SANCTIONS & HOW TO AVOID THEM: TALK AT HARDWICKE CHAMBERS 3rd DECEMBER 2014 5.30pm: RAISING FUNDS FOR CRISIS AT CHRISTMAS
Along with Sarah Venn of Hardwicke Chambers I am talking on “Sanctions and How to Avoid Them” on the 3rd December 2014 at 5.30 pm at Hardwicke Chambers, Lincoln’s Inn, London. The talk is raising money for Crisis at Christmas…
THE COURT'S POWER TO REGULATE NON-LAWYERS INVOLVED IN LITIGATION: REFERENCE TO ARBITRATION
There are several interesting aspects of the Court of Appeal’s decision in Assaubayev -v- Michael Wilson & Partners Ltd [2014] EWCA Civ 1491. One of the points is the power of the courts over non-lawyers providing legal and litigation services….
THE USE OF EXPERT WITNESSES: STEALING FROM THE CPS
It would be a good idea for those involved in civil litigation to read the Crown Prosecution Service: Guidance on Expert Evidence. Many of the points in that guide apply, with equal force, to instructing experts in civil proceedings. It…
STRESS AND THE LITIGATION PROCESS: HOW CAN LAWYERS MAKE MATTERS BETTER?
There is a very useful article in the Solicitors Journal on stress and litigation (to avoid hyperbole I will not use the word “brilliant” but it deserves it.) Hugh Koch analyse the sources of stress for litigants. This made me…
OFFER TO SETTLE HAS MAJOR IMPACT ON COSTS OF CASE: NO SUGARING OF THIS PILL
In Sugar Hut Group Ltd -v- AJ Insurance [2014] EWHC 3775 (Comm) Mr Justice Eder held that an offer of settlement had a major impact on costs even though it was not a valid Part 36 offer and the claimant…
EXTRAORDINARY CASE: THE SOLICITOR MADE LITIGATION UP: THE CONSEQUENCES FOR THE CLIENT
The opening paragraphs of the judgment set out an almost unbelievable set of facts in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm). The judgment considered the consequences for…
MORE ABOUT QOCS: CAN THEY APPLY ON APPEAL IF THE CLAIMANT HAD A PRE-APRIL 2013 CFA?
An earlier post on the risks posed by the transitional provisions of QOCS led to several comments. One of those comments was the question whether you can get QOCS protection on appeal if the original CFA did not cover appeals….
RIGHT TO INDEMNITY COSTS ARISES OUT OF CONTRACTUAL TERM
In Renewable Power & Light Ltd -v- McCarthy Tetrault [2014] EWHC 3848 (Ch) Mr Justice Morgan held that a defendant was entitled to indemnity costs when a claimant discontinued a claim half way through a trial. Indemnity costs were awarded…
RELIEF FROM SANCTIONS GRANTED DESPITE INADEQUATE REPLIES AND BREACH OF PEREMPTORY ORDER
There is a brief report on Lawtel today of the decision of S Monty QC in In the matter of Bankside Hotels (Ch D 13/11/2014) Relief from sanctions was granted when a party was in breach of a peremptory order and failed…
LIMITATION: DELIBERATE CONCEALMENT BY THE DEFENDANT EXTENDS THE LIMITATION PERIOD
In IT Human Resources PLC -v- Land [2014] EWHC3812 (Ch) Mr Justice Morgan considered when the limitation period started when there had been concealment by a defendant. It is an important example of s.32 of the Limitation Act 1980 in…
ROUTE OF APPEAL FOR AN UNALLOCATED CASE: LIE -v- MOHILE
In Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal. THE ACTION This was a partnership…
THE GOOGLE CASE & CIVIL PROCEDURE: BYTE SIZE VERSION
The judgment is Hegglin -v- Persons Unknown & Google [2014] EWHC 3793 is looked in at detail in an earlier post. Many of the issues in that case are of considerable practical significance. It is worth distilling them. PART 18…
APPLICATIONS TO SET ASIDE DEFAULT JUDGMENT & THE MITCHELL/DENTON PRINCIPLES: ANOTHER HIGH COURT CASE
There are now several cases that deal with how the “Mitchell/Denton” principles effect applications to have judgment set aside. In Robinson -v- Kensington & Chelsea Royal London Borough (Sir Michael Tugendhat 03/011.204 QB)* a default judgment was set aside on…
