CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP OCTOBER 2020
This round up covers specific posts and articles in relation to civil procedure . There is a monthly round up of a wide range of legal issues and coronavirus on the Kings Chambers blog, Coronavirus: Guidance for Lawyers and Business….
COURTESY, THE ADVOCATE AND THE LAWYER: TEN THINGS TO THINK ABOUT TO HELP YOUR CLIENTS (AND YOURSELVES)
A tweet from a barrister, this afternoon complained, in essence about the “pointless aggression” of an opponent. It has gathered lots of support. One thing that judges, from around the world, are universally keen on is courtesy. This gives me…
A “LACK OF OBJECTIVITY” IN AN EXPERT’S APPROACH: CLINICAL NEGLIGENCE AND CAUSATION CONSIDERED IN THE HIGH COURT
In Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB) HHJ Freedman (sitting as a Deputy High Court Judge) made some telling observations about the lack of objectivity of the defendant’s expert. THE CASE The claimant…
THE IMPORTANCE OF GETTING EVIDENCE EARLY: “I DON’T REMEMBER NOW & I WON’T REMEMBER ANYTHING IF I COME TO COURT”
The observations of Mr Justice Nicklin in Rayner v Seabourne-Hawkins [2020] EWHC 2895 (QB) highlight the importance of gathering evidence promptly. It also contains the text of a highly perceptive letter from a prospective witness that, in many ways, highlights…
TOP 10 HALLOWEEN WORRIES FOR LAWYERS: TIME LIMITS, TRIAL BUNDLES AND WAKING UP IN THE MIDDLE OF THE NIGHT…
Today is a special day and I thought I’d start by looking at what scares lawyers most? This was discussed in 2017, there was another useful post on scary stuff in 2018. I have made a selection from the 2017…
THE DANGERS OF APPLYING FOR NON-PARTY COSTS ORDERS: THE APPLICANT HAS TO PAY THE PRICE: COURT OF APPEAL DECISION TODAY
In the judgment today in Deepchand & Anor v Sooben [2020] EWCA Civ 1409 the Court of Appeal overturned a decision that there be no order for costs when a party made an unsuccessful application for a non-party costs order. …
PART 36: JUDGE WAS WRONG NOT TO ALLOW ENHANCED INTEREST WHEN CLAIMANT BEAT ITS OWN OFFER: COURT OF APPEAL DECISION
In the judgment today in Telefonica UK Ltd v The Office of Communications [2020] EWCA Civ 1374 the Court of Appeal overturned the decision of the trial judge not to award additional interest on damages and costs in a case…
CORONAVIRUS AND CIVIL PROCEDURE: THE PRACTICE DIRECTION ENDS TOMORROW: REVIEW OF THE CASES
Practice Direction 51ZA which allows parties to extend time limits for up to 56 days comes to an end on the 30th October 2020. Unless there is a further rule change then parties can only agree extensions of 28 days. …
SOLICITOR’S FEES NOT RECOVERABLE AFTER THEY HAD TERMINATED THE CONDITIONAL FEE AGREEMENT: HIGH COURT DECISION
In Toms (t/a Goldbergs Solicitors) v Brannan [2020] EWHC 2866 (QB) Mr Justice Griffiths dismissed a solicitor’s appeal against a decision that he was not able to recover costs from a client after a conditional fee agreement had been terminated….
