THE THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010 AND THE DATE OF “ACTIONABLE DAMAGE”: COURT REFUSES TO STRIKE OUT THE CLAIMANT’S CASE
In the judgment today in Brooks v Zurich Insurance Public Ltd Co & Anor [2022] EWHC 1170 (QB) Master Davison refused an application to strike out an action against insurers under the provisions of the Third Party (Rights Against Insurers)…
WITNESS STATEMENTS WHEN THE WITNESS CANNOT SPEAK ENGLISH: “IT IS DOUBTFUL THAT HE IN FACT SIGNED THE STATEMENT”
In Borra v Commissioners for Her Majesty’s Revenue and Customs & Anor [2022] EWHC 1195 (Ch) ICC Judge Mullen considered the requirements of the Practice Direction in relation to a witness giving evidence in a foreign language. None of the…
PROVING THINGS 233: ASSESSING EVIDENCE AFTER 14 YEARS: THE CRUEL CONCEPT OF CAUSATION IN MEDICAL NEGLIGENCE
This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial. The difficulties are made clear in the judgment of HHJ Emma Kelly…
A TRIAL BUT NOT BY JURY: DEFENDANT’ APPLICATION FOR DEFAMATION TO BE DETERMINED BY JURY REFUSED
In Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB) Mr Justice Nicklin refused the defendant’s application for a jury trial of a defamation action. “… since the removal of the statutory presumption in s.69(1), jury…
PROVING THINGS 232: “THE RULES OF THE GAME OF ASSOCIATION FOOTBALL HAVE NOT BEEN DRAFTED WITH CIVIL LIABILITY IN MIND”: APPEAL LEADS TO OVERTURNING OF JUDGMENT ON FOOTBALLER’S NEGLIGENCE: A REMATCH IS ORDERED
In Fulham Football Club v Jones [2022] EWHC 1108 (QB) Mr Justice Lane allowed an appeal in a case where a footballer had found to be negligent when tackling an opponent. The judgment considers the issue of liability in the…
COURT REFUSES RETROSPECTIVE APPLICATION IN RELATION TO SERVICE OF INJUNCTION: THERE WAS NO GOOD REASON AND A PROSPECTIVE APPLICATION WOULD NOT HAVE BEEN GRANTED
We are now looking at the second aspect of the judgment of Mr Justice Nicklin in MBR Acres td & Ors v Maher & Anor [2022] EWHC 1123 (QB). This the claimants’ unsuccessful application for an order that there be…
AN INJUNCTION MUST BE SERVED PERSONALLY: COMMITTAL PROCEEDINGS DO NOT GET OFF THE STARTING LINE
In MBR Acres td & Ors v Maher & Anor [2022] EWHC 1123 (QB) Mr Justice Nicklin held that the obligation to serve an injunction personally had not been altered by the new CPR Part 81. Sending copies of the…
INFERENCES TO BE DRAWN WHEN A PARTY DOES NOT FILE EVIDENCE AND THERE ARE ISSUES WITH DISCLOSURE: A WORKING EXAMPLE
In Sinha v Taylor & Ors [2022] EWHC 1096 (Comm) Mr Simon Colton QC considered the inferences to be drawn when the defendants had not filed witness evidence and there was issues in relation to disclosure. THE CASE The…
“IT WAS UNNECESSARY FOR MATTERS TO BE DEALT WITH SO EXPENSIVELY”: ANOTHER COMMENT ON LACK OF FOCUS IN THE COMMERCIAL COURT
For the second time today I am writing about judicial comments on profligacy in the Commercial Court. This time Mr Justice Andrew Baker in Invest Bank PSC v El-Husseini & Ors [2022] EWHC 894 (Comm). “Even in the context…
WHY A SHORT WITNESS STATEMENT CAN BE MORE COSTLY THAN A LONG ONE? CONDUCT, COSTS, PAYMENTS ON ACCOUNT: AN (UNSUCCESSFUL) APPLICATION TO AMEND THAT COULD COST £1 MILLION
In PJSC National Bank Trust & Anor v Mints & Ors [2022] EWHC 1132 (Comm) Mr Justice Foxton considered issues relating to payment of costs after the claimants had been unsuccessful in an application to amend the Particulars of Claim. …
