WASTED COSTS HEARING: NOT JUSTIFIED BECAUSE OF LIKELY COSTS INVOLVED: CAVEAT LITIGATOR
In Kagalovsky -v- Balmore Invest Limited [2015] EWEHC 1337 (QB) Mr Justice Turner turned down a wasted costs application at the first stage. “A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should…
CASE PROJECT MANAGEMENT: PRESENTATION BY H.H. JUDGE SIMON BROWN QC.
Attached to this post – Case Project Management (1) – are the slides that HH Judge Brown used in his recent address on Case Project Management to the Association of Cost Lawyers. Reproduced with his permission. KEY POINTS The slides take…
COURT OF APPEAL UPHOLDS ORDER STRIKING OUT CLAIM FOR FAILURE TO SERVE EXPERT REPORT: DON'T PARK THE LORRY WHEN THE TIDE IS AGAINST YOU
In Elliott -v- Stobart Group Ltd [2015] EWCA Civ 449 the Court of Appeal upheld a decision to strike out an application for damages because of a failure to serve a medical report. “In my judgment Judge Platts was correct…
APPEALING ON THE JUDGE'S FINDINGS OF FACTS: A TRIAL IS NOT A DRESS REHEARSAL BUT "THE FIRST AND LAST NIGHT OF THE SHOW"
In the decision in Watson Farley and Williams -v- Ostrovizky today [2015] EWCA Civ 457 the Court of Appeal emphasised the difficulties of a party appealing findings of facts by the trial judge. “The aptness of the metaphor relating to…
VERY IMPORTANT DECISION ON PART 36 OFFERS, ASSESSMENT OF COSTS AND ADDITIONAL AMOUNTS WHEN OFFERS NOT BEATEN
The decision of Mrs Justice Slade DBE in Cashman -v- Mid Essex Hospital Services NHS Trust [2015] EWHC 1312 (QB) deals with the additional sums that a party may have to pay when it fails to beat a Part 36 offer….
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
"FUNDAMENTAL DISHONESTY" AND STRIKING OUT IN PERSONAL INJURY CASES: TEN KEY PROCEDURAL POINTS
The rule as to “fundamental” dishonesty has attracted a lot of attraction (and a lot of heated debate). However there has been very little examination of the details of the Act and the consequent procedural implications. There are 10 key…
ASHLEY -v- TESCO STORES: FULL TRANSCRIPT NOW AVAILABLE: CLAIMANT HAS SIX MONTHS TO SERVE ON A SCOTTISH COMPANY
The case of Ashley -v- Tesco Stores [2015] EWCA Civ 1423 has been looked at earlier in this blog. The full transcript is now available. THE JUDGMENT OF LADY JUSTICE ARDEN This appeal from the order of Patterson J dated…
PERMISSION TO APPEAL NOT NEEDED FROM JUDGE AT FIRST INSTANCE (BUT YOU SHOULD STILL ASK).
In P -v- P [2-15] EWCA Civ 447 the Court of Appeal held that it is not mandatory for a party who wishes to appeal to seek permission from the judge at first instance. THE CASE The Court of Appeal…
MORE COMMENTS FROM THE COURT OF APPEAL ON BUNDLES: THIS TIME IN THE COURT OF PROTECTION
In the matter of MN (Adult) [2015] EWCA Civ 411 the Court of appeal had some words to say about delay and procedure in the Court of Protection. Here, however, we concentrate upon the one matter that attracts more readers…
AN EXPERT MUST DISCLOSE DETAILS OF PROFESSIONAL RELATIONSHIP WITH A PARTY OTHERWISE THE CONSEQUENCES CAN BE DIRE: EXP -v- BARKER
The facts in relation to the Defendant’s expert witness in the case of EXP -v- Barker [2015] EWHC 1289 (QB) are quite remarkable. The case shows the importance of an expert disclosing their history of dealing with the person on…
TRIAL HAD NOT "COMMENCED" : ADDITIONAL LIABILITY NOT 100%: HIGH COURT DECISION ON COSTS
In James -v- Ireland [2015] EWHC 1259 (QB) Mrs Justice Slade DBE overturned an earlier decision that a trial had commenced and the claimant was entitled to 100% uplift in costs. (The uplift in costs resulted in a sum of…
TRIAL BUNDLES, SEDLEY'S LAWS AND DOCUMENTARY CARPET BOMBING
“Sedley’s Laws” of trial bundles were mentioned by Mr Justice Turner in Griffiths -v- The Secretary of State for Health [2015]. Another example of over-sized trial bundles. “CPR 1.3 imposes a duty upon the parties to help the court to…
APPLICATION TO SET ASIDE JUDGMENT MADE LATE IN THE DAY: APPEAL AGAINST REFUSAL TO SET JUDGMENT ASIDE ALLOWED
