THE REQUIREMENTS FOR BOTH PARTIES IF THE PART 8 PROCEDURE IS TO BE USED IN MATTERS OF CONTRACTUAL CONSTRUCTION: BEST NOT THROW THE KITCHEN SINK INTO THE MIX
In Workman Properties Ltd v Adi Building And Refurbishment Ltd [2024] EWHC 2627 (TCC) HHJ Stephen Davies sent out a clear reminder of the duties on all parties in a Part 8 case where the court was being asked to…
COURT ALLOWS LATE WITNESS STATEMENT TO BE RELIED UPON: DENTON CRITERIA CONSIDERED
In Titan Wealth Holdings Ltd & Ors v Okunola (Rev1) [2024] EWHC 2586 (KB) Mrs Justice Hill considered the Denton criteria when granting the claimant permission to rely on a witness statement served out of time. There was a good…
ANOTHER WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THE CLAIMANT’S STATEMENT WAS “PARTICULARLY UNHELPFUL” AND LARGE IGNORED
In Burns v Bridge & Anor [2024] EWHC 2620 (Ch) HHK Cawson KC, sitting as a High Court Judge, observed that the claimant’s witness statement did not comply with PD 57AC. The witness statement was, to all and intents and…
INTEREST RATE REDUCTION ON THE COURTS FUND OFFICE SPECIAL AND BASIC ACCOUNTS: IMPORTANT NEWS FOR PERSONAL INJURY AND CLINICAL NEGLIGENCE PRACTITIONERS
The Courts Funds Office has reduced the rates of interest payable from the 19th September 2024. In the announcement that can be found here the rates on the special account and basic account are decreased. Special Account – decreased…
ADVOCACY – THE JUDGE’S VIEW: A REPEAT ii: “USEFUL, JUST & CHEAP”: GUIDANCE FROM AUSTRALIA
The post I repeated yesterday on Things Lawyers do to Annoy Judges was, without doubt, when first written one of the most publicised and read posts on this blog. I think it was that post that led to the blog…
COST BITES 186: “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS”: NOT A WHOLLY ATTRACTIVE ARGUMENT
In Mainwaring v Bailey [2024] EWHC 2614 (Fam) Mr Justice Henke ordered an unsuccessful appellant to pay the respondent’s costs. He rejected the appellant’s argument that his appeal was so evidently hopeless that the respondent should not have responded. He…
THINGS THAT LAWYERS DO TO ANNOY JUDGES: THE START OF A SERIES OF “REPEATS” (1)
Regular readers of this blog will be familiar with the judgment of Mr Justice Joseph W. Quinn He has been blunt in his assessment of witness credibility in some reported cases. He is equally blunt in his assessment of lawyers…
THE COURT’S POWERS IN RELATION TO ORDERING MEDIATION: A SUMMARY: AND A WEBINAR ON MEDIATION OF PARTICULAR USE TO HOUSING LAWYERS
The Civil Procedure Rules were amended on the 1st of this month to make it clear that the court can compel the parties to engage in alternative dispute resolution. Here we look at the changes. There is a webinar on…
ANOTHER CASE ABOUT THE LIMITS OF FUNDAMENTAL DISHONESTY: s.57 DOES NOT APPLY TO A CLAIM FOR FALSE IMPRISONMENT
In Andrew Reynolds v Chief Constable of Kent Police [2024] EWHC 2487 (KB) Mr Justice Sheldon found that a claim for false imprisonment was not a claim for damages for personal injury. A false imprisonment claim, therefore, was not subject to the…
A FINDING OF FUNDAMENTAL DISHONESTY DOES NOT AFFECT A CLAIMANT’S RIGHT TO RECOVER PROPERTY DAMAGES
In Senay & Anor v Mulsanne Insurance Company Ltd [2024] EWCC 12 HHJ Charman found that a finding of fundamental dishonesty in a personal injury action did not affect the claimant’s rights to recover damages for the property claim to…
WHEN AN EXPERT TRIED TO USE ARTIFICIAL INTELLIGENCE TO SUPPORT THEIR CALCULATIONS: COPILOT DOESN’T PREVENT THE EVIDENCE CRASHING…
We have considered the dangers of attempting to use artificial intelligence in litigation before. The use of artificial intelligence in an expert report was considered b Schopf.S in the Surrogate’s Court, Saratoga County, in the “Matter of Weber”. “The mere…
SENIOR MASTER COOK’S GUIDANCE ON COST MANAGEMENT HEARINGS: A PIECE BY PIECE GUIDE (2):DELEGATION
