SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE
There are particular dangers for solicitors giving evidence. This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law. In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
THE (NOT SO) LONELY LITIGATOR’S CLUB 35: HOWARD KEMP: THE OLYMPIAN, DRUMMING DISTRICT JUDGE
District Judge Howard Kemp is the third in what, currently, is our trio of judicial musicians. DJ Kemp is a drummer, and if you want to know what makes him an Olympian, read carefully… What instrument (or instruments) do you…
DEPP, DISCLOSURE, TEXT & TESTS: CASE STRUCK OUT BECAUSE OF FAILURE TO COMPLY WITH PEREMPTORY ORDER : CLAIMANT’S CASE NOW ALL AT SEA
In Depp v News Group Newspapers Ltd & Anor [2020] EWHC 1689 (QB) Mr Justice Nicol held that the claimant’s case stood struck out because of a failure to give disclosure. There are important observations about the scope of disclosure….
JUDGMENT SET ASIDE BECAUSE OF LOCKDOWN (2): WHO PAID THE COSTS? SOME IMPORTANT LESSONS HERE
A post earlier today dealt with the case of Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB) where a regular judgment was set aside because proceedings had been served, essentially, on empty offices. What will be of…
JUDGMENT SET ASIDE WHEN DEFAULT WAS OBTAINED BECAUSE OF “LOCKDOWN”: LITIGATORS MUST BE AWARE THAT THE WORLD SHIFTED ON ITS AXIS ON 23 MARCH 2020
The judgment of Mr Justice Julian Knowles in Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB) is the first reference I have seen to that part of CPR PD51ZA that deals the court’s general discretion when faced…
WITNESS STATEMENTS: EDITED HIGHLIGHTS OF THE REPORT OF THE WITNESS EVIDENCE WORKING GROUP: THE BUSINESS AND PROPERTY COURTS
This report of the Witness Evidence Working Group was produced at the end of last year. It highlights some major issues in relation to the use of witness statements, and the role and experience of those preparing them. It has…
INACCURATE TRANSCRIPTS WERE NOT AUTHENTIC: HIGH COURT DECISION
One reliable element in most litigation is a transcript of a judgment. In Ghassemian v de Beaumont & Anor [2020] EWHC 1642 (Ch) Mr Justice Birss had cause to question the accuracy of a transcript of his own judgment. “The…
COUNSEL’S ADVICE IS NOT EVIDENCE: REALLY, ITS NOT.
There is an interesting consideration of the role of counsel’s advice in the judgment of HHJ Vincent in AZ v BZ (financial remedies appeal) [2020] EWFC 28. In a financial remedies hearing, a judge was wrong to firstly admit, and…
THE EXPERT THAT DOESN’T GIVE HIS SOURCES (EXCEPT WIKIPEDIA): A PRACTICE DEPRECATED BY THE COURT.
In Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 1626 (TCC) Mrs Justice O’Farrell commented on the practice of one of the experts in the case. Failure to follow the basic guidance given in the…
GOING BACK INTO COURT: MY FIRST EXPERIENCE OF A SOCIALLY DISTANCED TRIAL
Yesterday I had my first experience since “lockdown” of going back into a court building to do a trial. I did a series of tweets about it and they have had some attention. That is why i thought it best…
CORONAVIRUS LAW: SHOULD A HEARING BE IN PERSON OR BY VIDEO?