GOING FOR A SONG: THE DANGERS OF DOING NOTHING WHEN PART 18 QUESTIONS ARE SERVED, AND ARGUING “NOT” ENTITLED WHEN A COURT ORDER HAS BEEN MADE:
The judgment of Master Kay in Sheeran & Ors v Chokri & Ors [2020] EWHC 2806 (Ch) provides an important reminder that a Part 18 request cannot simply be ignored. Further once a court makes an order that a party…
WHEN A LITIGANT SEEKS TO DEFEND A CLAIM AT ALL COSTS: A HIGHWAY TO HELL: WHY, IN LITIGATION, IT IS IMPORTANT THAT YOU CAN SEE THE WOOD FOR THE TREES
The judgment of HHJ Mithani QC in Colar v Highways England Company Ltd [2019] EW Misc 17 (CC) has recently arrived on BAILLI. It provides an illustration of the danger of defending a claim “at all costs”. The judge was…
SERVE WITNESS STATEMENTS LATE AT YOUR PERIL: RELIEF FROM SANCTIONS NECESSARY AND LATE SERVICE IS NEARLY ALWAYS A SERIOUS BREACH
There are many interesting aspects of the judgment of HHJ Mithani QC in Patel & Anor v Barlows Solicitors (a firm) & Ors [2020] EWHC 2753 (Ch). Here I want to look at the part of the judgment that considers…
CLAIMANT IN LOW-VALUE PERSONAL INJURY CASE NOT ENTITLED TO RELY ON EXPERT REPORTS WHEN PROTOCOL NOT COMPLIED WITH: JUDGMENT ON APPEAL
In Mason -v- Laing (Bradford County Court 20th January 2020 Mason v Laing) HHJ Gosnell held that a claimant that failed to comply with the requirements as to instructing experts prior to a Stage 3 hearing could not rely on…
COURT SET ASIDE A JUDGMENT OBTAINED 10 YEARS LATER: COURT FINDS THAT DOCUMENTS WERE FORGED BY DEFENDANTS: ANOTHER ROUND IN A BARE KNUCKLE FIGHT
In March last year I wrote about the Supreme Court’s decision in Takhar v Gracefield Developments Ltd & Ors [2019] UKSC 13. In that case the Supreme Court held that a claimant could bring an action to set aside an earlier judgment which,…
PROVING THINGS 184: PROVING YOU CAN’T A CLAIM WILL BE “STIFLED” REQUIRES A DETAILED EXPLANATION
In National Tourism Council of Qatar v Mehdiyev [2020] EWHC 2638 (Ch) Deputy Master Hansen considered the defendant’s evidence as to means when deciding whether or not to impose terms when setting aside a judgment. It is important to note…
”THAT ADMIRABLE SOLICITOR FROM CREWKERNE”: A TRIBUTE TO MICHAEL WILLIAMSON
In June this year I published an interview with Michael Williamson as part of The (Not So) Lonely Litigators Club series. Michael was the final “founding” member of our club. At that time Michael had recently merged his practice and…
EXTENSION OF TIME TO APPEAL REFUSED: HIGH COURT DECISION TODAY
In the judgment today in Jamous v Mercouris [2020] EWHC 2814 (QB) Mr Justice Murray refused a claimant’s application for permission to appeal out of time. It is a reminder that applications of extensions of time to appeal are dealt…
“ALL MATTERS WERE INFECTED FROM THE OUTSET WITH A REGRETTABLE INJUDICIOUS AND PEREMPTORY LACK OF PROFESSIONAL ASSIDUOUSNESS” : FROM AN ORGANISATION THAT SHOULD KNOW MUCH, MUCH, BETTER: JUST TAKE A WITNESS STATEMENT
This blog has looked, many times, at cases that have floundered at trial because of basic failures to investigate the primary facts. Sometimes applications fail because of a fundamental lack of knowledge as to what “facts” are. The judgment…
CLAIMANT GIVEN RELIEF FROM SANCTIONS FOLLOWING BREACH OF PEREMPTORY ORDER (WITH NO FORMAL APPLICATION BEING MADE).