We are continuing with our detailed examination of the Kings Bench Masters Cost Management Hearings Guidance Note. This time we are looking at issues relating to delegation. Costs budgeting and Cost Judges encourage delegation. The problem for many practitioners is that…
RELIEF FROM SANCTIONS, LATE WITNESS STATEMENTS AND THE “WEIGHT” (OR ABSENCE OF WEIGHT) TO BE GIVEN TO THOSE STATEMENTS
In Oliver v Duffy [2024] EWHC 2590 Mrs Justice Hill considered an application for relief from sanction in a case where witnesses had not attended trial. The judge granted relief from sanctions but went on to hold that those statements…
COST BITES 185: VARYING THE AMOUNT PAYABLE AFTER A CLAIMANT DISCONTINUES: THE COURT CAN TAKE INTO ACCOUNT PRE-DISCONTINUANCE CONDUCT
In her very last judgment in the case of Elphicke v Times Media Ltd [2024] EWHC 2595 (KB) Master McCloud considered the question of whether it is possible for a court to take into account pre-discontinuance conduct when considering whether…
KEEPING WORKERS SAFE: THE EMPLOYER’S DUTY TO PREVENT ASSAULTS AT WORK: THE PRACTICAL ISSUES FOR THOSE BRINGING CLAIMS: WEBINAR 24th OCTOBER 2024
The Health and Safety Executive website reports that there were were 649,000 incidents of violence at work in 2022/23 and that 292,000 adults experienced violence at work in the same period. 41% of the assaults resulted in actual injury. The…
FIXED RECOVERABLE COSTS CONFERENCE: 8th NOVEMBER 2024 – READ ALL ABOUT IT…
On the 8th November I am speaking at the Fixed Recoverable Costs Conference in London. The conference covers numerous aspects of fixed recoverable costs. (I am speaking on fixed costs, fatal cases and the costs of attending an inquest). Booking…
SENIOR MASTER COOK’S GUIDANCE ON COST MANAGEMENT HEARINGS: A PIECE BY PIECE GUIDE (1): THE GENERAL APPROACH AND HOURLY RATES
Senior Master Cook published the Kings Bench Masters Cost Management Hearings Guidance Note on the 26th September. I am going through this on a topic by topic guide. Here we look at the general approach to budgeting and hourly rates. …
ANOTHER LATE CLAIM FORM CASE: COURT HAD NO POWER TO EXTEND TIME: IF IT DID THEN THE CLAIMANT’S APPLICATION WOULD HAVE BEEN REFUSED IN ANY EVENT
The case of Farnham Town Council v Secretary of State for Levelling Up Housing & Communities & Anor [2024] EWHC 2458 (Admin) (Tim Smith, sitting as a High Court Judge) is far from being the first case about service of…
COST BITES 184: COURT OF APPEAL UPHOLDS DECISION THAT COUNSEL ON DIRECT ACCESS NOT ENTITLED TO RECOVER FEES FROM THEIR (FORMER) CLIENT BECAUSE THE CONTRACTUAL TERMS WERE UNFAIR
In Glaser & Anor v Atay [2024] EWCA Civ 1111 the Court of Appeal upheld the decision that a contractual term that meant Leading counsel and junior counsel would be paid even if a trial was adjourned was unfair. Being…
FATAL CLAIMS AND THE VICTIMS OF CRIME: WEBINAR 15th OCTOBER 2024
On the 15th October I am presenting a webinar looking at fatal claims when the deceased person has died because they are a victim of crime. This webinar looks at the Criminal Injuries Compensation Scheme in detail and then considers…
FISH FILES, LITIGATORS AND LITIGATION: GET BY WITH A LITTLE HELP FROM YOUR FRIENDS…
I have a strong suspicion that “fish files” form a considerable percentage of the cases that are written about on this blog. It is an issue that has been looked at several times in the past. A “fish file” is…
CONSIDERING THE IMPACT OF INFLATION WHEN LOOKING AT THE JUDICIAL COLLEGE GUIDELINES: A CASE TO POINT
It has been established for some time that the figures in the Judicial College Guidelines for the Assessment of Personal Injury Damages are themselves subject to indexation for inflation. The most recent Guidelines (the 17th) are based on the RPI…
STRIKING OUT AMENDED PLEADINGS, EXTENSIONS OF TIME AND THE ISSUE OF THE “IMPLIED SANCTION”: COURT OF APPEAL DECISION