In Surrey Heath Borough Council v Robb & Ors [2020] EWHC 1650 (QB) Mr Justice Freedman considered submissions that a hearing should take place in person. He held that there was an onus on part requesting a hearing in court…
THE NOT SO LONELY LITIGATOR’S CLUB 34: THE MUSICAL SECTION: JAMES HEYWORTH, SAXOPHONE, FLUTE & CLARINET
Our next member is newly retired District Judge James Heyworth. James is also a reinvigorated woodwind player. It turns out that I have untapped a whole host of judicial musicians, there may be more to come.. What instrument do…
THE NOT SO LONELY LITIGATOR’S CLUB 33: THE MUSICAL SECTION: H.H. JUDGE WOLSTENHOLME – THE DRUMMER JUDGE
The next member of the musical section of our Club is retired Circuit Judge Scott Wolstenholme. Scott may have retired from law a few years back but he is incapable of retiring from drumming. I have been playing in a…
FAILURE TO FILE A CERTIFICATE FOR THE LITIGATION FRIEND UPON ISSUE: CAN THE COURT REMEDY THE SITUATION: CONSIDERING THE IMPARTIALITY OF THE LITIGATION FRIEND
It is rare for there to be a lengthy judgment in relation to procedural issues about the appointment and the role of the litigation Friend. In Hinduja v Hinduja & Ors [2020] EWHC 1533 (Ch) Mr Justice Falk considered whether…
FARMER -v- THE CHIEF CONSTABLE OF LANCASHIRE: COSTS DISALLOWED IN FULL: FULL JUDGMENT NOW AVAILABLE
I wrote yesterday about the two useful articles on the case of Farmer v The Chief Constable of Lancashire [2019] EWHC B18 (Costs). The full judgment is now available on BAILLI. “Anybody around this table being of the costs persuasion…
WHEN MISCONDUCT ON ASSESSMENT LEADS TO NO AWARD OF COSTS
It is illuminating to read two reports of the case of Farmer -v- the Chief Constable of Lancashire, where a party’s conduct on assessment led to no award of costs being made. Indeed the claimant was ordered to pay the…
PROVING THINGS 177: WHEN YOU ARE RELYING ON A MEDICAL EXPERT ON CAUSATION WHO “SHOOTS FROM THE HIP” (IT DOESN’T END WELL)
I have written many times about issues arising from expert witnesses. In clinical negligence cases the role of the expert witness is often paramount. The claimant, in particular, is almost wholly reliant on expert evidence in relation to causation. It…
CLINICAL NEGLIGENCE TRIAL HELD REMOTELY: AND IT WORKED WELL…
I have highlighted some cases where remote hearings have had difficulties. In Jones v Ministry of Defence [2020] EWHC 1603 (QB) the judgment indicates that the remote hearing in a clinical negligence case worked well. THE CASE The case was…
THE SEVEN YEAR ITCH: CIVIL LITIGATION BRIEFS’ 7th (OR 29th?) BIRTHDAY: FACTS, FIGURES AND HOW IT ALL BEGAN
This week sees the seventh anniversary of Civil Litigation Brief as a blog. That, it appears, is relatively young as a blog, the housing law blog Nearly Legal recently celebrated its 14th anniversary and is well into its truculent teenage…
CIVIL PROCEDURE BACK TO BASICS 81: THE SUMMARY ASSESSMENT OF COSTS: AVOIDING PROBLEMS
Over the years we have seen a major difference in judicial responses to a failure to have a schedule of costs at a relevant hearing. Some judges are forgiving, some simply order no – or minimal – costs. In SRA…
THE (NOT SO) LONELY LITIGATOR’S CLUB 32: THE MUSICAL SECTION: STEPHEN SIMBLET QC: THE MANDOLIN PLAYING SILK
I said I was looking for a wide variety of music and musicians for the music section of the club. Stephen Simblet QC plays mandolin in Balkan folk music groups (there are links to their performances below). This ties up…
THE (NOT SO) LONELY LITIGATOR’S CLUB 31: THE MUSICAL SECTION: NIKOLAS CLARKE – THE CONDUCTOR’S TALE
Having had 30 lawyers write about their experiences in lockdown it is now time to vary the membership. Indeed the club constitution requires us to lighten the mood and provide cheer to the profession. So I have decided to expand…
WHEN THE SKY FALLS IN: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 6th AUGUST 2020
I have been writing on this blog for some time now that lawyers should be taught that mistakes happen. We should aim to avoid them but if errors are made they are often rectifiable if dealt with correctly and quickly. …
THE (NOT SO) LONELY LITIGATOR’S CLUB: OUR THIRTY FOUNDING MEMBERS: WHERE WILL THE CLUB GO FROM HERE?
