DEFENDANT GRANTED AN EXTENSION OF TIME WHEN IT WAS FIVE YEARS LATE: DENTON PRINCIPLES APPLIED
Until yesterday I do not recall seeing many cases where a defendant required an extension of time in order to make an application under CPR Part 11. However, like London buses, they seem to travel in pairs. In Apollo Ventures…
NEW TODAY: GENERAL GUIDANCE ON ELECTRONIC COURT BUNDLES (PAGINATION SHOULD START FROM PAGE ONE…)
The Courts and Tribunal Judiciary Site has today published new guidance in relation to electronic bundles. The link is available here. The guidance updated and replaces previous guidance. If I were to highlight one matter it is the need for…
TRIALS ON PRELIMINARY ISSUES, CALDERBANK OFFERS AND COSTS: COURT OF APPEAL REJECT SUBMISSION THAT “WOULD REPRESENT THE ANTITHESIS OF GOOD POLICY” & “REWARD BAD BEHAVIOUR”
In the judgment in McKeown v Langer [2021] EWCA Civ 1792 the Court of Appeal rejected an argument that a Calderbank offer had the same effect as a Part 36 offer when a court was considering the issue of costs…
SERVICE OF THE CLAIM FORM: WHEN THE DEFENDANT NEEDS AN EXTENSION OF TIME TO TAKE POINTS AS TO SERVICE: PROBLEMS BORN IN THE US OF A.
In Joe Macari Servicing Ltd v Chequered Flag International Inc [2021] EWHC 3175 (QB) Master Dagnall considered a case where the defendant required an extension of time in order to take points in relation to service of proceedings. The Master…
ARE PARTICULARS OF CLAIM PROPERLY SERVED IF SENT (AT THE 12th HOUR) IN THE POST WITH THE CLAIM FORM? CIRCUIT JUDGE DECISION ON APPEAL
I am grateful to barrister Christopher Johnson for sending me a copy of the judgment of HHJ Ralton in the case of Ellis -v- The Chief Constable of Avon & Somerset Constabulary (HHJ Ralton, 16th November 2021). The judge was…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: “MAINTAINING THE LIE ALL THE WAY TO THE COURT OF APPEAL”
The Court of Appeal judgment in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766 contains an important discussion of the circumstances in which it is possible to bring a second action to set aside…
APPLICATIONS AND INTERLOCUTORY HEARINGS (PLUS APPLYING FOR EXTENSIONS OF TIME)
On the 2nd December 2021 I am giving a webinar “Applications and Interlocutory Hearings: A Practitioner’s Guide”. Since applications are made, and resisted, on a regular basis it is easy to overlook the underlying rules and case law. This webinar…
COURT OF APPEAL OVERTURNS DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS: COMMITTAL APPLICATIONS ARE NOT SUBJECT TO ANY SPECIAL RULES
In Loveridge & Anor v Loveridge [2021] EWCA Civ 1697 the Court of Appeal overturned a decision that should be no order for costs following the withdrawal of committal proceedings. The Court also allowed costs on the indemnity basis from…
TO HELP YOU OVER A WINTER, A SERIES OF WEBINARS ON APPLICATIONS, LIABILITY, INSOLVENCY, PLEADINGS AND AVOIDING PROBLEMS IN LITIGATION
I am presenting a series of webinars on several aspects of litigation over December, January and February. All are one hour long. General details can be found here. The links to specific webinars can be found below. APPLICATIONS AND…
MODERN SLAVERY AND THE LIABILITY OF AN INSURER: COURT REJECTS ARGUMENT THAT INSURERS ARE LIABLE TO INDEMNIFY “EMPLOYERS” IN MODERN SLAVERY CASE
In the decision today in Komives & Anor v Hick Lane Bedding Ltd & Anor [2021] EWHC 3139 (QB) Mrs Justice May refused the claimants’ appeal on the issue of whether an insurer was entitled to avoid an employer’s liability…
IF YOU ARE APPLYING FOR RELIEF FROM SANCTIONS “OWN YOUR MISTAKES”: YOU HAVE TO SERVE THE PARTICULARS OF CLAIM WITHIN FOUR MONTHS: CLAIMANT IN ERROR, BUT RELIEF FROM SANCTIONS GRANTED
The judgment in Holterman v Electrium Sales Ltd & Anor [2020] EWHC 3915 (TCC) shows a “classic” error in relation to service of proceedings. The claimant served the claim form at the end of the relevant period, and the particulars…
DENTON PRINCIPLES CONSIDERED IN APPLICATION TO APPEAL OUT OF TIME : PERMISSION GRANTED
In Kumar v Secretary of State for Business, Energy and Industrial Strategy & Anor [2021] EWHC 2965 (Ch) ICC Judge Barber considered the Denton principles in an application for permission to appeal out of time. The appellant’s application was granted….