For some time now the courts have been grappling with the notion of the “implied sanction” in relation to rules and orders. Some rules are subject to “implied sanctions” so that a failure to comply means that a party has…
THE DIFFICULT ISSUE OF THE CHILD CLAIMANT AND LOSS OF EARNINGS CLAIMS: WEBINAR 14th OCTOBER 2024
For many years now I have been researching and writing about the particular problems that face practitioners when they are dealing with a claim by a child who could suffer loss of earnings in the future as a result of…
STARTING OUT IN THE LEGAL PROFESSION: WHAT DO YOU PUT IN YOUR BAG: WITH A LITTLE HELP FROM MY (AND YOUR) FRIENDS
Many people are starting their pupillages and training contracts at the moment. I thought it would be a good idea to revisit advice given (or rather gathered) on this blog in the past. When someone about to start pupillage asked…
EXPERTS CAN BE ASKED TO GIVE AN OPINION ON MATTERS OF FACT, EVEN WHEN THOSE FACTS ARE ULTIMATELY FOR THE COURT
There is a short passage in the judgment of Master Davison in The Owners of the “Christos Theo” v The Owners of the “Aliki” [2024] EWHC 2106 (Admlty) which deals with an issue rarely considered by the courts – how…
NOT A LATE CLAIM FORM CASE TODAY, BUT LATE PARTICULARS OF CLAIM LEAD TO THE ACTION BEING STRUCK OUT
As a change to the almost never ending issues relating to late service of the claim form we have a case about late service of the Particulars of Claim. In Joseph v McFaddens LLP [2024] EWHC 2447 (Ch) Deputy Master…
WHEN A SOLICITOR IS A WITNESS IN THE CASE FOR HIS CLIENT (AND THEY ARE IN A ROMANTIC RELATIONSHIP): THIS IS UNLIKELY TO END WELL…
The judgment of HHJ Russen KC in Kay v Martineau Johnson (A Firm) [2024] EWHC 2451 (Ch) highlights the profound dangers of a solicitor for a party being a witness in the case that is being brought. Those dangers are…
PROVING THINGS 245: A FAILURE TO PROVE A LOSS OF EARNINGS: A CLAIM PUT AT OVER £2 MILLION AND £23,000 AWARDED
In McInerney v Nottinghamshire Healthcare NHS Foundation Trust (Victimisation) [2024] EAT 158 HHJ James Tayler (in the Employment Appeal Tribunal) dismissed the claimant’s appeal in relation to loss of earnings. The Employment Tribunal had found that the claimant had failed…
COST BITES 183: A SERIES OF BILLS WERE NOT STATUTE BILLS: “CHAMBERLAIN” NOT ENGAGED: THE JUDGE WOULD HAVE FOUND “SPECIAL REASONS” TO ALLOW ASSESSMENT IN ANY EVENT
In Guest Supplies Intl Ltd v Spector Constant & Williams Limited [2024] EWHC 2450 (SCCO) Costs Judge Nagalingam decided that a series of bills sent by a solicitor were not statutory bills, neither were they “Chamberlain bills”. In any event…
SOLICITORS, SOCIAL MEDIA AND THE DUTY TO THE COURT: THREE CASES REVIEWED
The judgment in Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) we looked at last week contained some important observations about the limit of a solicitor’s duty to check their own client’s social media…
AN IDEAL CHRISTMAS PRESENT FOR THE LITIGATORS IN YOUR LIFE: MUNKMAN & EXALL ON DAMAGES: 15th EDITION
The latest edition of Munkman and Exall on damages in being published in November this year, obviously it has been cleverly timed to catch the important Christmas market. Details of how to buy the multiple copies you will undoubtedly need…
SPECIAL MEASURES IN A CIVIL CASE: AN EXAMPLE OF HOW IT WORKS
Taking special measures to protect witnesses is a well known feature in the family and criminal courts. They are less well known in the civil courts. An example can be seen in the judgment of Deputy Master Marzec in IMX…
FUNDAMENTAL DISHONESTY FOUND WHEN CLAIMANT HAD FILED SCHEDULE WHICH WAS MISLEADING ABOUT LOSS OF EARNINGS CLAIM: THE CLAIMANT COULDN’T HAVE EARNED AND SHOULDN’T HAVE CLAIMED
I am grateful to the barrister Nadia Whittaker for sending me a copy of the judgment handed down today of HHJ Richard Carter in Brown -v- Liverpool University Hospitals NHS Foundation Trust & Mersey and West Lancashire Hospitals NHS Trust….
