COST BITES 27: WHAT DOES “PROCEEDINGS” MEAN: COURT OF APPEAL ALLOWS APPEAL IN RELATION TO QOCS AND A MIXED CLAIM
In Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407 the Court of Appeal considered the meaning of the word “proceedings” in the costs of a claimant bringing a “mixed claim” for damages. It held that it was…
SECOND COURT OF APPEAL DECISION ON COSTS TODAY: A WARNING SHOT FIRED AFTER BELSNER
Fast on the heels of the judgment in Belsner today was the Court of Appeal decision in Karatysz v SGI Legal LLP [2022] EWCA Civ 1388, where a clear warning shot was fired in relation to the practice of seeking…
COURT OF APPEAL ALLOWS APPEAL IN BELSNER -V- CAM: DECISION CAN BE FOUND HERE
The Court of Appeal have allowed the appeal in Belsner -v- Cam Legal Services. The judgment [2022] EWCA Civ 1387 can be found here. I will conduct a detailed analysis of the decision in the near future. Here are the…
“HE LACKED THE NECESSARY EXPERTISE TO SUBSTANTIATE AND JUSTIFY HIS CONCLUSION”: A CASE WHERE NO SPECIFIC RELIANCE WAS PLACED ON AN EXPERT’S EVIDENCE
In Eaton v Auto-Cycle Union Ltd & Ors [2022] EWHC 2642 (KB) Mr Justice Turner was critical of the expert evidence called by the claimant. “Quite simply, he lacked the necessary expertise to substantiate and justify his conclusions. It…
FATAL ACCIDENTS 2023: SEEING THE CLIENT; UNDERSTANDING THE LAW; THE SCHEDULE: GETTING THINGS RIGHT: TAKING CARE OF YOUR CLIENTS AND YOURSELVES: A SERIES OF WEBINARS TO GUIDE YOU THROUGH IT
Alongside solicitor Hilary Wetherell we are presenting a series of webinars to take practitioners through the major elements of personal injury law, practice and procedure. Each webinar can be viewed as a stand alone webinar as well as being part…
COST BITES 26: DEFENDANT’S CONDUCT WAS FAR FROM PERFECT BUT DID NOT JUSTIFY AN AWARD OF INDEMNITY COSTS
In Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2688 (KB) HHJ Howells (sitting as a High Court Judge) did not accept the claimant’s argument that the defendant’s conduct of the case was such that indemnity costs should be ordered….
WEBINAR ON CARE, AIDS & APPLIANCES CLAIMS AFTER MUYEPA -v- THE MINISTRY OF DEFENCE: 18th NOVEMBER 2022
I have already written three times about the judgment of Mr Justice Cotter in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). I have not explored in detail the important observations in that judgment in relation to claiming, and presenting,…
EXPERTS SHOULD CONSTANTLY REMIND THEMSELVES THROUGHOUT THE LITIGATION THAT THEY ARE NOT PART OF THE LITIGANT’S “TEAM”: JUDGE CRITICAL OF PARTISAN APPROACH
We are, again, mining the judgment of Mr Justice Cotter in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). This time in relation to the judge’s comments and findings in relation to the expert evidence, in particular the non-medical evidence…
FUNDAMENTAL DISHONESTY: WHERE 3% OF THE CLAIMED DAMAGES ARE AWARDED THE WHOLE CLAIM IS DEFINITELY TAINTED
We are returning to the judgment of Mr Justice Cotter in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB). The judgment recounts the history and detail of the legislation and principles governing fundamental dishonesty before applying them to the facts…
WITNESS CREDIBILITY AND A FINDING OF FUNDAMENTAL DISHONESTY: “BUT WHAT OF THE MENDACIOUS WITNESS?”