In Park v Hadi & Anor [2020] EWHC 2687 Mr Justice Freedman granted a defendant relief from sanctions in circumstances where there had been a breach of a peremptory order and no formal application had been made. THE CASE…
SOLICITOR AND OWN CLIENT COSTS: NO SENSE OF PROPORTIONALITY HERE: SOME BASIC POINTS ON BILLS
In Belsner v Cam Legal Services Ltd [2020] EWHC 2755 (QB) the parties were arguing about £385.40. The judge observed “According to their statements of costs, the Claimant and the Defendant have spent £52,575.63 and £35,139.70 respectively on this appeal. That…
LIFE IN LAW ISN’T ALWAYS GLAMOROUS: A CLIENT CAN BLAME THEIR LAWYER (OR FORMER LAWYER) FOR THEIR WITNESS STATEMENT
A classic example of a client seeking to blame their lawyer for the contents of a witness statement can be seen in the judgment in Simpson v Payne, reported in the PI Brief Update Law Journal. THE CASE The claimant…
THE SOLICITOR’S FIDUCIARY DUTY TO THE CLIENT TO EXPLAIN COSTS: FAILURE TO PLACE CAP ON SUCCESS FEE MEANT AGREEMENT WAS UNENFORCEABLE: HIGH COURT DECISION
In Belsner v Cam Legal Services Ltd [2020] EWHC 2755 (QB) Mr Justice Lavender allowed an appeal whereby a firm of solicitors acting on behalf of a claimant were permitted to deduct 25% of the damages in addition to payment…
PROVING THINGS 183: WHERE DOES THE BURDEN OF PROOF LIE IN A HIGHWAY MAINTENANCE CASE?
In Smithson v Lynn & Anor [2020] EWHC 2517 (QB) HHJ Gosnell (sitting as a High Court Judge) found a highway authority partially responsible for an accident in failing to maintain the roads. The are interesting issues relating to the…
WHEN A LITIGANT DOES NOT HAVE A COMPUTER AT COURT: WHAT IS THE PRACTICAL RESPONSE?
In BM Electrical Solutions Ltd & Anor v Belcher [2020] EWHC 2749 (Ch) a very practical problem occurred. The court held a “hybrid” hearing, a litigant appeared in person. The litigant in person did not have a laptop with them….
10 TIPS ON WHAT TO DO WHEN THINGS GO WRONG: “FESS UP”, “SEEK HELP”, “THEY SKY WON’T FALL IN”
Here I have selected 10 pieces of advice from Twitter on what to do when things go wrong. These are not the “top 10” tips because, frankly, every one of the pieces of advice given in the original post are…
SUMMARY JUDGMENT AND STRIKING OUT: COVID MATTERS ARE A GOOD REASON TO DETERMINE ISSUES NOT DELAY THEM
In TKC London Ltd v Allianz Insurance PLC [2020] EWHC 2710 (Comm) Mr Richard Salter QC (sitting as a High Court Judge) considered the issue of whether issues relating to the COVID pandemic should be a factor in considering a…
10 TIPS FOR LAWYERS WORKING FROM HOME: IN THIS EXPERIENCE YOU ARE NEVER ALONE
A lot of people had to get used to working from home very quickly. During the “early days” a lot of help was gathered from Twitter. Here are 10 points selected from a series of posts on this blog :…
DEFENDANT’S CONDUCT LEADS TO NO ORDER FOR COSTS ON CLAIMANT’S DISCONTINUANCE: A DEED NOT SENT IN TIME
In Hewson v Wells & Ors [2020] EWHC 2722 (Ch) Master Clark varied the usual rule and made no order for costs following the claimant’s discontinuance. “In my judgment, the change in circumstances was brought about by unreasonable behaviour…
THE DANGERS OF LAWYERS WORKING WHILST TRAVELLING: TOP TEN TIPS (& A BONUS) TO KEEP YOU ON THE RAILS
Todays top 10 tips follows on from yesterday. In the previous post PJ Kirby recorded how he was able to draft a letter that included: “We acknowledge receipt of your letter which was expected as Mr X was discussing the…
COUNSEL PROHIBITED FROM ACTING FOR A PARTY: APPEAL UPHELD: A VERY RARE POWER EXERCISED
