COST BITES 178: VALIDITY AND ENFORCEABILITY OF CONTENTIOUS BUSINESS AGREEMENT UPHELD ON APPEAL
In Finnan v Candey Ltd [2024] EWHC 2157 (Ch) HHJ Cadwaller dismissed an appeal against a finding that a solicitor and client had entered into a valid contentious business agreement. The judge held that the finding below, that the appellant…
IF YOU ARE GOING TO PROPOSE CHANGES TO A DRAFT JUDGMENT THE OTHER SIDE MUST BE NOTIFIED FIRST
The judgment of Ms. Pat Treacy (setting as a judge of the Chancery Division) in Parsons v Convatec Ltd [2024] EWHC 2111 (Pat) contains a reminder of the importance of a party notifying the other side immediately if they are going…
PROVING THINGS 241: “WHICH WITNESS’S ACCOUNT IS PREFERRED?”: CONTEMPORARY EVIDENCE IS BEST
In Gadsby v Hayes [2024] EWHC 2142 (KB) Ms Clare Ambrose (sitting as a Deputy High Court Judge) considered the evidence of witnesses in a case where the accident had happened ten years previously. The accounts given near the time…
COST BITES 177: SUCCESSFUL CLAIMANT RECOVERS ONLY 20% OF ITS COSTS (STILL GETS AN INTERIM PAYMENT OF £2 MILLION)
In Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 2025 (TCC) Mr Justice Constable found that a “successful” claimant who had recovered nearly £3.7 million in damages should only recover 20% of its costs. Both parties had…
NON-COMPLIANT WITNESS STATEMENTS (AGAIN): THE SOLICITOR’S STATEMENT OF COMPLIANCE WAS “FALSE”:
For the third time this week I find myself writing about judicial criticisms of the way in which witness statements have been prepared. This case has by far the most excoriating comments. In Fulstow & Anor v Francis [2024] EWHC…
CLAIMANT’S FAILURE TO PAY COSTS LEADS TO PEREMPTORY ORDER BEING MADE: PUT UP OR SHUT UP…
In Ceto Shipping Corporation v Savory Shipping Inc [2024] EWHC 1897 (Comm) Mr Justice Butcher made a peremptory order following the claimant’s failure to pay costs that had been ordered in interlocutory applications and in other related proceedings. “In the…
STRIKING OUT FOR DELAY: THE DANGERS FOR A COUNTERCLAIMING DEFENDANT IN LETTING SLEEPING DOGS LIE
In Western Avenue Properties Ltd & Anor v SONI & Anor [2024] EWHC 2124 (KB) Master Davison struck out a counterclaim on the grounds of delay. The claim had already been struck out for delay. In these circumstances the principles…
PROVING THINGS 240: PROVING THE “EELES” CRITERIA ON AN APPLICATION FOR AN INTERIM PAYMENT: GAPS IN THE EVIDENCE PREVENT A FINAL DETERMINATION BEING MADE
In XS1 (A Child) v West Hertfordshire Hospitals NHS Trust [2024] EWHC 1865 (KB) Master Stevens adjourned a claimant’s application for a substantial interim payment. The primary ground for this was that there was insufficient evidence before the court to…
KEEPING UP TO DATE WITH THIS BLOG? X NO LONGER MARKS THE SPOT
For many years this blog has run alongside a Twitter (“X”) account – @CivilLitTweet. That account was started at the same time as the blog and (initially) all posts on the blog were sent automatically to Twitter. That facility stopped…
FAILING TO COMPLY WITH THE RULES FOR WITNESS STATEMENTS FOR THOSE NOT PROFICIENT IN ENGLISH – “DISAPPOINTINGLY A NOT INFREQUENT OCCURRENCE”
In SZ Solicitors -v- Bharj [2024] 8WLUK 65 HHJ Monty KC dealt with the problems that arose when a party had not complied with the rules in relation to providing a witness statement for a witness who is not proficient…
THREE WEBINARS: MAKING APPLICATIONS TO THE COURT; INSOLVENCY AND SOCIAL MEDIA AND THE PERSONAL INJURY LAWYER
