COURT OF APPEAL REFUSES RELIEF FROM SANCTIONS: “LIBERTY TO APPLY” DOES NOT GIVE A GENERAL RIGHT OF REVIEW
In Helios Oryx Ltd v Trustco Group Holdings Ltd [2022] EWCA Civ 236 the Court of Appeal dismissed an appellant’s application for relief from sanctions where there had been a failure to comply with a peremptory order given as a…
A PART 36 OFFER SHOULD NOT BE DISCLOSED AT AN INTERLOCUTORY STAGE: DEFENDANT LOOKING FOR STRAWS IN THE WIND
In FKJ v RVT & Ors [2022] EWHC 411 (QB) Mrs Justice Collins Rice upheld a decision that a claimant’s Part 36 offer could not be used in interlocutory proceedings. This is a decision on its own facts and the…
IMPOSING A COSTS CAP CANNOT BE A MEANS OF STIFLING LITIGATION OR ACHIEVING OTHER ENDS BY THE BACK DOOR: DEFENDANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
There are rules governing the citation of judgments refusing permission to appeal. However the judgment of Lord Justice Coulson in PGI Group Ltd v Thomas & Ors (Application for Permission to Appeal) [2022] EWCA Civ 233 has been put on BAILII…
COURT OF APPEAL UPHOLDS REFUSAL TO ALLOW DEFENDANTS TO WITHDRAW FROM ADMISSIONS: “THE STATEMENT OF TRUTH IS NO EMPTY FORMALITY”
In Clarkson v Future Resources FZE & Ors [2022] EWCA Civ 230 the Court of Appeal upheld a judge’s decision not to allow the defendants permission to withdraw an admission. It is an important reminder of the quality of the…
A WITNESS GIVING EVIDENCE WHILST DRIVING A CAR: THEN FROM A CROWDED OFFICE AND THEN WITHOUT MOST OF THE DOCUMENTS AVAILABLE: THIS DOES NOT END WELL
There are passages in the judgment of Recorder Douglas Campbell QC in ASR Interiors Ltd v AWS Trading Ltd & Anor [2022] EWHC 372 (IPEC) which demonstrate a remarkably “relaxed” attitude to giving evidence in court by one of the…
WITNESS STATEMENTS, CPR 32 AND … SPIES: GOVERNMENT MUST GIVE SOURCE OF INFORMATION OR BELIEF
The judgment in HM Attorney General for England And Wales v British Broadcasting Corporation (BBC) [2022] EWHC 380 (QB) relates to confidentiality and spies. It also contains some important observations on the information needed, and formal requirements, when a witness…
CLAIMS FOR LOSS OF EARNINGS: LEARNING FROM RECENT CASES: WEBINAR 7th MARCH 2022
The “Proving Things” series on this blog often looks at cases relating to loss of income. Recent cases on this topic are explored in a webinar on the 7th March 2022: Claims for Loss of Earnings: Learning from Recent Cases,…
PLEADINGS, APPEALS AND THE DROP OF A HAMMER: A HIGH COURT DECISION
In SPS Groundworks & Building Ltd v Mahil [2022] EWHC 371 (QB) Mr Justice Cotter reiterated the point that statements of case are important. Any issue as to the scope of the pleadings should be determined at the outset of…
LITIGATION PRIVILEGE: WHEN DOES IT START? HOW DOES THE COURT DEAL WITH ISSUES ARISING? A HIGH COURT CASE
It is difficult to envisage a more apposite tribunal than Charles Hollander QC when matters relating to documentary evidence are in issue. This makes the reading of the decision in Kyla Shipping Co Ltd & Anor v Freight Trading Ltd…
GUIDANCE FOR ADVOCATES: 12 JUDGES CAN’T BE WRONG – “ONLY JUDGES MAY MAKE BAD JOKES”
I am here re-visiting a series of posts from 2016, where we looked at guidance given to advocates by judges. As part of the series looking at the advice that judges give to advocates (and how this relates to civil…
PROVING THINGS 226: RECOVERING INTEREST ON DISBURSEMENT LOANS: THE NEED FOR EVIDENCE
I am grateful to barrister James Miller for sending me a copy of the decision of District Judge Corkhill in the case of Gill -v- Barnsley Canister Company Ltd, a copy of which is available here Gill v Barnsley Canister…
COURT REFUSES TO SET ASIDE JUDGMENT IN RELATION TO SOLICITOR’S COSTS: SERVICE AT AN ADDRESS IN THE REGISTER IS THE PRICE OF BEING A DIRECTOR
In Farrer & Co LLP v Meyer [2022] EWHC 362 (QB) Mr Justice Kerr refused to set aside a long-standing judgment on a bill for solicitor’s costs. The judgment also considered the importance of s.1140 of the Companies Act 2006….