In Ahmed v Iqbal (Order Preventing Counsel from Acting) [2020] EWHC 2666 (Fam) Mr Justice Macdonald upheld a decision preventing counsel from acting for a party in family proceedings. THE CASE The father and mother were involved in proceedings under…
TOP TEN (SHORT) PIECES OF ADVICE FOR LAWYERS ABOUT CORRESPONDENCE: AVOID ADVERBS (BASICALLY), OH AND DISCUSSING YOUR CASE LOUDLY ON A TRAIN…
Continuing with the series on guidance for new entrants to the profession (and a useful reminder for the rest of us). This is ten pieces of advice from the lawyers of Twitter after I wrote a piece on the lack…
SWIFT -v- CARPENTER: USEFUL LINKS AND GUIDANCE ON THE CASE AND HOW THE DECISION IS LIKELY TO WORK OUT IN PRACTICE
Following on from the previous posts about this case here is a set of useful links to commentary about the Carpenter decision. The Association of Personal Injury Lawyers is also presenting a webinar on this issue on the 22nd…
IF YOU FIGHT AN “ALL OR NOTHING CASE” THEN YOU CAN’T COMPLAIN IF YOU GET NOTHING
In Amin v Amin & Ors [2020] EWHC 2675 (Ch) Mr Justice Nugee made an important observation about the way in which parties present their case. It may benefit some litigants to put their case on an alternative basis. THE…
THE CARPENTER DECISION: THE BASIC PRINCIPLES: FAIR DAMAGES “NOT A PENNY MORE BUT NOT A PENNY LESS”
I have written before about how judges regularly go back to the basic principles of damages when faced with challenging issues in relation to personal injury damages. To a large extent this happened in the Court of Appeal decision in Swift…
WHAT TO TAKE TO COURT: TEN TIPS FROM THE NICE LAWYERS OF TWITTER (& DOZENS MORE IF YOU FOLLOW THE LINKS)
These must be difficult times for trainees and pupils. One of the things you learn (often the hard way) is what, and what not, to take to court. Trips to court now far less frequent and these essential skills may…
LAWYERS, MISTAKES AND EMAIL: PUSH THOSE BUTTONS AT YOUR OWN (AND SOMETIMES YOUR CLIENT’S) PERIL
There are some issues in legal practice that reoccur with surprising frequency. Yesterday a lawyer on Twitter recounted how that had accidentally been copied into an email chain that they were, most definitely, not meant to see. It is a…
CARPENTER DECISION IN THE COURT OF APPEAL: THE APPROACH TO ACCOMMODATION CLAIMS: THE AWARD OF NIL REVISED TO £801,913
A more detailed discussion of the Court of Appeal’s decision today in Swift -v- Carpenter [2020] EWCA Civ 1295 will follow. For the time being it is sufficient to note that the court overturned the trial judge’s decision to award…
A CAREFUL APPROACH IS NEEDED TO THE GATHERING OF EVIDENCE AND THE SIGNING OF WITNESS STATEMENTS: A LOCAL AUTHORITY FALLS WELL SHORT OF THE MARK
It is unusual for this blog to cover family cases, particularly decisions made some three years ago. However the judgment of HHJ Corbett in E (A Child : Care proceedings : Costs) [2017] EWFC 118 has recently been published on…
20 PIECES OF ADVICE FOR THE YOUNG LAWYER (& THE REST OF US): WITH A LITTLE HELP FROM MY FRIENDS
This week I have been concentrating on advice given by judges to lawyers. We are now moving on to advice given by lawyers for lawyers. I have selected twenty from dozens (possibly hundreds) of tweets given when I asked on…
GUIDELINE HOURLY RATES (NOT MUCH USE); CANARY WHARF (EXPENSIVE PLACE TO BE); EVIDENCE AND THE SEVEN PILLARS OF WISDOM (ALL FOR £750 AN HOUR)
