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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Zenith Chambers, Leeds, & Hardwicke, London
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DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE

DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE

February 15, 2019 · by gexall · in Applications, Civil Procedure, Relief from sanctions, Witness statements

In Consult II SRO & Ors v Shire Warwick Lewis Capital Ltd & Ors [2019] EWHC 286 (Comm) Andrew Henshaw QC (sitting as a High Court Judge) refused the defendants’ application for relief from sanctions. The lack of a candid explanation…

"IF EVER THERE WERE A CASE IN WHICH THE COURT SHOULD REFUSE TO EXERCISE ITS DISCRETION IN FAVOUR OF GIVING THE CLAIMANTS ANY FURTHER INDULGENCE,  THIS IS IT"

“IF EVER THERE WERE A CASE IN WHICH THE COURT SHOULD REFUSE TO EXERCISE ITS DISCRETION IN FAVOUR OF GIVING THE CLAIMANTS ANY FURTHER INDULGENCE, THIS IS IT”

February 14, 2019 · by gexall · in Applications, Case Management, Civil evidence, Relief from sanctions, Witness statements

The judgment in  Jetly & Anor v The Secretary of State for the Home Department [2019] EWHC 204 (Admin) sets out a series of surprising events.  Mrs Justice Andrews came down very firmly against granting relief from sanctions. Many of the…

WHEN LITIGATION BECOMES A "VERBAL BRAWL": DISCLOSURE MUST BE PROPORTIONATE

WHEN LITIGATION BECOMES A “VERBAL BRAWL”: DISCLOSURE MUST BE PROPORTIONATE

February 13, 2019 · by gexall · in Applications, Conduct, Disclosure

In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2019] EWHC 154 (Ch) Master Shuman observed how disclosure applications could quickly become disproportional. The litigation had become a “verbal brawl”. It is an example of the dangers of losing sight…

BACK TO BASICS 31: SERVICE OF THE CLAIM FORM AT THE "LAST KNOWN ADDRESS": FIVE KEY POINTS

BACK TO BASICS 31: SERVICE OF THE CLAIM FORM AT THE “LAST KNOWN ADDRESS”: FIVE KEY POINTS

February 13, 2019 · by gexall · in Applications, Service of the claim form, Serving documents

Service at a defendant’s  “last known address” is something that can be highly problematic.  There are dangers in serving at an address unless you are wholly certain that the defendant still resides there. Here we look at the rules and…

STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN'T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT'S CASE STRUCK OUT

STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT

February 13, 2019 · by gexall · in Applications, Civil evidence, Civil Procedure, Statements of Case

I am grateful to barrister Toby Bishop   for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy  Toby’s discussion of the substantive issues that arose in the claim can…

PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE

PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE

February 13, 2019 · by gexall · in Appeals, Damages, Professional negligence,, Witness statements

In Perry v Raleys Solicitors [2019] UKSC 5 the Supreme Court restored the decision of the trial judge in relation to damages. One of the key issues was whether the Court of Appeal was correct to overturn the trial judge’s factual…

SHOULD A "RECKLESS" MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL

SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL

February 13, 2019 · by gexall · in Appeals, Civil Procedure, Expert evidence, Experts

Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court.  The expert…

VIEWING THE WOOD FROM THE TREES: ASSESSING WITNESS CREDIBILITY: A "CUT OUT AND KEEP" GUIDE

VIEWING THE WOOD FROM THE TREES: ASSESSING WITNESS CREDIBILITY: A “CUT OUT AND KEEP” GUIDE

February 9, 2019 · by gexall · in Civil evidence, Witness statements

 The judgment of Teare J in Deripaska and Danilina v Chernukhin case [2019] EWHC 173 (Comm), is (at present) only available via a link on the Serle Court website.  It is useful in that a few paragraphs encapsulate the judicial approach to…

