MY WITNESS STATEMENT WAS DRAFTED BY MY LAWYER: THANK YOU OFFICER
There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB). I just want to look at one of them. This was a case all…
EXTENSION OF THE CLAIM FORM: A RARE SUCCESS FOR A CLAIMANT (BUT IT HAS GOT A LOT TO DO WITH CONDUCT)
Most cases relating to extensions of time for service for the claim form end badly for the claimant. The decision of Mr Justice Roth in The Khan Partnership LLP -v- Infinity Distribution Limited [2016] EWHC 1390 (Ch) is an exception….
FATAL ACCIDENTS DAMAGES MASTERCLASS: 19th JULY 2016 LEEDS
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CLAIMANT ALLOWED TO RELY ON WITNESS EVIDENCE SERVED DURING TRIAL
Yesterday I looked at a case where a defendant was refused permission to rely upon a witness statement served late,96 although it was served before trial. Today we look at a case where a claimant was given permission to rely…
DEFENDANT REFUSED PERMISSION TO ADDUCE FURTHER EVIDENCE: LATE EVIDENCE IS ALWAYS A PROBLEM
I am grateful to barrister Michelle Fanneran for sending me a copy of the decision of His Honour Judge Cotter QC in the case of Moore -v- Plymouth Hospitals Trust (11th May 2016). This involves consideration of relief from…
STRIKING OUT A PLEADING WHEN IT DOES NOT COMPLY WITH THE RULES
In Jones -v- Longley [2016] EWHC 1309 (Ch) Master Matthews considered the criteria for striking out a pleading, in this case a counterclaim. There are important observations on the needs for pleadings to comply with the rules; on the fact…
IT IS THE CLIENT THAT SHOULD GIVE THE EVIDENCE NOT THE SOLICITOR: ALSO VERY LATE DISCLOSURE
Why should a lawyer ever want to give evidence. What practical value does evidence given by a lawyer have when their clients could have been called? These were issues considered today by Master Marsh in his judgment in Pineport Limited…
OVERSPENDING ON YOUR COSTS BUDGET? BETTER TELL YOUR CLIENT
Way back in the mist of time (that is post-Mitchell, pre-Denton) I reported a decision of District Judge Lumb on sanctions and costs budgeting. That particular post was then plagiarised without any reference to me (matters were resolved amicably). However…
CONTEMPT PROCEEDINGS AND FUNDING: THE OUTCOME OF A LONG STRUGGLE
I have received an email informing me that, thanks to the help received from a post on this blog they – eventually – obtained legal aid and successfully defended committal proceedings. Although the thanks are addressed to me it is…
PROVING THINGS 21: WHEN THE WHOLE PROCESS OF INVESTIGATION IS FLAWED
I have looked at family cases before on this blog, usually in the context of witness evidence and issues relating to the burden of proof. Many of the decisions of family judges have to be taken on the basis of…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: GET THE WORDING RIGHT
On more than one occasion on this blog we have looked at cases where the courts have questioned the wisdom of a lawyer signing a statement of truth on behalf of a client. In Galdikas -v- DJ Houghton Catching Services…
INDEMNITY COSTS ON APPEAL AFTER PART 36 OFFER
For the second time today I express my thanks to John McQuater. This time for drawing my attention to the Court of Appeal decision on costs in Summers -v- Bundy (11/02/2016)* This case shows the importance of making Part 36…
PART 36: INDEMNITY COSTS WHEN A DEFENDANT ACCEPTS OUT OF TIME
I am grateful to John McQuater for sending me a copy of the judgment of District Judge Besford in the case of Sutherland -v- Khan (21st April 2016) (a copy of the transcript is attached to this blog here …
ADVOCACY – THE JUDGE’S VIEW III: MORE GUIDANCE FROM CANADA
As part of the series looking at the advice that judges give to advocates (and how this relates to civil litigators in particular) we return to Canada. Judge Carol Baird Ellan collected the views of 12 of her colleagues in…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
"THAT PROPORTIONALITY JUDGMENT": 10 KEY POINTS
The post yesterday on the decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) set out the case in some detail. Here are the key points of that decision. KEY POINTS On an assessment of costs on…
PROPORTIONALITY CONQUERS ALL? PROFIT COSTS (AND COUNSEL'S FEES) HALVED
The decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) has already received widespread publicity. The principle of proportionality was used to halve profit costs and counsel’s fees and make a substantial reduction on the insurance premium….
