SEX & SUMMARY JUDGMENT: WHERE DOES THE BURDEN OF PROOF LIE IN ESTABLISHING A “COMPELLING REASON” WHEN DEFENDING A SUMMARY JUDGMENT APPLICATION?
The case of Sargespace –v- Eustace had a highly unusual set of facts. However it raises an interesting question of where the burden of proof lies in an application for summary judgment where a respondent to the application wishes to…
NEW SENIOR COURT OFFICE COSTS GUIDE
The Senior Courts Costs Office has produced a comprehensive guide to costs. At 182 pages it probably contains all the procedural points you need to know. https://www.dropbox.com/s/65gbezzxz7l2zpk/SCCO%20Guide%20October%202013.pdf… Enjoying this post? Become a Civil Litigation Brief member to read full articles and…
HAVE YOU COMPLIED WITH AN "UNLESS ORDER"? GUIDANCE IN THE CONTEXT OF E-DISCLOSURE
A hearing on the question of whether a party has complied with an unless order is always a fraught one. The stakes are high, particularly for the party alleged to be in breach. Here we look at compliance in relation…
THE DUTY TO RISK ASSESS AND NEGLIGENCE AFTER THE 1ST OCTOBER 2013: A DETAILED EXAMINATION OF THE LAW AND CASES
The link to this post is at http://accidentsatworkaftertheerra.wordpress.com/2013/10/01/the-duty-to-risk-assess-and-common-law-duty-after-1st-october-2013/… Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all premium content. Become a member Already a member? Log in below Username or E-mail Password Remember Me…
HOW RELEVANT ARE PART 36 OFFERS TO ISSUE BASED ORDERS? A SALUTARY WARNING ABOUT THE RISKS OF LITIGATION
The making of an “issue based” costs order is now a common aspect of litigation. However how relevant is a Part 36 offer when a court is considering making an “issue based” costs order? A recent case contains discussion of…
WITNESS STATEMENTS IN A SPECIFIC CONTEXT: ACCIDENTS AT WORK AFTER 1st OCTOBER 2013
A fundamental change in the law relating to breach of statutory duties and civil liability means that greater consideration will need to be given to drafting witness statements. I have prepared an article on this at http://accidentsatworkaftertheerra.wordpress.com/2013/09/30/witness-statements-and… Enjoying this post?…
NEW BLOG ON ACCIDENTS AT WORK AFTER 1st OCTOBER 2013
I have started a new blog on the effect of effects on accidents on work after the Enterprise and Regulatory Reform Act 2013. The Act abolishes civil liability for breach of statutory duty (with one limited exception). The blog is not…
RELIEF FROM SANCTIONS AND COSTS BUDGETING: THE JUDGMENT IN MITCHELL -v- NEWS GROUP NEWSPAPERS IN FULL
The full transcript of the decision of Master McCloud in Andrew Mitchell MP –v- Express Group Newspapers [2013] EWHC 2355 (QB) is now available. The case was discussed, in outline in an earlier post, http://civillitigationbrief.wordpress.com/2013/08/11/litigatorswant-to-work-for-nothing-then-don… Enjoying this post? Become a…
ACCIDENTS ABROAD AND THE FOREIGN LIMITATION PERIODS ACT: AVOIDING NEGLIGENCE CLAIMS 5
It is easy to assume that every jurisdiction has a limitation period of three years. However when an accident happens abroad the Foreign Limitation Periods Act 1984 provides that the relevant limitation period is the period that prevails in…
TROUBLE AT SEA: LIMITATION PERIODS AND WATER TRAVEL: AVOIDING NEGLIGENCE 4
We continue the examination of limitation periods that are not necessarily three years. Accidents that happen at sea, or on water generally, can be subject to different limitation periods and, normally, a two year limitation period applies. TWO YEAR PERIODS…
DO YOU NEED LETTERS OF ADMINISTRATION TO ISSUE ON BEHALF OF AN ESTATE?
