2022 IN REVIEW (IV): CASE OF THE YEAR: PART 36 OFFERS AND MISTAKES
Choosing a case of the year is never easy. There are many significant judgments throughout a year all of which have an impact on civil procedure. However this year I am returning to a decision in January. The decision of…
WHEN THE DEFENDANTS FAILED TO BEAT THE CLAIMANTS’ PART 36 OFFER, BUT MONEY IS NOT DUE IMMEDIATELY: WHAT ARE THE CONSEQUENCES?
We are looking again at the judgment of Mr Justice Hildyard in Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch). Having determined that a valid and effective Part 36 offer had been made by…
2022 IN REVIEW (III): OPENING LINES OF JUDGMENTS 2022: AT HOME AND ABROAD: PADDINGTON, CARNIVALS, RAISING COMMONWEALTHS AND RUINING KINGS
Our annual review continues with the best “opening lines of judgments” for 2022. This year there are a number of strong international contenders. Worries about misguided endeavours The Serious Fraud Office & Anor v Litigation Capital Ltd [2022] EWHC 3053…
2022: IN REVIEW (II): THE QUIRKIER STUFF
Some stranger statistics from the blog this year. Looking at the busiest times, the busiest day, referrers and the countries that visit most (and least). BUSIEST DAY AND TIME The busiest day is Tuesday. The busiest time is 11.00…
PART 36 APPLIED TO COMPLEX OFFER: PART 36 WAS ENGAGED AND THE NORMAL CONSEQUENCES FOLLOWED
In Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch) Mr Justice Hildyard considered whether Part 36 applied to a complex offer made by the applicants. This post looks at the judgment relating to…
2022 IN REVIEW (1) : SOME FACTS AND FIGURES
2022 has been another busy year on this blog. It is always interesting to see what people have been reading. The most recent posts are not always the most read. Instead posts on basic issues, from earlier years, dominate the…
ANOTHER POTENTIAL BREACH OF AN EMBARGO ON A JUDGMENT: JUDGE DECIDES TO TAKE FURTHER ACTION TO INVESTIGATE
The judgment in Wright v McCormack [2022] EWHC 3343 (KB) shows a variation on the risks of disclosing the contents of an embargoed judgment. The claimant did not disclose the full judgment but various messages on social media could be…
AN ACTION ISSUED ON BEHALF OF AN ESTATE BY SOMEONE WITHOUT AUTHORITY AT THE TIME OF ISSUE IS “A DEAD THING INTO WHICH NO LIFE COULD BE INFUSED”
One search term that regularly leads people to this site is “can I issue on behalf of an estate when I don’t have letters of administration”. There are variations on this, but the central theme is always the same. The…
COST BITES 40: NO ONE GETS THE COSTS OF AN AMENDMENT (WHICH WERE FAR TOO HIGH ANYWAY)
In Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2022] CAT 52 the Competition Appeal Tribunal considered the principles relating to the costs of amendments to statements of case after a contested hearing. On the facts of this case…
IF YOU DON’T COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS YOUR CASE CAN (AND THIS CASE DID) GO DOWN THE DRAIN
In Brendon International Ltd v Water Plus Ltd & Anor [2022] EWHC 3321 (Ch)HHJ Cadwallader (sitting as a High Court Judge) found that numerous elements of the defendant’s witness statements were defective and non-compliant with the rules. The case is…
DEFENDANT’S APPLICATION TO VACATE TRIAL DATE, AND FOR A FOUR YEAR STAY, REFUSED: JUSTICE IS ACHIEVED BY THE TRIAL DATE BEING MET
In Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) Mr Justice Ritchie refused the defendant’s application for an adjournment of a trial date. The defendant argued that medical uncertainty meant that it was…
PROVING THINGS 244 (& COST BITES 39): WHY COSTS LAWYERS HAVE TO KNOW ABOUT PROVING THINGS
We are returning to the decision on Mr Justice Cavanagh in Shepherd & Co Solicitors v Brealey [2022] EWHC 3229 (KB) to consider another aspect of the rules relating to costs. The solicitors were seeking to persuade the court to…