WANT TO KNOW ABOUT ONEROUS PART 18 QUESTIONS; DISCLOSURE, COSTS CAPPING & BUDGETS: JUST GOOGLE IT
In Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB) Mr Justice Edis considered some interesting issues of costs management and costs capping. The short judgment is important reading in relation to the scope of Part 18 questions…
NO GENERAL PRINCIPLES APPLY TO AWARD OF INDEMNITY COSTS: COURT OF APPEAL DECISION
In the short supplementary judgment in Tchenguiz -v- Director of the Serious Fraud Office [2014] EWCA Civ 1471 the Court of Appeal stated that there is no general principle that indemnity costs in applications under CPR 31.22. However the judge’s…
WITNESS CREDIBILITY, BOLAM AND CLINICAL NEGLIGENCE: A HIGH COURT DECISION
The judgment of Stephens J in McGovern -v- Sharkey [2014] NIQB 117 contains some important observations in relation to the Bolam test and the role of evidence and experts in this context. It demonstrates that the credibility of a lay…
THE TRANSITIONAL PROVISIONS OF QOCS: A DANGER AREA
I have seen a few problems recently with the transitional provisions of QOCS. In essence if the claimant has entered into a conditional fee agreement at any time in the past then they cannot have the benefit of QOCS. A…
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
"MADNESS" OVER COSTS AND USELESS TRIAL BUNDLES : VIEWS FROM ANOTHER JURISDICTION
Civil practitioners may benefit from reading the observations of Mostyn J in J -v- J [2014] EWHC 3654 (Fam). It suggests that family lawyers may soon be subject to much more rigorous costs budgeting. There are also important observations about…
"SIMILAR FACT EVIDENCE" IN CLINICAL NEGLIGENCE CASES: EVIDENCE OF INCOMPETENCE IN OTHER CASES
In Laughton -v- Shalaby [2014] EWCA Civ 1450 the Court of Appeal considered the issue of whether evidence of incompetence in other cases should be admitted in a claim for clinical negligence. THE APPEAL The claimant was appealing a decision…
"WITNESS TRAINING" DOES IT DO ANY GOOD? THE ROLE OF THE SOLICITOR IN DRAFTING WITNESS STATEMENTS
In Globe Motors portugal-Material Electrico Para A Industria Automvel LDA -v- TRW Lucas Varity Electric Steering Ltd [2014] EWHC 3718 QB HH Judge Mackie QC considered witness evidence of routine business transactions that took place over a decade before. He…
EVIDENCE, EXPERTS & ARSON: ANALYSING THE EVIDENCE WHEN SERIOUS ALLEGATIONS ARE MADE IN A CIVIL CASE
The decision of H.H. Judge Mackie Q.C. in Geneisuj.Net Limited -v- Allianz Insurance Limited [2014] EWHC 3676 (QB) provides an object lesson in the analysis of evidence in a case where serious allegations were being made. THE ISSUES The claimant…
SOLICITOR'S BILL OF COSTS STRUCK OUT BECAUSE CLAIM WAS EXAGGERATED AND (IN PART) FALSE
In Alpha Rocks Solicitors -v- Alade [2014] EWHC 3606 (Ch) Kevin Prosser Q.C., sitting as a judge of the High Court, struck out part of the solicitor’s bill as an abuse of process. The case makes instructive reading. It involved…
INSURER GOING BEHIND CLAIMANT'S SOLICITORS BACK TO SETTLE CLAIMS: APPEAL PENDING; INFORMATION NEEDED
Attached to this post is the judgment in Gavin Edmondson Solicitors Ltd -v- Haven Insurance [2014] EWHC 3062 QB . That judgment is being appealed, permission to appeal having been granted. Gavin Edmondson are asking for more information in relation…
APPEALING ON THE FACTS AND WITNESS CREDIBILITY: THE DEMEANOUR OF THE WITNESS
Earlier posts have considered issues relating to witness statements and witness credibility. In particular the difficulties of appealing findings of fact. A helpful summary of the principles relating to appealing when a judge has made a finding in relation to…
COSTS SCHEDULE FILED LATE: COSTS ASSESSED AT NIL: NO RELIEF FROM SANCTIONS
