COSTS BUDGETS:HOURLY RATES IN THE BUDGET ARE NOT DETERMINATIVE OF THE HOURLY RATES ON ASSESSMENT: A CAT AMONG THE PIGEONS HERE
In RNB v London Borough of Newham [2017] EWHC B15 (Costs) Deputy Master Campbell made an important decision in relation to hourly rates on assessment. The rates set out in the cost budget are not determinative of the rates allowed on…
THE STRENGTH OF ENGLISH LAW: GUIDANCE WHICH NEEDS TO BE GIVEN AT HOME NOT JUST ABROAD
The Courts and Tribunals service have today produced a short guide – essentially selling the English courts* and the UK Jurisdiction. In essence it is a marketing booklet to persuade foreign litigants to use court in the UK and to…
COMPLYING WITH DIRECTIONS IN THE FIRST-TIER TRIBUNAL: IT CAN BE A TAXING MATTER: PUBLIC BODIES SHOULD LIVE UP TO THE STANDARDS EXPECTED IN THE CONDUCT OF LITIGATION
The decision of the Supreme Court in BPP Holdings Ltd & Ors v Revenue and Customs [2017] UKSC 55 is interesting for a number of reasons. It is about the provision of textbooks (on law and accountancy presumably) to students….
COSTS AFTER A PART 36 OFFER AFFECTED BY THE CHANGE IN THE DISCOUNT RATE: CONDUCT OF DEFENCE ALONE SUFFICIENT TO JUSTIFY INDEMNITY COSTS
I have written several times about the judgment of Thirlwall LJ in Marsh -v- MOJ*. I have been provided with a copy of a note of the judgment on costs given on the 31st July 2017. I am grateful to…
THE JOB OF THE COURT IN CIVIL CASES: A USEFUL PRIMER: ADJUDICATION, THE BURDEN OF PROOF: THE JUDGE DOES NOT DECIDE WHO HAS THE MORAL HIGH GROUND
In Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) set out clearly and succinctly the principles by which the civil courts determine cases. They serve as a…
“MUST” MEANS “MUST”: WHEN CRUCIAL PARTS OF YOUR EVIDENCE AMOUNTS TO NO MORE THAN GOSSIP AND RUMOUR IT CAN BE COSTLY.
I have already written that there are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB) (the subsequent judgment on costs is also worth reading and will be covered soon)….
A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld…
FALSE EMAILS, METADATA AND CPR 32.19: A “PROCESS OF FALSIFICATION AND KNOWINGLY PUTTING FORWARD EVIDENCE THAT IS FALSE”
The case of 44 Wellfit Street Ltd v GMR Services Ltd [2017] EWHC 1841 (Ch) was described by Chris Dale as being “like one a much-expanded version of those old-style Finals questions with kitchen sink thrown in”. The judgment of Chief…
COSTS BUDGETING IN BIG CASES: COSTS BUDGETS DO NOT PREVENT REASONABLE AND PROPORTIONATE COSTS BEING RECOVERED
The short judgment of Mr Justice Birss in Napp Pharmaceutical Holdings Ltd v Dr Reddy’s Laboratories (UK) Ltd & Ors [2017] EWHC 1433 (Pat) has some important lessons for litigators. “I entirely reject the submission that cost budgeting creates a problem…
FIXED COSTS: USEFUL LINKS: THE REPORTS AND THE COMMENTARY
The Jackson Report on fixed costs has already led to a great deal of controversy. Here are links to some of the most useful posts and articles. These include links to the report itself, Guidance and the extensive commentary (including…
THE SERVICE OF PROCEEDINGS WAS PHOTOGRAPHED AND FILMED : AND THIS TURNED OUT TO BE IMPORTANT
In Yukos Finance BV & Ors v Lynch & Ors [2017] EWHC 1812 (Comm) the claimants were so concerned about the defendant’s attempt to evade service that they arranged for the process to be photographed and filmed. As it turns out…
“THE CONSTITUTIONAL RIGHT OF ACCESS TO THE COURTS IS INHERENT IN THE RULE OF LAW”: THE JUDGMENT OF THE SUPREME COURT: EDITED HIGHLIGHTS
The decision of the Supreme Court in UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51 may have wide ramifications. Certainly its impact will go well beyond employment law. The Supreme Court set out, in clear and absolute…
MEMORIES, WITNESS STATEMENTS AND EVIDENCE: A SCIENTIFIC VIEW: WHAT EXPERTS WISH YOU KNEW
