EVIDENCE AND WITNESS STATEMENTS: AVOIDING THE PITFALLS: WEBINAR 25th FEBRUARY 2021
I am giving a webinar on avoiding the pitfalls in evidence and witness statements on the 25th February 2021. Details are available here. “Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be…
YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM
About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …
NEW RULES COMING INTO FORCE IN APRIL 2021 4: NON-DISCLOSURE OF AFFIDAVITS
A new rule coming into force on the 6th April 2021 expressly extends the prohibition on the use of witness statements in proceedings to affidavits. THE ISSUE There is currently a lacuna in the rules. There is a prohibition on…
VICARIOUS TRAUMA IN THE LEGAL PROFESSION: A REVIEW: A BOOK WELL WORTH BUYING
This is a book that is long overdue. A careful and detailed consideration of issues relating to trauma and burnout in the legal profession. It is both topical (covering the impact of Covid) and also wider ranging than the short…
ARGUING ABOUT COSTS – WHEN YOURS ARE BIGGER THAN THEIRS
In HXA & Anor v Surrey County Council [2021] EWHC 250 (QB) Deputy Master Bagot QC struck out part of the claimant’s claim for damages against the defendant local authority. This blog, however, is interested in the question of costs….
ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT
A common search term that leads to this blog is “opinion evidence in witness statements”, this remains a major issue in many areas of practice. It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd…
THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC. This case gives a working example of the…
SOLICITORS NOT ENTITLED TO INDEMNITY COSTS BY RELYING ON CONTRACTUAL TERMS: A FORMER CLIENT’S SUCCESSFUL APPEAL
I am grateful to barrister Ted Loveday for sending me a copy of the judgment of Mr Recorder Cohen QC in Carmen Chevalier-Firescu -v- Ashford LLP (29th January 2021, Central London County Court, a copy of which is availableChevalier-Firescu -…
KIDS CLUB AND THE DANGERS OF SELECTIVE EVIDENCE: WITNESS STATEMENTS IN AN INSOLVENCY CONTEXT
The decision in the Official Receiver -v- Batmanghelidh and others [2021] EWHC 175 (Ch) involves some consideration of the way in which the claimant presented the evidence. Whilst the claimant was under a particular duty in this case this involves…
PROCEDURE, SUMMARY JUDGMENT, “SURMISE AND MICAWBERISM” AND… THE ROYAL FAMILY
A blog about civil procedure doesn’t get to write about the Royal Family much. However the judgment of Mr Justice Warby in HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) strays into our territory. There…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (3): VULNERABLE PARTIES AND WITNESSES (AGAIN)
I am returning to the changes being introduced in relation to vulnerable parties and witnesses because the new rules are now available here . The new Practice Direction was looked at in detail in an earlier post. CHANGES TO…
FAILED ATTEMPT TO OBTAIN COSTS FROM A JOINT EXPERT: A LOT TO LEARN HERE
In Walker -v- TUI UK Limited (Manchester County Court 14th January 2021)* District Judge Obodai considered an application by the defendant to join a jointly instructed expert into the action as a party for the purpose of obtaining costs against…
UPDATED DENTON RESOURCE: AVAILABLE ONLINE NOW
The Sanctions Case Watch section of this blog does its best to keep up to date with cases relating to relief from sanctions. It does this in chronological order. There is always a link in that section to the useful…
DAMAGES AND LOSS OF EARNINGS DUE TO COVID: A MINOR REDUCTION IN INCOME FOUND
One of the things considered in the judgment in Kim v Lee [2021] EWHC 231 (QB) was whether the claimant would have suffered a reduction in income due to Covid in any event. This is likely to be a live…