In Priestley -v- Dunbar [2015] EWHC 987 (Ch) H.H.Judge Behrens (sitting as a judge of the High Court) overturned an earlier decision refusing to set judgment aside on the grounds of delay. THE CASE The claimant had obtained default judgment…
WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION
In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility. It is an example of a court dealing with a witness who, the judge finds, has “convinced…
AMENDING PLEADINGS LATE 2: ANOTHER MATTER OF INTEREST? (AND ANOTHER LATE WITNESS STATEMENT)
An earlier post looked at an application where a bank successfully opposed an application to amend pleadings. In Monks -v- National Westminster Bank [2015] EWHC 1172 (Ch) the defendant bank made a late application to amend its defence. This was…
AMENDING PLEADINGS LATE 1: WANI LLP -v- RBS: A MATTER OF INTEREST?
There have been a few cases recently relating to fairly last minute attempts to amend pleadings. The principles governing applications were considered by Mr Justice Henderson in Wani LLP -v- The Royal Bank of Scotland [2015] EWHC 1181 (Ch). It…
YET MORE ON BUNDLES : BREACH OF ORDER MADE ON "MITCHELL" GROUNDS UPHELD ON "DENTON" GROUNDS
The case of Patel -v- Mussa [2015] EWCA Civ 434 is, in essence, another sorry story about bundles. It is also an example of the Court of Appeal upholding a case management decision made by a judge who applied “Mitchell”…
COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because…
ADJOURNMENTS ON THE GROUNDS OF ILL HEALTH: A DETAILED CONSIDERATION
In Decker -v- Hopcraft [2015] EWHC 1170(QB)Mr Justice Warby set out the principles to be considered when a litigant seeks an adjournment of a hearing on the grounds of ill health. The judge held that there were five main factors…
COMMUNICATIONS WITH THE CLIENT AFTER PROCTOR: A NEW TYPE OF LEGAL DRAFTING REQUIRING PARTICULAR SKILLS
In the Proctor -v- Raleys case the standard forms and letters written by the insurers came under close scrutiny at the trial and in the Court of Appeal. Professor Richard Moorhead provides an interesting angle on this issue in his…
AMENDED PLEADING FILED LATE: RELIEF FROM SANCTIONS REFUSED: THE NEED TO PLEAD THE CASE PROPERLY
In Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC) the defendant made a mistake in typing an e mail address so that an amended Defence and Counterclaim was served late. The application for relief from sanctions was refused. The…
JUDGES MUST "CONTEND WITH THE CHANGING FASHIONS OF APPELLATE COURTS": ANOTHER LATE WITNESS STATEMENT; ANOTHER CASE WHERE RELIEF FROM SANCTIONS REFUSED
“This is yet another appeal concerning the proper application of CPR 3.9 as to relief from sanctions.” The opening words of the judgment of Mr Justice Cranston in Fouda -v- The Mayor & Burgesses of the London Borough of Southwark…
ADVISING CLIENTS PROPERLY AND THE ECONOMICS OF PRACTICE: WHEN DRAWINGS ARE AT £9.9 MILLION
The earlier post on Procter -v- Raley’s solicitors contained a submission on behalf of the defendant that it was necessary “in modern conditions” for solicitors to “commoditise” their advice to clients. The Court of Appeal were doubtful on that point because there…
LETTERS OF EXPLANATION NOT GOOD ENOUGH: SOLICITOR SHOULD HAVE EXPLAINED MATTERS TO THE CLIENT: COURT OF APPEAL UPHOLD DECISION ON SOLICITOR'S NEGLIGENCE
In Procter -v- Raleys Solicitors [2015] EWCA Civ 400 the Court of Appeal upheld a decision at first instance that a failure to give an oral explanation to a client was negligent. The solicitors could not simply rely on standard…
INTERIM PAYMENTS; SERIOUS INJURY; ACCOMMODATION AND EELES
The very first post on this blog was a review of the law relating to interim payments in personal injury cases after Eeles. This issue was raised against in the decision of Grainger -v- Cooper [2015] EWHC 1132 (QB). THE…
PAYMENTS ON ACCOUNT OF COSTS DO NOT BREACH BREACH INDEMNITY PRINCIPLE AND SHOULD BE A "REASONABLE SUM"