THERE WAS NO GOOD REASON FOR AN INJUNCTION APPLICATION TO BE HEARD IN PRIVATE OR AN ANONYMITY ORDER GRANTED
In Pump Court Chambers Ltd v Brown (aka Goodfield) [2024] EWHC 2428 (Ch) Charles Morrison (sitting as a Deputy High Court Judge) refused an application that an injunction hearing take place in private and the parties have anonymity. “Is…
APPLICATION FOR WASTED COSTS AGAINST CLAIMANT’S SOLICITORS DISMISSED: NO DUTY TO “DUMP” A CLIENT WHEN FUNDAMENTAL DISHONESTY IS ALLEGED
In Williams-Henry v Associated British Ports & Anor (Re Wasted Costs Order) [2024] EWHC 2415 (KB) Mr Justice Ritchie dismissed an application for wasted costs against the claimant’s solicitors. This dismissal took place at “stage one” – with the allegations…
AN EXPERT SHOULD NOT HAVE ALLOWED HIS INITIAL ASSESSMENT TO BE “CORRUPTED” BY INADMISSIBLE EVIDENCE: “THERE SHOULD BE SOME INTROSPECTION ON THE PART OF THE GOVERNMENT LEGAL DEPARTMENT ABOUT THIS”
We are returning once again to the judgment of HHJ Melissa Clarke (sitting as a judge of the High Court) in Wilson v Ministry of Justice [2024] EWHC 2389 (KB).We are also returning to the question of expert evidence. There…
BACK TO THE CASE OF WILSON: THIS TIME THE “CHERRY PICKING” EXPERT WHO VEERED INTO A PARTISAN APPROACH
We are returning to the judgment of HHJ Melissa Clarke (sitting as a judge of the High Court) in Wilson v Ministry of Justice [2024] EWHC 2389 (KB) and staying with the theme of expert witnesses whose evidence was found wanting. (This…
WHEN AN EXPERT HAS “LOST ALL INDEPENDENCE AND OBJECTIVITY” – AND ADMITS SO IN COURT
There are many interesting aspects of the judgment of HHJ Melissa Clarke (sitting as a judge of the High Court) in Wilson v Ministry of Justice [2024] EWHC 2389 (KB). Here I want to concentrate upon the judgment relating to…
PROVING THINGS 244: WHERE THERE IS A “GENUINE DIFFERENCE OF OPINION” BETWEEN EXPERTS : CLAIMANT FAILS TO ESTABLISH LIABILITY IN A CLINICAL NEGLIGENCE CASE
Many of the cases on this blog that consider experts feature judicial criticism of those experts. Sometimes because of a failure to take into account the duties owed by those experts. However litigation is more complicated than that. It is…
AN “UNRELIABLE” SCHEDULE LEADS TO A CLAIM FOR LOSS OF EARNINGS BEING STRUCK OUT (AND FOUR WEBINARS ON LOSS OF EARNINGS)
The way in which a claim for loss of earnings claim is presented is of crucial importance in most claims for damages. There are a series of four seminars below where many of the essential elements are considered. A case…
SERVICE OF THE CLAIM FORM ON A NOMINATED SOLICITOR: SOME IMPORTANT POINTS
In the recent case of Keilaus -v- Houghton [2024] EWHC 2108 the claimant’s action failed because their solicitor failed to notice that the defendant’s solicitor had stated that they would accept service. The court had little, if any, sympathy for the…