I am grateful to Tom Jenkinson from Bolt Burdon Kemp for sending me a copy of the decision of Master Rowley in Shulman -v- Kolomoisky (24/06/20) where the issue of the guideline hourly rates was determined. A copy of the…
THE NEW COMMITTAL PROCEDURE: DOES NOT AFFECT THE COURT’S SENTENCING POWERS: DEFENDANT SENT TO PRISON
Oliver v Shaikh [2020] EWHC 2658 (QB) may be the first time the new rules as to committal proceedings have been mentioned in a judgment. However the purpose was to make it clear that the new rules do not make…
A FURTHER TEN PIECES OF ADVICE FOR THE YOUNG, AND NOT SO YOUNG, LAWYER: AVOIDING THAT “SPECIAL RING IN HELL”
Continuing with the review of those series on this site which collate the guidance that judges have given to lawyers. In series three we looked at everything from going to hell; brevity (the absence of which leads you rapidly towards…
TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADDUCE LATE WITNESS STATEMENT
In Bromford Housing Association Ltd v Nightingale [2020] EWHC 2648 Mr Justice Cavangh upheld a decision not to allow a claimant in possession proceedings to adduce evidence late. In a “rolled up” hearing he dismissed the claimant’s application for permission…
WE LOST, BUT WE STILL WANT 90% OF OUR COSTS: CLAIMANT’S UNSUCCESSFUL APPEAL: A DEVELOPING FIELD OF LAW?
The judgment of Mr Justice Miles in Terracorp Ltd v Mistry & Ors (Rev 1) [2020] EWHC 2623 (Ch) contains an interesting review of the principles relating to costs where a party has failed on a number of issues. It…
ADDRESS FOR SERVICE: THE USE OF A POST OFFICE BOX NUMBER OR ACCOMODATION ADDRESS DOES NOT COMPLY WITH THE RULES: (ALSO – THE PRICE TAG FOR LITIGANTS IN PERSON)
In Smith v Marston Holdings Ltd & Anor [2020] EW Misc 23 (CC) HHJ Paul Matthews made some observations about the correct address for service when applications are issued. He also noted the issues that can arise when dealing with…
TEN MORE PIECES OF ADVICE FOR THE YOUNG LAWYER: “INCIVILITY IS COUNTERPRODUCTIVE”: “BE BRIEF”; “DON’T CRUMBLE”
I am using this week to look back a previous series where guidance was given, primarily by judges, to young advocates. There are links here to the original posts, and sources for the posts. Here we look at the second…
COSTS ORDERED AGAINST ONE DEFENDANT WHEN CLAIMANT HAD SETTLED AGAINST ANOTHER: A DEFENDANT’S UNSUCCESSFUL APPEAL
In Oberholster v Optical Express Ltd & Anor [2020] EWHC 2635 (QB) Mr Justice Freedman dismissed a defendant’s appeal against a costs order against it. The case deals with the problematic issue of costs if a claimant settles the claim…
TEN KEY PIECES OF ADVICE STRAIGHT FROM THE JUDICIARY FOR THE NEWLY MINTED LAWYER (WHICH MAY ALSO HELP THE REST OF US)
Following on from the post yesterday aimed at those about to start their training contracts or pupillage this would seem to be a good time to remind people of the number of series there are on this site about advocacy. …
WITNESSES AT SEA: EVIDENCE FROM THE HIGH SEAS
The judgment of Mr Justice Teare (sitting with two assessors) in Sakizaya Kalon, Owners of The Vessel v Panamax Alexander, Owners of The Vessel [2020] EWHC 2604 (Admlty) shows some real advantages of being able to take witness evidence remotely. …
THE CHILD CLAIMANT AND FATAL ACCIDENT LITIGATION: WEBINAR 8th DECEMBER 2020
I am giving a webinar on the 8th December 2020. I wanted to look at the particular issues facing a child claimant in a fatal accident case. There are quite complex principles governing the losses involved. Booking details are available…
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