In Muyepa v Ministry of Defence [2022] EWHC 2648 (KB) Mr Justice Cotter set out detailed considerations for assessing witness credibility. Here we look at the description of the process of analysing the credibility of the witnesses. “But what…
TWO ISSUES: WITNESS CREDIBILITY: ATTEMPTING TO RE-OPEN A JUDGMENT ON THE BASIS OF OMISSIONS IN THE JUDGMENT: ADVOCATES NEED TO CONSIDER THE POSITION CAREFULLY
There are two aspects of the judgment of Mr Justice Mostyn in Cazalet v Abu-zalaf [2022] EWFC 119 that are of general interest to litigators. Firstly the judge’s observations as to witness credibility. Secondly the observations in relation to re-opening…
“BOILERPLATE” STATEMENTS OF THE LAW MUST BE TREATED WITH CIRCUMSPECTION: COURT OF APPEAL DECISION
In A (Children) (Pool of Perpetrators), Re [2022] EWCA Civ 1348 Lady Justice King set out a note of warning about cases where agreed notes of the relevant law are relied on. It may be better for the law to…
OUR OLD FRIEND THE ABSENT WITNESSES: WHAT INFERENCES CAN AND SHOULD THE COURT DRAW? THREE DIFFERENT APPROACHES
We are returning to a decision looked and before, and a familiar issue to this blog, in looking again at the judgment HHJ Stephen Davies (sitting as a High Court judge) in Thomas Barnes & Sons Plc v Blackburn with Darwen…
JUDGE FINDS PROCESS BY WHICH EXPERT REPORT OBTAINED “SO FLAWED, AND THE MATERIAL ON WHICH IT IS BASED SO LIMITED AND CONJECTURAL THAT IT WOULD BE ENTIRELY WRONG FOR ME TO PLACE ANY WEIGHT ON IT WHATSOVER”
In de Renee v Galbraith-Marten [2022] EWFC 118 Mr Justice Mostyn commented on an expert report that one of the parties sought to introduce. The report had been obtained in breach of the rules. It did not comply with the…
ESCAPING FIXED COSTS: KINGS CHAMBERS WEBINAR: 2nd NOVEMBER 2022
My colleagues Andrew Hogan and Paul Hughes are presenting a webinar on the 2nd November 2022 4 – 5pm on “escaping fixed costs”. The webinar is free. Booking details are available here. NB the live event is now “full”. It…
ONCE AGAIN: COMMENTARY AND COMMENT IN A WITNESS STATEMENT: IT NEVER HELPS (THE CLIENT) AND IS ALMOST ALWAYS HARMFUL
We see a familiar story in the judgment of HHJ Stephen Davies (sitting as a High Court judge) in Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC). The witness statements of the claimant…
PROCEDURAL DEFAULTS IN JUDICIAL REVIEW PROCEEDINGS: ADJOURNMENTS OF TRIALS AND APPARENT BIAS
I first looked at the judgment in Saunders v Bristol Magistrates Court [2022] EWHC 2544 (Admin) because my attention was drawn towards the sub-heading “Procedural Defaults”. There were defaults. However this facts of this matter are important in themselves. …
RECENT CASES ON LOSS OF EARNINGS: WHAT YOU NEED TO KNOW: WEBINAR 21st NOVEMBER 2022
I am presenting a webinar “Recent Cases on Loss of Earnings: What you need to know” on the 21st November. Booking details are available here. THE WEBINAR This webinar looks at recent cases in relation to loss of earnings and…
COST BITES 25: DEFENDANTS’ CONDUCT LEADS TO COSTS BEING AWARD ON THE INDEMNITY BASIS
Those who write “robust” letters of response to a letter before action may benefit from reading the judgment of Mr Justice Andrew Baker in Pisante & Ors v Logothetis & Ors [2022] EWHC 2575 (Comm). The judge held that costs…
PROVING THINGS 240: CLAIMANT FAILS TO PROVE CAUSE OF AN ACCIDENT: PERMISSION TO APPEAL REFUSED
There are many edicts warning against reliance upon judgments that concern permission to appeal. However the judgment of Mr Justice Fordham in Harrison v TUI UK Ltd [2022] EWHC 2557 (KB) is of interest in the “Proving Things” series and…