THE NEED FOR A CLAIMANT TO PROVE INJURY: WITHOUT EVIDENCE THE ACTION SHOULD NOT HAVE BEEN BROUGHT
The earlier post on proving causation highlights the matters that claimants need to prove when bringing a claim for damages. One essential element is that a claimant needs to prove damages. One case that shows a clear illustration of this…
PROVING THINGS 218: THE NEED TO PROVE CAUSATION IN ADDITION TO BREACH OF DUTY
The Court of Appeal judgment in Cunningham v Rochdale Metropolitan Borough Council [2021] EWCA Civ 1719 highlights the need to prove issues of causation in addition to breach of duty. THE CASE The claimant is a teacher who was attacked…
PART 36 OFFER STILL VALID EVEN IF SERVED BY EMAIL: DEFENDANT DID NOT HAVE TO PAY THE USUAL PART 36 CONSEQUENCES
In London Trocadero (2015) LLP v Picturehouse Cinemas Ltd & Ors [2021] EWHC 3103 (Ch) Robin Vos, sitting as a High Court Judge, held that a Part 36 was still valid even if served by email. However, on the facts…
PRISING LAWYERS AWAY FROM THEIR COMFORT BLANKET WHEN DRAFTING WITNESS STATEMENTS: A DETAILED CONSIDERATION OF THE REQUIREMENTS FOR WITNESS STATEMENTS AND PD57AC
In the judgment this morning in Blue Manchester Ltd v Bug-Alu Technic GmbH & Anor [2021] EWHC 3095 (TCC) HHJ Stephen Davies (sitting as a High Court Judge) carried out a detailed consideration of the rules relating to witness statements…
“NO SERIOUS PRIVATE PAYING LITIGANT” WOULD CONTEMPLATE SPENDING £50,000 IN COSTS FOR A £3,000 CLAIM: ACTION SHOULD NEVER HAVE BEEN ISSUED IN THE HIGH COURT
In Johnson v Eastlight Community Homes Ltd [2021] EWHC 3069 (QB) Master Thornett accepted, in large part, a defendant’s application in a case where a claim for £3,000 had been issued in the High Court and the costs claimed by…
PROVING DAMAGES: WEBINAR 25th NOVEMBER 2021
At the moment there are 217 individual posts in the “Proving Things” series on this blog. Many, if not most, of the posts relate to a failure by a party to prove a crucial piece of their case at trial….
COURT OF APPEAL GUIDANCE ON REDACTION OF DOCUMENTS: OBJECTIONS SHOULD BE MADE WELL AHEAD OF TRIAL
In Promontoria (Oak) Ltd v Emanuel & Ors [2021] EWCA Civ 1682 the Court of Appeal set out some guidance in relation to the approach of the courts when documents are redacted. In particular issues relating to redaction should not…
THE COURT OF APPEAL AND FAILURE TO PAY THE TRIAL FEE: RELIEF FROM SANCTIONS GRANTED EVEN THOUGH NO FORMAL APPLICATION WAS BEFORE THE COURT
In the judgment in Boodia v Yatsyna [2021] EWCA Civ 1705 the Court of Appeal allowed a decision that a Circuit Judge had made with a heavy heart. The judgment reviews the cases in relation to non-payment, or late payment,…
THE INTOXICATED PASSENGER AND ESTABLISHING CONTRIBUTORY NEGLIGENCE: COURT OF APPEAL DECISION
In Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 the Court of Appeal upheld a finding that a claimant could be contributory negligent even when drunk. However it is important that the facts of this case are looked…
HELPING THE BEREAVED CLIENT: USEFUL LINKS AND GUIDANCE 2021
On Friday Hilary Wetherell and I spent the day giving the APIL course on Fatal Accidents remotely (the course is still available on demand). The course deals a lot with the law and procedural aspects of fatal accidents. However it also…
THE SOLICITOR, SOCIAL MEDIA AND THE DUTY TO DISCLOSE: WHEN A SOLICITOR ADVISES THAT DOCUMENTS BE DELETED OR HIDDEN…
There is an interesting/alarming report of an (unnamed) case on Kennedy’s website here, as part of a general discussion about wasted costs. Discussing issues relating to fundamental dishonesty there is an account of a recent case where a claim had…
SOLICITOR SHOULD NOT HAVE BEEN COMPELLED TO ATTEND COURT TO GIVE EVIDENCE IN A WASTED COSTS APPLICATION
In Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 the Court of Appeal overturned a decision that a solicitor should be compelled to attend court to give evidence in a wasted costs application. “Any requirement for a solicitor…
EXCEPTIONS TO THE FIXED COSTS REGIME: ANOTHER EXAMPLE
Yesterday we looked the case of Lloyd 2 Sisters Poultry Ltd (Costs) [2019] EW Misc 18 HHJ in relation to exceptional circumstances and fixed costs. Bailli has another example in the case of Crompton v Meadowcroft (Costs) [2021] EW Misc 20….