STATEMENTS OF CASE, DRAFTING, DANGERS AND PITFALLS: WEBINAR 17th FEBRUARY 2021
I am giving a webinar on the 17th February 2021 on avoiding problems with Statements of Case. This is part series of webinars on the theme of “staying safe” in the running of personal injury cases. The webinars look at…
FAILURE TO COMPLY WITH CIVIL PROCEDURE RULES AND PAY CORRECT COURT FEE CAN (BUT DIDN’T) LEAD TO AN ACTION BEING STRUCK OUT
In Udeshi & Ors v Sieratzki [2021] EWHC 213 (Ch) Master Kaye considered an argument that a failure to pay the correct fee, and other breaches of the CPR, should lead to an action being struck out. Given that the…
DELIBERATELY DESTROYED DOCUMENTS IN LITIGATION, ADVERSE INFERENCES AND… REINDEERS
In the judgment today in Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm) Mr Justice Calver considered the inferences that should be drawn when he found that a party…
THE CORRECT COURT FEE WHEN ADDITIONAL PARTIES ARE JOINED INTO AN ACTION: NOT £55 BUT £10,000 (OH, AND YOU CAN’T RELY ON WHAT THE COURT TOLD YOU…)
There are not many cases where a judge is asked to determine what the appropriate court fee should be. However this is precisely what occurred in the judgment of HHJ Pearce in Walayat & Ors v Berkeley Solicitors Ltd [2021]…
WHEN A SOLICITOR SAYS “BURN IT” IN RELATION TO DOCUMENTS THIS GIVES RISE TO A PRIMA FACIE ISSUE OF CONTEMPT OF COURT: COURT OF APPEAL DECISION TODAY
In the judgment today in Ocado Group PLC & Anr v McKeeve [2021] EWCA Civ 145 the Court of Appeal overturned a decision that the court should not allow an application for contempt of court against a solicitor to proceed….
JUDGE REFUSES PERMISSION TO A DEFENDANT TO RELY ON A WITNESS STATEMENT SERVED LATE: THE APPLICATION DID NOT FLY…
In Manchester Airport PLC & Anor v Radisson Hotel Manchester Ltd & Anor [2020] EWHC 3739 (Ch) HHJ Halliwell refused a defendant’s application to serve witness evidence late. “There cannot be any reasonable justification for adjourning the trial to give the…
HOURLY RATES AND THE SUMMARY ASSESSMENT OF COSTS: SOME INTERESTING ISSUES
In ABS Company Ltd v Pantaenius UK Ltd & Ors [2020] EWHC 3720 (Comm) HHJ Pelling QC assessed costs at the end of a trial. There are some interesting observations in relation to hourly rates, and the conduct of litigation…
IF A DEFENDANT IS BEING SUED FOR TOO MUCH MONEY THEN IT SHOULD USE PART 36: COURT OF APPEAL OVERTURN DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS
In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123 the Court of Appeal overturned a decision that there be no order for costs. The fact that the claimant had succeeded on a fraction of its claim was not…
YOU CAN’T CLAIM THE COSTS OF ADVERTISING FOR CLIENTS IN YOUR COST BUDGET: YOU REALLY CAN’T
An interesting point arose in the judgment of Mr Justice Saini in Weaver & Ors v British Airways Plc [2021] EWHC 217 (QB). The costs of advertising for clients to join a Group Litigation Order are not recoverable, they were…
INEFFECTIVE REDACTION IN DISCLOSED DOCUMENTS: A WARNING TO ALL LITIGATORS (AND LOCAL AUTHORITIES…)
Sometimes documents can be redacted. The judgment of Mr Justice Pepperall in London Borough of Lambeth v AM (Judgment No. 2) [2021] EWHC 186 (QB) shows that great care must be taken in “redacted” documents provided electronically. THE CASE The…
TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING
A real and profound warning about the dangers of issuing against someone without capacity is given in the judgment of HHJ Hodge QC sitting as a judge of the High Court in Kumar v Hellard [2021] EWHC 181 (Ch). …
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (2): PART 36 OFFERS AND THE ACCRUAL OF INTEREST AFTER THE RELEVANT DATE FOR ACCEPTANCE