I have written before about the issue of memory and witness evidence. I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts…
BANGING A DRUM FOR YORKSHIRE: THE BEST LAWYERS AND THE BEST CRICKETERS (I’LL KEEP QUIET ABOUT FOOTBALL)
Having spent yesterday seeing concrete evidence of the depth and breadth of talent in Yorkshire (as one of judges on the Yorkshire Legal Awards) I arrived home to find information about the development of the courts and legal profession in…
QOCS: THE TRANSITIONAL PROVISIONS CONSIDERED BY THE COURT OF APPEAL: CLAIMANTS CANNOT BLOW HOT AND COLD
In the judgment today in Catalano -v- Espley Tyas Development Group Limited [2017] EWCA Civ 1132 the Court of Appeal considered the transitional provisions relating to QOCS. “We cannot accept that Mr McGee is right. Not only does he seek…
YOU OFFERED ME £100,000: I’VE ACCEPTED £15,000- OH AND I WANT MY COSTS: THE DANGERS OF NOT NEGOTIATING AND WHY THE CLAIMANT HAD TO PAY INDEMNITY COSTS
I tried to summarise the judgment of Mr Justice Mann in Jordan -v- MGN Limited [2017] EWHC 1937 (Ch) and I found it difficult. Every word of the judgment is important. It shows, at least, a very insouciant, approach by the…
TEN MINUTES IS A LONG TIME IN LITIGATION: SOLICITOR AND OWN-CLIENT ASSESSMENT OF COSTS CONSIDERS BILLING PRACTICES IN DETAIL
I am grateful to Shimon Goldwater for sending me a copy of the judgment of Master Rowley in Breyer Group Pie -v- Prospect Law Limited (A copy of which is attached Costscase). There are significant observations made in relation to…
THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010 IS NOT RETROSPECTIVE: PARLIAMENT COULD EASILY HAVE SAID OTHERWISE
In Redman -v- Zurich Insurance PLC [2017] EWHC 1919 (QB) Mr Justice Turner held that the provisions of the Third Party (Rights Against Insurers) Act 2010 are not retrospective. “If Parliament had intended the 2010 regime retrospectively to apply to…
WITNESS STATEMENTS DIRECT: MEMORY, GESTMIN £15 MILLION AND QUITE A LOT OF ALCOHOL: A HEADY BREW
There is a certain appropriateness in one of the last major first-instance judgments of Mr Justice Leggatt being about witness credibility and the Gestmin criteria. In Blue -v- Ashley [2017] EWHC 1928 (Comm) Gestmin figured heavily. Everyone believed they were…
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
WHY LIFE IS NOW DANGEROUS FOR DEFENDANTS (ESPECIALLY THOSE WHO DON’T FILE A DEFENCE ON TIME)
The judgment of Mr Justice Coulson in ADVA Optical Networking Limited -v- Optron Holding Limited [2017] EWHC 1813 (TCC) highlights what a dangerous world this can be for defendants. A defendant who is late filing a defence, and where judgment has not been…
PROTECTING YOURSELF AGAINST A WITNESS THAT BLAMES YOU: A CASE TO POINT
I have written before about the problems that can arise when a witness “turns” on the person who prepared their witness statement. An errant witness will often blame the person who took the statement. This issue can be seen, with…
ERRANT EVIDENCE AND PHYSICAL EVIDENCE THAT GOES MISSING: CLAIMANT’S EXPERTS FEEL THE HEAT
I am returning for the fifth time to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have seen the judge’s views on the witnesses, the claimant’s disclosure and arguments that…
COUNSEL’S OPINION OF NO VALUE AT ALL: (ON THIS OCCASION ANYWAY)
I am returning for the fourth time (and still not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). The parties had exchanged written opinions of leading counsel…
INTERLOCUTORY APPEALS AND THE TIME FACTOR: DENTON, WITNESS STATEMENTS AND AMENDMENT: A HEARING WHEN SEVEN TIMES MORE TIME WAS NEEDED
The judgment of Mrs Justice May DBE in Myall -v- Ministry of Defence [2017] EWHC 1752 (QB) emphasises the point that many interlocutory appeals come about not so much because of judicial error but because of the lack of time…