THINGS LAWYERS DO TO ANNOY JUDGES: EDITED HIGHLIGHTS
Regular readers of this blog will be familiar with the judgment of Mr Justice Joseph W. Quinn in the case of The Hearing Clinic (Niagara Falls) -v- Ontario Ltd, 2014 ONAC 5831 where he was more than blunt in his…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
PROVING THINGS 20: ALLEGATIONS OF IMPROPER CONDUCT HAVE TO BE PROVEN: INDEMNITY COSTS ORDERED
In Collins -v- Thanet District Council Collins anor v Thanet DC anor (19 4 16)(Jud) 2 [2016] EWHC 1008 (QB) His Honour Judge Yelton (sitting as a Judge of the High Court) considered the evidence available to support allegations of misfeasance…
IT'S NOT JUST WINNING BUT HOW YOU PLAY THE GAME: COSTS ORDERS WHEN BOTH PARTIES ASSERT THAT THEY HAVE "WON"
In Milanese -v- Leyton Orient Football Club Limited [2016] EWHC 1263 (QB) Mrs Justice Whipple considered issues relating to costs after a case in which each party claimed to have won. “I remind myself that this is an area where…
ELEMENTARY EVIDENCE: THE COURTS DO NOT FOLLOW THE APPROACH OF SHERLOCK HOLMES
The judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) contains an interesting, and ultimately important, consideration of the judicial approach to fact finding. It is interesting that this £6.5 million depended, primarily, on…
EXPERT SHOPPING: CHANGING EXPERTS AND DISCLOSURE OF REPORTS
Suspicions are often aroused when an party wants to change expert mid-way through a case. There is, usually, a requirement that before a court grants permission to instruct a new expert the previous report has to be disclosed. The case…
QOCS CONTINUE TO APPLY ON APPEAL: HIGH COURT DECISION
In Parker -v- Butler [2016] EWHC 1251 (QB) Mr Justice Edis decided that QOCS protection continued to apply when a claimant appealed. “To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in…
SOCIAL MEDIA AND CIVIL EVIDENCE: WHAT DID YOU SAY ON LINKEDIN?
Social media played a part in the decision of Registrar Derrett in Green -v- Marston [2016] EWHC B11 (Ch). It illustrates the importance of social media across many fields of litigation. THE CASE The claimant was the liquidator of a…
STATEMENTS OF CASE & THE STATEMENT OF TRUTH: CAN A PARTY ARGUE TWO DIFFERENT THINGS?
There are some interesting observations by Mr Justice Leggatt in ED&F Sugar ltd -v- T&L Sugar Ltd [2016] EWHC 272 (Comm). KEY POINTS A statement of truth which supported particulars of claim was a statement of fact. An assertion in…
I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME
One of aspects of the judgment in McTear -v- Englehard [2016] EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos in relation to the nature of the correspondence between the parties. “It would seem…
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
FAILING TO PLEAD CASE FULLY CAN LEAD TO YOUR ACTION GOING DOWN THE DRAIN
The Court of Appeal decision today in the case of Court -v- Van Dijk [2016] EWCA Civ 438 is the third case within a month where the courts have considered the adequacy of statements of case. It is also has…
WITNESS STATEMENTS CANNOT REPLACE PLEADINGS &"CUT AND PASTE" WITNESS STATEMENTS ARE UNLIKELY TO IMPRESS
In Chong -v- Alexander [2015] EWHC 735 (CH) Richard Spearman Q.C. (sitting as a Deputy Judge) had to consider several issues relating to statements of case and witness evidence. “…the typographical error (“At” instead of “As”), is replicated in a…
PROVING THINGS 19: PROVE SERVICE OR YOU COULD BE CAUGHT OUT
A regular theme of this series has been to examine how cases fail, in full or partially, because of the absence of evidence. This can be seen in a decision of the First-Tier Tribunal Tax Chamber in England and Wales…
EXPERTS:YOU'RE NOT RIGHT JUST BECAUSE YOU'RE FAMOUS: A DECISION NOT WRITTEN ON THE BACK OF A FAG PACKET
The judgment of Mr Justice Green in British American Tobacco (UK) Limited -v- Secretary of State for Health [2016] EWHC 1169 is 1,000 paragraphs long. It covers many aspects of law and procedure. I want to concentrate upon one issue….
PROVING THINGS 18: DAMAGES; CAR HIRE; PROOF AND SUMMARY JUDGMENT
The burden is (usually) on a claimant to prove a loss. There is an interesting discussion on the need to prove “need” in the decision of District Judge Read in Frankland -v- U.K. Insurance Ltd (10th August 2015) which was…
SUCCESS FEES:DEDUCTIONS FROM DAMAGES WHERE CLAIMANT IS UNDER A DISABILITY
The issue of deductions of success fees in cases when the claimant is under a disability remains a difficult one. I am grateful to Jane McBennett of Morrish Solicitors in Bradford for the attached note in relation to a court…
FAILURE TO PAY THE CORRECT COURT FEE DOES NOT LEAD TO STRIKING OUT OF AN ACTION
The decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch) has led to considerable interest (and it has to be said) some hyperbole and opportunistic applications. The case is often misunderstood. In Bhatti -v- Ashghar [2016] EWHC 1049 (QB)…
THE THIRD PARTIES (RIGHTS AGAINST INSURERS) ACT 2010 1: 5 INITIAL POINTS
The Third Party (Rights Against Insurers) Act 2010 is shortly to come into force. Here are 5 key points. Here we look at the implementation date, legislative history and basic definitions of the Act. A BRIEF OVERVIEW The Act allows…
PEREMPTORY ORDERS, EXTENSIONS OF TIME AND WITNESS CREDIBILITY
In Suez Fortune Investments Ltd -v- Talbot Underwriting Ltd [2016] EWHC 1085 (Comm) Mr Justice Flaux considered an application to extend time or vary a peremptory order. “I consider that a claimant in contumelious breach of Court Orders whose claim…
CIVIL EVIDENCE: IS EVIDENCE OBTAINED BY TORTURE ADMISSIBLE?