WHAT GOES ON IN LEEDS STAYS IN LEEDS: ANOTHER MISSIVE FROM THE ADMINISTRATIVE COURT
In Bhimsinhji & Anor v Secretary of State for the Home Department (Determination as to Venue) [2022] EWHC 2556 (Admin) Mr Justice Fordham reiterated a point that has been made several times before in relation to venue for hearing in…
COST BITES 24: DEFENDANT SUCCESSFUL IN APPEAL AGAINST PART 7 COSTS IN CASE THAT SHOULD NOT HAVE LEFT THE PORTAL
I am grateful to barrister James Miller for sending me a copy of the judgment of HHJ Bird in Lally -v- Butler (27th September 2022). The defendant successfully appealed an order that they were responsible for Part 7 costs rather…
COST BITES 23: CLAIMANT FAILS IN APPLICATION FOR DELIVERY OF A SOLICITOR’S BILL OF COSTS: CHAMBERLAIN BILLS HAD BEEN SENT; A SIGNATURE ON AN EMAIL WAS SUFFICIENT; ELECTRONIC DELIVERY COMPLIED WITH THE SOLICITORS ACT
In Elias v Wallace LLP [2022] EWHC 2574 (SCCO) Senior Costs Judge Gordon-Saker dismissed the claimant’s application for a delivery of a bill of costs. He found that (i) the bills delivered were “Chamberlain” bills and had sufficient information for…
UNSUCCESSFUL APPEAL: DEFENDANT REFUSED RELIEF FROM SANCTIONS
Appealing a decision concerning relief from sanctions is always an uphill struggle. This can be seen in the judgment of Mr Justice Zacaroli in Smith v Lloyd [2022] EWHC 2414 (Ch). This was an unsuccessful appeal against a decision to…
PROCEDURAL AND EVIDENTIAL PROBLEMS WHEN REPRESENTING FOREIGN DEFENDANTS: WITNESSES COULD NOT GIVE EVIDENCE BY VIDEO LINK: AN INCORRECT TRANSLATION OF A REPORT HAD BEEN PROVIDED
The judgment of HHJ Howells in Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2436 (QB) shows the difficulties that can occur when representing foreign defendants. The defendant was not permitted to allow witnesses to give video evidence from abroad. …
A WEEK IS A LONG TIME IN POLITICS: FOUR WEEKS IS EVEN LONGER IN LAW: CLAIMANT REFUSED INJUNCTION BECAUSE THEY HAD NOT ISSUED PROCEEDINGS
In Hayes v Pack & Ors [2022] EWHC 2508 (KB) Mr Justice Johnson refused to grant an injunction. The unusual nature of the application should not hide the fact that the application was refused because the claimant had failed to…
ADVOCATES SHOULD NOT SEND UNHERALDED SUBMISSIONS AFTER A HEARING: COURT OF APPEAL MESSAGE IN A POSTSCRIPT (NOW WITH A FURTHER CASE I HAD NOT THOUGHT OF EARLIER…)
There is a postscript to the judgment of Lady Justice Elisabeth Laing in the case of MH (Eritrea), R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1296 discouraging the sending of unsolicited…
ONE DAY OUT – BUT STILL TOO LATE: WEBINAR ON SERVICE OF THE CLAIM FORM CASES IN 2022: 14th OCTOBER 2022: “RELIANCE ON NON-COMPLIANT SERVICE IS NOT ONE OF THE INSTANCES OF OPPORTUNISM DEPRECATED BY THE COURTS”
This webinar is of interest to all litigators. It covers recent cases where there have been issues relating to the claim form. These cases involve litigation at every level, including the Court of Appeal, the Administrative Court, the High Court…
PRACTICE NOTE ON DISCLOSURE IN THE INSOLVENCY AND COMPANIES LIST – PART 8 CLAIMS
Chief Insolvency and Companies Court Judge Briggs issued a Practice Note on Disclosure in the Insolvency and Companies List on the 6th October 2022. It deals with issues relating to disclosure and Part 8 claims. Part 8 claims are not…
COST BITES 22: CLAIMANT’S ARGUMENTS TO AVOID PAYING INDEMNITY COSTS FAIL TO FLY
