DEFENDANTS FAIL TO HAVE DEFAULT COSTS CERTIFICATE OF US$3 MILLION SET ASIDE: DRAFT POINTS OF DISPUTE NOT AVAILABLE AT THE APPLICATION
In National Bank of Kazakhstan & Anor v The Bank of New York Mellon SA/NV, London Branch & Ors [2021] EWHC B7 (Costs) Costs Judge Rowley refused an application by the defendants to set aside a default costs certificate. This…
A FINDING OF FUNDAMENTAL DISHONESTY: SOCIAL MEDIA, SURVEILLANCE EVIDENCE AND INACCURATE STATEMENTS LEAD TO CLAIMANT LOSING £44,890
I am grateful to Aled Morris from Horwich Farrely for sending me a copy of the decision of HHJ Beard in Anderson -v- Porch (14th January 2021), a copy of which is available here OT APPROVED HORWICH, F38YJ633, ANDERSON, PORCH,…
FAILURE TO COMPLY WITH DIRECTIONS IN THE FAMILY COURT: “THEY ARE NOT PREFERENCES, REQUESTS OR MERE INDICATIONS; THEY ARE ORDERS”
I am always wary of venturing into an area occupied by many exceptional family bloggers. However court order, and in particular compliance with court orders, is part of the regular diet of this blog. That is why a case with…
JOURNALIST ALLOWED TO VIEW DOCUMENTS REFERRED TO IN COURT JUDGMENT SIX YEARS AGO: CPR 5.4C CONSIDERED
In Goodley v The Hut Group Ltd [2021] EWHC 1193 (Comm) Mr Justice Calver allowed a journalist’s application for sight of documents referred to in open court. The judgment contains some important observations in relation to CPR 5.4C. THE…
THE DISCLOSURE PILOT SCHEME AND COSTS BUDGETING: YOU CAN AGREE TO DEFER BUDGETING OF THE DISCLOSURE PHASE
In Persimmon Homes Ltd & Anor v Osborne Clark LLP & Anor [2021] EWHC 831 (Ch) Master Kaye pointed out that the Disclosure Pilot for the Business and Property Courts allows the parties to agreed to defer budgeting of the…
OBJECTING TO EVIDENCE BEING ADMITTED CAUSES PROBLEMS ON APPEAL : CLAIMANT GETS BITTEN BY ITS OWN HORSE
In Lifestyle Equities C.V. & Anor v Ahmed & Anor [2021] EWCA Civ 675 the Court of Appeal allowed, in part, an assessment against the assessment of damages. What is interesting here is the point that the claimants objection to…
APPLICANT FAILS TO SATISFY COURT THAT LITIGANT LACKED CAPACITY: HIGH COURT DECISION
In Greetham v Greetham [2021] EWHC 998 (QB) Mr Justice Soole rejected an application in relation the appointment of a litigation friend. The applicant failed to prove that the litigant lacked capacity. Further the court did not accept that the…
A PERSON GIVING EVIDENCE AS TO EARNINGS AND PENSION MAY (OR MAY NOT) BE AN EXPERT: COURT CONSIDERS THE ISSUES
Returning to the judgment of Mr Justice Cavangh in TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB) the judge considered, but did not decide, whether statements from third parties as to earnings and pensions were…
A SCHEME SETTING UP COMPENSATION FOR VICTIMS IS NOT SUBJECT TO WITHOUT PREJUDICE PRIVILEGE
There are many procedural issues considered in the judgment of TVZ & Ors v Manchester City Football Club Ltd [2021] EWHC 1179 (QB). Here I want to look at one – whether the trial judge should be informed of the…
WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS
In Dixon v Santander Asset Finance Plc & Anor [2021] EWHC 1044 (Ch) HHJ Saffman (sitting as a High Court Judge) granted the defendant summary judgment on the basis that the claim against it was clearly statute barred. The judge…