COSTS, FATAL ACCIDENTS: THE DUTY TO INFORM THE CLIENT OF “UNUSUAL COSTS” AND WHEN THE BUDGET IS BEING EXCEEDED
The judgment of Senior Costs Judge Gordon-Saker in ST v ZY [2022] EWHC B5 (Costs) highlights many problem areas in relation to fatal accident litigation and the assessment of costs. In particular it is prudent to take early steps to…
COURT OF APPEAL ALLOWED APPEAL BECAUSE OF PROCEDURAL UNFAIRNESS: INADEQUATE WITNESS STATEMENTS SHOULD NOT BE SUPPLEMENTED BY ADDITIONAL QUESTIONING: THE RIGHT TO CROSS-EXAMINE IS FUNDAMENTAL TO A FAIR HEARING
In Rea & Ors v Rea [2022] EWCA Civ 195 the Court of Appeal (hearing a 2nd tier appeal) overturned a decision of the trial judge and ordered a re-trial when the appellants had not been given an opportunity to…
Children and liability: Law, practice and procedure: WEBINAR 22nd FEBRUARY 2022
This webinar looks at the law and practice relating to children as claimants and defendants. It also looks at those cases where allegations are made against those who had care of the children and vicarious liability for the acts of…
ASSESSMENTS UNDER THE SOLICITORS ACT: INTERIM BILLS, VALID BILLS AND “SPECIAL CIRCUMSTANCES”: A DECISION ON APPEAL
The decision of HHJ Gosnell (sitting as a High Court Judge) in Richard Slade And Company Plc v Erlam [2022] EWHC 325 (QB) relates to the assessment of solicitor and own client bills. However the appeal also gave rise to…
YOU CAN’T QUIT – YOU’RE FIRED: JUDGE DISMISSES CLAIM RATHER THAN ALLOW CLAIMANTS TO DISCONTINUE
In Vale SA v Steinmetz & Ors [2022] EWHC 343 (Comm) Mr Justice Andrew Baker decided an unusual issue. Rather than allow claimants to discontinue the action he dismissed it. THE CASE The parties were part way through a trial,…
PLEADING A DEFENCE: THE DIFFICULT STATUS OF A “NON-ADMISSION”: (SOMETHING ABOUT RE-USING WITNESS STATEMENTS TOO)
In Cardiff City Football Club (Holdings) Ltd, Re [2022] EWHC 322 (Ch) Mr Justice Adam Johnson found himself deciding matters relating to the pleading of the action, the scope of the trial and the admissibility of witness evidence on the…
THE SANCTITY OF THE EMBARGOED JUDGMENT: THE COURT OF APPEAL HAS BEEN HERE BEFORE …
In The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 the Master of the Rolls identified two previous cases where breach of embargoed judgments had…
THE IMPORTANCE OF THE EMBARGOED JUDGMENT: COURT OF APPEAL LAYS DOWN THE LAW: PROCEEDINGS FOR CONTEMPT OF COURT WILL FOLLOW BREACHES
In The Counsel General for Wales, R (On the Application Of) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 the Master of the Rolls set out a clear and unambiguous warning in relation…
WHEN WECHAT MESSAGES ARE LOST OR DESTROYED – BY A TWO YEAR OLD: THE ADVERSE INFERENCES A COURT CAN DRAW
In ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm) Mr Justice Calver considered a case where Wechat messages had been “lost”. The judge concluded that the “loss” was deliberate and…
THE SOMETIMES CRUEL WORLD OF PART 36 OFFERS: INSPIRED GUESSWORK MAY BE NECESSARY WHEN A PARTY RECEIVES AN OFFER: A REMINDER OF THE CASE LAW
As part of a series of webinars by Kings Chambers Costs and Funding Group I recently recorded a webinar on Part 36 Recent cases and what they can teach us. One case, in particular, cause some comment and questions from…
DELAY IN MAKING AN ADDITIONAL CLAIM LEADS TO JOINDER BEING REFUSED (A MUCH MORE BORING TAKE ON THE VARDY -v- ROONEY CASE)
In Vardy v Rooney & Anor [2022] EWHC 304 (QB) Mrs Justice Steyn refused the defendant’s application for joinder of an additional party. One major element in that decision was the delay in making the application, and the total absence…
WHEN THE COURT LOOKS AT THE MERITS OF THE CASE IN A RELIEF FROM SANCTIONS APPLICATION: A RARE,BUT IMPORTANT, DEVELOPMENT
In Rapid Displays Inc & Anor v Ahkye & Anor [2022] EWHC 274 (Comm) HHJ Pearce (sitting as a judge of the High Court) refused the defendants’ application for relief from sanctions. That application was heard alongside the claimant’s application…
