COSTS AFTER VARIATION OF A PART 36 OFFER TO BE LESS ADVANTAGEOUS TO THE RECIPIENT: BURRETT -v- MENCAP CONSIDERED
The decision of District Judge Ackroyd in Burreett -v- Mencap Ltd (14th May 2014) was reported on Lawtel earlier this week and is available on Bailli. It contains an important lesson to both defendants and claimants as to costs when…
E-BUNDLES COMING TO THE SUPREME COURT AND PRIVY COUNCIL VERY, VERY SOON
The Supreme Court has issued guidance on the use of electronic bundles which will be mandatory for a trial period. Parties given permission to appeal in the Supreme Court and Privy Council after the 1st October 2014 will be expected…
MATTERS LEADING UP TO THE MAKING OF A WITNESS STATEMENT MAY NOT NECESSARILY HAVE JUDICIAL PROCEEDINGS IMMUNITY: COULD YOU BE CROSS-EXAMINED ON THE WAY YOU TOOK A WITNESS STATEMENT?
Statements made in the course of proceedings are usually subject to judicial proceedings immunity. The scope and extent of this immunity was considered in detail by the Court of Appeal in Singh -v- Governing Body of Moorlands Primary School [2013]…
DURRANT CASE BACK IN THE REPORTS: WHAT PRESUMPTIONS SHOULD A JUDGE DRAW WHEN A PARTY IS DEBARRED FROM CALLING WITNESSES?
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1264 was well known as one of the first reports on sanctions. The defendant police authority was debarred from calling witness evidence as a result…
THE RISK OF INDEMNITY COSTS: WHAT ARE YOU GOING TO TELL YOUR CLIENT?
The idea of costs budgeting was, in part at least, to give the parties some certainty as to the costs they would have to face it they lost an action. However the decision in Kellie & Kellie -v- Wheatley &…
COSTS BUDGETING: CONDUCT, INDEMNITY COSTS AND PAYMENT ON ACCOUNT: KELLIE -v- WHEATLEY CONSIDERED
We looked at the decision in Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd[2014] EWHC 2866(TCC) yesterday in the context of drafting witness statements. The judgment is equally interesting on the issue of costs and costs budgeting. There is an…
A WORKING EXAMPLE OF THE DANGERS OF NOT TAKING A FULL WITNESS STATEMENT: DISASTER CAN STRIKE
The decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC) gives a working example of the dangers of not taking a full witness statement and exploring issues of importance with a…
PROTOCOL FOR THE INSTRUCTION OF EXPERTS: THE NEW BITS
There has been much coverage of the forthcoming changes to the guidance for the instruction of experts in civil claims. There have been several additions which impose specific duties upon solicitors. SOLICITOR MUST MAKE POSITION CLEAR IF FURTHER DOCUMENTS ARE…
DRAFTING WITNESS STATEMENTS: GUIDANCE FROM DOWN UNDER
Recent posts have given rise to a international tour searching out guidance for the preparation and drafting of witness statements. We have been to Scotland, and to the East, and now we arrive in Australia where the Western Australian Bar…
WITNESS STATEMENTS AND COMPLYING WITH THE RULES: WHY WITNESS STATEMENTS CAN COME TO GRIEF
The case of Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm) contains yet another example of the very real dangers of using a witness statement to argue a case. It is usually unhelpful and often…
WITNESS STATEMENTS; WITNESSES; EVIDENCE AND PSYCHOLOGY: GUIDANCE FROM THE EAST
The post yesterday looked at guidance on taking witness statements from Scottish Judges. Here we look at a real gem of an article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and…
ANOTHER RELIEF FROM SANCTIONS CASE – ANOTHER CONSERVATIVE MP: RELIEF GRANTED AFTER FAILURE TO SERVE NOTICE OF FUNDING
Relief from sanctions was granted to the claimant in Ye0 MP -v- Times Newspapers Ltd [2014] EWHC 2853 (QB). THE ACTION This was a defamation action where the claimant had failed to file notice of funding with the Particulars of…
THE PROCESS OF TAKING WITNESS STATEMENTS: GUIDANCE FROM ACROSS THE BORDER