The question of whether evidence obtained by torture in civil proceedings is one I never envisaged having address. However it was an issue considered in the judgment of Mr Justice Knowles MBE In Shangang Shipping Company Ltd -v- HNA Group…
WITNESS STATEMENTS: ALTERATIONS AND THE FALLIBLE MEMORY: A SCIENTIFIC STUDY
It is worthwhile anyone involved in assessment of witness evidence reading the post by Julia Shaw in Scientific America today: Do you suffer from memory blindness. The post refers back to the altered witness statements in the Hillsborough enquiries in the…
LEARNING HOW TO PROVE THINGS: A BASIC SKILL THAT NEEDS HONING
As part of the occasional series which jogs peoples memories about New Year’s resolutions for 2016 I am revisiting resolution number 6: “learn how to prove things”. A very basic skill in the litigator’s armoury, but one which is barely…
THE SUPREME COURT CONSIDERS THE QUESTION OF EXPENSIVE BUNDLES: COULD IT BE CHEAPER ELECTRONICALLY?
Since Supreme Court decisions on trial bundles are few and far between I am compelled to write about the judgment in Eclipse Film Partners -v- Commissioners for Her Majesty’s Revenue & Customs [2016] UKSC 24. Here the Court considered bundles…
CIVIL EVIDENCE: ABSENT DOCTOR DOES NOT LEAD TO AN ADVERSE INFERENCE
CIVIL In Manzi -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 1101 (QB) Mr Justice Nicol considered the question of whether it was appropriate for a court to draw adverse inferences when a witness is not called. “… in…
EXTENDING TIME FOR SERVICE OF A CLAIM FORM: PROSECCO MAY HELP
There have been numerous cases relating to extension of the claim form on this blog. I can’t remember one which ended well for the claimant. However the claimant was successful in the Instone -v- Prosecco (Leeds) LImited [2016] EW Misc…
ASSIGNMENT OF CFAS: ROUND 2: ASSIGNMENT CAN TAKE PLACE
In the judgment today in Jones -v- Spire Healthcare Ltd His Honour Graham Wood QC had to determine the issue of whether a CFA can be assigned. The full judgment is an attachment to this post and is available here…
PROVING THINGS 17: HEADS OF DAMAGE THAT WERE "ENTIRELY BOGUS"
The case of Perma-Soil UK Limited -v- Williams & Flintshire County Council [2016] EWHC 1087 (QB) was an unusual one. The claimant (unsuccessfully) brought a claim for damages for misfeasance in public office. However I want to look at the…
WITNESS STATEMENTS & HILLSBOROUGH 3: CONFIRMATION BIAS AT ITS WORST
Much has been written and broadcast about Hillsborough. I am here concentrating on one small part of the process: the initial gathering of evidence. It was the flawed nature of this process that led to problems for the next two…
APPLICATION TO WITHDRAW ADMISSION REFUSED: SUMMARY JUDGMENT GRANTED
NB – THE JUDGE’S DECISION NOT TO ALLOW THE FIRST DEFENDANT TO WITHDRAW FROM THE ADMISSION WAS SUBSEQUENTLY OVERTURNED ON APPEAL. See the post here. The judgment yesterday in Wood -v- Days Health UK Ltd & Others [2016] WHC 1079…
FUNDAMENTAL DISHONESTY: THE PAST 12 MONTHS: A ROUND UP
On May 10th last year I did a round up of cases and commentary on the issue of fundamental dishonesty. Here we look at cases and commentary in the past 12 months. CASES Most of the cases are inevitably first…
HILLSBOROUGH AND WITNESS STATEMENTS 2: THE EARLY MIXING OF FACT AND OPINION
The previous post in this series looked at the issues that arose when the solicitors for the police force sent out a missive asking the police officers on the ground for their “comment and impression”. There was an immediate mixing…
EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM SET ASIDE: A CASE ALL CLAIMANTS SHOULD KNOW
A really easy way for a claimant lawyer to get sued is to hold onto the claim form. Cases relating to late or mis-service of the claim form are a regular feature of this blog. It is equally dangerous for…
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