CLAIMANT FAILS IN APPLICATION TO HAVE APPEAL JUDGMENT SET ASIDE: THE SOLICITOR SHOULD HAVE NOTICED THE APPEAL HAD BEEN LISTED: LATE SERVICE MEANS COSTS BUDGET WAS ASSESSED AT NIL
The judgment of Mrs Justice Hill in Deng v Zhang & Anor [2024] EWHC 2392 (KB) shows a case with a whole history of errors and mishaps. The claimant failed to file a cost budget in time but obtained relief…
TO ALL THOSE WHO THINK THERE MAY BE TOO MANY CASES ABOUT SERVICE OF THE CLAIM FORM ON THIS BLOG: YOU MAY BE RIGHT BUT HERE’S ANOTHER ONE…
In ETM Contractors Ltd, R (On the Application Of) v Bristol City Council [2024] EWHC 2263 (Admin) refused the claimant’s applications for relief following late issue and lateservice of the claim form. The judgment contains a detailed exposition of why…
DON’T DISCLOSE COUNSEL’S ADVICE TO THE OTHER SIDE: A REPEAT IN RELATION TO AN ISSUE THAT IS STILL HAPPENING
An issue I have seen periodically came up on LinkedIn yesterday. A defendant was complaining that there was a lack of co-operation by the claimant’s solicitor in failing to show them counsel’s Advice in relation to a claim brought by…
WITNESS CREDIBILITY AND REWRITING EVENTS OVER TIME: DEFENDANT DRIVER CAST AROUND FOR AN INTERPRETATION OF THEIR ACTIONS THAT PLACED THEM IN THE BEST LIGHT POSSIBLE
We have looked recently at a number of cases in relation to witness credibility. The judgment of HHJ Martin Picton in Palmer v Timms [2024] EWHC 2292 (KB) is a case where the primary issue at trial was the credibility…
WHEN SOCIAL MEDIA AND ONLINE POSTS UNDERMINE THE CLAIMANT’S CASE: FACEBOOK POSTS ON PLAYING RUGBY ARE FOUND TO BE BINDING
Many cases emphasise the importance of social media in litigation. It has become an essential tool in the armoury of many litigators. An example can be seen in the judge of Mr Justice Mould in Wye Valley NHS Trust v…
A CLAIM FORM CASE: ACTION FAILS BECAUSE THE CLAIMANTS’ SOLICITORS FAILED TO NOTICE THAT DEFENDANTS’ SOLICITORS HAD AGREED TO ACCEPT SERVICE
I am grateful to my colleague Sarah Lawrenson for sending me a copy of the decision of Master Clark in Keilaus -v- Houghton [2024] EWHC 2108. It involves an action failing because the claimants’ solicitor failed to notice that the…
FAILURE TO SERVE A NOTICE OF NON-ADMISSION UNDER CPR 32.19: WHAT ARE THE PRACTICAL CONSEQUENCES?
There is much for practitioners to read in the judgment of HHJ Paul Matthews in Taylor v Savik & Anor [2024] EWCC 7. However I want to isolate out the judge’s observations on CPR r.32.19. In particular the question of…
PREPARING TRIAL AND APPLICATION BUNDLES: A LITIGATOR’S SURVIVAL GUIDE: WEBINAR 4th DECEMBER 2024
The previous post on Serra -v- Harvey [2024] EWHC 2250 (KB) has led to me finalising a (long-prepared) webinar on bundles. In Serra wasted costs were ordered on an indemnity basis against the claimant’s solicitors because the lateness and condition of the trial bundles. The bundles…
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