In XYZ -v- Transform Medical Group (CS) Limited [2015] EWHC 1151 (QB) Mrs Justice Thirlwall DBE considered several issues in relation to payments on account of costs. THE CASE The action is a group action in which nearly 1000 women…
FAILURE TO GIVE ADEQUATE REPLIES TO PART 18 QUESTIONS LEADS TO ACTION BEING STRUCK OUT: RELIEF FROM SANCTIONS REFUSED
In his judgment today in Griffith -v- Gourgey [2015] EWHC 1080 (Ch) Mr Justice Simon addressed the issue of whether an action stands struck out if a party gives inadequate replies to Part 18 questions after a peremptory order has…
ANOTHER LATE WITNESS STATEMENT: RELIEF FROM SANCTIONS REFUSED
There is a brief report on Lawtel of the decision of Judge Robinson in Buswell -v- Symes (QBD 20/04/2015) this involves another case where a witness statement was served late and permission to rely upon that statement was refused. *…
JUDGE SHOULD NOT HAVE MADE COSTS ORDER WHICH WIPED OUT CLAIMANT'S DAMAGES: COURT OF APPEAL DECISION TODAY
In Begum -v- Birmingham City Council [2015] EWCA Civ 386 the Court of Appeal allowed an appeal by a claimant where the decision on costs at first instance effectively deprived her of damages. THE CASE The issue is succinctly summarised…
COURT CANNOT RE-OPEN "FINAL JUDGMENT": ISSUES RELATING TO DEFENDANT'S CAPACITY: EVESHAM –v- WERRETT CONSIDERED
In the judgment today in Eversham & Pershore Housing Association Ltd -v- Werrett [2015] EWHC 1060 (QB) Mr Justice Nicol held that the court could not re-open a decision because of later evidence in relation to the defendant’s capacity. THE…
WITNESS STATEMENTS AND AVOIDING JAIL: ARE YOU PROTECTING YOUR CLIENTS AND PROTECTING YOURSELF?
In the recent case of Hughmans -v- Dunhill [2015] EWHC 716 (Ch) an interesting point arose about the drafting of a witness statement when a (former) client alleged that it had largely been drafted by her (former) solicitor. The assertion…
DECISION REGULARISING SERVICE OF UNSEALED CLAIM FORM NOT SET ASIDE EVEN THOUGH UNAUTHORISED BODY HAD SERVED THE CLAIM FORM
In Heron Bros Ltd -v- Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC) Mr Justice Edwards-Stuart declined an application to vary his original order that service of an unsealed claim form, served under the Public Service Regulations, was an…
THE "URGENT NEED FOR COMMERCIAL PRACTITIONERS TO BRING A SENSE OF PROPORTION" TO LITIGATION: EVIDENCE NEEDED IN WHEN ARGUING SECURITY FOR COSTS "STIFLES" AN ACTION.
In Kazakhstan Kagazy Plc -v- Baglan Zhunus [2015] EWHC 996 Mr Justice Walker had strong words to say, and constructive guidance to give, in relation to some aspects of commercial litigation. The case further serves as a reminder of the…
FOREIGN JUDGMENTS, EXTENSIONS OF TIME AND RELIEF FROM SANCTIONS
In Christofi -v- National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB) Mrs Justice Andrews DBE considered whether the court had power to extend time in relation to an application to set aside registration of a foreign judgment. She…
WITNESS STATEMENTS, EXHIBITS AND NOT MAKING AN EXHIBITION OF YOURSELF: THE OFTEN IGNORED RULES ABOUT EXHIBITS TO WITNESS STATEMENTS
Your life will not be complete unless you have read a post about exhibits to witness statements. The “exhibiting” of documents is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to…
PLEADING, PARTICULARITY, SUMMARY JUDGMENT AND STRIKING OUT: WAIT UNTIL AFTER DISCLOSURE
In Dellal -v- Dellal [2015] EWHC 907 (Fam) Mr Justice Mostyn made some important observations about the need for particularity in pleading THE CASE The claimant was bringing an action under the Inheritance (Provision for Family and Dependants) Act 1975…
THE AMENDED PRE-ACTION PROTOCOLS ARE OUT: THE LINK
The revised Pre-Action Protocols are now available (3 days after they came into force). THE LINK The Protocols are available on the Justice website and available here. There are 119 pages. THE AMENDMENTS Amendments are made to 8 of the Protocols….