DENTON PRINCIPLES DO NOT APPLY TO AN APPLICATION TO SET ASIDE A DEFAULT JUDGMENT: NO UNIVERSAL JUDICIAL VIEW HERE
There is a brief report on Lawtel of the case of C-v- D [2022] WLUK 99 where Dexter Dias QC, sitting as a Deputy High Court judge, did not agree with the proposition that Denton principles applied to an application…
PROVING THINGS 231: ASSESSING LOSS OF EARNINGS OF AN ARTIST: THE WIDE PALETTE OF APPROACHES THE COURT CAN TAKE
There are many cases where the courts have had to consider the loss of earnings of a claimant whose career pattern, and thus earnings, are not wholly certain. Often these relate to those working in sports or entertainment. In Mathieu…
HOW COSTS HAVE CHANGED SINCE THE WORLD WAS YOUNG: SOLICITOR’S APPEAL AGAINST A REFUSAL TO ORDER A STAY AND SECURITY FOR COSTS DISMISSED: APPEAL FOR AN ORDER THAT SOLICITORS REPLY TO PART 18 QUESTIONS ALLOWED
In the judgment today in Edwards (& others) -v- Slater and Gordon UK Limited [2022] EWHC 1091 (QB) Mr Justice Ritchie disallowed the defendant’s appeal in relation to issues relating to disclosure, funding and security for costs. He allowed the…
WHAT DO YOU DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER? WEBINAR 8th JULY 2022
In the recent case of MRA -v- The Educational Fellowships Ltd [2022] EWHC 1069 (QB) it was held that the claimant had to face the usual Part 36 consequences when a Part 36 offer was accepted late. The fact that there…
BILL OF COSTS MUST INCLUDE THE NAME OF FEE EARNERS WHO DID THE WORK: COURT OF APPEAL DECISION TODAY
In the judgment today in AKC -v- Barking, Havering & Redbridge University Hospitals NHS Trust [2021] EWHC 2607 (QB) the Court of Appeal upheld the point that the name of each fee earner involved must be included in the electronic…
PROVING THINGS 230: NEGLIGENCE AND BREACH MUST STILL BE PROVEN WHEN BRINGING CONTRIBUTION PROCEEDINGS
In Percy v White & Anor [2022] EWCA Civ 493 the Court of Appeal overturned a decision based on a contribution notice. This case makes it clear that a party bringing contribution proceedings still has to establish breach and causation…
AN EXPERT REPORT THAT DID NOT COMPLY WITH PRACTICALLY EVERY REQUIREMENT OF CPR 35: IT FAILS TO PERSUADE THE COURT
An example of the importance of the format of an expert report can be found in the judgment of Master David Cook in Pal -v- Damen [2022] EWHC 004697 (QB). It is a decision that shows that the courts will…
PART 36: JUDGES SHOULD NOT LET THEIR HEARTS RULE THEIR HEADS: CLAIMANT ACCEPTING AN OFFER LATE FACES FULL COSTS CONSEQUENCES THAT FLOW
In the judgment in MRA -v- The Education Fellowship Limited [2022] EWHC 1069 (QB). Master McCloud held that it was not unjust for the usual principles in relation to costs to apply following a claimant’s late acceptance of a defendant’s…
THE JOINT MEETING OF EXPERTS AND THE JOINTLY INSTRUCTED EXPERT: KEY ISSUES, PROBLEM AREAS AND PRACTICAL SOLUTIONS: WEBINAR 30th JUNE 2022
We have recently seen a case where a party disallowed from using an expert due to conduct at the joint meeting of experts stage. The meeting of experts is now a key stage in much major litigation. Knowledge of the…
PART 36 BENEFITS PAID TO A SUCCESSFUL CLAIMANT: THE ISSUES CONSIDERED: IT WAS NOT UNJUST FOR THE USUAL PART 36 CONSEQUENCES TO APPLY
We are returning to the judgment in Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Darryl Allen QC, sitting as a High Court judge. The earlier post looked at the issue of whether the defendant was bound by…