DOES A CLAIM FOR A DEFECTIVE PRODUCT FALL WITHIN THE DEFINITION OF PUBLIC LIABILITY CLAIMS? A JUDGMENT AT FIRST INSTANCE
I am grateful to solicitor Gareth Edwards from Mooneerams, solicitors, for providing me a copy of the judgment of District Judge Vernon, sitting at Cardiff 17th March 2021, in the case of X (a Minor) -v- MPL Home & Senza…
INTERIM PAYMENTS AND THE TWO STAGE TEST IN EELES: THE ISSUES CONSIDERED
In PAL (A Child) v Davison & Ors [2021] EWHC 1108 (QB) Mrs Justice Yip considered an interim payment in the case of a seriously injured child and awarded a further interim payment of £2 million in order that suitable…
PROVING THINGS 211: PROVING DAMAGES AND CAUSATION: CLAIM £3 MILLION GET £2,000: “A WEAK AND SPECULATIVE CLAIM”
We have already looked once at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). However given that the claimants were seeking in excess of £3 million and…
PROVING THINGS 210: HAVE EVIDENCE OF VALUE AT TRIAL TO AVOID THAT SINKING FEELING
Famously a brand new car loses a substantial amount of its value once it is driven from the showroom. A similar principle may well apply to motor yachts. This issue was considered by Mr Simon Salzedo QC (sitting as a…
A LOT ABOUT LITIGATION CONDUCT HERE: SIGNATURE OF THE STATEMENT OF TRUTH: POOR BUNDLES: POOR WITNESS STATEMENTS AND THE TOTAL LACK OF WISDOM IN SENDING MATERIAL DIRECTLY TO THE JUDGE IN THE MIDDLE OF A TRIAL…
The judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) demonstrate some “unusual” conduct in litigation. Not least the claimant’s solicitors wrote to the judge, in the middle of…
THE DANGERS OF WORKING UNDER A DBA: WHEN DOES RIGHT TO PAYMENT ARISE? WAS THE DBA ENFORCEABLE: ISSUES CONSIDERED BY THE HIGH COURT
In Tonstate Group Ltd & Ors v Wojakovski & Ors [2021] EWHC 1122 (Ch) Mr Justice Zacaroli considered the issue of whether the right to payment under a Damages Based Agreement (DBA). It was held that right to payment under…
WITNESS STATEMENTS: WITNESSES CAN, AND PROBABLY SHOULD, REFRESH THEIR MEMORY FROM CONTEMPORARY DOCUMENTS
Evidence of the degree and knowledge needed in drafting witness statements can be seen in the judgment of Mr Justice Jacobs in Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor [2021] EWHC 1119 (Comm)….
BEREAVEMENT DAMAGES IN THE “DIS-UNITED” KINGDOM: THE “POSTCODE LOTTERY” FOLLOWING A FATAL ACCIDENT
The Association of Personal Injury lawyers made a presentation yesterday in relation to re-consideration of the law relating to bereavement damages in the UK. It point, in particular, to the differences between the law in England,Wales and Northern Irelan compared…
RULES OF STATUTORY CONSTRUCTION: PARLIAMENT CANNOT LEGISLATE IN HASTE AND REPENT AT LEISURE
It is interesting to look at a short extract from the judgment of the Administrative Court in Hertfordshire County Council & Ors v Secretary of State for Housing, Communities And Local Government [2021] EWHC 1093 (Admin). Parliament cannot legislate in…
CAN THE COURT MAKE A COSTS ORDER AFTER A THE FIRST PART OF A SPLIT TRIAL? THE RELEVANCE OF A PART 36 OFFER
In Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors [2021] EWHC 954 (Ch) David Stone (sitting as a High Court judge) considered the question of whether the court should make a costs order after a…