There is relatively little guidance to litigators on the process of taking witness statements. What are appropriate questions and, to what extent, can the witness be “guided” by the lawyer. These are difficult and sensitive topics which have been considered…
CIVIL EVIDENCE AND WITNESS STATEMENTS – HERE’S THE CATCH: THE JUDGE CAN ACCEPT SOME OF THE EVIDENCE SOME OF THE TIME
There have been several posts on this blog in relation to witness evidence and witness credibility. One important point to note is that a judge is entitled to find that a witness is correct on some matters and not on…
APPEALS: STAY OF EXECUTION AND CONDITIONS IMPOSED BY APPELLATE COURT: THE RELEVANT PRINCIPLES
The fact that an appeal is made, or permission to appeal is granted, does not automatically grant a stay of execution. The appellant has to apply for a stay and the court can grant conditions. The law and principles governing…
DENTON APPLIED IN THE TAX & CHANCERY CHAMBER: LEEDS -v- COMMISSIONERS CONSIDERED
One of the places where Mitchell, and subsequently Denton, had a major impact was the specialist tribunals. As we have seen in this blog Mitchell principles were applied with some vigour and the “clarification” by Denton has also had an effect….
A 20 DAY TRIAL WHEN THE CASE WAS ALL ABOUT ONE WITNESS: WOULD THIS CASE BE ANY DIFFERENT TODAY?
Back in 2003 Chris Evans, the radio presenter, was involved in a lengthy contractual dispute with a number of defendants. There were 9 parties to the action and the trial went on for twenty days. The judge’s observations at the…
PART 36 OFFERS AND NON-MONETARY CLAIMS: A HIGH COURT CASE CONSIDERED
We have looked before at the advantages to a claimant in making an early Part offer. If the claimant matches or beats that offer at trial then there are advantages in costs and interests. There can also be a 10%…
MORE ABOUT TRIAL BUNDLES: MOST OF THE STUFF IN THEM IS USELESS (APPARENTLY)
The decision discussed earlier today of Dowdall -v- William Kenyon & Sons Ltd [2014] EWHC 2822 (QB) contained an interesting observation that I wanted to deal with separately. It concerns the “usefulness” of trial bundles. OBSERVATIONS ON THE BUNDLES The Claimant has…
SECOND ACTION AFTER SETTLEMENT NOT AN ABUSE OF PROCESS: SECTION 33 APPLICATION ALLOWED: DOWDALL CONSIDERED IN DETAIL
The case of Dowdall -v- William Kenyon & Sons Ltd [2014] EWHC 2822 (QB) decided yesterday contains some important observations in relation to allegations of abuse of process; estoppel and section 33. THE FACTS Mr Dowdall has pleural mesotheliomia. In 2003…
FAILURE TO SERVE NOTICE OF AMENDED CFA DETAILS IS NOT A SERIOUS OR SIGNIFICANT BREACH: HIGH COURT DECISION CONSIDERED IN DETAIL
The High Court decision in Ultimate Products Ltd -v- Wooley [2014] EWHC 2706 (Ch) provides further guidance as to what the courts are likely to consider “serious or significant” breaches. The High Court judge upheld the decision of the Master…
CIVIL EVIDENCE: WITNESS STATEMENTS: PROVING THE EXISTENCE OF AN ORAL CONTRACT
I have written before about witness evidence and the difficulties in establishing matters without the benefit of corroboration. The case of Brogden & Reid -v- Investec Bank Ltd [2014] EWHC 2785 (Comm) reported today illustrates this problem. THE ISSUES: WAS THERE AN…
THE MITCHELL CASE RUMBLES ON: MORE PROCEDURAL ISSUES: SPLIT TRIAL ORDERED
I feel almost duty bound to continue to report on the Mitchell case, even if now has limited relevance to the question of sanctions. The latest case management decision offers an interesting decision on whether there should be a split…
DENTON CONSIDERED IN THE TAX TRIBUNAL: ELDER -v- REVENUE & CUSTOMS
The Denton case was considered by the First Tier Chamber: Tax Tribunal in Elder -v- Revenue & Customs [2014] UKFTT 728 (TC). Consideration of the Denton principles led to relief being granted. The decision is, obviously, specific to the rules relating to…
DENTON PRINCIPLES AND EXTENDING TIME FOR APPEALING: COURT OF APPEAL OBSERVATIONS