A DEFENDANT WAS BOUND BY THE TERMS OF AN ORDER AGREED BY THEIR COUNSEL: THE DEAL WAS DONE
In Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Darryl Allen QC, sitting as a High Court judge, found that a defendant was bound by the terms of an order drawn up with the agreement of their…
RECENT CASES IN FATAL ACCIDENT LITIGATION: WHAT CAN WE LEARN FROM THEM? WEBINAR 8th JUNE 2022
The law as to fatal accident damages is based primarily on judicial decisions. To understand damages fully it is important that you have a detailed knowledge of key decisions and how fatal accident damages are approached by the courts. It…
COURT OF APPEAL ALLOW APPEAL AGAINST AN ORDER STRIKING OUT AN ACTION: A CASE WITH “A NUMBER OF EXTRAORDINARY FEATURES”, NOT LEAST THAT THE DEFENDANT’S EVIDENCE WAS UNRELIABLE
In Storey v British Telecommunications Plc [2022] EWCA Civ 616 the Court of Appeal allowed an appeal against an order striking out an personal injury action. The court was fairly critical about the evidence that had been placed before it…
YET ANOTHER CASE ON BREACH OF JUDGMENT EMBARGO: SENDING OUT “EMBARGOED” PRESS RELEASE IS A CONTEMPT OF COURT
We have another case of a party breaching an embargo on a draft judgment in the decision of Nicholas Caddick Q.C (sitting as a Deputy High Court Judge) in Match Group LLC & Anor v Muzmatch Ltd & Ors [2022]…
JUDICIAL REVIEW CLAIM SHOULD BE HEARD IN LEEDS: THE USE OF LONDON LAWYERS DOES NOT DRIVE THE CHOICE OF VENUE
In Khyam, R (On the Application Of) v Secretary of State for Justice [2022] EWHC 993 (Admin) Mr Justice Fordham was fairly robust in ordering that a judicial review hearing should take place in Leeds. This was the area with…
LITIGATION BY STEALTH WILL NOT DO: COURT OF APPEAL OVERTURNS ORDER GRANTING DEFENDANT PERMISSION TO AMEND: CARDS SHOULD BE ON THE TABLE AND FACE UP
The judgment of the Court of Appeal in ABP Technology Ltd v Voyetra Turtle Beach Inc & Anor [2022] EWCA Civ 594 concerns a technical issue in relation to trade marks. However it also demonstrates a very powerful principle in…
COURT REFUSED TO SET ASIDE A DEFAULT JUDGMENT ON COSTS: DENTON PRINCIPLES ARE VERY MUCH INVOLVED IN SUCH AN APPLICATION
In Ince Gordon Dadds LLP v Mellitah Oil & Gas BV [2022] EWHC 997 (Ch) Mr Hugh Sims QC, sitting as a Deputy High Court Judge, refused the defendant’s application to set aside a default judgment obtained for solicitor’s costs. …
RELIEF FROM SANCTIONS: NOT ALL BAD REASONS FOR DEFAULT ARE EQUALLY BAD: A PARTY CANNOT ASSERT PREJUDICE BY BEING SILENT
In EXN v East Lancashire Hospitals NHS Trust & Anor [2022] EWHC 872 (QB) Mr Justice Turner allowed an appeal where a District Judge had refused to grant relief from sanctions. The judgment is particularly interesting in that it notes…
COURT OF APPEAL UPHOLDS RELIEF FROM SANCTIONS GRANTED WHEN A PARTY HAD NOT MADE A FORMAL APPLICATION
In Park v Hadi & Anor [2022] EWCA Civ 581 the Court of Appeal upheld a decision granting a claimant relief from sanctions. The initial application had been made informally, during the course of an application, the defendant’s appeal against…
RAKING UP OLD CASES WAS NOT A FRUITFUL GROUND FOR CROSS-EXAMINATION OF AN EXPERT
In contemporary litigation it is not unusual for the parties to spend some time (perhaps a considerably time) looking for material about previous cases that expert witnesses were involved in. This may not always be time well spent. In Richards…