In September and October there are a number of webinars relating to procedure and evidence. Firstly on the essential issue (but often overlooked) elements and rules relating to making applications to the court; secondly on insolvency and personal injury and…
WITNESS STATEMENTS: PD57AC “MORE HONOURED IN THE BREACH THAN THE OBSERVANCE”: AND THIS HAS CONSEQUENCES
In KSY Juice Blends UK Ltd v Citrosuco GmbH [2024] EWHC 2098 (Comm) HHJ Pearce (sitting as a Judge of the High Court) observed that the requirements for drafting witness statements in PD57AC were “more honoured in the breach than…
SELF PROTECTION FOR LITIGATION LAWYERS – A RECAP: WITNESS STATEMENTS UNDER SCRUTINY
A report in Litigation Futures in August 2016 illustrates the need for “self protection” by lawyers in . The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY…
AMENDMENTS TO THE RULES COMING INTO FORCE ON 1st OCTOBER 2024: A QUICK OVERVIEW
The Civil Procedure (Amendment No.3) Rules 2024 come into force on the 1st October. We will be looking at some of the provisions in detail nearer the time. The new rules can be found here. In the interim period here…
“TRENCH WARFARE OF THE MOST ATTRITIONAL KIND”: ALLEGATIONS OF NON-DISCLOSURE AND THE LAW OF DIMINISHING RETURNS: “QUALITY NOT QUANTITY SHOULD BE THE WATCHWORD”
There are some interesting observations in the Court of Appeal judgment today in MEX Group Worldwide Limited v Stewart Owen Ford & Ors [2024] EWCA Civ 959 about the way cases should be presented in relation to allegations of non-disclosure. The Court…
SERVICE OF THE CLAIM FORM ISSUES: CLAIMANT FAILS TO COMPLY WITH MANDATORY REQUIREMENTS: HIGH COURT UPHOLDS THE EXTENSIONS OF TIME
The judgment of Mrs Justice Hill in Graham v Fidelidade – Companhia De Seguros SA [2024] EWHC 2010 (KB) contains some salutary lessons for litigators. In particular the importance of complying the the rules for applying for extensions of time…
COST BITES 176: A WARNING TO ALL WOULD BE INTERVENORS IN CIVIL PROCEEDINGS: IT COULD BE COSTLY (£110,000 IN THIS CASE)
In Betta Oceanway Company v SC Tomini Trading SR (Re Costs) [2024] EWHC 2068 (Comm) Mr Stephen Hofmeyr KC (sitting as a Deputy Judge of the High Court) held that a person who unsuccessfully sought to intervene in civil proceedings…
CAN A COURT STRIKE OUT A CASE ON THE GROUNDS THAT THE CLAIMANT HAS NO REAL INTENTION OF PROCEEDING TO TRIAL? IT CAN – BUT NOT IN THIS CASE
In Lloyd v Hayward & Anor [2024] EWHC 2033 (Ch) HHJ Keyser KC (sitting as a Judge of the High Court) considered the question of whether the delay in the progress of an action should lead to it being struck…
DAMAGES IN ANTICIPATION OF DEATH AND DAMAGES FOR LOSSES PRIOR TO DEATH: WEBINAR 12th AUGUST 2024
This webinar looks at the difficult areas of (i) losses in anticipation of death, when a claimant has a reduced life expectancy; (ii) losses prior to death, including financial losses and pain and suffering. It provides practical guidance on order…
PROVING THINGS 239: THE IMPORTANCE OF BEING ABLE TO PROVE THE DATE THAT VIDEOS WERE TAKEN
We are looking at one particular factual issue that arose in Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB). The applicant Trust was unable to prove the date that various videos were taken. Consequently they were unable to…
HARASSMENT PROCEEDINGS: PART 7 OR PART 8 ? FACTUAL DISPUTES MILITATE TRANSFER TO PART 7