EXCEPTIONS TO THE FIXED COSTS REGIME: DEFENDANT’S APPEAL DISALLOWED: JUDGE ENTITLED TO FIND THAT EXCEPTIONAL CIRCUMSTANCES APPLIED
A case, newly arrived on BAILII today relates to whether a District Judge was correct to award costs outside the fixed costs regime. In Lloyd 2 Sisters Poultry Ltd (Costs) [2019] EW Misc 18 HHJ Howells refused a defendant’s appeal…
RELIEF FROM SANCTIONS GRANTED FOR LATE SERVICE OF ACKNOWLEDGMENT OF SERVICE: A POINT FOR DEFENDANTS TO WATCH
There are two point missed, surprisingly often, by defendants who want to take a point as to service. The first is that an acknowledgment of service must be served timeously, the second is that an application under CPR Part 11…
ADVOCACY THE JUDGE’S VIEW SERIES: “THE ROLE OF THE SOLICITOR IN THE CASE HAS ASSUMED GREAT IMPORTANCE”
The blog is getting to the age when I feel free to repeat things. Reader numbers have increased over the years and I am selecting posts of general application, rather than contemporary case law. We are looking again at the…
CHALLENGE TO JURISDICTION OF THE COURT WAS AN APPROPRIATE STEP IN AN ACTION BROUGHT BY A “REDUNDANT” SOLDIER
There is a procedural issue considered in the judgment of Mr Justice Martin Spencer in Malone v Ministry of Defence [2021] EWHC 2958 (QB). The judge held that it was appropriate for the Ministry of Defence, facing a claim in…
ACCURATE TIME ESTIMATES: A RECAP: THIS MAY GO ON A BIT…
The post last week in relation to inaccurate time estimates led to some comments that there was an absence of guidance on time estimates. I am not sure this is true. There are at least half a dozen posts on…
DEFENDANT WHO DID NOT FILE A REVISED COSTS BUDGET COULD NOT (NECESSARILY) RECOVER THE COSTS OF A COUNTERCLAIM
In Bhat & Anor v Patel & Anor [2021] EWHC 2960 (Ch) Mrs Justice Fancourt held that defendants, who had not filed a revised costs budget, were not entitled to recover the costs of that counterclaim unless a relief from…
TIME ESTIMATES: “WILDLY OPTIMISTIC TO THE POINT OF ABSURDITY”: AN UNHAPPY JUDGE
In E v B (Interim Maintenance Inaccurate Time Estimate) [2021] EWFC 90 Recorder Chandler made some observations on the difficulties the courts face when the parties list hearings with inadequate time estimates. These are matters of general interest relating to…
WHEN THE DEFENDANT DESTROYS DOCUMENTS AFTER BEING NOTIFIED OF A CLAIM: A “BOMBSHELL” FOLLOWED BY “RADIO SILENCE”: HIGH COURT DECISION
I am grateful to solicitor Thomas Jervis from Leigh Day for bringing my attention to the judgment of Mr Justice Martin Spencer in Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB). The judge was considering the…
WHEN THINGS GO WRONG IN LITIGATION – SEEK HELP
Periodically I draw people’s attention to material that will help them deal with the stresses of litigation. Today the article by John Hyde on an overworked solicitor using a client’s damages to make payments on other cases leads me to…
WHEN A WITNESS CHANGES A KEY PART OF THEIR EVIDENCE WHILST GIVING EVIDENCE AT TRIAL: THIS DOES NOT END WELL
In Murphy v Milton Keynes Parks Trust Ltd & Anor [2021] EWHC 2917 (QB) HHJ Crane considered that (relatively familiar) scenario of a party giving new evidence at the date of the trial. The claimant, it must be emphasised, was…
DISCLOSURE AND DOCUMENTARY EVIDENCE: WEBINAR 19th NOVEMBER 2021
There are many cases on disclosure on this blog. Almost invariably these involve something going wrong. For example in Haider v DSM Demolition Ltd [2019] EWHC 2712 (QB) the court, on appeal, found that a claimant had been fundamentally honest…
DEFENDANT REFUSED PERMISSION TO WITHDRAW FIGURES SET OUT IN COUNTER-SCHEDULE
The judgment of Mr Justice Ritchie in Haggerty-Garton & Ors v Imperial Chemical Industries Ltd [2021] EWHC 2924 (QB) is interesting in that it shows the application of Scottish principles of damages to a fatal case (the award was much…
EXPERT HAD A “FLAGRANT DISREGARD FOR HIS DUTY TO THE COURT”: ORDERED TO PAY £50,500 WASTED COSTS
NB – THE COSTS ORDER AGAINST THE EXPERT IN THIS CASE WAS OVERTURNED ON APPEAL. THE JUDGMENT ON APPEAL CAN BE FOUND HERE. The judgment of Recorder Hudson in Robinson -v- Liverpool University Hospital NHS Foundation Trust & Dr Chris…
INSURER’S APPLICATION TO SET ASIDE DEFAULT JUDGMENT REFUSED ON THE BASIS OF INEXCUSABLE DELAY
In Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) Master Thornett refused an insurer’s application to set aside judgment on the grounds that the application was not made “promptly”. THE CASE The claimant brought…
WHEN YOUR CASE LARGELY RELIES ON EXPERT EVIDENCE: MAKE SURE YOUR EXPERT IS NOT VIEWED AS BEING PARTISAN
The judgment of Mrs Justice Moulder today in ECU Group PLC v HSBC Bank PLC & Ors [2021] EWHC 2875 (Comm) contains another example of the dangers of relying on expert evidence. The judge did not accept the evidence of…
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