A recent e-mail enquiry has led to my considering the issue of the right to issue proceedings on behalf of the estate of someone who died intestate. The solicitor wanted to bring an action for personal injury on behalf of…
AVIATION AND LIMITATION: 10 QUESTIONS EVERY PERSONAL INJURY LITIGATOR SHOULD ASK
A tweet on the 8th October 2013 read: “PI Claim struck out because Montreal Convention pleaded instead of Warsaw Convention.” (The case in question is reported in detail by Jasmine Murphy on the Hardwicke Chambers website.) This reiterates the points…
EXTENDING TIME FOR SERVICE OF PART 20 CLAIMS: WHAT IS THE RELEVANT TEST?
Applying to extend time for service of the claim form is a practice fraught with danger, even if done prospectively. In Haskew –v- Pannone LLP (and others) the Court of Appeal considered the relevant criteria for granting an extension when…
ADMISSIONS AND THE PORTAL: HOW WILL THE COURTS CONSTRUE PROCEDURAL ISSUES ARISING UNDER THE RTA PROTOCOL?
How significant are admissions made under the MOJ portal and what is their practical significance? A close look at the case of Ullah –v- Jon and its significance in relation to construction of the RTA Protocol. I am grateful…
SANCTIONS AND DEFAULT: THE NEW APPROACH IN PRACTICE. THE FULL TRANSCRIPT OF BAKER -v- HALLAM ESTATES
The post yesterday looked at the duties owed by an applicant making a without notice application. The full transcript of the case is now available and contains some salutary observations. Baker –v- Hallam Estates Baker -v- Hallam Estates [2013]…
THE DANGERS OF WITHOUT NOTICE APPLICATIONS: THE WHOLE TRUTH IS THE ONLY OPTION
Since the advent of CPR 3.3 and CPR 23.8 and 9 there appears to have been a growth in the number of applications made without notice. Two recent cases highlight the very onerous duty on a party making such an…
DOES THE CIVIL LITIGANT HAVE HUMAN RIGHTS? CPR 3.9, ARTICLE 6 AND THE RIGHT TO A FAIR TRIAL
This post looks at the case law relating to Article 6 and the right to a fair trial in civil proceedings. It looks at whether decisions under the new CPR 3.9 need to consider the issue of “proportional response”. …
APPLYING TO SET ASIDE WITHOUT NOTICE ORDERS: BE QUICK: BE VERY QUICK
This post looks at the power the courts have to make costs orders when making an order of its own motion or without notice to one party. A party attempting to challenge or vary such an order must act promptly….
EXTENSION OF TIME GRANTED: DEFENDANT'S OBJECTION REGRETTABLE
This post looks at a case where the claimant served the particulars of two days late. The judge stated that it was “the clearest” case for an extension of time. He also regarded the defendants’ taking of the point…
LITIGATION AFTER JACKSON: A 10 POINT SURVIVAL GUIDE
There has been a tremendous change in policy in relation to case management after 1st April 2013. This has already led to major difficulties for some litigators. This post is the first (of what may be many) survival guides for…
WHAT ARE WITNESS STATEMENTS FOR?
I have written an article for the Local Government Lawyer on drafting witness statements dealing with recent cases and guidance on the topic, see What are witness statements for For other articles in the series on drafting witness statements see…
SERVICE OF A COPY CLAIM FORM IS NOT GOOD SERVICE: HOW COULD THIS BENEFIT A CLAIMANT?
This post looks at the unusual case of Hills Construction –v- Struth [2013] EWHC 1693 (TCC) which considered issues relating to service of the claim form and extensions of time for service of the Particulars of Claim. The facts…
FAILURE TO COMPLY WITH CPR: CAN BITE DEFENDANTS TOO!