We now have thirty founding members of The (not so) Lonely Litigator’s Club. I started the club in the hope that it would give some people some support during lockdown by seeing how other lawyers are coping whilst working at…
AN EXPERT WITH A CONFLICT OF INTEREST: SHOULD NEVER HAVE BEEN INSTRUCTED
I am giving a webinar on the 29th June 2020 on the Perils and Pitfalls of Expert Evidence. I have not found that there is any shortage of material. That material is added to in the judgment of Mr Justice…
WEBINARS ON LAW, PROCEDURE AND DAMAGES: READ ALL ABOUT THEM…
Since lockdown has made giving live presentations impossible I have been involved in presenting a number of webinars. This would seem a good time to set them out. Those that have been given earlier this year are still available on…
WHEN REMOTE HEARINGS GO WRONG: AND STRUGGLING THROUGH TO PUT THEM RIGHT – AT WHOSE COSTS?
I often listen to, and read, official statements about remote hearings with a degree of scepticism. The impression is given that things are going smoothly. The reality is that things are often going awry and it is taking a great…
THE (NOT SO) LONELY LITIGATOR’S CLUB 30: OUR FINAL FOUNDING MEMBER MICHAEL WILLIAMSON: ” THAT ADMIRABLE SOLICITOR FROM CREWKERNE”
This is the last post in this series in its current format. The thirty club members to date are our “founding members”. I started this series so lawyers could share their experiences of working through lockdown. Michael has dealt with…
THE (NOT SO) LONELY LITIGATOR’S CLUB 29: STEPHEN LOXTON: THE CLERK’S TALE
Next on our list of members is Stephen Loxton, Director of Clerking at Kings Chambers. Steve is working from home with two young children for company. He is one of hundreds (if not thousands)of people involved in the management of…
ALLEGATIONS OF DISHONESTY LEAD TO INDEMNITY COSTS AGAINST THE DEFENDANT: THE HIGH RISK STRATEGY OF BUILDING HIGH WALLS ON LOW FOUNDATIONS
In the previous post I reported on the decision in Kilbey -v- Arien Contractors Ltd (KilbeyJudgment) and noted that there had been an award of indemnity costs against the defendant. I am grateful to barrister Hannah Godfrey for sending me…
SURVEILLANCE EVIDENCE, ALLEGATIONS OF MALINGERING AND INDEMNITY COSTS (AGAINST THE DEFENDANT)
I had no sooner finished a webinar about surveillance evidence this afternoon when I received an email and a copy of a case from solicitor Steve Evans.* The judgment of HHJ Yelton (sitting in the High Court) in Kilbey -v-…
LIFE EXPECTANCY IS RARELY A SIMPLE MATTER OF STATISTICS: APPLYING FOR A “VARIATION” OF DIRECTIONS: YOU SHOULD HAVE APPEALED
In the judgment this morning in Chaplin v Ben Pistol Allianz Insurance Plc [2020] EWHC 1543 (QB) Jay J rejected an application by the defendant to rely on expert evidence in relation to life expectancy. This judgment is important…
THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Two years on this is a good time to recap on…
THE (NOT SO) LONELY LITIGATOR’S CLUB 28: DAVID WITHERS
There may, at times, be a slight Yorkshire bias to the selection of club members, be assured that this is not unconscious. However I noticed that South Yorkshire was missing. Today we here from David Withers a partner at Irwin…
CLAIMS FOR MEDICAL EXPENSES, CARE AND WORK AROUND THE HOME: WEBINAR 23rd JULY 2020
On the 23rd July 2020 I am conducting a webinar “Claims for Medical Expenses, Care and Work around the Home”. This webinar looks at damages in relation to medical expenses and care. It covers the whole range of care claims,…
CIVIL PROCEDURE BACK TO BASICS 79: NON-DISCLOSURE OF THE OTHER SIDE’S WITNESS STATEMENT
Today we are looking at CPR 32.12. The rule preventing a party using the other side’s witness statements for purposes other than the action they were served in. THE RULE Use of witness statements for other purposes 32.12 (1) Except…
The Civil Procedure (Amendment No. 2) (Coronavirus) Rules 2020: EXTENDING STAY ON POSSESSION PROCEEDINGS UNTIL THE 23rd AUGUST 2020EEDINGS TO THE 23