A DRAFT JUDGMENT IS NOT AN INVITATION FOR A SECOND BITE OF THE CHERRY: HIGH COURT JUDGMENT TODAY
In Shepherd & Co Solicitors v Brealey [2022] EWHC 3229 (KB) Mr Justice Cavanagh made some observations on the practice of making submissions once a judgment is sent out in draft. This was not an invitation to the parties to…
ANOTHER QOCS AND PART 36 CASE: COURT MAKING ORDER UNDER PART 36 DID NOT LEAD TO QOCS PROTECTION BEING OUSTED
In University Hospitals of Derby & Burton NHS Foundation Trust -v- Harrison [2022] EWCA Civ 1660 * the Court of Appeal rejected the defendant’s argument that QOCS protection was lost when the court was called upon to make an order…
SHOULD AN ISSUE IN THE REPLY BE IN THE PARTICULARS OF CLAIM? A WORKING EXAMPLE
In Griffiths & Anor v Gilbert [2022] EWHC 3122 (TCC) HHJ Sarah Watson considered a pleading issue. Should a point made in a Reply have been pleaded in the Particulars of Claim. She held that, on the facts of that…
QOCS PROTECTION APPLIED TO THE PERIOD BEFORE THE CLAIM WAS AMENDED TO PLEAD A CLAIM FOR PERSONAL INJURY: HIGH COURT DECISION TODAY
In Pathan v Commissioner of Police of the Metropolis [2022] EWHC 3244 (KB) Mr Justice Bourne held that an action could not become subject to QOCS part way through. If the claim was a personal injury claim at trial then…
IF YOU DON’T SAY WHO YOU ARE THEN YOU CANNOT ARGUE POINTS AT A DETAILED ASSESSMENT OF COSTS
In Wright v Person Or Persons Unknown Responsible for the Operation and Publication of the Website bitcoin.org [2022] EWHC 2982 (SCCO) Costs Judge Rowley held that if a paying party wanted to take part in a detailed assessment of costs…
WHEN THE WORDING OF THE CLAIM FORM COMES UNDER CLOSE SCRUTINY: SOMETHING TO REMEMBER
The precise wording of the claim form came under close scrutiny in the judgment of Mr Justice Trower in Honda Group-UK Pension Scheme Trustee Ltd & Ors v Mercer Ltd & Anor [2022] EWHC 3197 (Ch). It is one of…
CLAIMANT’S LATE ACCEPTANCE OF A PART 36 OFFER DID NOT PERMIT DEFENDANT TO SET OFFCOSTS AGAINST DAMAGES: QOCS PRINCIPLES REIGN SUPREME
In Chappell v Mrozek [2022] EWHC 3147 (KB) Master Stevens rejected the defendant’s argument that the defendant’s entitlement to costs, arising from late acceptance of a Part 36 offer, could be enforced from the claimant’s damages. The judgment examines the…
TIME FOR CHALLENGING SOLICITOR’S BILL HAD NOT PASSED: CLAIMANT’S APPEAL ALLOWED AND ASSESSMENT TO PROCEED
NB THIS DECISION WAS OVERTURNED ON APPEAL TO THE COURT OF APPEAL SEE Menzies v Oakwood Solicitors Ltd [2023] EWCA Civ 844 In Menzies v Oakwood Solicitors Ltd [2022] EWHC 3199 (KB) Mr Justice Bourne allowed an appeal on the…
COST BITES 38: THE COSTS OF AN APPEAL SHOULD BE PAID BY THE LOSING PARTIES
In Frasers Group Plc v The Official Receiver & Ors [2022] EWHC 3184 (Ch) Sir Paul Morgan (sitting as a judge of the Chancery Division) held that the appropriate order, following a successful appeal, was for the respondents to the…
WHEN COSTS INCURRED AT A CASE MANAGEMENT CONFERENCE ARE ORDERED AGAINST THE DEFENDANT: DON’T ALWAYS ASSUME IT WILL BE “COSTS IN THE CASE”
It may be imprudent to assume that arguments that take place at the case management stage will always be subject to an order for costs in the case. In University of Manchester v John McAslan & Partners Ltd & Anor…
SEDLEY’S LAWS IN THE MODERN AGE: ELECTRONIC BUNDLES “SOME OF THE PAGES MUST APPEAR UPSIDE DOWN, PREFERABLY AT SPORADIC INTERVALS”
The post yesterday on Sedley’s Laws of documents led to me to consider how this should be applied in the modern age. More specifically to electronic bundles. These musings led to contributions from the lawyers of Twitter. We clearly have…
BUNDLES: SEDLEY’S LAW REVISITED: HAS MUCH CHANGED OVER THE PAST NINE YEARS?