INDEMNITY COSTS DO NOT AMOUNT TO A BLANK CHEQUE: EVEN IN LARGE CASES
In Louis Dreyfus Company Suisse S.A. v International Bank of St. Petersburg (Joint-Stock Company) [2021] EWHC 1039 (Comm) Mr Justice Calver reduced a claim for costs substantially, even though costs were being awarded on the indemnity basis. “it may…
WHEN YOUR SOCIAL MEDIA POSTS UNDERMINE YOUR OWN CASE (AND IT HAPPENED TO SOLICITORS…)
Legal Futures yesterday carried a report of the case of Scott -v- Fisher Jones Greenwood LLP. A case in which the respondent failed to file a response in time and an application for an extension of time was refused. Here…
SERVICE OF THE CLAIM FORM: SCOTTISH LAW: LIMITATION AND EXTENSIONS OF TIME: A LESSON HERE FOR US ALL
In Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) Mrs Justice Stacey considered a case where a claimant inadvertently fell foul of Scottish limitation law. In Scottish cases proceedings need to be served within the three year period, it…
THE ART OF CROSS-EXAMINATION: A JUDGE’S GUIDE: “STOP WHEN YOU GET WHAT YOU WANT”
The judgment in of Mrs Justice Cockerill in King & Ors v Stiefel & Ors [2021] EWHC 1045 (Comm) is a long and complex one. The case is worth reading because of the principles it sets out for pleading a…
CASES WHERE JUDGES GOT TO READ THINGS THAT LAWYERS WISH THEY HAD NEVER WRITTEN
The earlier post about judges reading information about lawyers online has given rise to a lot of comments and commentary. There are occasions when judges, as part of their job, get to read things that lawyers wish they had never…
PEOPLE, INCLUDING JUDGES, ARE READING WHAT YOU SAY ONLINE: IT IS NOT JUST CLIENTS
Several people have already remarked that the judge in Ahmed & Anor v Ahmed [2021] EWHC 1021 (Ch) made it quite clear that he had looked up details of one of the advocates online, and these details were mentioned in the…
“IN VIEW OF THE LAMENTABLE WAY IN WHICH BOTH THESE APPLICATIONS HAVE BEEN PREPARED, I DISALLOW ALL COSTS OF TODAY”: JUDGE CRITICAL OF SKELETON ARGUMENTS AND WITNESS STATEMENTS
In Ahmed & Anor v Ahmed [2021] EWHC 1021 (Ch) Mr David Halpern QC (sitting as a Deputy High Court Judge) had much to say in relation to manner in which an application was brought before the court. The skeleton…
COSTS OUTSIDE THE COSTS BUDGET WHEN A PARTY IS LIMITED TO COURT FEES: STRIKING OUT, RELIEF FROM SANCTIONS, ADMINSTRATIVE ERRORS BY THE COURT, ABORTIVE COURT HEARINGS: ALL PROCEDURAL LIFE IS HERE…
The decision of Mr Justice Marcus Smith in Pasricha v Pasricha [2021] EWHC 1017 (Ch) contains a consideration of the circumstances in which a court can order costs to be paid to a party when their budget has been limited…
LYING IN A WITNESS STATEMENTS PASSES THE CUSTODY THRESHOLD: WHEN A PARTY ASSERTED THEY DID NOT KNOW A WITNESS
In Axa Insurance UK Plc v Reid (Rev 1) [2021] EWHC 993 (QB) Mrs Justice Eady found that telling lies in a witness statement in a personal injury case passed the custody threshold. A claimant in a personal injury, who…
PART 36: ACCEPTANCE, WITHDRAWAL AND PROTECTED PARTIES: HIGH COURT DECISION
In Wormald v Ahmed [2021] EWHC 973 (QB) Ms Clare Ambrose (sitting as a Deputy High Court Judge) considered the difficult issue of whether a protected party can accept a Part 36 offer and its interaction with the need for…
