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…
PROCEEDINGS BEFORE QUEEN’S BENCH MASTERS FROM 15th JUNE 2020: (EVEN THOUGH YOU’RE NOT GOING TO EQUITY YOU WILL HAVE CLEAN HANDS…)
A further bulletin has been issued which sets out the procedure for hearings before Queen’s Bench Masters from the 15th June. The default position is that hearings will be heard remotely. If an “in person” hearing is needed then it…
COVID REPEATS 48: REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER
Today we are taking a look back at what turned out to be the second most read post on this blog in 2016. The basic rules about when to file a Reply and, more importantly, a defence to counterclaim. A…
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: LAW, PRACTICE AND THE KEY CASES
On the 17th July 2020 I am presenting a webinar on periodical payments and provisional damages. THE WEBINAR Periodical payments and provisional damages have been a part of the legal landscape for some time now. A knowledge of the…
COVID REPEATS 47: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Here I am repeating a post that was originally “crowd sourced” from Twitter. It is a post on “what to do if things go wrong”. Here is the advice specifically on what the best course of action is when…
CONTRIBUTORY NEGLIGENCE IN PERSONAL INJURY AND CLINICAL NEGLIGENCE CASE: WEBINAR 7th JULY 2020
On the 7th July 2020 I am presenting a webinar on contributory negligence in personal injury actions and clinical negligence cases. CONTRIBUTORY NEGLIGENCE Contributory negligence is a common feature of personal injury litigation and (sometimes) in clinical negligence cases….
CIVIL JUSTICE COUNCIL REPORT ON THE IMPACT OF COVID-19 ON CIVIL COURT USERS
It is not possible to have anything but admiration for the way in which the Civil Justice Council have produced their report on the impact of COVID-19 on civil court users. The report is available here. It carried out what…
COVID REPEATS 46: IF YOU CAN’T BE BOTHERED TO CONDUCT YOUR CLIENT’S LITIGATION – THEN JUST MAKE IT ALL UP
Of all the many cases that have featured on this blog the judgment in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm) is the one that I found hardest to…
COVID REPEATS 45: WE DON’T CARE WHAT THE JUDGE ORDERED WE ARE GOING TO PUT WHAT WE WANT INTO THIS ORDER
There are many strange examples of conduct reported on this blog. One example is in Webb Resolutions Ltd v JV Ltd (t/a Shepherd Chartered Surveyors) [2013] EWHC 509 (TCC). Put simply a judge made an order at a hearing, one…
COVID REPEATS 44: DO YOU WANT TO BE LED, BARE HEADED, AROUND WESTMINSTER HALL FOR DRAFTING OVER-LENGTHY SKELETONS?
This series is going to end at 50. I thought I’d end it by looking at some of my personal favourite posts and cases on this blog. We’ll start with the Court of Appeal in Caldero Trading -v- Leibson [2014] EWCA…
“THERE MAY BE WORSE EXAMPLES OF DISPROPORTIONATE AND ILL-JUDGED LITIGATION, BUT NOT SPRING READILY TO MIND”: SPEND £600,000 OF COSTS AND GET £5,000 EACH
When I trespass into the area of family law it is, almost invariably, about the issue of costs. A prime example of the dangers of litigation and costs, almost literally, wiping all the family assets out, can be seen in…
CORONAVIRUS LAW: DEFENDANT’S APPLICATION TO ADJOURN TRIAL REFUSED: TRIAL CAN GO AHEAD IN PERSON (AND WOULD GO AHEAD EVEN IF HELD REMOTELY)
In the judgment in SC v University Hospital Southampton NHS Foundation Trust (Rev 2) [2020] EWHC 1445 (QB) given yesterday Mr Justice Johnson refused the defendant’s application for an adjournment on the grounds that a trial held remotely would be…
CORONAVIRUS LAW: FURLOUGHED EMPLOYEES GIVING EVIDENCE AT COURT IS NOT “WORK”
I am grateful to barrister Tom Herbert from bringing my attention to Nottinghamshire Law Society Civil Court User Bulletin No 5. It is a case, Fottles v Bourne Leisure, where HHJ Godsmark QC allowed an application to vacate. However during…
CORONAVIRUS LAW: COVID NOT A GOOD REASON TO CHANGE NORMAL RULE AS TO COSTS FOLLOWING DISCONTINUANCE
In Khan v Governor of HMP The Mount & Anor [2020] EWHC 1367 Mr Justice Spencer considered, and rejected, an argument that a different costs order should be made because of the impact of coronavirus. THE CASE The claimant…
COVID REPEATS 43: FAREPAK: “A DOCUMENT CREATED IN THE LANGUAGE OF LAWYERS BY THE LAWYERS”
Today we are revisiting the observations of Mr Justice Smith in the Farepak case farepak-judges-statement. It presents an object lesson in the need for careful preparation of witness evidence and identifying precisely what “evidence” a witness can give. “The…
CORONAVIRUS LAW: STAY LIFTED SOLELY FOR THE PURPOSE OF HANDING DOWN APPEAL JUDGMENT
In Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB) Mr Justice Freedman lifted the stay on possession proceedings for the purpose of handing down a judgment on appeal. THE CASE The action related to possession proceedings brought…