The short judgment of Deputy District Judge Apthorpe in Gretton -v- Santander [2014]Ew Mic B52(CC) demonstrate that Denton is not an authority that states that relief from sanctions is easy to obtain. The claimant failed to serve and file its…
LORD CHANCELLOR REFUSED RELIEF FROM SANCTIONS: CPR 3.9 APPLIES TO THE HIGH AND MIGHTY AS WELL
In the decision yesterday in Lord Chancellor -v- The former Partnership of Taylor Willocks Solicitors [2014] EWHC 3664 (QB) Globe J upheld a decision of Master Leslie refusing to grant the Lord Chancellor relief from sanctions. The decision is interesting…
WITNESSES: YOU ARE IN REAL TROUBLE IF YOU SAY ONE THING IN ONE WITNESS STATEMENT AND A DIFFERENT THING IN ANOTHER
We have looked at issues relating to witness credibility several times recently. However further apposite examples arise in the decision of Sales J in Avonwick Holdings Ltd -v- Webinvest & Shlosberg [2014] EWHC 3661 (Ch). In particular the major (and obvious) difficulties…
WITNESS CREDIBILITY; DOCUMENTS; RECOLLECTION AND PLAYING AWAY FROM HOME WHEN THERE ARE MILLIONS AT STAKE
Earlier posts have looked at the issue of witness credibility in the context of civil trials. Here we look at the issue of witness evidence in the context of a multi million pound dispute between corporations. The judgment, given earlier…
MORE ON EXPERTS: NON-COMPLIANCE WITH THE RULES TAINTS THE EVIDENCE BADLY
We have already looked at one of the observations on experts by HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC 3257 Ch. There we looked at “over eager” experts. The judge also had something to…
WHICH WITNESS IS GOING TO BE BELIEVED? A HIGH COURT DECISION ASSESSING THE CREDIBILITY OF WITNESSES
It is essential that litigators have a keen understanding of how witness evidence is likely to be assessed at trial. Many trials take place precisely because there is a conflict of evidence between the witnesses. An example of a close…
OVER EAGER EXPERTS JUST DO NOT HELP: THEY HINDER AND HARM THE CASES OF THOSE WHO CALL THEM
Several preliminary remarks of HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC 3257 Ch underline the dangers of an “over eager” expert witness making comments which undermine their own evidence and taint the case…
"IN TIME" APPLICATION FOR EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM REFUSED: A DANGER AREA TO WATCH
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was…
RELIEF FROM SANCTIONS CAN BE HEARD WITHOUT A FORMAL APPLICATION: CUTLER -V- BARNET
In Cutler -v- Barnet (QBD 31/10/14)* Supperstone J held that an application for relief from sanctions could be heard even if it were not made formally in writing. THE CASE The defendant was resisting a claim for possession. She had…
CIVIL LITIGATION BRIEF 20 YEARS AGO: WHAT WAS IN THE NEWS AND WHAT CAN WE LEARN FROM IT?
Whilst blogs have not been around 20 years* Civil Litigation Brief has. Twenty years ago it was a monthly column in the Solicitors Journal (monthly now seems a leisurely timetable). It is interesting to see what was making the news…
RELIEF FROM SANCTIONS REFUSED: DENTON MADE NO DIFFERENCE
In Blemain Finance Ltd -v- Mukhtar & Osman (28/10/14)* Globe J upheld a decision of the first instance judge refusing relief from sanctions. THE FACTS The claimant sought possession of the defendants’ home following a failure to pay. There was…
CASE NOT STRUCK OUT BECAUSE OF A FAILURE TO FILE TRIAL BUNDLE & PAY COURT FEES
One of the most read posts on this blog was, in the middle of the Mitchell Madness period, when a judge struck out an action because the trial bundle had been lodged late. This issue was considered by Hickinbottom J…
LIMITATION & THE DATE OF KNOWLEDGE CONSIDERED IN THE CONTEXT OF HEARING LOSS
In Platt -v- BRB Residuary Ltd [2014] EWCA Civ 1401 the Court of Appeal considered issues relating to the date of knowledge in the context of a claim for hearing loss. THE LAW The relevant sections of the 1980 Act…
