S NOTE ON THE APPEAL Fee was £10k…
NOT GIVING SOURCES OF INFORMATION AND BELIEF WHEN A SOLICITOR FILES A WITNESS STATEMENT: A PROBLEM BREAKING OUT ALL OVER
A post yesterday commented on the dangers of a solicitor (or indeed anyone) making a witness statement without giving the sources of their information and belief. An identical issue arose in the judgment of Deputy Master Linwood in Islestarr Holdings…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 7: SERVICE OF THE CLAIM FORM (1) – TIME (SIT UP AND PAY ATTENTION NOW NON-PI LAWYERS)
The previous post in this series have been primarily of interest to personal injury lawyers. Matters relating to service of the claim form relate to virtually all litigators. Indeed the majority of disputed cases in relation to service appear to…
WHEN A SOLICITOR MAKES A WITNESS STATEMENT: STATE THE SOURCE OF INFORMATION AND DON’T GIVE “OPINION” EVIDENCE (IT REALLY DOESN’T GO DOWN WELL)
There are numerous examples on this blog of the difficulties that can occur when a solicitor makes a witness statement on behalf of their clients. The dangers are exemplified in the judgment of Master Marsh in Folgender Holdings Ltd &…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 6: MAKE SURE YOUR CLIENT IS NOT BANKRUPT (& KNOW WHAT TO DO IF THEY ARE)
Many litigants don’t tell their lawyers that they are bankrupt. Some firms ask as a matter of course, many do not. Some litigators do not appreciate the impact of personal bankruptcy on a litigant. A CASE TO POINT: A TRIAL,…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 6: ACCIDENTS ABROAD ARE SUBJECT TO DIFFERENT LIMITATION PERIODS
In the sixth in this series we look at accidents abroad. In most cases the limitation period of the country where the accident occurred is the limitation period that applies. A lack of knowledge of this basic point, and of…
CIVIL PROCEDURE BACK TO BASICS 57: YOU CAN’T SUBMIT THAT A WITNESS IS LYING UNLESS YOU HAVE PUT THAT CASE TO THEM
A short, but fundamental, point about making submissions at the close of a case. You cannot generally make submissions that a witness is lying unless that case has been put directly to that witness in cross-examination. “It is a fundamental…
THE DANGERS OF AN “ENTHUSIASTIC” EXPERT – CASTS DOUBTS ON THEIR RELIABILITY
Most clients are happy to find an expert witness who agrees with their case. Even better, it may be thought, is an eminent expert who feels very strongly about the case. However, as we have seen so often on this…
FALL DOWN AIRCRAFT STEPS WAS AN “ACCIDENT”: HIGH COURT DECISION
Several posts last week dealt with claims relating to aircraft and the limitation period. The Montreal Convention was considered in Labbadia v Alitalia (Societa Aerea Italiana SPA) [2019] EWHC 2103 (QB). (One essential point to take home is that this…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 5: BE WARY OF EVERYTHING THAT HAPPENS ON WATER: BOATS AND SHIPS (& GANGWAYS)
In the fifth in this updated series we are looking at the different time periods that apply when an accident occurs on, or even near, water. The aim, as ever, is to flag these issues up so that (as…
A SOLICITOR WHO FILES AN ACKNOWLEDGMENT OF SERVICE STAYS ON THE RECORD UNTIL A NOTICE OF CHANGE OR THEY MAKE AN APPLICATION TO BE REMOVED
In Ashley & Anor v Jimenez [2019] EWHC 1806 (Ch) Chief Master Marsh rejected an argument that service on a solicitor who given their address for service in the acknowledgement of service was not good service of an application. For…
RIGHTS OF AUDIENCE AND HEARINGS IN “CHAMBERS”: BAR COUNCIL GUIDANCE
I am grateful to Charles Bagot QC for referring me to the Bar Council publication “Acting as a Solicitor’s Agent”. This has a different view to those set out in earlier posts. It would be prudent for those involved in…
RIGHTS OF AUDIENCE IN CHAMBERS: A RESPONSE: WHAT IS MEANT BY “IN CHAMBERS”?
Last month I reported on a decision in relation to rights of audience in “chambers”, in particular what was meant by chambers. That led to a lot of (sometimes heated) discussion on Twitter and a response from “Elderly Cost Nerd”…
APPLICATION FOR EXTENSION OF TIME FOR DETAILED ASSESSMENT PROCEEDINGS REFUSED:
There are many lessons that litigation lawyers can learn from the judgment of Master Leonard in Rattan v Carter-Ruck Solicitors [2019] EWHC B9 (Costs). It is a case where a client agreed to a settlement and then, essentially, sought to…
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