These Regulations come into force on the 25th June 2020. The put the stay on possession proceedings into the rules (they have previously been in a Practice Direction). The rules are available here . THE NEW RULES Citation and commencement…
CORONAVIRUS LAW: POSSESSION APPEAL HEARD IN STAY PERIOD: JUDGMENT WILL NOT BE GIVEN UNTIL END OF THE STAY
The judgment of Mr Justice Cavanagh yesterday in Bromford Housing Association Ltd v Nightingale & Anor [2020] EWHC 1532 (QB) is another variant of the issues relating to the stay of possession proceedings. In this case the judge declined to…
COVID REPEATS: THE WHOLE SERIES IN ONE PLACE
There are 50 posts in this series. They represent a personal choice of the 3,614 posts on this blog over the past seven years. COVID REPEATS (1): THE (ALMOST) COMPLETE GUIDE FOR ASPIRANT AND NEW LAWYERS – FROM TWITTER COVID…
CORONAVIRUS LAW: APPLICATION TO ADJOURN HEARING REFUSED: JUSTICE DELAYED IS JUSTICE DENIED
The decision of Mr Justice MacDonald today in Lancashire County Council v M & Ors (COVID-19 Adjournment Application) [2020] EWFC 43 is another case where an application to adjourn because of Covid concerns was refused. The judge held that an…
BACK TO COURT: USEFUL ADVICE AND LINKS FOR KEEPING SAFE WHILST OUT AND ABOUT IN A PANDEMIC
The courts are, gradually, re-opening. Civil and criminal hearings are taking place. We have to trust that steps are being taken to protect our health. I asked on Twitter for advice that people had in relation to getting to, and…
THE (NOT SO) LONELY LITIGATOR’S CLUB 27: DANIEL HERMAN (WITH DETAILS OF THE DANNY TURNBULL SCHOLARSHIP)
Our latest member is Daniel Herman a partner at Stewarts in Leeds. I have asked Daniel one additional question in addition to the usual seven. As everyone knows the constitution of the Club includes the aim of encouraging people to…
COVID REPEATS 50 (THE FINAL ONE): MEMORIES OF A FRIEND AND FORMER CLERK: ROBIN BUTCHARD
I am finishing this series on a personal note. In June last year I wrote a tribute to Robin Butchard. I later attended his funeral and was one of the (many) who stood up in a very packed chapel. Rob…
CORONAVIRUS LAW: COVID IS NOT GOING TO BE USED AS A REASON TO ALLOW A LATE AMENDMENT TO A DEFENCE
In the judgment today in Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB) Mrs Justice Lambert considered an argument that the Coronavirus epidemic could play a part in the defendant’s application to amend its defence. …
OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was, in reality, an attempt to give expert evidence. …
COVID REPEATS 49: SIR HENRY BROOKE: A TRIBUTE TO HIS ONLINE PRESENCE
This is the penultimate post in this series. I thought it would be a good time to return to my tribute to Sir Henry Brooke. One reason for this is that the legal world needed him and misses him. After…
TRANSPARENCY PROJECT: REMOTE COURT HEARINGS GUIDANCE NOTE
The Transparency Project have produced a Remote Court Hearings Guidance Note. This is aimed at litigants themselves. Although it is quite specifically aimed at the Family Courts many litigants (and some lawyers) may find this of some assistance. THE…
CIVIL PROCEDURE BACK TO BASICS 78: NO DUTY ON AN INJURED CLAIMANT TO USE THE NATIONAL HEALTH SERVICE
This post is due to a tweet someone copied me in on this morning. The issue was, ostensibly, one of general damages in a personal injury case. An insurer was refusing to pay the costs of private treatment – stating…
CORONAVIRUS LAW IN THE COURT OF APPEAL: A HYBRID HEARING WILL NOT BE UNFAIR IF LEADING COUNSEL CANNOT ATTEND IN PERSON
In the judgment today in C (Children : Covid-19: Representation) [2020] EWCA Civ 734 the Court of Appeal dismissed an argument that a “hybrid” hearing, to be heard with one side’s leading counsel attending remotely, was unfair. THE CASE…
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