CLAIMANTS IN A FATAL ACCIDENT CLAIM HAVE NOT "WON" ANYTHING: SETTLEMENT OF ACTION APPROVED: DETAILS KEPT CONFIDENTIAL

CLAIMANTS IN A FATAL ACCIDENT CLAIM HAVE NOT “WON” ANYTHING: SETTLEMENT OF ACTION APPROVED: DETAILS KEPT CONFIDENTIAL

February 8, 2019 · by gexall · in Access to justice, Applications, Damages, Fatal Accidents

In Correa & Ors v BP Plc & Ors [2019] EWHC 232 (QB) Mrs Justice Yip approved damages in a fatal accident case.  The judgment provides a great deal of anonymity but gives a real indication of the difficulties involved. “The…

CIVIL PROCEDURE BACK TO BASICS 30: THE ADVANTAGES OF APPLYING FOR AN EXTENSION BEFORE THE DATE OF BREACH: THE CASE KEEPS MOMENTUM

CIVIL PROCEDURE BACK TO BASICS 30: THE ADVANTAGES OF APPLYING FOR AN EXTENSION BEFORE THE DATE OF BREACH: THE CASE KEEPS MOMENTUM

February 7, 2019 · by gexall · in Applications, Extensions of time, Relief from sanctions

In Robert –v- Momentum Services Limited [2003] EWCA Civ 299 the Court of Appeal held that where an application for an extension of time is made before the expiry of the stipulated period this was not a case as one of relief from sanctions. The…

JUDGE WAS WRONG TO IMPOSE SECURITY FOR COSTS ORDER IN RESPONSE TO WITNESS STATEMENT BEING SERVED LATE: COURT OF APPEAL DECISION

JUDGE WAS WRONG TO IMPOSE SECURITY FOR COSTS ORDER IN RESPONSE TO WITNESS STATEMENT BEING SERVED LATE: COURT OF APPEAL DECISION

February 7, 2019 · by gexall · in Applications, Summary judgment

In  Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119 the Court of Appeal overturned a first instance decision where a summary judgment application was adjourned on terms that the defendant provided security for costs.  The defendant…

RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL

RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL

February 7, 2019 · by gexall · in Appeals, Applications, Civil Procedure, Relief from sanctions, Witness statements

In  Petrou v Lambrou (t/a KCJ Builders) [2019] EWHC 166 (Comm) Mr Justice Freedman upheld the decision of a circuit judge who granted the defendant relief from sanctions when a witness statement was served late. Interestingly the judge, on appeal, exercised…

SERVICE OF CLAIM FORM BY EMAIL ALLOWED: THE SAFEGUARDS TO RESPONDENTS TO WITHOUT NOTICE APPLICATIONS.

SERVICE OF CLAIM FORM BY EMAIL ALLOWED: THE SAFEGUARDS TO RESPONDENTS TO WITHOUT NOTICE APPLICATIONS.

February 6, 2019 · by gexall · in Injunctions, Service of the claim form, Serving documents

The case and issues in Linklaters LLP -v- Mellish [2019] EWHC 177 (QB) have already made the headlines.   The procedural aspects of the decision are also of interest. Firstly Mr Justice Warby made an order allowing service of the claim form…

PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED

PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED

February 6, 2019 · by gexall · in Case Management, Civil Procedure, Damages, Personal Injury

In the judgment today in  Howard v The Imperial London Hotels Ltd [2019] EWHC 202 (QB)  Master Thornett had to consider whether periodical payments were suitable for someone with a very short life expectancy.  The judgment is a  careful and sensitive…

PROVING THINGS 140: SPECULATIVE EVIDENCE NOT ENOUGH TO PROVE A "LOSS OF CHANCE"

PROVING THINGS 140: SPECULATIVE EVIDENCE NOT ENOUGH TO PROVE A “LOSS OF CHANCE”

February 6, 2019 · by gexall · in Civil evidence, Damages

In Dymoke v Association for Dance Movement Pyschotherapy UK Ltd [2019] EWHC 94 (QB) Mr Justice Popplewell found that a claimant had not adduced sufficient evidence to prove a “loss of chance” in a claim for damages.  This shows that a…