STRIKING OUT PART OF A WITNESS STATEMENTS: SOME PART OF THESE HAVE TO GO: HIGH COURT DECISION
The judgment of Mrs Justice Steyn in Vardy -v- Rooney & News Group Newspapers Ltd [2022] EWHC 946 (QB) also contains a consideration of an application to strike out part of the witness statement. There is a review of the…
RELIEF FROM SANCTIONS REQUIRED WHEN A PARTY SERVES A WITNESS SUMMARY AND NOT A WITNESS STATEMENT: SOME WITNESSES ALLOWED, OTHERS WERE NOT
The judgment of Mrs Justice Steyn in Vardy -v- News Group Newspapers Ltd [2022] EWHC 946 (QB) serves as a reminder that a party cannot simply serve witness summaries in place of witness statements. The judge granted relief from sanctions…
FISH FILES AND HOW TO FILLET THEM BEFORE THEY BITE AND YOUR PROBLEMS BECOME CAST IN STONE
I periodically write about fish files because I suspect they are the cause of a large percentage of procedural problems that arise in litigation. A “fish file” is a file that has been left for so long it has started…
THE NATIONAL ARCHIVES AND COURT JUDGMENTS: UP AND RUNNING
Court and Tribunal decisions are now freely available from The National Archives. THE PAGE The case law finder can be found here. THE PRESS RELEASE The press release explaining matters can be found here. NOTE THAT BAILII CARRIES ON …
JUDGE GRANTS SUMMARY JUDGMENT AGAINST CLAIMANT IN ACTION AGAINST SOLICITORS AND LEADING COUNSEL
In Coote -v- Ullstein [2022] EWHC 606 (QB) His Honour Judge Gosnell (sitting as a judge of the High Court) granted the defendants’ applications for summary judgment in relation to a professional negligence claim being brought against them. The judge…
PROVING THINGS 229: WHO BEARS THE BURDEN OF PROOF WHEN A CLAIMANT SEEKS DAMAGES GROSS OF TAXATION
We are returning for the second, but not the last, time to the judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB). The judge awarded an injured claimant damages for loss of earnings gross of tax. …
PROVING THINGS 228: PLEADING AND PROVING MITIGATION OF LOSS: THE NEED FOR A DEFENDANT TO ESTABLISH A “CONCRETE CASE”
The judgment of Mrs Justice Hill in Mathieu v Hinds & Anor [2022] EWHC 924 (QB) is interesting for a large number of reasons. Here we look at the judgment in relation to pleading and proving mitigation of loss. “A…
INTEREST ON COSTS: WHAT IS THE APPROPRIATE RATE TO BE PAID IN A CLAIM RELATING TO AN ESTATE
In Almond v Goff & Ors [2021] EWHC 1703 (Ch) Ms Clare Ambrose, sitting as a High Court judge, considered the appropriate rate of interest on costs in a claim concerning an estate. She rejected the argument that interest ran…
EXCESSIVE COSTS INCURRED IN ARGUING ABOUT COSTS: A PARTY OBTAINING RELIEF FROM SANCTIONS WAS CORRECTLY ORDERED TO PAY THE COSTS OF THE APPLICATION: “RULES EXIST FOR A REASON”
In Swivel UK Ltd v Tecnolumen GmbH & Anor [2022] EWHC 825 (Ch) Mr Justice Marcus Smith upheld the decision of a Master that a party that had obtained relief from sanctions should pay the costs of the application. It…
WITNESS STATEMENTS AND LANGUAGE DIFFICULTIES: JUDGE EXAMINES THE “MINEFIELD” FOR THE LITIGANT
In Bahia v Sidhu & Anor [2022] EWHC 875 (Ch) Mrs Justice Joanna Smith considered the problems that arose when a witness provided a statement in English but was not totally proficient in that language. The decision to provide the…
A SERIES OF WEBINARS ON FATAL ACCIDENT LITIGATION AND DAMAGES: JUNE 2022