BOOK REVIEW: CORONERS’ INVESTIGATIONS AND INQUESTS: SOMETHING WORTH BUYING
Representing a party at an inquest is always a difficult and sensitive task. In addition to dealing with the grief, and sometimes remorse, involved there are myriad of legal and technical rules to be navigated. That is why this new…
FUNDAMENTAL DISHONESTY IN PURSUING A LOSS OF EARNINGS CLAIM: “IT IS NOT NECESSARY FOR THE PURPOSE OF THIS CASE FOR THE COURT TO DETERMINE WHETHER PSYCHIC POWERS EXIST”
I am grateful to barrister Brian McCluggage for sending me a copy of the judgment of HHJ Backhouse in Amdur -v- Krylov (13/04/21) a copy of which is available here E14YJ570 Amdur v Krylov final 13.4.21 (1). The judge…
ANOTHER ACTIONS FAILS BECAUSE OF LATE SERVICE OF THE CLAIM FORM: NEITHER CPR 3.9 OR 3.10 CAN DIG THE CLAIMANT OUT OF THIS HOLE
Small fortunes could be made by betting that there will be a regular supply of cases on late service of the claim form on this blog (although you would get poor odds). “Dicing with procedural death” appears to be regular…
A SWORN STATEMENT IN RELATION TO DISCLOSURE IS NOT CONCLUSIVE
In Berkeley Square Holdings Ltd & Ors v Lancer Property Asset Management Ltd & Ors [2021] EWHC 849 (Ch) Mr Robin Vos (sitting as a judge of the Chancery Division) held that a sworn statement as to disclosure is not…
THE PARTIES CANNOT AGREE TO CONTRACT OUT OF COURT ORDERS: A LESSON FROM THE FAMILY COURT
Although the judgment of Mr Justice Mostyn in AS v CS (Private FDR) [2021] EWFC 34 relates to family proceedings the principle set out may well be of more general application. The fact that the parties have agreed to a…
LIMITATION AND THE CLAIMANT’S STATUS: COURT OF APPEAL NOT TOO SYMPATHETIC TO DEFENDANTS WHO HAVE COMMITTED FRAUD
In OT Computers Ltd v Infineon Technologies Ag & Anor [2021] EWCA Civ 501 the Court of Appeal upheld a decision that an action brought by a company that was in liquidation was not statute barred. “It is, moreover,…
IF YOU’VE MADE THE DEFENDANT BANKRUPT – YOU CAN’T COMPLAIN WHEN YOU’VE GOT WHAT YOU ASKED FOR
The judgment of the Court of Appeal today in Michael Wilson & Partners Ltd v Sinclair & Ors [2021] EWCA Civ 505 contains an important lesson to litigators considering enforcing a judgment. The claimant had made the defendant bankrupt whilst…
EXCEPTIONS TO THE WITHOUT PREJUDICE RULE: COURT OF APPEAL ALLOWS MATTERS SET OUT IN MEDIATION TO BE PLEADED IN A DEFENCE
In Berkeley Square Holdings Ltd & Ors v Lancer Property Asset Management Ltd & Ors [2021] EWCA Civ 551 the Court of Appeal upheld an order directing that statements made in without prejudice in mediation were disclosable and could be…
PROVING THINGS 209: SOLICITORS NEGLIGENCE ACTION DISMISSED BECAUSE THERE WAS NO LOSS: THE CLAIMED JEWEL WAS BIGGER THAN THE SOCKET
In Kingsley Napley LLP v Harris & Anor [2021] EWHC 901 (QB) Margaret Obi, sitting as a high court judge dismissed a claim for professional negligence on the basis that there had not been any loss. There are important lessons…
BUNDLES AGAIN: JUDGES WASTING THEIR BREATH: “HOW MANY YEARS – DECADES – HAVE TO PASS BEFORE THOSE WHO KNOW BETTER AND WHO… ARE BEING HANDSOMELY REMUNERATED COMPLY WITH THEIR OBLIGATIONS?”