LATE WITNESS STATEMENTS AND THE ASSESSMENT OF COSTS: COSTS REDUCED EVEN WHEN THEY WERE ON THE INDEMNITY BASIS
There are two distinct issues arising from the judgment of HHJ Pelling QC (sitting as a High Court judge) in Various Airfinance Leasing Companies & Ors v Saudi Arabian Airlines Corporation [2021] EWHC 3509 (Comm). The first relates to the…
CLAIM FAILS WHEN CLAIMANT SERVES A FIRM OF SOLICITORS AT THE WRONG ADDRESS: COURT REFUSES TO EXTEND CLAIM FORM
In Kelly v Ralli Ltd [2022] EWHC B5 (Costs) Cost Judge Rowley found that a claimant had failed to serve a claim form at the correct address. The action therefore failed. “The rules governing service are clear that it is the…
LAWYERS AS SCHOOCHILDREN IN THE PLAYGROUND: BAD-TEMPERED LITIGATION: THE SUMMARY ASSESSMENT OF COSTS: THE TAIL TO AND NOT THE DOG ITSELF
In Crypto Open Patent Alliance v Wright [2022] EWHC 242 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) made some trenchant observations in relation to arguments about costs on summary assessment. The criticisms of the way that litigation…
NEW RULES COMING INTO FORCE ON THE 6th APRIL 2022 (5): THE “PERSON” WHO MAY NOT BE NAMED…
A minor amendment is being made to CPR Part 39. The amendment enables any person not to be named if the court thinks this necessary. The rule is no longer confined to a party or witness. Amendment of Part 39…
WHEN DOES A LITIGANT HAVE CAPACITY? AVOIDING CIRCULAR ARGUMENTS: THE NEED FOR LEGAL ADVICE IS NOT A DETERMINING FACTOR
There is an interesting discussion of capacity to litigate in the judgment of Mr Justice Mostyn in Richardson-Ruhan v Ruhan & Ors [2021] EWFC 6. It is also worth remarking on the judge’s comments on how the expert’s evidence in…
NEW RULES COMING INTO FORCE ON THE 6TH APRIL 2022 (4): CHANGES TO STATEMENT OF VALUE ON THE CLAIM FORM IN PERSONAL INJURY CASES
The new rules reflect the fact that the small claims limit for personal injury damages now requires a figure of £1,500 for pain and suffering, there are specific provisions in relation to road traffic accidents. The rules change the statement…
WHEN AN APPELLANT FAILS TO ATTEND THEIR APPEAL IN THE COURT OF APPEAL: “PARTIES CANNOT SIMPLY FAIL TO SHOW UP FOR A HEARING…”
In Leave.EU Group Ltd & Anor v The Information Commissioner [2022] EWCA Civ 109 the Court of Appeal considered the appropriate step when an appellant failed to attend an appeal. The Master of the Rolls held that the Court had…
QUEEN’S BENCH DIVISION GUIDE 2022: LINK AND BUNDLES
The new Queen’s Bench Division Guide was published yesterday and is available here. THE CHANGES “Changes in the guide include: Interim and out of hours applications Urgent and Short Applications before the Masters Electronic bundles The procedure for issuing…
NEW RULES COMING INTO FORCE ON THE 6TH APRIL 2022 (3): THESE RULES, THEY AREN’T “NEW” ANY MORE
One small change in the rules means that they have left their infancy and, presumably, having now graduated, are entering early adulthood. THE OLD RULE CPR 1.1(1) currently reads (1) These Rules are a new procedural code with the overriding…
OH WHY ED SHEERAN CAN’T USE A STAND IN: DISCLOSURE AND THE DUTY TO SEARCH: THE SHAPE OF THINGS
In Sheeran & Ors v Chokri & Ors [2021] EWHC 3553 (Ch) Mr Justice Meade set out some of the duties owed by a litigant in relation to the disclosure process. “… Mr Sheeran’s manager undertook the disclosure exercise on…
NEW RULES COMING INTO FORCE ON THE 6TH APRIL 2022 (2): A BRAND NEW PART 12 ON DEFAULT JUDGMENT
From the 6th April 2022 onwards the existing rules in Part 12 are deleted and replaced with the new rules set out below. THE NEW PART 12 ON DEFAULT JUDGMENT The following rule totally substitutes the existing Part 12 from…
NEW RULES COMING INTO FORCE ON THE 6th APRIL 2022 (1): ACKNOWLEDGING SERVICE AND THE NEW CPR PART 10