Nine years after it was first published I am re-visiting a very early post on this blog. Regular readers will know that the issue of trial and hearing bundles have featured regularly over the intervening period. It is not uncommon…
APPLICATION FOR INDEMNITY COSTS CONSIDERED BUT NOT AWARDED: STILL A SIGNIFICANT LESSON FOR LITIGATORS (AND LITIGANTS) HERE
In Tejani v Fitzroy Place Residential Ltd & Ors (Re Costs and Interest) [2022] EWHC 3153 (TCC) Ms Vernonique Buehrlen K.C. (sitting as a High Court Judge) declined an application that an unsuccessful claimant pay the defendants’ costs on the…
COST BITES 37: DRAFTING THE SCHEDULE FOR SUMMARY ASSESSMENT: DEFECTS, DEFAULTS AND REMEDIES
The judgment of Tribunal Judge Amanda Brown KC in Harris v Revenue and Customs (COSTS – complex track application for idemnity costs on the basis of unreasonable behaviour – application in response to strike out for failure to meet terms…
APPLICATIONS TO AMEND PLEADINGS SHOULD NORMALLY BE SUPPORTED BY A DRAFT AND WITNESS EVIDENCE AS TO THE MERITS: A RIGHT ROYAL ISSUE
In Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria de Borbon y Borbon (Rev1) [2022] EWCA Civ 1595 the Court of Appeal set out the importance of having a draft pleading to hand when seeking permission to amend a statement…
CLAIMANT SHOULD HAVE BEEN GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE ON DEPUTYSHIP AND COURT OF PROTECTION COSTS: SUCCESSFUL APPEAL TO THE HIGH COURT
I am grateful to Daniel Slade from Express Solicitors for sending me a copy of the decision of Mr Justice Soole in AAA -v- BBB [2022] EWHC 3103 (KB). It is a case where the claimant was successful in appealing…
PROVING THINGS 243: ITS WITNESSES THAT COUNT IN FINDING PRIMARY FACTS, NOT EXPERTS
The Court of Appeal judgment today in Taylor & Anor v Raspin [2022] EWCA Civ 1613 emphasises the difficulty in appealing findings of fact. The Court also took a little time to point out the limited role of experts in…
PART 36: CONDUCT & REDUCTION OF CLAIMANT’S COSTS: A SETTLEMENT STRATEGY THAT WAS “COMPLETELY UNREALISTIC”
In Moradi v The Home Office (Costs) [2022] EWHC 3125 (KB) HHJ Tindal (sitting as a High Court Judge) considered the appropriate costs consequences where a case settled on the eve of trial. The defendant made a Part 36 offer…
EXPERTS: A PARTY CANNOT INSIST THAT A SINGLE JOINTLY INSTRUCTED EXPERT BE MALE: COURT OF APPEAL DECISION
In N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588 the Court of Appeal rejected an argument that a single joint expert should have been male. The judgment emphasises the point that a party wishing to argue for…
WHEN YOU DON’T CALL THE OTHER SIDE’S EXPERTS TO COURT, BUT WANT TO CHALLENGE THEIR CONCLUSIONS: ANOTHER CASE
The post yesterday dealt with a case where the claimants failed in its attempt to go behind the defendant’s experts in a case where the claimants’ expert was never disclosed. Similar issues were considered in the interesting decision of the…
WHEN YOU HAVEN’T CALLED YOUR OWN EXPERT BUT WANT TO CRITIQUE THE EXPERT FOR THE OTHER SIDE: THIS IS NEVER GOING TO BE EASY
In White & Ors v Secretary of State for Health and Social Care [2022] EWHC 3082 (KB) Jeremy Hyam KC (Sitting as a Deputy Judge of the High Court) considered the issues that arise when a party has not called…
Christmas and New Year courts and tribunals opening times 2022: See them here
The Gov.Uk website has details of Christmas and New Year courts and tribunals opening times 2022. CLOSING DATES OVER CHRISTMAS ” Our courts and tribunals will temporarily close on various dates over the Christmas period. The closure dates for this year are:…
PART 36 CONSIDERED IN DETAIL: PRE-ISSUE OFFER WAS VALID; EMAIL SERVICE DID NOT NUGATE THE OFFER: DEFENDANT TO BEAR (MOST OF) THE USUAL CONSEQUENCES
There are some interesting discussions and findings in relation to the rules relating to Part 36 offers in the judgment of Vernonique Buehrelen KC (sitting as a High Court Judge) in Coldunell Ltd v Hotel Management International Ltd [2022] EWHC…
WHAT DO YOU CALL A JUDGE IN COURT? MESSAGE FROM THE LORD CHIEF JUSTICE AND SENIOR PRESIDENT OF TRIBUNALS
In a message yesterday the Lord Chief Justice and Senior President of Tribunals announced changes in the way that certain judges are addressed in court. THE MESSAGE “We are today announcing a change in the practice of how certain…
THE SEVENTH LEGAL CHRISTMAS MUSIC CONTEST 2022 THE STATE OF THE COURTS PUT TO MUSIC