Another post that adds to the dozens, if not hundreds, of cases about bundles. The trial bundles were the subject of considerable criticism by Sir James Munby in C (A Child) [2021] EWFC 32. “I forebear from further judicial exhortation…
APPLYING TO VARY A COSTS BUDGET: RULES AND PROCEDURE: WEBINAR 19th MAY 2021
On the 19th May 2021 I am presenting a webinar on applying to vary a costs budget. Booking details are available here. WHAT THE WEBINAR COVERS Making sure that the budget is, and remains, correct is an important part of…
SIR HARRY OGNALL: A TRIBUTE: SOMEONE PROUD TO BE DESCRIBED AS A “GORILLA FROM THE NORTH”
The death was announced today of Sir Harry Ognall. In January 2018 I reviewed his book A Life of Crime” . This is an appropriate time to pay tribute by reminding people what a remarkable book this is, written by a…
COURT GRANTS RELIEF FROM SANCTIONS: “IT IS UNFAIR… TO BE CRITICAL OF A PARTY FOR FAILING TO MEET A DEADLINE THAT WAS ALREADY UNLIKELY TO BE ANYWAY, WHATEVER STEPS HAD BEEN TAKEN TO COMPLY WITH IT”
For the second time today I am reporting on a successful application for relief from sanctions. In Melars Group Ltd v East-West Logistics LLP [2021] EWHC 874 (Ch) Mr Justice Adam Johnson granted an appellant relief from sanctions following a…
THE DANGERS OF LEAVING SERVICE OF EVIDENCE UNTIL THE LAST MINUTE: DEFENDANT MISCALCULATED TIME WITNESS STATEMENTS DUE – REQUIRED RELIEF FROM SANCTIONS
In Soriano v Forensic News LLC & Ors [2021] EWHC 873 (QB) Mr Justice Johnson granted relief from sanctions to a defendant who served witness evidence late. However the defendant’s failures were serious and significant and the defendant had no…
LIABILITY UNDER SOLICITOR’S RETAINER COULD NOT BE ASSIGNED: DEFENDANT OBTAINS SUMMARY JUDGMENT IN ALLEGED NEGLIGENCE ACTION
In Burleigh House (PTC) Ltd v Irwin Mitchell LLP [2021] EWHC 834 (QB) Deputy Master Hill QC allowed a defendant’s application for summary judgment. The defendant solicitor’s terms and conditions contained a prohibition against the assignment. The current claimant was…
APPLICATIONS TO VARY A COSTS BUDGET: SIGNIFICANT DEVELOPMENTS, PROMPTNESS AND CPR 3.15A: A JUDGMENT THAT EVERY CIVIL LITIGATOR HAS TO READ
In Persimmon Homes Ltd & Anor v Osborne Clark LLP & Anor [2021] EWHC 831 (Ch) Master Kaye provides a “cut out and keep” guide for anyone involved in attempting to vary a costs budget. There are important points made…
TIME ESTIMATES FOR APPLICATIONS: THE PROBLEMS, THE CASE LAW AND SOME GUIDANCE
The post earlier this morning on the warnings given in Finvest Holdings Sarl -v- Lovering [2021] 3WLUK 579 inrelation to inaccurate time estimates has led to some responses on Twitter. Practitioners have highlighted the difficulties, a judge expressed their concern that…
INACCURATE TIME ESTIMATES CAN LEAD TO COSTS PENALTIES: A REMINDER
There is another aspect of the judgment in Finvest Holdings Sarl -v- Lovering [2021] 3WLUK 579 HHJ Pelling (sitting as a High Court Judge) that merits examination. The judgment emphasised the need for accurate time estimates. THE CASE The judge…
THE APPROPRIATE STEPS WHEN A JUDGE HAS LIMITED THE SCOPE OF EXPERT EVIDENCE: COMPLY WITH COURT ORDERS IF YOU WANT TO KEEP A GOOD IMAGE
Another aspect of the judgement of Master Davison in Mustard v Flower & Ors [2021] EWHC 846 (QB) was a decision in relation to expert evidence. The Master refused the claimant’s application to rely on amended medical reports. Those reports…
DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS
In Mustard v Flower & Ors [2021] EWHC 846 (QB) Master Davison refused a defendant’s application to amend its defence to plead fundamental dishonesty on a “contingent” basis. The judgment deals with important issues as to how a defendant must…
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