A QUICK WORD ON WITNESS CREDIBILITY: WHAT THE BUTLER SAID
In Burrell -v- Clifford [2016] EWHC 249 (Ch) Richard Spearman QC (sitting as a Deputy Judge of the Chancery Division) had to assess the credibility of two litigants. It provides an interesting insight into the judicial scrutiny of witness evidence….
COSTS, COPYING AND PROPORTIONALITY
The judgment of His Honour Judge Lochrane in Ryanair Limited -v- Secretary of State for the Home Department [2016] EWFC B5 has attracted some attention. Here I want to look at the short judgment in relation to costs. THE CASE…
LORD CHANCELLOR GETS A BONUS: THE POWERFUL RESULTS OF A CLAIMANT'S PART 36 OFFER
There are many interesting issues in the judgment of Mr Justice Holgate in The Lord Chancellor -v- Charles Ete & Co [2016] EWHC 275 (QB) which may be interesting to examine at a later date. However one significant point was…
DISCLOSURE AND PREDICTIVE CODING: PYHRRO EXPLAINED FOR THE TYRO
There has been much written already in relation to the decision of Master Matthews in Pyrrho Investments Ltd -v- MWB Property Ltd [2016] EWHC 256 (Ch) [see the links below]. However I want to concentrate upon the fact that this…
PROVING THINGS 10: "HE SAID, SHE SAID": THE DIFFICULTIES OF RECOLLECTION
In Jaciubek -v- Gulati [2016] EWHC 269 (QB) Mr Justice Foskett faced a familiar problem of matching up recollection evidence with (incomplete) medical notes. There are important practical points relating to the accuracy of recollection and the judicial scrutiny of…
EXPERTS AND FACTS: IT IS ALL IN THE RULES
Following the post yesterday about proving things and the role of experts there was an interesting comment from Elfed Williams. WHAT DOES AN EXPERT DO ABOUT FACTS? “I have some misgivings about whether an expert should identify primary facts and…
MONEY JUDGMENT SHOULD NOT HAVE BEEN GIVEN AFTER BREACH OF PEREMPTORY ORDER
In Rubin -v- Parsons [2016] EWHC 237 (Ch) Mr Justice Peter Smith considered the effect of breach of peremptory order in a case where the applicants were claiming much more complex relief. It shows that a much more calibrated approach…
CIVIL JUSTICE: COMING TO A CALL CENTRE NEAR YOU – SOON
So 86 courts are to close. The Written Ministerial Statement asserts that “over 97% of citizens will be able to reach their required court within an hour by car”. Putting aside the fact that 22% of women and 17% of…
PROVING THINGS 9: THE ROLE OF EXPERTS
Here I want to pick up on a few observations of Mr Justice Snowden in Grant -v-Ralls [2016] EWHC 243 (Ch) a case we looked at yesterday. That is the role of the experts. It is dangerous to defer the “proving”…
PROVING THINGS 8: DEFENDANT MUST PROVE THAT FAILURE TO WEAR A SEATBELT MADE A DIFFERENCE
The defendant bears the burden not only of proving contributory negligence but also establishing its causative relevance. The law in Syred -v- Powszecnny Zaklad Ubezpieczen (PZU) SA [2016] EWHC 254 (QB) (Mr Justice Soole) was complex, however one key point…
PROVING THINGS 7: IF YOU DON'T PROVE A LOSS YOU DON'T GET AN ORDER: DIRECTORS DON'T HAVE TO CONTRIBUTE
This occasional series on the need to prove matters by evidence has covered a wide range of cases. Today we consider company law and insolvency. In Grant -v-Ralls [2016] EWHC 243 (Ch) Mr Justice Snowden rejected a claim by liquidators…
LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN'T END WELL FOR THE DEFAULTING PARTY
In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late. KEY POINTS The…
PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION
We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice. In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC…
THIS IS A SORRY TALE OF WOE:SPECULATIVE SKELETON ARGUMENTS ARE OF NO ASSISTANCE