COSTS OF EXPERTS AND GOING OUTSIDE THE COSTS BUDGET: THE HIGH COURT REFUSES TO EXTEND BUDGETED ITEMS AFTER A TRIAL
In Parish -v- The Danwood Group Ltd [2015] EWHC 940(QB) HH Judge Behrens (sitting as a judge of the High Court) considered various issues relating to the costs budget at the end of a trial. THE CASE The claimants were…
CHANGES TO THE PRE-ACTION PROTOCOLS THAT WE KNOW ABOUT: LOW VALUE ROAD TRAFFIC ACCIDENTS
Important changes have been made to the Pre-Action Protocols which came into force yesterday. At the moment the whereabout of the the Protocols is a mystery in that they have not been published generally. However there are some changes to…
FATAL ACCIDENT AND FATAL PLEADINGS: THE NEED TO PLEAD AND PROVE FOREIGN LAW
On the face of it the case of Bianco -v- Bennett [2015] EWHC 626 (QB) is simply a case about fatal accidents. I was going to discuss it solely on the Fatal Accident Blog. On close reading, however, it reveals…
WHEN YOU GET BACK TO WORK ON TUESDAY THERE ARE NEW CHANGES TO THE PRE ACTION PROTOCOLS IN FORCE: AND YOU MAY STRUGGLE TO FIND THEM
If new rules are important you would think that great time and effort would be spent in making sure that practitioners had plenty of advance notice and they were readily available for study and consideration before they came into force….
PERCENTAGE COSTS ORDERS AFTER A CLAIMANT BEATS THEIR OWN PART 36 OFFER: A HIGH COURT DECISION
In Webb -v- Liverpool Womens’ NHS Foundation Trust [2015] EWHC 449(QB) HH Judge Saffman (sitting as a High Court Judge) considered the consequences where a claimant had beaten their own Part 36 offer at trial. NB this aspect of the…
THE LAST WORKING DAYS OF THE "OLD" PART 36: LINKS TO POSTS & ARTICLES ON THE NEW RULES
The new Part 36 comes into force on the 6th April. Here are links to posts and guidance in relation to the new rules on this blog and then links to many other commentators. POSTS ON THE NEW PART 36…
HAYWARD MAY HAVE BEEN WAYWARD BUT THERE WAS NO LOOKING BACKWARD: SETTLED CLAIM NOT RE-OPENED
In Hayward -v- Zurich Insurance Company PLC [2015] EWCA Civ 327 today the Court of Appeal overturned a decision that a claimant should repay a large part of a personal injury award from an earlier settled action. This decision makes…
LAY EVIDENCE AND EXPERT EVIDENCE IN CLINICAL NEGLIGENCE: MORE IS NOT ALWAYS BETTER
In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) conducted a critical analysis of the lay evidence and expert evidence when dismissing a clinical negligence claim against a GP. There are…
SIGNING DISCLOSURE STATEMENTS? REMEMBER YOU CAN GO TO PRISON: OTKRITIE CONSIDERED
In Oktritie International -v- Gersamia and Jemai [2014] EWHC 821 (Comm) a respondent to the action was sentenced to 20 months imprisonment. Part of that committal was relating to forgery. However important observations were made about the disclosure statement. THE…
TROUBLESOME BUNDLES YET AGAIN: MR JUSTICE EDER SPEAKS OUT ON WASTEFUL BUNDLES IN THE COMMERCIAL COURT
The question of bundles was raised by Mr Justice Eder in Taberna Europe -v- Selskabet [2015] EWHC 871 (Comm). This is hardly a new complaint and appears across the board in all jurisdictions. (There are now 16 posts on this…
THIRD EDITION OF APIL GUIDE TO FATAL ACCIDENTS AVAILABLE TO ORDER
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