EXPERTS IN THE COURTS IN 2023: WEBINAR 24TH JANUARY 2024: ESSENTIAL ISSUES FOR ALL LITIGATORS AND EXPERTS
Over the course of 2023 we saw many cases in which the conduct of experts and those who instruct them came under close scrutiny and criticism in the courts. I am presenting a webinar on the 24th January 2024 reviewing…
HELP WITH COURT FEES: NEW FORMS AND NEW ELIGIBILITY CRITERIA: WHERE TO FIND THE NEW GUIDANCE AND FORMS
A reminder that the financial eligibility criteria for help with court fees was changed from the 27th November 2023. There are also new court forms designed to make the process (which can be somewhat tortuous) simpler. Close-up of British bank…
COST BITES 124 : EARLY VIEW AS TO VALUE OF A PERSONAL INJURY CASE WAS NOT UNREASONABLE: DEFENDANT’S APPEAL DISMISSED
I am grateful to solicitor John McQuater for sending me a copy of the judgment of HHJ Sadiq in Drury -v- Yorkshire Aggregates Limited (a decision made in January this year, but the transcript has only just become available). It…
APPLICATION TO SET ASIDE DEFAULT JUDGMENT: THREE MONTHS DELAY IS NOT “PROMPT”: ABSENCE OF EVIDENCE AND A DRAFT DEFENCE DID NOT HELP
In Pincus v Singh & Anor [2023] EWHC 2997 (Ch) HHJ Paul Matthews refused a defendant’s application to set aside a default judgment. The defendant had waited for three months before making the application. There was no evidence in support…
THE NEED FOR COURT APPROVAL IN A FATAL ACCIDENT CASE INVOLVING CHILDREN: SUBSEQUENT ACTION FOR PERSONAL INJURY IS NOT AN ABUSE OF PROCESS
The judgment of Mr Justice Pepperall in Bayless & Ors v Norfolk and Norwich University Hospitals NHS Foundation Trust [2023] EWHC 2986 (KB) provides a warning, to both claimants and defendants, that offers under the Fatal Accidents Act, that involve…
COST BITES 123: COSTS OF BUDGETING REDUCED BY 25% TO REFLECT CLAIMANT’S UNREALISTIC BUDGET
In Reid v Wye Valley NHS Trust & Anor [2023] EWHC 2843 (KB) Master Brown reduced the recoverable costs of budgeting by 25% to reflect the unrealistic nature of the claimant’s budget. There are important issues here for those who…
RELIEF FROM SANCTIONS REFUSED WHEN THE COSTS BUDGET WAS SERVED LATE: BUDGETING AT TRIAL IS A FAIRLY HOPELESS TASK
There is much to learn from the decision of Mr Justice Ritchie in Tan v Idlbi & Anor [2023] EWHC 2840 (KB). The claimant was unsuccessful in an application for relief from sanctions following late service of the costs budget….
“PLEADINGS ARE INTENDED TO IDENTIFY THE ISSUES, NOT OBSCURE THEM”: COMMENTS ON STATEMENTS OF CASE: THEY SHOULD PROVIDE LIGHT NOT DARKNESS
There have been a number of cases recently where judges have commented on the state of the pleadings. We see observations being made by Mr Justice Ritchie in the decision today in DMH Electrical (UK) Ltd v MK City Group…
COSTS OF £50,000 ORDERED TO BE PAID BY LITIGATION FRIEND: “HE WILLINGLY TOOK ON THE ROLE OF LITIGATION FRIEND AND HIS PERFORMANCE HAS BEEN WHOLLY INADEQUATE”
In Y v Z [2023] EWFC 205 HHJ Edward Hess ordered that the litigation friend for the respondent pay, personally, the applicant’s costs caused by the need to adjourn a hearing. The respondent had not prepared at all for the…
COST BITES 122: THE APPROPRIATE ORDER FOR COSTS WHEN BOTH SIDES “WIN” AND BOTH SIDES “LOSE”: THE IMPORTANCE OF THE COSTS BUDGET
We are returning to an examination of costs orders made and their practical implications for the client. In Aymes International Ltd v Nutrition4u BV & Ors [2023] EWHC 2672 (Ch) HHJ Hodge KC (sitting as a High Court Judge) considered…
COST BITES 121: SUMMARY ASSESSMENT OF COSTS: “TO AWARD A LOWER FIGURE JUST BECAUSE REDUCTIONS ARE OFTEN MADE WOULD BE WRONG”
One of the aims of the “Costs Bites” series is to look at those, apparently small, aspects of cases that have a major impact on the client. Short passages in a judgment can have a major impact on whether a…
THE JUDGE WAS RIGHT TO REFUSE TO ALLOW A “NEW POINT” TO BE TAKEN ON APPEAL: DON’T FORGET PLEADINGS ARE STILL IMPORTANT…