There are a series of four webinars in June 2022 on key aspects of fatal accident litigation and damages. Looking at recent cases, the child claimant and fatal accidents, damages in anticipation of death and avoiding the pitfalls of fatal…
HIGH COURT ISSUES A WARNING TO THOSE PLEADING CLAIM FOR EXEMPLARY DAMAGES: THERE MUST BE A PROPER BASIS FOR SUCH A PLEA
In Underwood & Anor v Bounty UK Ltd & Anor [2022] EWHC 888 (QB) Mr Justice Nicklin sent out a warning about the pleading a claim for exemplary damages. Such claims should only be made where there is a proper…
“IT SHOULD BE UNDERSTOOD THAT DELIBERATE FLOUTING OF ORDERS, GUIDANCE AND PROCEDURE IS A FORM OF FORENSIC CHEATING AND SHOULD BE TREATED AS SUCH”
In Xanthopoulos v Rakshina [2022] EWFC 30 Mr Justice Mostyn considered some key aspects of procedure, including costs and transparency. Here we look at that part of the judgment that deals with compliance with the rules. “This utter disregard…
WHEN A WITNESS GIVES DIFFERENT ACCOUNTS IN DIFFERENT STATEMENTS IT RARELY HELPS THEIR CASE: JUDGE FINDS IT “UNIMPRESSIVE”
In Parry v Johnson & Anor (Rev1) [2022] EWHC 889 (QB) Mr Justice Ritchie considered the evidence of the defendant driver in a road traffic case. The defendant’s different accounts on different occasions did not help his cause. The judge…
THE COURT SHOULD ASSESS COSTS SUMMARILY NOW: BUT THEY ARE SUBJECT TO A “SIGNIFICANT HAIRCUT”
One of the things I regularly do on this blog is to post judgments relating to the summary assessment of costs. These are not readily available elsewhere and this type of judgment is very popular with readers. The judgment of…
COURT REFUSES DEFENDANT’S APPLICATION THAT DEFENDANT’S KENYAN WITNESSES SHOULD APPEAR BY VIDEO LINK:
In Jackson v Hayes & Jarvis (Travel) Ltd [2022] EWHC 453 (QB) Mrs Justice Eady refused the defendant’s application that its witnesses give evidence by video link from Kenya. “I am left with, on the one hand, an absence of…
JUDGE VARIES ORDER SO SUMMARY ASSESSMENT OF COSTS REPLACES DETAILED ASSESSMENT: COSTS SUMMARILY ASSESSED AT £7,250,000
In Pipia v Bgeo Group Ltd [2022] EWHC 846 (Comm) Mr Justice Henshaw took the unusual step of replacing an order for detailed assessment with an order for a summary assessment and then assessing the costs. THE CASE The defendant…
DEFENDANTS HAVE TO PAY COSTS OF ATE PREMIUM: DEEMED ORDER FOR COSTS FOLLOWING ACCEPTANCE OF PART 36 OFFER INCLUDES THE COSTS THE ATE PREMIUM
In Dance v East Kent University Hospitals NHS Foundation Trust & Ors [2022] EWHC B9 (Costs) Costs Judge Leonard considered two ingenious arguments where the defendants attempted to avoid paying the claimant’s ATE premium. This involved consideration of the deemed…
LITIGATION FRIEND GAVE FALSE EVIDENCE AND WAS IN CONTEMPT OF COURT: “GOOD DAYS” DOES NOT EXPLAIN CLAIMANT’S LEADING THEATRICAL ROLES
In Hull University Teaching Hospitals NHS Trust v Colley [2022] EWHC 854 (QB) Mr Justice Bourne sentenced a litigation friend to six months in prison (suspended for two years) for giving false evidence in support of her daughter’s claim for…
APPLICATION FOR RELIEF FROM SANCTIONS REFUSED IN GROUP LITIGATION ORDER
In Baker & Ors v Volkswagen Aktiengesellschaft & Ors (VW NOx Emissions Group Litigation) [2022] EWHC 810 (QB) Senior Master Fontaine refused the applicants’ application for relief from sanctions in relation to their inclusion in a register for a Group…
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