This post looks at the decision in Dass –v- Dass where the defendant was refused permission to rely upon medical experts because they had not been served in accordance with court directions. Many of the recent cases in relation to…
NEW FORM H FROM 1st OCTOBER 2013
One important change introduced from the 1st October is a slightly revised Form H. A copy of the new Form H can be found here http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/preview/precedent-h.pdf The explanation of the Practice Direction amendments is at http://www.justice.gov.u… Enjoying this post? Become a…
AMENDMENTS TO THE CIVIL PROCEDURE RULES: EASY ACCESS TO CHANGES AND UPDATED RULES
There have been seven amendments to the Civil Procedure Rules so far this year. In an attempt to give easy access to the amendments They are http://www.legislation.gov.uk/uksi/2013/262/contents/made http://www.legislation.gov.uk/uksi/2013/515/contents/made http://www.legislation.gov.uk/uksi/2013/789… Enjoying this post? Become a Civil Litigation Brief member to read…
RELIEF FROM SANCTIONS: THE KEY DATE FOR IMPLEMENTATION OF THE NEW CPR 3.9
This post deals with misunderstandings that appear to be in place as to which cases the new CPR 3.9 provisions on relief from sanctions apply to. In particular whether the key date is the date of issue of proceedings or…
LIMITATION: SECTION 33 AND FATAL ACCIDENT & LAW REFORM ACT CLAIMS
I have posted a short article on a recent case on Section 33 and the Limitation Act 1980 on my blog on Fatal Accident Law at http://fatalaccidentlaw.wordpress.com/2013/08/16/issuing-late-section-33-and-the-fatal-accidents-act-and-law-reform-act-an-example-of-a-claimant-succeeding/… Enjoying this post? Become a Civil Litigation Brief member to read full articles and…
AMENDMENTS TO THE CIVIL PROCEDURE RULES COMING INTO FORCE IN OCTOBER 2013
This post looks at the changes to the Civil Procedure Rules introduced by The Civil Procedure Rules (Amendment No 7) Rules 2013. These rules come into force on 1st October 2013. The main provisions are that: A…
LIMITATION: WHAT'S THE POSITION WHEN THE DEFENDANTS WON'T TELL YOU WHO THEY ARE?
This post looks at the issue raised in Parkin –v- Alba Proteins Ltd where a party failed to disclose the identity/ existence of additional defendants prior to the issue of proceedings. In Parkin –v- Alba Proteins Ltd [2013] EWHC 2036…
PREPARATION FOR CASE MANAGEMENT HEARINGS: GUIDANCE FROM BIRMINGHAM MERCANTILE COURT
The Birmingham Mercantile Court has produced a standard form to be used in Case Management hearings. Although some of the provisions are specific to Mercantile Court procedure many of the matters contained in the form, and accompanying list, are of…
RELIEF FROM SANCTIONS: A CASE WHERE RELIEF WAS REFUSED
This post discusses a recent case where the Court refused relief from sanctions. In Thavattheva Theveraraja and Southern Territory Ltd –v- Riordan, Burke and Prestige Property Developer UK Ltd (Ch D 09/08/2013) Hildyard J refused relief from sanctions when…
LITIGATORS:WANT TO WORK FOR NOTHING? THEN DON'T FILE YOUR COSTS BUDGET ON TIME
This post deals with the extremely draconian penalty imposed on a litigant who fails to file a costs budget on time. THE RULES CPR 3.13 and 14 deals with the duty to exchange costs budgeting. Filing and exchanging…
GUIDES AND LINKS TO APPEALING TO THE COURT OF APPEAL
This post provides useful links to guidance, forms, rules and practice directions dealing with appeals to the Court of Appeal The Guide to Chancery Applications was a popular post. There is clearly a market for clearly written guidance to…
GUIDE TO INTERIM APPLICATIONS IN THE CHANCERY DIVISION
The Judiciary in England and Wales have produced a guide to Interim Applications in the Chancery Division. This is designed for litigants in person. However it will be useful to all those who do not normally practice in the…
AVIATION AND THE REALLY VICIOUS LIMITATION PERIOD : AVOIDING NEGLIGENCE 3
AVIATION AND LIMITATION The purpose of this post is to make you feel really uncomfortable when you are involved with a case that involves aviation, in any way shape or form. Including when your client is injured in an airport….