The Civil Procedure (Amendment) Rules 2021 introduce a new CPR 36.5 (5)introduce a new rule as to offers and interest after the expiry of an offer. It enables the party making the offer to include provision for interest to accrue after…
THE RULES OF LITIGATION ARE DETAILED AND IMPORTANT: COURT REFUSES APPEAL – DEFENDANT’S ATTEMPT TO RE-LITIGATE HEARING WAS AN ABUSE OF PROCESS
The judgment of Collins Rice J in Vafa v Patel [2021] EWHC 198 (QB) shows the importance of knowing and complying with the rules. The judge dismissed an appeal where it had been held that a defendant’s attempt to re-litigate…
THE FAMILY COURT IS NOT THE HIGH COURT: SEVEN YEARS ON AND THERE IS STILL CONFUSION: MOSTYN J RE-STATES THE POSITION
I am treading, warily, in the patch of the family law bloggers in looking at the judgment of Mr Justice Mostyn in TK v ML [2021] EWFC. This is a judgment about procedure that highlights the point that the Family…
VULNERABLE WITNESSES IN CIVIL PROCEEDINGS: THE NEW RULES: WEBINAR 22nd MARCH 2021
I am presenting a webinar on the 22nd March 2021 dealing with the new rules relating to vulnerable witnesses in civil proceedings. The new rules are coming into force on the 6th April 2021. These change the rules so that…
SERVICE OF THE CLAIM FORM AND THE PARTICULARS OF CLAIM: AVOIDING THE PITFALLS: WEBINAR 11th FEBRUARY 2021
The problems that claimants face when serving the claim form are well documented on this blog. I am presenting a webinar on the 11th February 2021 on identifying and avoiding the (many) pitfalls of service of the claim form and…
SOLICITORS SUING FOR THEIR COSTS AND SUMMARY JUDGMENT: THE AMOUNT OF DETAIL NEEDED IN THE BILL
In Devonshires Solicitors LLP v Elbishlawi & Anor [2021] EWHC 173 (Comm) Mr Justice Butcher considered the position when a solicitor was suing for their costs and the bill was challenged. Summary judgment was allowed for some of the bills, other,…
INTERIM COSTS AWARD OF £8 MILLION: THE COURT IS WARY WHEN THE PAYING PARTY DOES NOT SHOW THEIR HAND…
Our final look at the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). The judge had to determine the appropriate award for interim costs. One interesting point…
COSTS NOT REDUCED BECAUSE OF THE WAY A DEFENDANT CONDUCTED ITS CASE: THE PRAGMATIC PRUNING OF A CASE SHOULD NOT BE DETERRED
We are returning again (and not for the last time) to the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). This time we are looking at the claimants’ argument…
RULE CHANGES COMING INTO FORCE IN APRIL 2021(1): VULNERABLE WITNESSES AND THE OVERRIDING OBJECTIVE
There are some rule changes coming into force in April this year, introduced by the Civil Procedure (Amendment) Rules 2021, these come into force on the 6th April 2021. AMENDMENT TO THE OVERRIDING OBJECTIVE The new rules are referred to,…
BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL
The judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC) sets out the judge’s concerns in relation to the over-lengthy documents filed in support of an application for…
SOLICITOR DID NOT HAVE GOOD GROUNDS TO TERMINATE THE RETAINER UNDER A CFA: CLAIM FOR £16,200 IN COSTS FAILS
I am returning to the judgment of Master Haworth in Murray & Anor v Richard Slade and Company Ltd [2021] EWHC B3 (Costs). This time looking at the decision in relation to termination of a conditional fee agreement. The Master held…
CIVIL PROCEDURE ROUND UP: POSTS AND ARTICLES ON PROCEDURE AND COSTS: JANUARY 2021
We all know that January has been a very long month. There has been much written about procedure and costs. Here is the first round up of the year. COSTS ACL – Master upholds default costs certificate in case where draftsman…
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…
You must be logged in to post a comment.