In Optimares SpA v Qatar Airways Group QCSC [2022] EWHC 2507 (Comm) Mr Justice Calver ordered the unsuccessful claimant to pay the defendant’s costs on an indemnity basis. The fact that the defendant could have asked for a split trial…
A CLAIMANT NOT CLAIMING A CONTRIBUTION FROM THEIR PARTNER FOR HOUSING COSTS HAS NOT UNREASONABLY FAILED TO MITIGATE THEIR LOSS
An interesting point as to damages (and also as to evidence and pleadings) arose in the judgment in Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB). The claimant required accommodation as a result of his injuries. The…
“NO ORDINARY LITIGANT WOULD INCUR COSTS APPROACHING £50,000 IN ORDER TO RECOVER £3,000”: DATA BREACH CASE TRANSFERRED FROM HIGH COURT TO SMALL CLAIMS TRACK
In Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB) Mr Justice Nicklin ordered a transfer of a data breach case from the High Court to the small claims track in the county court. “It is important that claimants…
PROVING THINGS 239: THE APPROPRIATE APPROACH TO LOSS OF EARNINGS WHEN A CLAIMANT IS DISABLED
We are looking again at at the judgment of David Allan KC (sitting as a Deputy High Court Judge) in Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB). This time in relation to the claim for future loss…
PROVING THINGS 238: THE ABSENCE OF EVIDENCE ON LIFE EXPECTANCY LEADS TO A PREDICTABLE RESULT
There are several reasons I want to look at the judgment of David Allan KC (sitting as a Deputy High Court Judge) in Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB). The first reason relates to the…
CHOOSING AN EXPERT: AN ACADEMIC OR PRACTICAL EXPERIENCE: HOW WILL THEY PERFORM WHEN THEY GET THE BIT BETWEEN THEIR TEETH?
One of the difficult issues that has to be faced when instructing experts is whether to choose academic qualifications or practical experience. This issue can be seen in the judgment of HHJ Melissa Clarke (sitting as a High Court Judge)…
WHEN, AND WHETHER, PERMISSION TO APPEAL IS REQUIRED IN AN APPEAL AGAINST A DECISION TO COMMIT TO PRISON
In Business Mortgage Finance 4 PLC & Ors v Hussain [2022] EWCA Civ 126 the Court of Appeal considered the scope of matters that fall within the rule that permission to appeal is not required in relation to committal hearings….
COST BITES 21: RECEIVING PARTY NOT CONFINED TO PROVISIONAL ASSESSMENT COSTS WHEN THE BILL SETTLES FOR LESS THAN £75,000: “IT WAS WITHIN THE DEFENDANT’S GIFT TO MAKE A REALISTIC PART 36 OFFER”
In UK Sovereign Investments Ltd v Hussain [2022] EWHC 2390 (SCCO)Deputy Costs Judge Campbell rejected an argument that a receiving party’s costs should be confined to provisional assessment costs when the parties had agreed those costs at £59,000. The case…
COST BITES 20: COURT MAKES A THIRD PARTY COSTS ORDER ON THE BASIS OF MISCONDUCT OF LITIGATION: PARTIES GET THEIR JUST DESSERTS
In Ventures Food Ltd v Little Dessert Shop Limited [2022] EWHC 2437 (Ch) HHJ Richard Williams (sitting as a High Court judge) made a third party costs order on the basis of litigation misconduct by those who controlled a limited…
WHY APPLYING FOR AN EXTENSION OF TIME TO SERVE THE CLAIM FORM IS A DANGEROUS BUSINESS: A CASE TODAY AND SOME REMINDERS
The judgment of HHJ Hodge KC in Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd (PROFESSIONAL NEGLIGENCE – Solicitors – Loss of opportunity to pursue claim to trial – Damages – Defendant’s application to strike out and for summary judgment)…
COST BITES 19: JUDGE EXERCISES DISCRETION TO ALLOW CLAIMANT QOCS PROTECTION IN A “MIXED” CLAIM