THE DANGERS OF SELECTIVE WITNESS EVIDENCE: WITNESS EVIDENCE THAT WAS “UNSATISFACTORY” AND “SIMPLY NOT RELIABLE”
I am returning for the third time (and not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). We have already looked at the (relatively mild) criticisms of…
DEFICIENCIES IN DISCLOSURE: READING THIS JUDGMENT IS NOT LIKE WATCHING PAINT DRY
A case that concerns the fitting of specialist piping at a paint factory may seem an unlikely starting point for procedural controversy. However I am looking again in the judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit…
WITNESS STATEMENTS: SAYING “I AGREE WITH HIM” IS HARDLY GOOD PRACTICE
Large number of litigants pay large amounts of money to their lawyers to draft witness statements. This blog often documents the problems caused by witness statements that are simply inadequate. The issues of inadequate witness statements is seen again in…
BUNDLES WERE A DOG’S DINNER: MISSING WITNESSES AND AN EXPERT WITH NO CONCEPT OF HIS DUTY TO THE COURT
The judgment of Mr Justice Coulson in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) exemplifies many of the issues in litigation that are regularly covered in this blog: bundles, missing witnesses and errant experts. In particular…
INADEQUATE DISCLOSURE LEADS TO DEFENCE BEING STRUCK OUT – EVENTUALLY: CASE THAT WAS NOT A WALK IN THE PARK
There is a brief report on Lawtel today of the case of Powell -v- Watford Borough Council, a decision made yesterday by Mr Justice Jay (10th July 2017) in the Royal Courts of Justice . This post is based in…
ABSENT WITNESSES CONSIDERED: REASONS FOR ABSENCE NOT ACCEPTED COMPARED TO CIVIL EVIDENCE ACT NOTICE
In Coreix Ltd -v- Coretx Holdings [2017] EWHC 1695 (IPEC) the trial judge was faced with the approach that should be adopted in relation to witnesses that were not at trial. THE CASE The action was a for breach of trademark…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
WHEN CIRCUMSTANCES CHANGE AFTER A BUDGET IS CONFINED TO COURT FEES: DECISION TO ALTER BUDGET UPHELD
In Asghar -v- Bhatti[ 2017] EWHC 1702 (QB) Mr Justice Lewis considered an issue in relation to varying a budget that was confined to court fees. The court considered “change of circumstances” – this is also a case that shows…
MIB CLAIM IS SUBJECT TO QOCS: COURT OF APPEAL OVERTURN HOWE
“For the purposes of CPR Part 44.13, which describes the claims eligible for Qualified One-Way Costs Shifting (“QOCS”), what is a claim for damages for personal injury? As Stewart J said it is a simple question but does not yield…
COSTS BUDGET ONE DAY LATE: RELIEF FROM SANCTIONS REFUSED: DON’T MAKE MOUNTAINS OUT OF MOLEHILLS BUT PUT THINGS RIGHT – QUICKLY
There are only two realistic options in relation to a relief from sanctions application: (i) do it properly and promptly; (ii) don’t do it all. The dangers of a hasty application are illustrated in the judgment in Lakhani -v- Mahmud…
FAILURE TO RESPOND TO PART 18 REQUESTS PROPERLY LEADS TO STRIKE OUT: NO SECOND BITE OF THE CHERRY IN RELATION TO RELIEF FROM SANCTIONS
There are relatively few reported cases about Part 18 questions. The decision of the Court of Appeal today in Griffith -v- Gourgey [2017] EWCA Civ 926 shows the dangers of failing to respond fully and properly. “This shows the necessity…
APPEAL STRUCK OUT FOR PROCEDURAL FAILURES: THE IMPORTANCE OF KEEPING THE COURT INFORMED: THE DENTON CRITERIA CONSIDERED
In R (on the application of Kaur) -v- The Secretary of State for the Home Department[2017] EWCA Civ 821 Lord Justice Hickinbottom upheld a decision to strike out an appeal because of procedural failures. The case highlights the importance of…
INCURRED COSTS, PROPORTIONALITY AND BUDGETING MEANS A CASE SHOULD NOT BE STRUCK OUT
The previous post looked at the issue of incurred costs and budgeting. Some interesting points were raised in the very complex case of King Felix Sunday Bebor Berebon & others -v- The Shell Petroleum Development Company of Nigeria Limited [2017]…