The issue of whether the “Denton” principles applied to applications for permission to appeal out of time were considered briefly by the Court of Appeal in Hart -v- Burbridge [2014] EWCA Civ 992 THE ISSUES The appellants appealed out of…
FAILURE TO COMPLY WITH AN ORDER FOR E-DISCLOSURE: DECISION THAT A PARTY HAD COMPLIED OVERTURNED IN THE COURT OF APPEAL
The first instance decision in Smailes -v- McNally (Re Atrium Training Service) [2013] EWHC 2882 (Ch) was looked at in detail in a previous post in October last year. It is worth noting that the Court of Appeal have overturned the…
PROPORTIONATE PENALTY FOR BREACH OF DISCLOSURE OBLIGATIONS: THE AMERICAN APPROACH: MAKE A VIDEO
One of the comments in Denton was that a “strict” construction of Mitchell led to disproportionate results. A judgment reported this week in Above the Law provides an example of how a judge can attempt to remedy continuous defaults. THE ISSUE:…
DENTON APPLIED: A (VERY) BRIEF REPORT
The Denton principles were mentioned, in passing, in the judgment of HHJ Moloney QC In NNN -v- DI [2014] EWHC B14 (QB). The defendant had been in default in serving a list of documents on the claimant. A peremptory…
QUOCS IN THE COURT OF APPEAL: FOUR IMPORTANT ISSUES: WAGENAAR CONSIDERED
The decision of the Court of Appeal in Wagenaar -v- Weekend Travel Ltd [2014] EWCA Civ 1105 was reported today. It contains important observations and decisions on qualified one way costs shifting, something that is likely to become a major…
PRINCIPLES OF MITIGATION OF LOSS & THE CREDIBILITY OF EXPERT WITNESSES: A HIGH COURT DECISION CONSIDERED
The case of Hirtenstein -v- Hill Dickinson LLP [2014] EWHC 2711 (Comm) where judgment was given today contains many interesting lessons for those involved in professional negligence litigation in particular. Here I just want to concentrate upon two: (i)…
DRAFTING WITNESS STATEMENTS: "4 GOLDEN RULES" DIRECTLY FROM THE JUDGES WHO HEAR THE CASES
I have recommended before that litigators read the guidance for litigants in person. It provides useful insights for most litigators and covers most aspects of civil procedure. It is written by six Circuit Judges so it can be safely assumed…
GUIDELINES ON HOURLY RATES: NOT MUCH HAS CHANGED: NEED FOR MORE RESEARCH
The long awaited (and long delayed) guidance on hourly rates has been published. The Courts and Tribunals Judiciary commentary and guidance can be found here. The Committee’s letter to the Master of the Rolls is here The response of the…
LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…
DENTON APPLIED IN THE TAX TRIBUNAL: NO PERMISSION TO APPEAL THREE YEARS LATE
The Mitchell and Denton cases were reviewed by Judge John Brooks in Meah -v- The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 708 (TC). The proposed appellant was three years late. The refusal of permission to appeal out of…
WHAT CAN THE DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 2: A CLINICAL NEGLIGENCE CASE
We have looked before at the question of what a defendant can argue in relation to damages after a judgment has been entered. A case reported today examines this issue in relation to judgment in a clinical negligence action. SYMES -V-…
POST DENTON RELIEF FROM SANCTIONS APPEAL IN THE HIGH COURT: RELIEF FROM SANCTIONS GRANTED: "UNREASONABLE" DEFENDANT ORDERED TO PAY COSTS
I am grateful to Ashley Pratt of St James Chambers for his note of the decision of Mr Justice King in Johnson -v- Bourne Leisure on the 21st July 2014. King J granted relief from sanctions and allowed an appeal from the…
CLAIM FORMS: DECLARATION THAT STEPS TAKEN CONSTITUTE GOOD SERVICE: NEW HIGH COURT CASE CONSIDERED
There is a brief report on Lawtel of the decision in Tanweer T/A the Auto Service Centre -v- UK Insurance & National Insurance & Guarantee Corp (Judge Mackie QC) QBD Merc 18/07/2014. The case is briefly reported and I hope…
THERE ARE DANGERS IF YOU ARE LEAVING THE ISSUE OF COSTS TO THE JUDGE: IN ANY EVENT BE QUICK AND BE CHEAP!