SOME LAWYERS HAVE WRITTEN POEMS ABOUT COVID AND THE LAW, I’VE JUST READ IT TWICE NOW AND I’M SIMPLY IN AWE
Quite a few decades – possibly to the day – since I finished my A Level English Literature exam I find myself reviewing a book of poetry. (Mrs Turner and Mr Payne were right, these skills would come in handy…
EXPERT EVIDENCE: THE PERILS AND THE PITFALLS: WEBINAR 29th JUNE 2020
The problems that experts can cause in cases (often to the side that instructed them) have been extensively catalogued on this blog over the years. On the 29th June I am giving a webinar on the perils and pitfalls of…
COVID REPEATS 42: FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
Today we are looking at a post that was written in 2016 about the need for “self protection” by lawyers. A report in Litigation Futures the previous week illustrated this need. The headline says it all “Insurance Fraudster who tried to…
INDEMNITY COSTS ORDERED WHERE DEFENDANT ASKED FOR JSM BUT MADE NO OFFER: “A WASTE OF TIME AND MONEY”
On the Kings Chambers website there is a report, and transcript, of the decision in EAXB v. University Hospitals of Leicester NHS Trust: 4-8th November 2019 and 6th January 2020. The report is of a case where the claimant was successful…
MORE CORONAVIRUS LAW: HEALTH PROTECTION REGULATIONS BAN ON RELIGIOUS GATHERING NOT REMOVED BY INJUNCTION
In Hussain, R (on the application of) v Secretary of State for Health & Social Care [2020] EWHC 1392 (Admin) Mr Justice Swift refused an application for interim relief to allow attendance at religious services. The application requested the prevention…
COVID REPEATS 41: OFFICE GOSSIP IS NOT EVIDENCE
This week we continue with our look back at cases in relation to witness evidence. This contains another reminder that there is a requirement, a mandatory requirement, that a witness making a witness statement gives the source of their information…
MORE CORONAVIRUS LAW: ORDER TO RESTRAIN WINDING UP PETITION: WHERE THERE’S A BILL THERE IS A WAY
The judgment of Mr Justice Morgan today in A Company (Injunction To Restrain Presentation of Petition) [2020] EWHC 1406 (Ch) is another example of “coronavirus law”. The judge made an order restraining the presentation of a winding up petition not…
MISTAKES IN THE PORTAL: “ROUGH JUSTICE” AND ERRORS IN OFFERS: CLAIMANT’S CLAIM STRUCK OUT AS AN ABUSE OF PROCESS
I am grateful to barrister Matthew Turner for bringing my attention to his report of the case of Mahoney v Royal Mail (DDJ Doman, Truro CC, 26/05/20) it is another example of mistakes being made in offers. In this case…
COVID REPEATS 40: ASKING LEADING QUESTIONS AND WITNESS STATEMENTS: THIS IS GOING TO END BADLY: EIGHT CRUCIAL POINTS ON EVIDENCE (& THEN 10 MORE)
This week we are looking at witness statements and the process of gathering witness evidence. In August 2015 I wrote at length about the judgment of Mr Justice Jay in Susan Saunderson & Others -v- Sonae Industria (UK) Ltd [2015] EWCA…
CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP – MAY 2020
As we adjust to the problems of the pandemic some of the more conventional issues of litigation have been dealt with extensively this month. Costs ACL Trio of High Court judges issue costs penalties to defendants that refused ADR ACL Claimant not…
CIVIL PROCEDURE (CORONAVIRUS): BLOG AND ARTICLES ROUND UP – MAY 2020
Articles and posts of interest to litigators in relation to civil procedure and Coronavirus. THE POSTS Courts Litigation Futures Court issues guidance on e-bundles for short applications Remote Hearings Litigation Futures “Uphill battle” to engage judges in remote JR hearings Litigation Futures ……
NO VARIATION TO COURT ORDER BECAUSE OF CORONOVIRUS: RESPONDENT DOES NOT GET TWO BITES OF THE CHERRY
It is likely that the Coronavirus epidemic is going to give rise to many issues in litigation. Some of them unusual and unprecedented. An example can be seen in the judgment today in Dinglis v Dinglis & Ors [2020] EWHC…
![JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN'T MAKE YOU AN EXPERT: "ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2020/06/calculator_count_statistics_1277492.jpg?resize=150%2C150&ssl=1)
JUST BECAUSE YOU GIVE EXPERT EVIDENCE THAT DOESN’T MAKE YOU AN EXPERT: “ONE OF THE MOST EGREGIOUS AND NAKED USURPATION[S] OF THE FUNCTIONS OF THE COURT THAT I HAVE EVER SEEN”
Last week the “Covid Repeats” posts on this blog highlighted a few (and just a few) of the cases where judges had been critical of the role of experts, or experts involved in cases has been problematic. That this remains…
CHANGE TO THE SPECIAL ACCOUNT RATE: DOWN TO 0.1%: PRACTICAL IMPLICATIONS
This morning the Ministry of Justice announced a reduction of interest rates for the Courts Funds special and basic accounts, effective from today (1st June 2020). THE ANNOUNCEMENT “Due to the impact of Covid-19, the Bank England reduced the base…
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