AN OBJECT LESSON OF THE NEED TO CONFIRM VARIATIONS TO A RETAINER: COUNSEL’S FEES NOT RECOVERABLE: THE SOLICITOR WAS THE AUTHOR OF HIS OWN MISFORTUNE
The judgment of Master Haworth in Murray & Anor v Richard Slade and Company Ltd [2021] EWHC B3 (Costs) could be seen as an object lesson to solicitors about confirming the terms of a retainer. The Master did not allow…
AMENDMENTS TO PD 55 C: STAY EXTENDED TO 30th JULY 2021
The online version of PD 55C shows an extension of the time period for suspension of possession proceedings to 30th July 2021. THE AMENDED PRACTICE DIRECTION Is available here. THE RULE 1.1 of the PD now reads ” This…
WEBINAR ON AVOIDING PROBLEMS IN LIMITATION: 4th FEBRUARY 2021
On the 4th February I am giving a webinar “Limitation Avoiding Problems and Pitfalls”. THE WEBINAR This webinar looks at the major problem areas in limitation for personal injury litigants. It identifies, and helps litigators avoid, all those difficult areas…
PART 36 AND THE ASSESSMENT OF COSTS: CLAIMANT ALLOWED TO RAISE THE ISSUE LATE, BUT TO NO GREAT AVAIL
In Best v Luton & Dunstable Hospital NHS Foundation Trust [2021] EWHC B2 (Costs) Costs Judge Leonard allowed a claimant to raise an argument as to Part 36 benefits following an offer in assessment proceedings. However it was held that…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: A MANDATORY OBLIGATION THAT IT IS DANGEROUS TO OVERLOOK
We have looked many times at cases where problems have occurred because someone making a witness statement fails to comply with the mandatory obligation to give the sources of their information and belief. The problems this can lead to are shown…
SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN’T “WAIT AND SEE”
There is an interesting history in the judgment of Mr Justice Saini in in Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB). It is a case that is an object lesson in the stringent requirements…
WHAT HAPPENS IF YOU DON’T SETTLE AFTER A MEDIATION: NO ISSUE BASED ORDER, INDEMNITY COSTS AND £127,000 ON ACCOUNT OF COSTS
There is much for litigants and litigators to learn from the judgment on costs of James Mellor QC (sitting as a High Court judge) in Cranstoun & Anor v Notta [2021] EWHC 133 (Ch). The dangers of rejecting offers of…
KERRY UNDERWOOD ON COSTS – AND SO MUCH MORE: SUBSCRIPTION SERVICE READ ALL ABOUT IT
Kerry Underwood has started a new Newsletter – “Kerry On Costs… And So Much More…” THIRTY ISSUES IN 2021 The first issue can be seen here (and the link on this blog) and Kerry will produce at least 30…
SEEKING SUMMARY JUDGMENT: THERE ARE QUITE STRINGENT RULES: CLAIMANT HAD TO RECTIFY SITUATION TO OBTAIN ORDER
A reminder, if one were needed, that some applications have stringent formal requirements can be found in the judgment of HHJ Cawson QC (sitting as a High Court judge) in Williams & Anor v Simm & Ors [2021] EWHC 121…
WHY CAN’T YOU ASK LEADING QUESTIONS IN COURT (AND WHY SHOULDN’T YOU DO IT WHEN PREPARING A WITNESS STATEMENT)
A search term that led to this blog today was “why can’t the case presenter or representative can ask his witness leading questions during evidence-in – chief?” Examination in chief is rare in civil cases. The dangers of asking leading…
NEW FORM N244: SOMETHING TO WATCH OUT FOR
On the 20th January there were some slight amendments to Form N244 – the form for making applications in civil proceedings. THE CHANGES So far as I can tell the main change is to the statement of truth. There…
THE QUEEN’S BENCH GUIDE: 2021 EDITION : OUT TODAY – READ IT WHILE IT’S FRESH…
Hot on the heels of the new Senior Costs Office Guide today there is a new edition of the Queen’s Bench Guide. THE GUIDE The guide is available here THE PREFACE The President of the Queen’s Bench Division, Dame Victoria…
INJUNCTION AND POSSESSION AGAINST TRESPASER SUSPENDED BECAUSE OF COVID