There are limited number of cases where the parties can agree everything except who should pay the costs. There are dangers in leaving the question of costs to the judge, as the case of Spiller -v- Derhalli [2014] 2548 (EWHC)…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
CASE MANAGEMENT AFTER DENTON: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"
Most of the articles about the Denton case focus upon the relief from sanctions and “clarification” of the principles in Mitchell. However the Court of Appeal made it clear that part of the focus of case management should be to…
DENTON: THE DISSENTING JUDGMENT OF JACKSON L.J. CONSIDERED
In the hundreds of articles, blogs and commentaries on the decision in Denton the “dissenting” judgment is barely mentioned or considered. Whilst all three members of the court were in agreement that each of the appeals should be allowed there…
PRECEDENT H AND COSTS BUDGETING: NEW LINKS AND OLD LINKS
There are several posts on this blog which link to guides, articles and assistance on costs budgeting and Precedent H. Here there are several more recent links. The Construction of a Costs Budget is particularly instructive PREVIOUS POSTS One of…
WHAT IS MEANT BY "SERIOUS AND SIGNIFICANT"? THE COURT CONCENTRATES MUCH MORE UPON THE EFFECT OF THE BREACH RATHER THAN THE BREACH ITSELF
In Denton -v- White; [2014] EWCA Civ 906. the Court of Appeal eschewed the use of the word “trivial” where a court is considering an application for relief from sanctions. Instead the Court stated that the focus should be on whether…
AMENDING PLEADINGS: HAS THE LIMITATION PERIOD EXPIRED? WHERE DOES THE BURDEN OF PROOF LIE?
The Court of Appeal decision today in Mercer -v- Ballinger [2014] EWCA Civ 996 may appear to be an issue of esoteric civil procedure. However the decision is an important one with far-ranging practical consequences for a party seeking to…
MITCHELL NOT EXTENDED TO ADMINISTRATIVE LAW: AN ISSUE FOR ANOTHER DAY
In R (Abbas Mohammadi -v- Secretary of State for the Home Department [2014] EWHC 2251 (Admin)the court did not decide the issue of whether “Mitchell” principles applied to applications for judicial review. THE FACTS The applicant was seeking judicial review of…
CIVIL PROCEDURE – HOW IT SHOULD BE DONE: A DESCRIPTION OF HOW THE ASBESTOS COURT WORKS
Anyone want to see a description of a civil procedure system running smoothly then read Master McCloud’s description of the “asbestos disease court” in her judgment in Yates -v- Commissioners for Her Majesty’s Revenue & Customs [2014] EWCH 2311 (QB)….
BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…
MORE ABOUT APPEALING MITCHELL DECISIONS OUT OF TIME: RELEVANT CASE LAW
A post yesterday considered the possibility of appealing, out of time, the unjust orders that may have been made following Mitchell and the subsequent “clarification” in Denton. There is some law on this topic, ironically it is a result of…
"HISTORIC" SANCTIONS DECISIONS: ARE YOU GOING TO APPLY TO APPEAL OUT OF TIME
In Denton -v- White [2014] EWCA Civ 906. the Court of Appeal stated that we think that the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs to be clarified and amplified in…
PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A "NON-ADMISSION" & A "DENIAL" EXPLORED
The decision of Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB) relates to a police force’s obligations in relation to the disclosure of details of undercover operations and informers. However it also deals…