In Lokhova -v- Tymula [2016] EWHC 225(QB) Mr Justice Dingemans set out a sorry tale of procedural issues in relation to applications in a defamation action. There are important observations in relation to co-operation; service of witness evidence and the…
WHY THOSE RESPONSIBLE FOR THE COURT FEES INCREASE SHOULD HANG THEIR HEADS IN SHAME
If evidence were needed of the profound impact of the increase in court fees in can be found in newspaper articles over the past few days. IT IS JUST ONE CASE The Guardian reported on one case of a social…
THE ROLE OF THE EXPERT WITNESS IN LITIGATION: SUPREME COURT GUIDANCE
In Kennedy -v- Cordia Services LLP [2016] UKSC 6 the Supreme Court made some telling observations relating to expert evidence. This was in the context of a Scottish case, however the observations are of general importance. THE CASE The Supreme Court…
PROVING THINGS 5: WITNESS STATEMENTS AND FAILING ON CAUSATION
The judgment of the Court of Appeal in Abdel-Khalek -v- Qazi Ali [2016] EWCA Civ 80 demonstrates both the difficulties of compounding lay and “expert” evidence and how a case can fail on causation. KEY POINTS The burden was on…
MOVING FROM LEGAL AID TO CFAS: THE JUDGMENTS
NB see the appeals relating to these cases discussed here The cases surrounding the switch from legal aid to a CFA were reviewed in my post earlier this week . The full transcripts are now available (I am grateful to Aaron Vodden…
ORDERING A SPLIT TRIAL ON PRELIMINARY ISSUES: A CAUTIONARY TALE
In Larkfleet -v- Allison Homes Eastern Limited [2016] EWHC 195 (TCC) Mr Justice Fraser made some important observations about the need for total clarity when a court orders the trial of a preliminary issue of law. ‘Preliminary points of law…
PROVING THINGS 4: WITNESSES WHO JUST AREN'T THERE
We have looked at three recent cases where there was simply not the evidence at court to prove the case. In Caliendo -v- Mischon De Reya [2016] EWHC 150 (Ch) there is a whole section of the judgment devoted to…
MOVING FROM LEGAL AID TO CFAS: RECENT DEVELOPMENTS
NB see the appeals in relation to these issues discussed here . There have been recent developments in relation to the issue of the reasonableness of claimant solicitors moving from legal aid to conditional fee agreements. The first case upholds a…
PROVING THINGS 3: THE COMPLETE ABSENCE OF EVIDENCE MEANS THE COURT WILL NOT SPECULATE
Another example of a failure to prove damages can be found in the decision of His Honour Judge Stephen Davies (sitting as a High Court judge) in Fairhurst Developments Limited -v- Collins [2016] EWHC 199 (TCC). KEY POINTS This is…
PROVING THINGS 2: EVIDENCE TO SUPPORT A CLAIM FOR DAMAGES MUST BE PITCH PERFECT
Another example of the need to prove damages can be seen in the Court of Appeal decision in Gartell & Son (a firm) -v- Yeovil Town Football & Athletic Club Limited [2016] EWCA Civ 62. It is another case that…
PROVING THINGS 1: CIVIL EVIDENCE ACT NOTICES WILL NOT CUT IT
The really surprising thing about going to court (for some people) is that, you have to prove things. Judges work on the basis of evidence. On the whole judges prefer live evidence from witnesses who are cross-examined. I The case…
IN LITIGATION, AS IN LIFE, THINGS WILL GO WRONG: HAVING A STRATEGY IN PLACE
There has been a lot of publicity recently about lawyers who have been struck off for, effectively, making things up to cover up mistakes. In the most recent case a time limit was missed for the First Tier Tribunal and…
THE JUDGE MUST GIVE REASONS FOR ADVERSE FINDINGS (PLUS A QUICK LOOK AT ALLEGED BIAS)
The previous post looked at a Court of Appeal decision where a judgment at first instance was set aside because of a failure to give reasons for disbelieving solicitors. Similar principles applied in the case of The Gulf Agencies Limited…