In Wokingham Borough Council v Arshad [2022] EWHC 2419 (KB) Mr Justice Bourne considered whether QOCS protection should be applied to a claimant who had brought a claim for personal injury damages, in addition to other claims. The judge held…
COST BITES 18: APPROPRIATE CHARGING RATES WHEN A GRADE C IS CHARGED AT NOTHING: THE NEED FOR A “BLENDED” APPROACH
There are several interesting aspects to the judgment of Mr Justice Miles in Eurohome UK Mortgages 2007-1 Plc v Deutsche Bank AG, London Branch & Anor [2022] EWHC 2408 (Ch). One issue was the appropriate hourly rate when a grade…
TRANSFERRING A CASE FROM THE PROTOCOL TO PART 7: THE APPROPRIATE TEST CONSIDERED
I am grateful to Jamie Carpenter KC for sending me a copy of the judgment in The London Borough of Islington -v- Borous [2022] EWCA Civ 1242, a The case was looked at yesterday. Here I want to consider the…
COURT OF APPEAL DECISION ON THE ROAD TRAFFIC PROTOCOL: INSURERS SHOULD KNOW THE RULES, AND CAN’T COMPLAIN WHEN THEY ARE APPLIED
In The London Borough of Islington -v- Borous [2022] EWCA Civ 1242 the Court of Appeal rejected two appeals from defendants in relation to car hire/replacement charges where damages were considered within the Road Traffic Protocol. The judgment contains a detailed…
AVOIDING LIMITATION PROBLEMS IN PERSONAL INJURY: WEBINAR 29th SEPTEMBER 2022
On the 29th September 2022 I am presenting a webinar “Avoiding Limitation Problems”. This deals with the major issues relating to limitation in personal injury actions. Booking details are available here. THE CONTENTS OF THE WEBINAR Basic limitation periods,…
“LITIGATION SHOULD BE SEEN AS A LAST RESORT, NOT A FIRST PORT OF CALL”: WORDS OF WISDOM FROM THE EAT
In Clark & Ors v Sainsburys Supermarkets Ltd & Anor (PRACTICE AND PROCEDURE) [2022] EAT 143 HHJ James Tayler made some observations in relation to the Early Conciliation scheme that exists in employment tribunals and construction of the rules. He…
THE KING’S BENCH GUIDE: WHERE TO FIND THE CHANGES
The Queen’s Bench guide has now been changed to the King’s Bench guide. There do not appear to be any substantive changes to the text. The text can be found here. COMPARE AND CONTRAST There is a comparison of…
COST BITES 17: FAILURE TO ENGAGE WITH CRITICISM OF WITNESS STATEMENT LEADS TO INDEMNITY COSTS: FAILING TO ENGAGE ON WITNESS STATEMENT ISSUES CAN BE EXPENSIVE
There is another judgment in the case of McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch) Richard Farnhill (sitting as a Deputy Judge of the Chancery Division) that is worth noting. The claimant’s failure…
FAILING TO COMPLY WITH THE REQUIREMENTS FOR WITNESS STATEMENTS: A PARTY WAS NOT “NIT PICKING”
In McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch) Richard Farnhill (sitting as a Deputy Judge of the Chancery Division) considered the appropriate response where a party fails to comply with the requirements for…
THE COURT WILL NOT READILY RE-OPEN THE AMBIT OF ELECTRONIC DISCLOSURE: DECISION OF THE COMPETITION TRIBUNAL
I am grateful to Aidan Robertson KC for sending me a copy of the decision of the Competition Appeal Tribunal, Mr Justice Marcus Smith, in Sportradar AG -v- Football Dataco Limited [2022] CAT 37 a copy of which can be…
AVOIDING PROCEDURAL PROBLEMS: A PRACTITIONER’S GUIDE: WEBINAR 23rd SEPTEMBER 2022
In case anyone hasn’t noticed a lot of (perhaps the vast majority) of posts on this blog relate to procedural issues and problems that litigators have run into, or taken advantage of. On the 23rd September 2022 I am presenting…
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