New rules are coming into force on the 6th April 2022. This is the first of a series of posts dealing with these changes. There is to be a totally new CPR Part 10, the old rule being replaced entirely…
SEEKING TO ADDUCE NEW EVIDENCE AFTER THE TRIAL HAS ENDED: DENTON PRINCIPLES APPLY, A FORMAL APPLICATION IS REQUIRED: OVERIDING OBJECTIVE LEADS TO REFUSAL
In JD Group Ltd, Re [2022] EWHC 202 (Ch) Deputy Insolvency and Companies Court Judge Agnello QC refused an application to adduce new evidence after a trial had ended, and judgment was pending. A formal application was required, Denton principles…
THE USE OF A SECOND REPORT IN THE LOW VALUE ROAD TRAFFIC PROTOCOL: FAILURE TO DISCLOSE FIRST REPORT TO THE DEFENDANT DID NOT LEAD TO MEDICAL EVIDENCE BEING EXCLUDED
I am grateful to barrister Kriti Upadhyay for sending me copies of the judgment of Mrs Justice Foster in Greyson -v- Fuller [2022] EWHC 211 (QB), a copy of which is available here Greyson v Fuller – HC Judgment 3-2-22…
“THERE IS A DANGER … THAT PROPORTIONATE ORDERS END UP UNDERMINING THE GENERAL RULE THAT COSTS FOLLOW THE EVENT”: SUCCESSFUL CLAIMANT GETS 100% OF THEIR COSTS
In Deutsche Bank AG London v Comune Di Busto Arsizio [2022] EWHC 219 (Comm) Mrs Justice Cockerill considered, and rejected, the defendant’s arguments that there should be a “proportionate” costs order. The judgment serves as a reminder of the basic…
“I FIND THAT THE CLAIM WAS CONSTRUCTED BY THE CLAIMANT’S LAWYERS ON A PREMISE WHICH WAS IRRELEVANT AND WAS NOT IN ACCORDANCE WITH THE CLAIMANT’S EVIDENCE OR THE LAW”: WHY MUCH MORE CARE IS NEEDED IN DRAFTING SCHEDULES
We are looking again at the decision in Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB). This time at the judgment in relation to quantum. The case involved a situation where the claimant’s lawyers presentation of the case…
12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW: AN UPDATE
The recent Court of Appeal decision in Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors [2022] EWCA Civ 14 highlights the need for constant awareness of issues relating to service of the claim form. It is an area…
JUDGE GRANTS DEFENDANT RELIEF FROM SANCTIONS IN RELATION TO LATE FILING OF THE ACKNOWLEDGMENT OF SERVICE
In Cambpell v Chief Land Registrar [2022] EWHC 200 (Ch) HHJ Hodge (sitting as a judge of the High Court) granted the defendant relief from sanctions following its failure to acknowledge service in time. “it would be unjust if two…
HIGH COURT JUDGE OVERTURNS FINDINGS OF FUNDAMENTAL DISHONESTY AT TRIAL: “ALL CITIZENS ARE EQUALLY ENTITLED TO COME BEFORE THE COURTS IN CIVIL CLAIMS”
In Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB) Mr Justice Ritchie overturned a trial judge’s findings of fundamental dishonesty. The fact that a claimant had lied about the cause of his injuries did not impact upon…
THE SUPREME COURT CONSIDERS THE CONSTRUCTION OF STATUTES AND PRE-LEGISLATIVE MATERIAL
In O (a minor), R (on the application of v Secretary of State for the Home Department [2022] UKSC 3 the Supreme Court considered the issue of statutory interpretation and the use of external material, in particular official material. There…
ACTION FOR DATA BREACH SHOULD NEVER HAVE BEEN BROUGHT IN THE HIGH COURT: SMALL CLAIMS TRACK MOST PROBABLY THE APPROPRIATE VENUE
In Stadler v Currys Group Ltd [2022] EWHC 160 (QB) HHJ Lewis (sitting as a Judge of the High Court) was critical of the claimant’s decision to issue proceedings for a data breach claim in the High Court. Such proceedings…
SECURITY FOR COSTS CANNOT BE GIVEN BY BITCOIN: HARD CASH RULES THE DAY
In Tulip Trading Ltd v Bitcoin Association for BSV & Ors (Rev 1) [2022] EWHC 141 (Ch) Master Clark rejected an application that security for costs be given by Bitcoin. The fluctuating values of Bitcoin would not provide the defendants…
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