We have seen several cases on this blog where the courts have considered the issues caused by the rules requiring that claims for harassment must be issued under Part 8 (however note that there is an important exception, considered in Pattinson…
COST BUDGETS, VARIATIONS AND “SIGNIFICANT DEVELOPMENTS”: JUDGE REFUSES TO REVISE THE BUDGET AFTER TRIAL
In Rahman v Hassan & Ors (Re Consequential Matters) [2024] EWHC 2038 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused the claimant’s application that the budget be revised after the trial. The judge held that the matters relied…
PART 36: THE CONSEQUENCES APPLY TO A CLAIMANT’S OFFER EVEN WHEN THERE WAS NO CLAIM FOR A MONETARY AWARD
In Rahman v Hassan & Ors (Re Consequential Matters) [2024] EWHC 2038 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that Part 36 applies even when the claim was not, directly, for a monetary award. There was…
ANOTHER FAILED SERVICE OF CLAIM FORM CASE: FAILURE TO SERVE PROPERLY ON A PARTNERSHIP MEANS THE ACTION COMES TO GRIEF
In Goodfellow v Warren Boyes & Archer (A Firm) [2024] EWHC 2015 (KB)Master Thornett rejected an argument that a former partner in a solicitors’ practice had been validly served when proceedings were sent to the company that had purchased that…
COST BITES 175: SOLICITOR’S BILLS WERE NOT INTERIM STATUTE BILLS AND COULD BE ASSESSED: COURT OF APPEAL DECISION TODAY
In the judgment today in Signature Litigation LLP v Ivanishvili [2024] EWCA Civ 901 the Court of Appeal upheld an earlier decision of Costs Judge Leonard that a series of bills rendered by the appellant solicitors were not interim statute…
A PART 36 OFFER MADE PRE-TRIAL WAS NOT OPEN FOR ACCEPTANCE WHILST QUANTUM WAS BEING ASSESSED: WHEN IS A SPLIT TRIAL NOT A SPLIT TRIAL?
In Wells v Hornshaw & Ors [2024] EWHC 2019 (Ch) Mr Justice Adam Johnson rejected a petitioner’s argument that a Part 36 offer remained open for acceptance. There had been a trial after the Part 36 offer had been made. …
THE CLAIMANT’S CASE WAS NOT STAYED BECAUSE IT COULD NOT PAY INTERLOCUTORY COSTS ORDERS: WON’T PAY IS VERY DIFFERENT TO CAN’T PAY
In J Robbins Capital Partners Ltd v Zamsort Ltd & Ors [2024] EWHC 1990 (Comm) Paul Stanley KC (sitting as a Deputy High Court Judge) refused the defendants’ application that the action be stayed pending the claimant’s payment of interlocutory…
OMNIBUS CLAIM FORMS: COURT MANAGEMENT OF CASES AND “DISAGGREGATION”
A problem with “omnibus” claim forms and subsequent case management was considered in detail in the judgment of Mr Justice Garnham and Master Davison in Adams & Ors v Ministry of Defence [2024] EWHC 1966 (KB). The judgment considered the…
IT IS “ESSENTIAL THAT JOINTLY INSTRUCTED EXPERTS ARE ABLE AND WILLING TO ENGAGE WITH COUNTERVAILING ARGUMENTS…”
There have been a number of cases recently where the courts have considered whether expert evidence should necessarily be accepted in full. In M (A Child)(Non-Accidental Injuries; Wider Canvas), Re [2024] EWFC 209 HHJ Coffey held that the views of…
COURT REFUSES TO EXTEND TIME FOR SERVICE OF THE CLAIM FORM: CLAIMANTS COME TO GRIEF
In Playfair & Ors v Pannells LLP & Ors [2024] EWHC 1933 (Ch) Master Brightwell refused the claimants’ application for an extension of time for service of the claim form. The application was made before the time of expiry for…
COST BITES 174: A TRUSTEE IN BANKRUPTCY HAS NO SPECIAL STATUS WHEN IT COMES TO COSTS: “HE HAS NOT SUGGESTED THAT, HAD HE WON, HE WOULD NOBLY DECLINE TO ASK FOR HIS COSTS”