ALLEGATIONS OF DISHONESTY AGAINST SOLICITORS: CLEAR FINDINGS OF FACT MUST BE MADE
There have been two cases in the past few days where the Court of Appeal have overturned judgments because of a failure to give reasons for findings against solicitors. In Clydesdale Bank PLC -v- Workman [2016] EWCA Civ 73 findings…
THE MEANING OF THE WORD "CLAIM": A PSYCHOLOGICAL PHENOMENON
In Global Flood Defence Systems -v- Johan Den Noort Beheer BV [2016] EWHC 189 (IPEC) His Honour Judge Hacon was considering an issue very specific to the Intellecutal Property Enterprise Court. However the observations are interesting and may be of…
NOT A RACING CERTAINTY BUT INDEMNITY COSTS FOLLOW CLAIMANT'S PART 36 OFFER
In Jockey Club Racehorse Ltd -v- Willmott Dixon Construction Limited [2016] EWHC 167 (TCC) Mr Justice Edwards-Stuart held that a claimant’s Part 36 offer to settle for 95% was a relevant offer and had costs consequences for the defendant. KEY…
A FURTHER GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 2: BE CAREFUL ABOUT THE ADDRESS FOR SERVICE
Now that the gyms are emptying out again this is a good time to provide one of the periodical reminders about the civil litigator’s new year’s resolutions. Just concentrating upon the address for service. RESOLUTION 2 KNOW THE ADDRESS AND…
WHAT IS A TRIAL? AND WHY DOES IT MATTER?
In Pickard -v- Roberts [2016] EWHC 187 (Ch) Mr John Baldwin QC (Sitting as a Deputy Judge of the Chancery Division) had to consider whether a hearing was a “trial” and whether this had any impact upon the decision to…
"NEAR MISS" RULE NO LONGER APPLICABLE: COURT OF APPEAL OVERTURNS DECISION ON COSTS
In Sugar Hut Group Limited -v- AJ Insurance Services [2016] EWCA Civ 46 the Court of Appeal overturned an award of costs made against a successful party. “The Claimants’ recovery exceeded the Part 36 offer by a comfortable margin and…
FAILURES IN DISCLOSURE AND WITNESS EVIDENCE YET SUCCESSFUL ON APPEAL
The decision of the Court of Appeal in Sobrany -v- UAB Transtira [2016] EWCA Civ 28 gives rise to a few interesting procedural points. It is worth remarking, however, that many of the difficulties arose because of failures by the…
EVIDENCE AND ACCURACY OF RECOLLECTION: ANOTHER EXAMPLE IN THE HIGH COURT
The judgment of Mr Justice Jay in Jacobs -v- King’s College Hospital NHS Foundation Trust [2016] EWHC 121 (QB) is another example of a case resting on the accuracy of recollection of a witness. Further the judge rejected a “statistical”…
SERVICE OF PROCEEDINGS WHEN THEY ARE PUT IN THE BIN: A HIGH COURT DECISION
In Morby -v- Gate Gourmet Luxembourg IV SARL [2016] EWHC 74 (Ch) Edward Murray (sitting as a Deputy Judge of the Chancery Division) considered an issue relating to personal service. “If facts are in dispute, absent special situations, it would…
EVIDENCE, DAMAGES AND A SOLICITOR'S GOODWILL
The Court of Appeal decision in Karim -v- Wemyss [2016] EWCA Civ 27 has already received some publicity, involving as it does litigation following the sale of a solicitor’s practice. However the decision also shows the dangers of not bringing…
EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: A RISKY BUSINESS
In Medhi Kohsravi -v- British American Tobacco PLC [2016] EWHC 123 (QB)Sir David Eady stated that he would have set aside an order extending time for service of the claim form. It is a timely warning that obtaining an extension…
PICKING UP BAD CITATIONS: & SKELETON ARGUMENTS – STILL TOO LONG:
In an afternote to his judgement in Commercial Management (Investments) Ltd -v- Mitchell Design and Construct Ltd [2016] EWHC 76 (TCC) Mr Justice Edwards-Stuart added his voice to the many judges who have commented on the excessive length of skeleton…