INCURRED COSTS AND COSTS BUDGETING: TWO RECENT CASES
Two recent cases have considered the significance of incurred costs in costs budgeting. These two cases indicate: 1. Incurred costs do not form part of the budgeting process (but can be scrutinised at assessment, including on the issue of whether…
EVIDENCE OF PREVIOUS EXPERT DOES NOT HAVE TO BE DISCLOSED: THE IMPORTANCE OF THE REASON FOR THE CHANGE OF EXPERT
In Condor Vilca & ors -v- Xstrata Limited [2017] EWHC 582 (QB) Mr Justice Stuart-Smith rejected an application that a party disclose its previous expert evidence when it needed to change its choice of expert. The reason for the change…
DON’T STOP ME NOW*: CLIFF’S COSTS BUDGETING: INCURRED COSTS; THE CAP ON THE COSTS OF BUDGETING AND PREPARATION FOR TRIAL
In Sir Cliff Richard OBE -v- The BBC & Chief Constable of South Yorkshire Police [2017] EWHC 1666(Ch) Chief Master Marsh declined an invitation to make any observations about incurred costs. The case: Has an interesting (and important) discussion of…
“LATE” SERVICE OF WITNESS STATEMENTS WHEN THERE IS NEW EVIDENCE: SOME ISSUES CONSIDERED
The third reason litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch) is the brief discussion in relation to the service of witness evidence outside deadline allowed by…
DOCUMENTS, AUTHENTICITY AND ADMISSIONS: A TIMELY REMINDER OF THE PROVISIONS OF CPR 32.19
I said in the previous post that there are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). One of those reasons is that it contains…
PROVING THINGS 64 : ABSENCE OF STRONG AND STABLE EVIDENCE LEADS TO DAMAGES AWARD OF £2.00
There are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). However this is another case where a claim for damages failed because the…
EXPERTS NOT WELLCOME HERE (NOT YET ANYWAY): PARTIES NEED TO ESTABLISH NEED FOR EXPERT EVIDENCE
In Glaxo Wellcome Uk Limited -v- Sandoz Limited [2017] EWHC 1524 (Ch) Chief Master Marsh refused the defendants’ application to rely on three expert witnesses. The judgment contains interesting observations on the nature of the information that needs to be…
FOURTH ANNIVERSARY OF CIVIL LITIGATION BRIEF: A (BRIEF) RECAP
This week sees the fourth anniversary of this blog. I am going to repeat most of what I said in the post on the first anniversary. CIVIL PROCEDURE IN JUNE 2013 When the blog started civil procedure was a slightly…
APPLICATIONS TO RECUSE HAVE NO SPECIAL STATUS AND SHOULD BE MADE PROPERLY AND PROMPTLY
In Miley -v- Friends Life Limited [2017] EWHC 1583 (QB) Mr Justice Turner made some important applications in relation to applications that a judge recuse themselves. THE CASE The action concerned the question of whether the defendant should continue…
TOO MANY DOCUMENTS SPOIL THE CASE: APPLICATIONS SHOULD BE CONDUCTED PROPORTIONALLY
In Alsaifi -v- Amunwa [2017] EWHC 1443 QB Mr Justice Warby reminded parties of the need for bundles and documents to be relevant and proportional. “I make these points to emphasise the importance of parties to litigation of this kind…
NOT ALL WITNESS STATEMENTS SHOULD BE MADE PUBLIC AHEAD OF A TRIAL: THE TIMES HAS TO WAIT
In Blue -v- Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm) Mr Justice Leggatt considered whether a witness statement should be disclosed to the public when it had been referred to at a pre-trial hearing. The application was…
ACTION WAS STATUTE BARRED AND AN ABUSE OF PROCESS: THE COURT WILL NOT SIMPLY REFEREE WHATEVER GAME A CLAIMANT WANTS TO PLAY
In Schweppe -v- Closier [2017] EWHC 1486 (TCC) Mr Justice Coulson struck out an action on the grounds it was statute barred and represented an abuse of process. The judgment is worth reading because it reviews the principles relating to…
You must be logged in to post a comment.