MITCHELL: THE CASE THAT KEEPS ON GIVING: EXPERT EVIDENCE; SIMILAR FACT EVIDENCE AND THE EDITING OF WITNESS STATEMENTS
Regular readers of this blog will need no introduction to the procedural issues that Mitchell -v- News Group Newspapers Ltd has given rise to already. Procedural issues have arisen again and were considered by Mr Justice Warby (2014 EWHC 3590…
THAT WITNESS STATEMENT I SIGNED: IT'S JUST NOT TRUE
There is an interesting discussion of witness evidence in the judgment of Mr Justice Eder in Austen -v- Pearl Motor Yachts Ltd [2014] EWHC 3544 (Comm). The case was opened on the basis that certain key facts in a witness…
SECTION 14A OF THE LIMITATION ACT: DON'T RELY ON s.14A BEING A GOOD INVESTMENT
In Susan Jacobs -v- Sesame Ltd [2014] EWCA Civ 1410 the Court of Appeal held that the claimant could not take advantage of s.14A of the Limitation Act 1980. The date of knowledge was much earlier than that found by…
CASE STRUCK OUT BECAUSE DELAY WAS AN ABUSE OF PROCESS: WEARN -v- HNH CONSIDERED
In Wearn -v- HNH International Holdings Ltd [2014] EWHC 3542 (Ch) Mr Justice Barling struck out a claim for delay, holding that the claimant’s delay amounted to an abuse of process. There are also a few interesting observations about the…
HELP WITH COSTS BUDGETING AND PRECEDENT H: ALL THE USEFUL LINKS IN ONE PLACE – UPDATED
THERE ARE NUMEROUS POSTS ON THIS BLOG ABOUT COSTS BUDGETING AND PRECDENT H. THESE ARE UPDATED ON A REGULAR BASIS. AS A REMINDER HERE ARE THE IMPORTANT LINKS TO GUIDANCE ON COSTS BUDGETING AND PRECEDENT H MOST RECENT LINKS…
COSTS BUDGETS IN HIGH VALUE CASES, ADR AND CASE MANAGEMENT: A VERY IMPORTANT HIGH COURT CASE
In CIP Properties (AIPT) Ltd -v- Galliford Try Infrastructures Ltd [2014] EWHC 3546 (TCC) Mr Justice Coulson set out important principles in relation to granting specific stays to allow ADR, Case Management and the ability of the court to impose…
EXTENSIONS OF TIME: RESPONDENT'S NOTICES AND THE "MITCHELL" PRINCIPLES & THE "SERIOUSNESS AND SIGNIFICANCE OF THE BREACH"
The question of the general applicability, and the application, of “Mitchell” principles was considered today by the Court of Appeal in Altomart Ltd -v- Salford Estates (No 2) Limited [2014] EWHC 1408. The court considered the principles to be applied…
COSTS, OFFERS AND ESTATES: A CASE IN POINT
There is an interesting discussion as to costs in the judgment of HH Judge Hodge QC in Goenka -v- Goenka [2014] EWHC 2966 (Ch). This also shows the difficulty in dealing with costs issues at the end of a long…
IF YOU THINK THE WHEELS OF JUSTICE CAN GRIND SLOWLY: TRY THE EU! IMPORTANT DECISION ON DISCLOSURE, CONFIDENTIALITY, REDACTION AND THE POWER OF THE COURT TO REVIEW ITS EARLIER ORDERS
A decision by Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC was considered in the previous post. However another issue arose in the same case which is at [2014] EWHC 3513 (Ch). The application was of an…
SUMMARY JUDGMENT AND STRIKING OUT: COMPLEX ISSUES CANNOT BE DECIDED SUMMARILY
The decision of Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC [2014] EWHC 3514 (Ch) highlights the difficulties in seeking summary determinations or striking out of cases and issues in complex cases. The judge declined to grant…
ADJOURNMENT OF SUMMARY JUDGMENT HEARING TO ARGUE NOVATION? NO VAY
In A.T. Stannard Ltd -v- James Tobutt and Thomas Tobutt [2014] EWHC 3491 (TCC) Mr Justice Akenhead refused an application for the adjournment of a hearing for summary judgment to allow the defendants to, belatedly, argue novation of a contract. THE…
ASSESSING THE RELIABILITY OF WITNESSES: HOW DOES THE JUDGE DECIDE? ANOTHER EXAMPLE
There have been several posts on this blog about the way in which a civil judge assesses the reliability of witnesses. A further example can be seen in the judgement of Stephen Smith Q.C., sitting as a High Court judge,…