In Merritt v Thurrock Council & Anor [2021] EW Misc 2 (CC) HHJ Karen Walden-Smith found that the defendant had no defence to a claim for trespass. However enforcement of the order was delayed because of the coronavirus situation. …
Senior Courts Costs Office Guide – the 2021 version is now available
The latest version of the Senior Court Costs Office Guide is available from today. THE GUIDE The Guide is available on a link here. The Guide now only exists electronically although the notes observe that it may be…
IMPORTANT COVID UPDATES FROM HMCTS: USEFUL LINKS FOR THE PRACTITIONER
The latest HMCTS weekly operational summary on courts and tribunals during coronavirus (COVID-19) outbreak contains some important links for those using the courts. LINKS HMCTS held a webinar for legal professionals to provide information on the arrangements in place at courts…
THE MISUSE OF WITNESS STATEMENTS: 2021 SHOWS THAT THE TREND CONTINUES: THREE CASES THAT ARE PROBABLY THE TIP OF AN ICEBERG
A search term that led to this blog earlier this week was “witness of fact giving expert evidence”. This, and changes coming into force in the Business and Property Courts in March mean that this is a good time to…
FIRST SERVICE CASE OF THE YEAR: SERVING PROCEEDINGS IS NOT ALWAYS A WALK ON THE BEACH
In Alli-Balogun & On The Beach Ltd & Ors [2021] EWHC 83 (QB) Mr Justice Bourne considered an issue relating to mis-service of proceedings. He held that service on a foreign company on another company, in the same group, with…
LAW AND FLOODING: USEFUL GUIDES TO THE LAW AND PRACTICAL LINKS (2021)
Anyone who lives around York is aware of the ever-present risk of flooding. Recent events mean that this is a good time to update the post giving links to assistance in relation to floods. I have added some new links…
AN INTERESTING CASE IN THE COURT OF APPEAL: NO INTEREST AWARDED ON DAMAGES FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT
In Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49 the Court of Appeal upheld a decision not to award interest on damages for damages for malicious prosecution and misfeasance in public office. THE CASE The claimant…
SOLICITOR AND OWN CLIENT ASSESSMENT: INTERIM BILLS ARE NOT STATUTE BILLS
In Masters v Charles Fussell & Co LLP [2021] EWHC B1 (Costs) Costs Judge Rowley found that bills rendered by the defendant solicitors were not final bills and the claimant retained a right to challenge those costs. ” in order…
THE DANGER OF CLAIMANT’S PART 36 OFFERS: THE DEFENDANT CAN WAIT ONE DAY AND THEN PUT COSTS AT LARGE
In Pallett v MGN Ltd [2021] EWHC 76 (Ch) Mr Justice Mann considered a major anomaly in the rules relating to claimant’s Part 36 offers. This shows that any claimant making a Part 36 offer must remember that a defendant…
PROVING THINGS 203: EVIDENCE AND SCOTT SCHEDULES IN COERCIVE CONTROL CASES: SCOTT SCHEDULES “INEFFECTIVE AND FREQUENTLY UNSUITABLE”
In F v M [2021] EWFC 4 Mr Justice Hayden considered issues relating to fact finding in a case of “coercive control”. Although the difficulties here are in the context of a family case, the issues will have some relevance…
ANOTHER WITNESS STATEMENT THAT STRAYED INTO INADMISSIBLE ARGUMENTS, PROTRACTED COMMENTARY AND EXPERT EVIDENCE
There have been a number of recent cases regarding the appropriate drafting of witness statements, in particular attempts to put much inadmissible material into statements. This can be seen in the judgment of HH Russen QC in Philipp v Barclays…
CLAIMANTS SUED THE WRONG (NON-EXISTENT) DEFENDANT – AND THE LIMITATION PERIOD HAD EXPIRED: DON’T START BREAKING THE CROCKERY JUST YET
In The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor [2021] EWHC 17 (TCC) District Judge Baldwin considered an application to substitute a defendant after the primary limitation period had expired. The judge, if anything,…
PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER
In the judgment in The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31 the Court of Appeal set out some importance principles in relation to claims based on the Occupiers’ Liability Act 1957. The court upheld a…
LAWFULNESS OF DAMAGES BASED AGREEMENTS UPHELD BY THE COURT OF APPEAL
In a judgment given today the Court of Appeal upheld the decision at first instance in the judgment of HHJ Parfitt (sitting as a High Court Judge in Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch). THE COURT OF APPEAL JUDGMENT In…
PROVING THINGS 200: ALL THE SERIES IN ONE PLACE: THE (VERY) EXPENSIVE COSTS OF FAILING TO THINK FULLY ABOUT EVIDENCE
There are now 200 posts in the “Proving Things” Series. These centre, usually, on a failure to establish matters at trial. Sometimes the failures are dramatic. In Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) i the claimants had…
CLAIMANT NOT SUCCESSFUL IN APPLICATION THAT A WITNESS ATTEND IN PERSON AND NOT REMOTELY
In Langley v GMB & Ors [2020] EWHC 3619 (QB) Mrs Justice Stacy refused a claimant’s application for an order that a defendant’s witness attend court personally. The matter could proceed fairly with the witness attending remotely. This judgment (given…
“HIS WITNESS STATEMENT … CONTAINED A GREAT DEAL OF ANALYSIS, SUBMISSION AND COMMENTARY ON DOCUMENTS”
Because of the imminent changes in the rules in the Business and Property courts it is an opportune time to see how often the basic principles of witness evidence are not being observed. We see this in the judgment in YJB…
PROVING THINGS 199: “THE BITTER TRUTH”: INNOCENT PARTIES MAY SUFFER NO LOSSES – AND RECEIVE NO DAMAGES
The judgment of Mr Stephen Houseman QC sitting as a Deputy High Court judge in YJB Port Ltd v M&A Pharmachem Ltd & Anor [2021] EWHC 42 (Ch) is another example of a party failing to prove it had suffered…
PROVING THINGS 198: “NOT RELIABLE EVIDENCE”: THOSE EMAILS MAY NOT BE ALL THEY SEEM
In Richards v Harvey [2021] EWHC 21 (Ch) HHJ Cooke, doubted the authenticity of emails relied upon by the claimant. It is a reminder of the importance of a notice to prove. “This document is not reliable evidence of…
PROVING THINGS 197: PROVING LOSS OF EARNINGS IN A PANDEMIC: ACTUAL EARNINGS EXCEEDED POTENTIAL EARNINGS
Sicri v Associated Newspapers Ltd (Rev 1) [2020] EWHC 3541 (QB) is an unusual case in many ways. There are issues that are sensitive and require careful consideration. However there are also observations about claiming loss of earnings and proving…
COVID DOESN’T STOP THE COURTS GOING ON: BUT GREAT CARE IS NEEDED
In Bilta (UK) Ltd & Ors v SVS Securities Plc & Ors [2021] EWHC 36 (Ch) Mr Justice Marcus Smith examined in detail the principles relating to court hearings during COVID. There is an examination of the steps that need…
QUESTIONNAIRE ON FACILITIES AT THE BUSINESS AND PROPERTY COURTS IN LEEDS
A survey is taking place in relation to facilities at the Business and Property Courts in Leeds. The closing date is 29th January 2021. “Background Leeds is a core commercial hub and the biggest legal centre outside London. We…
LAWYERS (WELL LITIGATORS ANYWAY) ARE CRITICAL WORKERS: TRAVEL, OVERNIGHT ACCOMMODATION AND SCHOOL PLACES
The HMCTS operational summary for this week states that “all those who work in courts and tribunal” are critical workers “Updated: All those essential to keeping the justice system running are considered critical workers. This applies to all those who work…
JUDGMENT ON EXTENT OF POWERS OF HIGH COURT ENFORCEMENT OFFICERS: THE ACCESSIBLE LANGUAGE SUMMARY
In Just Digital Marketplace Ltd (enforcement – controlled goods agreements – taking control of goods) [2021] EWHC 15 (QB) Master McCloud gave an important judgment about the extent of the powers of a High Court Enforcement Officer. However there is no…