We are returning to the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Broom v Aguilar [2024] EWHC 1961 (Ch). The judge rejected an argument that a different order for costs should be made because the respondent/clamant…
CHILDREN AND FATAL ACCIDENT LITIGATION 2024: KEY ISSUES CONSIDERED: WEBINAR 6th AUGUST
There are particulars challenges and difficulties facing a practitioner in cases where children are the only or primary dependants in a fatal claim. This webinar addressed the key issues, in relation to the law, practice and procedure and helping with…
A DEFENDANT IS ENTITLED TO SEEK TO AVOID SERVICE OF PROCEEDINGS: IT WON’T WIN YOU ANY HONOURS BUT IT IS NOT WRONG…
In Broom v Aguilar [2024] EWHC 1961 (Ch) HHJ Paul Matthews rejected an argument that a different costs order should be made because the defendant did not co-operate in relation to service of proceedings upon her. Seeking to avoid service…
HARASSMENT PROCEEDINGS: PART 7 AND NOT PART 8 SHOULD HAVE BEEN USED
There are often procedural difficulties when a claimant bringing a claim for harassment has to use the Part 8 procedure (as this is prescribed by CPR 65.28(1)(a)). However as the judgment of Aidan Eardley KC in Pattinson v Winsor [2024]…
“THE EXTENT OF EVIDENCE… WENT FAR BEYOND THAT PERMITTED BY THE RULES IN RELATION TO EXPERT EVIDENCE”: COMMENTS FROM ANTOTHER JURISDICTION
On the rare occasions we look at procedure in jurisdictions outside England and Wales it is often in relation to expert evidence. Other jurisdictions have similar issues in relation to experts, particularly argumentative experts. An example can be seen in…
PERSONAL INJURY: EXAGGERATED CLAIMS: CONTEMPT OF COURT: RUGBY, LIFTING WEIGHTS AND… SOCIAL MEDIA
In Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB) Mr Justice Mould found the defendant in contempt of court for exaggerating the extent of his injuries when bringing a claim for damages for personal injury. An interesting aspect…
“WHAT I CANNOT DO IS HEAR AN APPEAL AGAINST A RECITAL”: WORDING OF ORDER MEANS SLIP RULE HAS TO BE APPLIED
It appears to be a well known fact that family lawyers love recitals. (Not the musical kind – but as the preamble to any and all court orders). This issue caused problems in MA v Roux [2024] EWHC 1917 (Fam)…
RELIEF FROM SANCTIONS REFUSED WHEN WITNESS EVIDENCE SERVED THREE WEEKS LATE: SOMETHING ABOUT THE DANGERS OF “CUT AND PASTE” SUBMISSIONS TOO…
In Seaton Management Ltd v Evans-Jones [2024] EWHC 1883 (Ch) ICC Judge Barber refused the respondent’s application for relief from sanctions when a witness statement was served three weeks late. “The matters addressed in the Respondent’s skeleton argument on…
THERE IS A LEGALLY SIGNIFICANT DIFFERENCE BETWEEN AN APPEAL LODGED OUT OF TIME AND ONE LODGED IN TIME, BUT WITH DOCUMENTS MISSING: COURT OF APPEAL OBSERVATIONS ON EAT RULES
It is rare for this blog to consider anything related to employment law, let alone procedure in the Employment Tribunals. However the Court of Appeal decision in Ridley v HB Kirtley t/a Queen’s Court Business Centre [2024] EWCA Civ 875…
TEACHER’S APPEAL WAS IN TIME AND IN THE RIGHT COURT: NO REQUIREMENT TO APPEAL TO THE ADMINISTRATIVE COURT
In Sutcliffe v Secretary of State for Education [2024] EWHC 1878 (Admin) Mr Justice Pepperall held that a teacher, exercising a statutory right of appeal to the High Court, had appealed in time when filing an appeal in the King’s…