COSTS,INDEMNITY AND CONTRIBUTION PROCEEDINGS: (OR "COPPERS COP IT")
In Mohidin -v-Commissioner of Police for the Metropolis [2016] EWHC 105 (QB) Mr Justice Gilbart carried out an extensive review of the principles relating to contribution proceedings and costs. KEY POINTS Two police officers who had been involved in the…
LATE AMENDMENT ALLOWED: TRIAL DATE MOVED: A CLINICAL NEGLIGENCE CASE
In G -v- Kings College Hospital NHS Foundation Trust Appeal [2016] EWHC 104 (QB) Mrs Justice May granted the claimant permission to amend the Particulars of Claim even though this meant moving a 7 day trial listed in early April…
COURT FEES: LINKS FOR TODAY
The links section is an integral part of this blog. For today, however, I wanted to take those links on the issue of court fees and put them in a post of their own. That is the responses today to…
VARYING JUDGMENT ENTERED BY CONSENT: CAUSATION, APPEALS AND "NEW" EVIDENCE
In Atkins -v- The Co-operative Group [2016] EWHC 80 (QB) Mr Justice Supperstone varied a consent order giving judgment for the claimant on liability. The appeal against the order was not made until six months after the judgment was entered….
WAIVING PRIVILEGE IN WITNESS STATEMENTS: ANOTHER HIGH COURT DECISION
The question of waiving privilege in witness statements has been considered several times on this blog. The case of Commodities Research Unit International (Holdings) Ltd -v- King and Wood Mallesons LLP [2016] EWHC 63 (QB) shows that privilege can be…
KERRY UNDERWOOD ON QOCS: A REVIEW
A review of QOCS, Section 57 and Set off. Kerry Underwood. £25.00. Available online here Qualified one way costs shifting is here to stay. It may be extended to other areas. A detailed knowledge of the rules and regulations is…
RELIEF FROM SANCTIONS, "MATERIALITY" & CONSIDERING THE MERITS IN A DEFAULT JUDGMENT: APPEAL AGAINST REFUSAL OF RELIEF ALLOWED
In Joshi & Welch Limited -v- Tay Foods [2015] EWHC 3905 (QB) Mr Justice Green allowed an appeal where the judge a first instance refused to grant relief from sanctions. Much centred on the definition of the word “material”. The…
COSTS AFTER A SPLIT TRIAL: PART 36; UNNECESSARY EXPERT REPORTS; PROPORTIONALITY AND USELESS BUNDLES: ALL LITIGATION LIFE IS HERE
The short judgment of Mr Justice Males in C&S Associates UK Limited -v- Enterprise Insurance Company PLC [2016] EWHC 67 (Comm) encapsulates many of the problems of contemporary litigation. “It is important that those litigating in this court are aware…
WITNESS CREDIBILITY, ATTENDANCE NOTES AND FINDINGS OF FACT
In Mansion Estates Ltd -v- Hayre & Co (A Firm) [2016] EWHC 96 (Ch) His Honour Judge Saffman (sitting as a judge of the High Court) went, carefully, through the principles relating to witness credibility and findings of fact. Given…
RELIEF FROM SANCTIONS APPLICATIONS: 10 POINTS TO IMPROVE THE ODDS
It is now just over 18 months since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. It is clear that default remains a problem and an issue within the civil courts. Further it…
LORD CHIEF JUSTICE'S REPORT 2015: CIVIL WORK
The Lord Chief Justice’s Report 2015 covers a number of issues. Of particular interest to civil practitioners. The Briggs Review is summarised. There is an emphasis on control of litigation costs and court fees “The Jackson review reforms have now…
EVIDENCE, PROOF AND DOCUMENTS: MEDICAL RECORDS NOT DEFINITIVE OF CONDITION
The judgment of Mrs Justice Patterson DBE in Hunt -v- Nottingham University Hospitals NHS Trust [2016] EWHC 47 (QB) is one where the claimant succeeded in establishing negligence on the part of the defendant Trust. However there is an interesting…
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