In Azhar v All Money Matters t/a TFC Home Loans [2023] EWCA Civ 1341 the Court of Appeal rejected a defendant’s argument that it should have been permitted to raise a “new” point on appeal. The matter upon which the…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL: A REPOST
The repost last week of a case where key facts came to light on the third day of a trial led me another post on the topic which is worth revisiting. After the first post was written I asked lawyers if…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT: A REPOST
As part of the process of re-blogging posts that remain of general interest we are looking again at the case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin)…
COURT REFUSES TO GRANT AN ORDER FOR A GROUP LITIGATION ORDER: INCORRECT PROCEDURE; COSTS AND “WHACK -A-MOLE” CONSIDERED
Several kind people have sent me a copy of the decision in Abbott & Ors v Ministry of Defence [2023] EWHC 2839 (KB). This is an unusual case because, despite the claimant and defendant being in agreement, the court did…
COST BITES 120: QOCS AND HIRE CHARGES: DECISION THAT CLAIMANT SHOULD PAY COSTS OUTSIDE QOCS OVERTURNED ON APPEAL
In Amjad v UK Insurance Ltd [2023] EWHC 2832 (KB) Mr Justice Ritchie overturned a decision that the QOCS cap should be lifted in relation to a claimant who had failed to beat the defendant’s Part 36 offer and who…
COST BITES 119: COSTS BUDGETING: DEFENDANT ALLOWED TO VARY ITS BUDGET TO INCLUDE COSTS ALREADY INCURRED OBTAINING SURVEILLANCE EVIDENCE
There is a report of an interesting decision of Master McCloud in Yelland -v- Space Engineering Services Ltd [2023] EWHC 2823 (KB). The report is from Sean Linley of Carter Burnett and can be read here. There is a link to…
DOES WHAT YOU WEAR MATTER? GUIDANCE FOR ADVOCATES AND LITIGANTS: ANOTHER ISSUE REVISITED
This is a part of the series revisiting previous posts. Here we go back to November 2018. The question was asked – does how you dress affect how you are perceived? This followed a tweet (from the USA) where a …
COST BITES 118: LOOKING AT DETAILED ASSESSMENT (5): RECORDINGS MADE BY SOLICITORS NEED NOT BE DISCLOSED ON SOLICITOR & OWN CLIENT ASSESSMENT
We are returning to the issue of detailed assessments, albeit solicitor and own client assessments. In Turner v Coupland Cavendish Ltd [2023] EWHC 2721 (SCCO) Costs Judge Rowley dismissed an application for disclosure of recordings of telephone conversations between the…
UNREALISTIC TIME ESTIMATES; FAILURE TO CHALLENGE AUTHENTICITY OF DOCUMENTS; INCORRECT USE OF TRANSLATED WITNESS STATEMENTS: ALL ADDS UP TO AN EXPENSIVE ADJOURNMENT
The short judgment of HHJ Mark Pelling KC in Hua She Asset Management (Shanghai) Co Ltd v Hung & Anor [2023] EWHC 2445 (Comm) highlights several things which have been the subject of many posts on this blog: (i) a…
COST BITES 117: THE COURT CAN ORDER A PAYMENT ON ACCOUNT OF COSTS WHERE THE SCHEDULE IS HIGH BUT NOT EXCESSIVE
In South Tees Development Corporation & Anor v PD Teesport Ltd & Anor (Re Costs) [2023] EWHC 2270 (Ch) Mr Justice Trower rejected an argument that a payment of account should not be made because the schedule in support was…
COST BITES 116: YOU CAN’T AVOID PAYING THE COSTS OF AN APPLICATION AND APPEAL JUST BECAUSE THEY WEREN’T IN THE COSTS BUDGET…
We have seen some “interesting” submissions in relation to costs on this blog. However one of the most novel is the point taken by the Third Party in South Tees Development Corporation & Anor v PD Teesport Ltd & Anor…
COST BITES 115: LOOKING AT DETAILED ASSESSMENTS (4): COSTS OF RESEARCH, NOTING BRIEFS AND PHOTOCOPYING
We are continuing with the series looking at detailed assessments by returning (not for the first, nor last) time to the judgment of Costs Judge Leonard in Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO). The…
“RELIEF FROM SANCTIONS” NOT REQUIRED: COURT OF APPEAL CONSIDER WHEN CPR 3.9 CRITERIA APPLY: ITS NOT ALWAYS PLANE SAILING…
In Lufthansa Technik AG v Panasonic Avionics Corporation & Ors [2023] EWCA Civ 1273 the Court of Appeal addressed the difficult issue of when a breach led to a need to apply from relief from sanctions. It found that, on…