COSTS AFTER A CLAIMANT FAILS ON CLAIM FORM POINTS: SUCCESSFUL DEFENDANTS GET (MOST) OF THEIR COSTS
In Wragg & Ors v Opel Automobile GmbH & Ors [2024] EWHC 1909 (KB) Mr Justice Constable considered issues of costs after the claimants had failed on appeal on late service/extensions of time claim form issues. “Doing justice between the…
CHANGE TO THE COURT FUNDS OFFICE SPECIAL ACCOUNT RATE: DOWN FROM 6% TO 5.25%: ALSO A USEFUL CALCULATOR
I am grateful to barrister Matthew White for pointing out that there was an (unheralded) change to the Court Funds Office Special Account on 12/6/24. The rate was reduced from 6% to 5.25%. THE ANNOUNCEMENT The announcement was not made…
COST BITES 173: VARYING A COSTS BUDGET “AFTER THE EVENT”: IF THE APPLICATION WAS NOT “PROMPT” THE BUDGET WILL NOT BE VARIED
We are looking again at the decision in Khokan v Nirjhor (Re Costs) [2024] EWHC 1873 (KB), this time on the issue of costs budgeting. The judge considered the defendant’s budget in unusual circumstances. The claimant’s case had been struck…
RECENT CASES IN FATAL ACCIDENT LITIGATION – WHAT CAN WE LEARN FROM THEM? WEBINAR 30th JULY 2024
This webinar looks at recent cases in relation to liability, quantum and damages involving fatal accident victims. It enables us to spend enough time looking at each case in detail, in particular the evidence that was adduced and the conclusions…
COST BITES 172: CLAIMANT WHOSE CASE WAS STRUCK OUT HAD TO PAY THE DEFENDANT’S COSTS
In Khokan v Nirjhor (Re Costs) [2024] EWHC 1873 (KB) Mrs Justice Hill rejected an argument that a claimant, whose case had been struck out due to non compliance with a peremptory order, should then not be liable to pay…
COST BITES 171: DEFENDANT WHO RECEIVED LEGAL AID TO DEFEND CIVIL COMMITTAL PROCEEDINGS CAN ONLY RECOVER COSTS AT LEGAL AID RATES
The judgment of Costs Judge Whalan in MBR Acres Ltd & Ors v McGivern [2024] EWHC 1869 (SCCO) highlights an issue that has been on this blog before. A party who obtains legal aid to defendant civil committal proceedings cannot…
THE CORONERS’ COURT, COMPETENCES, FUNDING AND HELP WITH DEALING WITH THE BEREAVED CLIENT: USEFUL LINKS
Today I have presented a webinar on the coroners’ courts. The webinar has a particular emphasis on helping the client through the process, and the “competences” set out in the joint documents between the SRA, CILEx and the Bar Standards…
THE JOINT MEETING OF EXPERTS AND THE JOINTLY INSTRUCTED EXPERT: WEBINAR 29th JULY 2024
I was a more than a little shocked to read the judgment in Glover & Anor v Fluid Structural Engineers & Technical Designers Ltd & Ors [2024] EWHC 1257 it is a case that shows that lawyers are still making…
COURT MADE PEREMPTORY ORDER THAT CLAIMANT PAY COSTS: ARTICLE 6 RIGHTS NOT INFRINGED
In Khokan v Nirjhor [2024] EWHC 1872 (KB) Mrs Justice Hill granted the defendant’s application for a peremptory order following the claimant’s failure to pay costs ordered against him at an interlocutory hearing. The judge refused the claimant’s application for…
“UNNECESSARILY ARGUMENTATIVE OR WASTEFUL CORRESPONDENCE” NOT COUNTENANCED IN COSTS BUDGETING: “IT TAKES TWO TO TANGO”
The post earlier this morning on “intemperate” comments in court documents and correspondence reminded me that I meant to highlight a particular aspect of the judgment in Pan NOx Emissions Litigations [2024] EWHC 1728 (KB). The judgment highlights that unnecessarily argumentative…
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