CONDITIONAL FEE AGREEMENT DID NOT CONTINUE AFTER A SOLICITOR HAD CEASED TO ACT: DEFENDANT NOT LIABLE TO PAY COSTS TO FIRST SET OF SOLICITORS

CONDITIONAL FEE AGREEMENT DID NOT CONTINUE AFTER A SOLICITOR HAD CEASED TO ACT: DEFENDANT NOT LIABLE TO PAY COSTS TO FIRST SET OF SOLICITORS

February 6, 2019 · by gexall · in Appeals, Conditional Fee Agreements, Costs

I am grateful to Matthew Hoe from Taylor Rose TTKW for sending me a copy of the decision of HHJ Wulwik in Roman -v- AXA Insurance PLC (13/12/2018).   Roman v AXA Insurance [2018] (1) The judge found that a CFA with…

BEING A LITIGATOR "WHAT I'D TELL A YOUNGER ME": THE SECRET BARRISTER'S SELF-DEFENCE INSTRUCTOR: SARAH ROBSON

BEING A LITIGATOR “WHAT I’D TELL A YOUNGER ME”: THE SECRET BARRISTER’S SELF-DEFENCE INSTRUCTOR: SARAH ROBSON

February 6, 2019 · by gexall · in What I'd tell a younger me

The aim of this series is to give an insight into the experiences of a wide range of people involved in litigation.  This interview, however, posed a unique problem: how do you interview someone with a black belt in Taekwando?…

CIVIL PROCEDURE BACK TO BASICS 29:  EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE'S TERRITORY DON'T USUALLY FARE TOO WELL

CIVIL PROCEDURE BACK TO BASICS 29: EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE’S TERRITORY DON’T USUALLY FARE TOO WELL

February 4, 2019 · by gexall · in Civil evidence, Civil Procedure, Expert evidence, Experts

We have seen several cases recently where judges have objected, in clear terms, to an expert trying to find “facts”. That is properly a matter for the trial judge.   It is worthwhile looking at the guidance and cases on this…

LITIGATORS AND THE ART OF PERSUASION: USEFUL GUIDES (1): MUNKMAN ON THE TECHNIQUE OF ADVOCACY

February 4, 2019 · by gexall · in Civil evidence, Civil Procedure, Witness statements, Written advocacy

Every litigator is, involved in the art of persuasion.  Litigation is fundamentally about the art of persuasion.  Persuasion is a litigator’s daily task: in correspondence, on the phone,  with opponents. It is wrong to confine the consideration of this essential skill…

WHEN WITNESS STATEMENTS ARE USELESS (AND PROBABLY HARMFUL): A FEW CASES TO ILLUSTRATE A COMMON POINT

WHEN WITNESS STATEMENTS ARE USELESS (AND PROBABLY HARMFUL): A FEW CASES TO ILLUSTRATE A COMMON POINT

February 3, 2019 · by gexall · in Applications, Civil evidence, Witness statements

For the third (and last) time I am returning to the judgment of HHJ Halliwell in  Currie v Thornley & Anor [2019] EWHC.  172 (Ch).  This time the judge’s observations in relation to witness statements.  Using witness statements to “argue” the case…

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  • “IF EVER THERE WERE A CASE IN WHICH THE COURT SHOULD REFUSE TO EXERCISE ITS DISCRETION IN FAVOUR OF GIVING THE CLAIMANTS ANY FURTHER INDULGENCE, THIS IS IT”
  • WHEN LITIGATION BECOMES A “VERBAL BRAWL”: DISCLOSURE MUST BE PROPORTIONATE
  • BACK TO BASICS 31: SERVICE OF THE CLAIM FORM AT THE “LAST KNOWN ADDRESS”: FIVE KEY POINTS
  • STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT

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  • WHEN LITIGATION BECOMES A "VERBAL BRAWL": DISCLOSURE MUST BE PROPORTIONATE
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