GUIDELINE HOURLY RATES: WORKING GROUP REPORT NOW PUBLISHED: READ THE REPORT AND RESPOND TO THE CONSULTATION
The Civil Justice Council Working Group Report of Guideline Hourly Rates has been published and is available here . THE REPORT The guideline hourly rates were last increased in 2010. A series of reports since that time have led to…
A WITNESS STATEMENT SHOULD NOT ATTEMPT TO ARGUE THE CASE: YET ANOTHER JUDICIAL REMINDER
In Ceviz v Frawley & Anor [2021] EWHC 8 (Ch) HHJ Keyser QC made observations about a witness statement. This case highlights the need for practitioners to be aware of the limitations of witness statement. If this kind of statement…
COURT REFUSES CLAIMANT PERMISSION TO WITHDRAW FROM ADMISSIONS: “THE WHOLE POINT OF THINGS BEING ADMITTED IS THAT PARTIES CAN MOVE ON AND NOT BE BOTHERED WITH INVESTIGATING SUCH MATTERS”
In Advinia Care Homes Ltd v (1) BUPA Care Homes Investments (Holdings) Ltd & Ors [2020] EWHC 1563 (Ch) Mr Michael Green QC (sitting as a High Court judge) refused a claimant’s application to withdraw from an admission. “The whole…
PD51ZA WAS NOT EXTENDED: NEW PROVISIONS PLANNED TO ALLOW RULES TO BE CHANGED DURING PUBLIC EMERGENCY
There have been several enquiries recently as to whether PD51ZA, which allowed the parties to agree lengthier extensions of time, was extended. The simple answer is that it was not. The rule expired on 30th October 2020. MINUTES OF…
A CLAIMANT’S ADDRESS SHOULD BE ON THE CLAIM FORM: BUT A FAILURE DOES NOT LEAD TO A GRANT OF SECURITY FOR COSTS
The judgment of Master Kaye in Beriwala v Woodstone Properties (Birmingham) Ltd & Anor [2021] EWHC 6 (Ch) provides a reminder that the inclusion of the claimant’s address on the claim form is a mandatory requirement [unless an application is…
PROVING THINGS 196: PROVING THAT FILES WERE (OR WERE NOT) DELIVERED IS MORE TRICKY THAN YOU MIGHT THINK
The judgment of Master Clark in The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd [2021] EWHC 2 (ChD) highlights the difficulties involved in proving, or disproving, that a document was delivered. In…
IT IS UNLAWFUL TO TAKE PHOTOGRAPHS OF A TRIAL CONDUCTED REMOTELY
In SLF Associates Inc v (1) HSBC (UK) Bank Plc & Ors [2021] EWHC 5 (Ch) Master Kaye pointed out that taking photographs of participants in a remote court was unlawful. THE CASE The Master was giving judgment in a…
NEW RULES ON WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS FROM APRIL 2021: IN-HOUSE WEBINAR AVAILABLE
In April this year those practising in the Business and Property Courts will be subject to much more stringent requirements in relation to the preparation of witness statements relating to trial. The lawyer conducting the case will have to sign…
WITNESS STATEMENTS: IMMINENT NEW RULES IN THE BUSINESS AND PROPERTY COURTS
Last year we looked at the report of the Witness Evidence Working Group for the Business and Property Courts. This set out why changes were needed to the drafting of witness statements in those courts. Some of the proposals in…
CIVIL PROCEDURE BLOG AND ARTICLES ROUNDUP – DECEMBER 2020
A round up of posts and articles relating to civil procedure from November 2020. COSTS ACL – Definition of proportionality to be expanded to include vulnerability ACL – High Court upholds assessment of success fee in high-value clinical negligence case ACL – Supreme…
PROVING THINGS 195: A CASE WHERE THE RISK ASSESSMENT WAS RELEVANT AND CAUSATION WAS ESTABLISHED
The previous post dealt with a case where a defendant succeeded on appeal because a claimant failed to establish causation. It is interesting to look at actions where this issue of causation has been considered. In Chisholm v D & R Hankins…
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