The Legal Christmas Music contest is back, for the seventh year running. All that is required to enter is that you make, or agree you will make, a donation to a food bank: after that is (as ever) down to…
KINGS CHAMBERS COSTS GROUP WEBINAR ON BELSNER: 1st DECEMBER 2022
This webinar by Kings Chambers on the 1st December 2022 gives litigators a chance to consider the practical implications of the Belsner decision. THE PRESENTERS My colleagues Craig Ralph and Andrew Hogan will consider the significance of the Belsner and Karatysz cases,…
YOU SHOULD REALLY NOTICE WHEN YOU HAVE FAILED TO COMPLY WITH A COURT ORDER AND REQUIRE RELIEF FROM SANCTIONS: “THE COURT’S PATIENCE WAS BEING SORELY TESTED”
A short part of the judgment of Master Stevens in Bailey v Bijlani & Anor [2022] EWHC 2821 (KB) records the fact that the applicant defendant required relief from sanctions, but was not proposing to ask for it. “… I…
RELIEF FROM SANCTIONS REFUSED: TRIAL BUNDLES, LATE WITNESS STATEMENTS AND LATE DISCLOSURE: CASES NEED TO BE PREPARED PROPERLY
I am grateful to my colleague Eleanor Temple for sending me a copy of the decision of HHJ-Davis-White KC in the case of Ball -v- Ball (11th October 2022), a copy of the judgment is available here Ball v Ball…
COST BITES 36: THE POINT OF A PAYMENT ON ACCOUNT IS TO REIMBURSE THE SUCCESSFUL PARTY IMMEDIATELY
In Tulip Trading Ltd v Ver [2022] EWHC 2970 (Ch) Mrs Justice Falk considered the factors involved when making an interim payment on account of costs. “The point of a payment on account is to provide the successful party with…
PROBLEMS WITH EXPERTS- THE ISSUES ARE UNIVERSAL: AN EXAMPLE FROM THE IRISH COURTS: WEBINAR ON EXPERTS 14th DECEMBER 2022
When in September I planned the webinar Expert Evidence in the Courts in 2022 there had been a dozen or so cases relating to experts in litigation. Since then there have been half a dozen more. There is an example…
THE COURT CANNOT COMPEL A PARTY TO CALL A WITNESS: “PARTY AUTONOMY IS PARAMOUNT”
In QX v Secretary of State for the Home Department [2022] EWCA Civ 1541 (22 November 2022) the Court of Appeal held that the courts have no power to compel a party to call a witness. “The starting proposition must…
“THERE IS NO PORTAL FOR LOW VALUE PRODUCT LIABILITY CLAIMS”: FIXED COSTS DID NOT APPLY
I am grateful to Paul Balen for sending me a case report of a product liability case he was involved in. The judge found that a product liability case is not required to be lodged in the portal. This had…
EVIDENCE OF STATISTICS FROM DEFENDANTS’ SOLICITORS RELATING TO CLAIMS NOT EXCLUDED: HIGH COURT DECISION
The judgment of Mr Justice Freedman in Kerseviciene v Quadri & Anor [2022] EWHC 2951 (KB) is of considerable interest to anyone involved in litigation, particular personal injury litigation. The judge upheld a finding that a witness statement from the…
A PARTY CANNOT SIMPLY ADD A PENAL NOTICE TO A COURT ORDER: IF THE COURT DOESN’T ORDER IT THEN IT SHOULD NOT BE IN THE ORDER
In Taray Brokering Ltd, Re [2022] EWHC 2958 (Ch) HH Pearce held it was not open to a party to place a penal notice on a court order when the court itself had not placed such a notice on the…
HAVE THE DEFENDANTS’ SOLICITORS STATED THAT THEY WILL ACCEPT SERVICE? ANOTHER TRICKY CLAIM FORM ISSUE
In Motorola Solutions, Inc & Anor v Hytera Communications Corporation Ltd & Ors [2022] EWHC 2887 (Comm) Mr Justice Picken considered an issue relating to valid service. A firm of solicitors, that stated it would accept service of proceedings, argued…
COST BITES 35: SOLICITOR AND OWN CLIENT SUCCESS FEES CONSIDERED IN DETAIL: 20% REDUCED TO 15% BY COSTS JUDGE
The judgment of Costs Judge Brown in MNO v HKC & Anor [2022] EWHC 2919 (SCCO) considers the question of an appropriate success fee between solicitor and client in a personal injury case. The judge did not accept the argument…
GRAB A BARGAIN, RAISE FUNDS FOR FOODBANKS AND LEARN ABOUT FORGOTTEN YORKSHIRE (& PARTS OF NORTH DERBYSHIRE AND HUMBERSIDE): BUT BE VERY QUICK
For a very short time the paperback book “Forgotten Yorkshire & Parts of North Derbyshire and Humberside” is on offer for 0.99 pence (reduced from £10.00). This has led the inimitable Tripe Marketing Board to make sure that profits from…
NOTICE OF APPEAL FILED IN TIME WHEN IT WAS ELECTRONICALLY FILED AFTER 4.30 pm: COURT OF APPEAL DECISION
In Microsoft Ireland Operations Ltd & Ors v JJH Enterprises Ltd (Re Electronic Filing of Appellant’s Notice) [2022] EWCA Civ 1509 the Court of Appeal upheld a finding that an appellant’s notice filed electronically after 4.30pm on the last date…
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