GOOD COSTS SERVICE: UPDATED GUIDANCE FROM THE LEGAL OMBUDSMAN
Solicitor and own client costs disputes have featured on this blog many times. There have been several major cases in recent months. The issue of the information given to the client and their understanding of how, and how much, they…
INTERIM PAYMENTS ON ACCOUNT OF COSTS: RECEIVING PARTY CAN ASK (AND RECEIVE) MORE THAN ONCE
I am grateful to Sam Hayman from Bolt Burdon for sending me a note of the judgment of Master MCloud in Trotman -v- Master Brickwork London Essex Limited, a copy of which is available here. Trotman – final judgment of…
COST BITES 114: LOOKING AT DETAILED ASSESSMENTS (3): SCHEDULES OF DAMAGES UNDER THE MICROSCOPE: THEY HAVE NOT BEEN DRAFTED SYSTEMATICALLY, OR WITH PROPER CARE AND ATTENTION
We are continuing with the series where we look closely at what can happen at a detailed assessment and return to the judgment of Cost Judge James in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO). The judge…
PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE’S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG
The Court of Appeal judgment today in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a rare example of the Court of Appeal overturning a judge’s findings on the facts. It is also an example of the importance…
COST BITES 113: LOOKING AT DETAILED ASSESSMENTS (2): HOURLY RATES: THE APPROPRIATE AMOUNT AND THE IMPACT OF COMPLEXITY
As part of the series looking closely at the judgment of Costs Judge Leonard in Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO). The judgment also contains a consideration of the factors affecting the assessment…
COST BITES 112: SOLICITORS BILL ASSESSED AT “NIL”: THE OMBUDSMAN’S INFORMAL RESOLUTION IS BINDING ON A SOLICITOR: PERMISSION WAS NEEDED TO REVISE THE BILL AND WOULD NEVER BE GIVEN
In Olukoya v Riverbrooke Solicitors Ltd [2023] EWHC 2771 (SCCO) Costs Judge Leonard assessed a solicitor’s bill as nil. The judge found that there was a binding contractual agreement as to the sums payable by the client following an informal…
A SECOND ACTION ON A DIFFERENT ISSUE TO THE FIRST SHOULD NOT HAVE BEEN STRUCK OUT: COURT OF APPEAL NOT TOO KEEN ON “SHADOW BOXING” IN CIVIL LITIGATION
In Orji & Anor v Nagra & Anor [2023] EWCA Civ 1289 the Court of Appeal overturned a decision that an action should be struck out as an abuse of process. The Court rejected the defendant’s contention that the action…
COST BITES 111: LOOKING AT DETAILED ASSESSMENTS (1): YOU SHOULDN’T BE CLAIMING 62.3 HOURS FOR DRAFTING A LETTER OF CLAIM
It is surprising how few legal practitioners have actually been to a detailed assessment hearing, my own enquiries suggest it is a tiny fraction of litigators. A much higher percentage, however, have had cause to comment, possibly complain, about the…
CIVIL PROCEDURE BACK TO BASICS 100: WITNESS CREDIBILITY: A REMINDER OF THE KEY POINTS IN GESTMIN
Now that we have reached 100 it is a good time to revisit the basic issue of how the court assesses witness credibility. We are therefore looking at the basic guidance given in Gestmin SGPS SA v Credit Suisse (UK) Limited…
PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM
The judgment of Deputy District Judge Batstone in Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC) illustrates the care that needs to be taken when attempting to call a witness who is giving evidence remotely…
DECISION TO DISMISS CLAIM BECAUSE OF ABSENCE OF EXPERT EVIDENCE UPHELD ON APPEAL:
We are looking at the second part of the decision in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB). The post yesterday looked at the decision in Doyle. Here we look at the judgment in Rowe, the other case…
COST BITES 110: THE IMPORTANCE OF ATTENDANCE NOTES: COUNSEL’S FEES INCLUDED
In Allseas Group SA, R (On the Application Of) v Sultana [2023] EWHC 2731 (SCCO) Costs Judge Leonard emphasised the point that records of conferences and important steps in a case are important in relation to the assessment of costs….