PART 36: A NEAR MISS IS NOT ENOUGH
A recent case emphasises that a “near miss” with a Part 36 offer is not relevant to the court’s assessment of costs after a trial. There was, for a time, a developing jurisprudence around “near miss” offers and…
CHANGES TO PRACTICE AND PROCEDURE IN THE CORONERS COURTS
I have set out a summary of the changes to the Coroners Court Rules at http://fatalaccidentlaw.wordpress.com/2013/07/25/changes-to-coroners-rules-where-to-find-the-law-useful-links-and-a-summary/ That post also links through to all the relevant legislation and the new rules (which came into force la… Enjoying this post? Become a Civil…
RELIEF FROM SANCTIONS: A CASE IN WHICH RELIEF WAS GRANTED. WYCHE -v- CAREFORCE GROUP LTD
Every case in relation to relief from sanctions is being examined carefully after 1st April. The case of IAN ALAN WYCHE v CAREFORCE GROUP PLC (2013)QBD (Comm) 25/07/2013 is going to be of interest. The case is not yet fully reported…
SERVING WITNESS STATEMENTS LATE: AN EXTREMELY DANGEROUS PRACTICE
The recent decision in Fons HF –v- Corporal Ltd & Pillar Securitisation [2013] EWHC 1278 (Ch) provides an object lesson on the difficulties that can arise when both parties fail to file witness statements in accordance with directions. The facts…
65th amendment to the Civil Procedure Rules
The new rules extending the personal injury portal to £25,000; extending fixed costs and dealing with Part 36 offers are now available at http://www.justice.gov.uk/courts/procedure-rules/civil… Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all…
CIVIL EVIDENCE AND WITNESS STATEMENTS
I have written two articles on witness statements and civil evidence for Local Government Lawyer One on the inferences a court can draw when a litigant elects to call no evidence on an issue http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=13497%3Asilence-… Enjoying this post? Become a…
LITIGANTS IN PERSON: THE LAWYER’S DUTY AND WITNESS STATEMENTS
The Judiciary Working Group on Litigants in Person has been published and is available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf It is worth reading for anyone involved in cases where litigants in person are involved. These always involve additional challenges. Th… Enjoying this…
AVOIDING NEGLIGENCE 2 : NOT EVERY PERSONAL INJURY LIMITATION PERIOD IS THREE YEARS.
“THOSE LIMITATION PERIODS THAT CAN BITE YOU IN THE BOTTOM” It can come to a shock to some litigators that not every action has a three year limitation period. Some have a two year period and some less than that. …
AVOIDING NEGLIGENCE 1 : THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
How does anyone miss a three year limitation period? The basic answer is usually some kind of maladministration. Often a failure of the diary system. Someone has inserted the wrong month, occasionally the wrong year. Sometimes there is no diary…
AVOIDING NEGLIGENCE : A LAWYER'S GUIDE
I am writing a series of posts on the topic of “how not to get sued”. This is mainly aimed at personal injury practitioners, however many of the posts relate to procedure and will be of more general interest. There…
SERVICE OF THE CLAIM FORM: FURTHER TRAPS FOR THE UNWARY
The post on “Service Faults” http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/ pointed out one of the traps for the unwary in relation to service of the claim form. However the decision in Bethell Construction –v- Deloitte & Touche [2010] EWHC (Judge Ho… Enjoying this post? Become…
Implementation of Part 2 of the the Justice and Security Act 2013 into the CPR
The Civil Procedure (amendment No 5) Rules 2013 … Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all premium content. Become a member Already a member? Log in below Username or E-mail Password Remember…
New Court Fees after the 1st July 2013
The Civil Proceedings Fees (Amendment No. 2 ) Order 2013… Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all premium content. Become a member Already a member? Log in below Username or E-mail…
SERVICE, FAULTS AND …. THE MATCH IS OVER
As Wimbledon is underway it is worth reminding ourselves that even apparently minor faults in service can be fatal to an action. This is illustrated by the decision in Venulum Property Investments Ltd –v- Space Architecture Ltd & 9 others …
ONE DIRECTION SINGING FROM THE SAME HYMN SHEET ?
THE USE OF STANDARD DIRECTIONS I have put the standard directions as a link because they will normally be the first port of call for anyone drafting directions (and I once spent a frustrating half hour trying to find…
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