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…
PROVING THINGS 225: PROVING THAT A SIGNATURE WAS FORGED: DIVORCE PROCEEDINGS WERE NEVER SERVED
In Randhawa v Randhawa (Divorce: Decree Absolute, Set Aside, Forgery) [2021] EWFC B96 HHJ Moradifar found that a signature on an acknowledgment of service had been forged. Consequently the decree of divorce that followed was set aside. THE CASE The…
SUING YOUR LAWYER: SOLICITORS NOT NEGLIGENT IN FAILING TO PASS ON COUNSEL’S VIEWS OR ADVISE ON THE RISKS OF LITIGATION
In Mervyn Lambert Plant Ltd & Anor v Knights Solicitors [2022] EWHC 165 (QB) Dan Squires QC, sitting as a Deputy High Court Judge, rejected the claimant’s argument that his former solicitors had been negligent in failing to inform him…
10 MYTHS ABOUT LIMITATION THAT EVERY PERSONAL INJURY LAWYER SHOULD KNOW
Here we look at ten “myths” (that is misconceptions) about limitation that can lead to personal injury litigators getting into difficulties. This is not the first time these issues have been examined on these blog. However these continue to be…
A FINAL COSTS CERTIFICATE IS ESSENTIAL FOR COSTS TO BECOME DUE: THE BILL SHOULD HAVE BEEN SIGNED OFF…
In Johnston -v- Wackett [2022] EWHC 129 (Ch) Deputy Master Brightwell considered the question of whether costs become payable when a final costs certificate is not obtained. “Even though most paying parties may in practice pay without the need…
THE DANGERS OF DISPUTING COSTS (IT COULD COST YOU OVER £240,000…)
The judgment of Mrs Justice Lambert in Radia v Marks [2022] EWHC 145 (QB) is also interesting reading in that it gives an insight into the assessment of costs in earlier proceedings. It highlights the dangers and costs of costs proceedings…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: CRUCIAL FACTUAL FINDINGS MADE IN FAVOUR OF THE DEFENDANT
It is surprising how many clinical negligence cases rest, ultimately, on findings of fact as to what was said. An example can be seen in the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS Foundation Trust…
JUDICIAL REVIEW PROCEEDINGS SENT TO THE NORTH: LOCAL COURTS ARE BEST…
In Fortt, R (On the Application Of) v Financial Services Compensation Scheme Ltd [2022] EWHC 152 (Admin) Mr Justice Fordham ordered that judicial review proceedings be sent to Manchester rather than heard in London. The judgment emphasises the importance of…
PUTTING A CAP ON THE COSTS OF A SINGLE JOINT EXPERT: AN UNHAPPY TALE WITH LESSONS TO BE LEARNT
For the second time today I am writing about a case concerning a jointly instructed expert. In Loggie v Loggie [2022] EWFC 2 Mr Justice Mostyn had to determine who should pay the costs of an expert whose final costs…
NO DUTY OF CARE OWED BY A JOINTLY INSTRUCTED EXPERT (ON THE FACTS OF THIS CASE): EXPERTS GIVING EVIDENCE ABOUT BEING EXPERTS: MUCH TO READ HERE
The judgment of Mrs Justice Lambert in Radia v Marks [2022] EWHC 145 (QB) is essential reading for anyone who instructs experts in litigation. It is also essential reading for experts. The judge dismissed a claim in negligence against a…
PROVING THINGS 224: PROVING LOSS OF EARNINGS: THE IMPORTANCE (& LIMITATIONS) OF THE CLAIMANT’S OWN EVIDENCE
The impairment of someone’s ability to earn their living is always a serious matter. There are a number of approaches that the court can take to the award of damages. Anyone representing a claimant should read McRae -v- Chase International…
COURT OF APPEAL ISSUE WARNING AGAINST EXCESSIVE COSTS (INCLUDING THE COSTS OF APPEALS)
In The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 the Court of Appeal were concerned about the costs involved in litigation on what were, essentially, preliminary issues. This included the…
CHANGES TO THE HIGHWAY CODE: WHERE TO FIND THEM AND WHY THEY ARE IMPORTANT TO LAWYERS (APART FROM THE FACT THAT LAWYERS, WALK, DRIVE AND RIDE LIKE EVERYONE ELSE?)
The Highway Code is changing on the 29th January 2022. This has some relevance to lawyers. Here we look at the importance of the Highway Code, the significant changes, with links as to where to find the new rules and…
THE PROFOUND DIFFICULTIES IN REHEARING AN APPLICATION WHERE PERMISSION TO APPEAL WAS REFUSED: AN “EXCEPTIONAL JURISDICTION”: NUMEROUS BITES OF THE CHERRY NOT EASILY ALLOWED
In Dal v Bicknell & Anor [2022] EWHC 120 (Ch) Mr Justice Edwin Johnson considered the circumstances in which a party, refused permission to appeal, could seek to re-open the decision to refuse permission. The cases in which that can…
THERE IS NO RIGHT TO AN IMMEDIATE ASSESSMENT OF COSTS AFTER A SPLIT TRIAL: HOWEVER THERE IS AN (8%) STING IN THE TAIL
The judgment of Costs Judge Leonard in ABA v University Hospitals Coventry and Warwickshire NHS Trust [2022] EWHC B4 (Costs) highlights a point of costs and practice that is easily overlooked. A successful party who is awarded costs in a…
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