LITIGATORS: IF YOU DON’T PAY YOUR EXPERTS AND THEY ARE NOT COMING TO TRIAL, DON’T BE SURPRISED IF YOUR ACTION FAILS
The judgment of Mr Justice Freedman in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court. The expert made it clear that he was not…
THE “SLIP RULE” CONSIDERED IN DETAIL: ALSO THE COURT’S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS…)
The “slip rule” in civil procedure is often mentioned, but rarely considered at length. There is a detailed consideration of the rule and relevant authorities in the judgment of Mr Justice Henshaw in Deutsche Bank AG v Sebastian Holdings Inc…
WEBINARS ON DAMAGES IN 2024: SOMETHING TO WARM UP THE WINTER DAYS EARLY IN THE NEW YEAR…
Early next year I am presenting a series of eight webinars on personal injury damages. The series looks at the major heads of damages for personal injury and clinical negligence cases, with a particular emphasis on those claims in the…
WINDING UP PETITION NEEDS TO BE ISSUED IN LOCAL COURT: TYNE FOR PETITIONERS TO CHANGE THEIR PRACTICES
In The One Collection Real Estate Ltd v Insolvency & Law Ltd [2023] EWHC 2673 (Ch). HHJ Kramer held that a winding up petition should be issued and heard in the circuit that has closest links to the case. A block policy…
HALLOWEEN FOR LITIGATORS: AN ICY (AND SCARY) BLAST FROM THE PAST: WHAT SCARES LAWYERS MOST?
Here we take a look back at the old, old, days of 2017. There was a suggestion there be a “Halloween” post for lawyers – what scares the legal profession most? . Having taken up the challenge I then promptly delegated…
CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE: THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)
In Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) Master Stevens rejected the claimants’ application to call an expert. The judge contains a detailed consideration of the law and authorities relating to the court’s discretion…
COST BITES 109: SOLICITOR AND OWN CLIENT COSTS: A REVIEW OF THE AUTHORITIES
We are returning to the judgment of Senior Costs Judge Gordon-Saker in Kenton v Slee Blackwell PLC [2023] EWHC 2613 (SCCO) looked at in the previous post. That judgment also contained a detailed review of the authorities relating to the significance…
COST BITES 108: SOLICITOR AND OWN CLIENT COSTS: THE NEED FOR THE LAWYER TO GIVE ACCURATE ESTIMATES OF COST AND THE CONSEQUENCES OF INACCURACY (THIS DOES NOT END WELL FOR THE SOLICITOR)
The judgment of Senior Costs Judge Gordon-Saker in Kenton v Slee Blackwell PLC [2023] EWHC 2613 (SCCO) provides an object lesson in the perils of the clear warnings and advice that clients have to be given in relation to costs….
“A COMPLETELY UNACCEPTABLE WAY OF PREPARING FOR AN IMPORTANT HEARING”: NON-COMPLIANT AND INCOMPLETE BUNDLES: WITNESS STATEMENTS IMPROPERLY PREPARED
The judgment of HHJ Pearce in Shobeiry v Patel [2023] EWHC 2549 (KB) shows how failing to comply with the rules can lead to major problems in relation to hearings. Here there was non-compliance with the rules relating to bundles,…
WANT TO OBTAIN AN ORDER AFTER RECEIVING A DRAFT JUDGMENT? BETTER READ THIS
I have been kindly sent a message from Tim Lord KC which sets out observations made by Miles J in relation to Practice Direction 40E., in particular 4.4.. The Practice Direction deals with the handing down of judgments. 4.4. imposes…
WEBINAR ON DRAFTING SCHEDULES IN PERSONAL INJURY CASES: 9th NOVEMBER 2023
I am presenting a webinar on drafting Schedules on the 9th November 2023. Booking details are available here. “In the event, the Original Schedules of Loss were shown to be quite unreliable and, in many respects, bore little or no relation…
COST BITES 107: A NON-PARTY COSTS ORDER SHOULD NOT BE MADE AGAINST A SOLICITOR REPRESENTING A CLAIM ON A CFA BASIS: SEEKING A FINANCIAL BENEFIT DID NOT MEAN THEY WERE ACTING OUTSIDE THEIR ROLE AS SOLICITOR
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the decision of Mr Justice Freedman in The Scout Association -v- Bolt Burdon Kemp [2023] EWHC 2575 (KB). On appeal Freedman J upheld the…
CHANGES IN ELIGIBILITY FOR COURT FEE REMISSION: THE COURTS AND TRIBUNALS (FEE REMISSION AND MISCELLANEOUS AMENDMENTS) ORDER 2023
The Courts and Tribunals (Fee Remissions and Miscellaneous Amendments) Order 2023 increases the capital and income limits for fee remission from the 27th November 2023. The Order is available here. The explanatory notes are set out below. CAPITAL CHANGES…
SOLICITORS CAN’T RECOVER COSTS UNDER AN UNENFORCEABLE CFA: WHAT IS MORE THE CLIENTS CAN RECOVER SUMS BACK
In Diag Human SE & Anor v Volterra Fietta (Re Assessment Under Part III Solicitors Act 1974) [2023] EWCA Civ 1107 the Court of Appeal upheld earlier judgments that solicitors, acting under a conditional fee agreement that claimed more than…
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