BEREAVEMENT: USEFUL LINKS
I had not planned to blog today. However some social media sites make it clear that a lot of people are having difficulties dealing with bereavement. The queen’s death has led to immense pain and sadness in itself and also…
FAILURES ON DISCLOSURE LEAD TO TWO YEAR ADJOURNMENT OF TRIAL DATE (AND INDEMNITY COSTS)
We looked earlier at the decision in Cabo Concepts Ltd v MGA Entertainment (UK) Ltd & Anor [2022] EWHC 2024 (Pat) Mrs Justice Joanna Smith, on the issue of costs. That costs decision arose because of major failings by the…
AVOIDING UNDER-SETTLEMENT: A GUIDE FOR PERSONAL INJURY LAWYERS: WEBINAR 20th SEPTEMBER 2022
A webinar on “avoiding undersettlement” for personal injury lawyers is being held on the 20th September 2022. Booking details are available here. “We go back through your claim in fine detail and if we find that your previous solicitor…
THE COURT OF APPEAL, STRIKING OUT AND PLEADING THE CASE PROPERLY: PARTICULARS OF CLAIM SHOULD HELP NOT HINDER
There has already been much publicity surrounding the Court of Appeal decision in HXA v Surrey County Council [2022] EWCA Civ 1196. The Court of Appeal overturned decisions where actions were struck out, holding that the issues in question should…
“CIVIL JUSTICE IS BROKEN”: A SAD, BUT SYMPTOMATIC, TALE IN TWO TWEETS
Sometimes brevity is the key. We see this in two tweets yesterday, reprinted with permission. “Jonathan @TempleBrief Civil Justice is broken – again. Tomorrow’s CCMC for a vet with severe suicidal PTSD who lacks capacity which was postponed in Jan…
COST BITES 16: THE CARE NEEDED WHEN QUANTIFYING “COSTS THROWN AWAY”: 45% OF CLAIMED COSTS TO BE PAID ON ACCOUNT
In Cabo Concepts Ltd v MGA Entertainment (UK) Ltd & Anor [2022] EWHC 2024 (Pat) Mrs Justice Joanna Smith considered the amount that should be ordered on account when costs were “thrown away” after an action was adjourned shortly before…
EXPERT WAIVED PRIVILEGE WHEN MENTIONING ANOTHER REPORT IN HIS REPORT: “TRIAL BY AMBUSH IS NO LONGER THE ORDER OF THE DAY”
We are looking again at the judgment of HHJ Paul Matthews (sitting as a High Court judge) in Pickett v Balkind [2022] EWHC 2226 (TCC) . Again it is in relation to an issue relating to experts. An expert had…
COURT REFUSES TO GRANT RESTRICTIONS ON CLAIMANT’S ACCESS TO FORMER SOLICITOR’S FILE: NOT A CASE OF LIEN ON ME
In Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm) His Honour Judge Pearce refused to place any restrictions on the disclosure of a litigation file to the claimant. The claimant was bringing an action alleging professional negligence…
PROVING THINGS 237: FAILURE TO PROVE A NUISANCE: NO LOSS OF INCOME WHEN YOU WOULD NOT HAVE BEEN ABLE TO EARN IT
The judgment of HHJ Russen QC (sitting as a High Court Judge) in Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC) gives two examples relevant to the “Proving Things” series. Firstly the claimant failed to prove a nuisance….
CLAIMANT COULD NOT OBTAIN AN INJUNCTION TO PREVENT THE USE OF A LETTER FROM AN EXPERT: AN APPARENT BREACH OF THE INDEPENDENCE PRINCIPLE
In Pickett v Balkind [2022] EWHC 2226 (TCC) HHJ Paul Matthews (sitting as a High Court Judge) refused the claimant’s application for an injunction to prevent the defendant relying on the contents of a letter from the claimant’s expert. That…
PROVING THINGS 236: THE DANGERS OF ADOPTING A FORMULAIC, TICK BOX APPROACH TO EVIDENCE
The decision in Camfield & Ors v Uyiekpen & Anor (HOUSING – RENT REPAYMENT ORDER – evidence – pro forma witness statements) [2022] UKUT 234 (LC) is a working example of the dangers of “tick box” evidence. “This case…
CASES ON SERVICE OF THE CLAIM FORM IN 2022: WHAT LITIGATORS CAN, AND MUST LEARN FROM THEM: WEBINAR 14th OCTOBER 2022
2022 has seen some significant decisions in relation to service of the claim form, with many claimants coming to grief due to basic errors made when serving, or attempting to serve. This webinar “One Day Out” but still too late:…
IT IS THE CLAIMANTS’ JOB TO SERVE THE CLAIM FORM ON TIME: HIGH COURT REJECTS ARGUMENT THAT DEFENDANTS WERE ESTOPPED FROM TAKING THE POINT: CLAIMANTS’ OTHER ARGUMENT COME TO GRIEF
We are always seeing new ways in which mistakes are made in relation to service of the claim form. In Lonsdale & Ors v Wedlake Bell Llp & Ors [2022] EWHC 2169 (QB)the claimants agreed an extension of time to…
THE ROLE OF THE EXPERT WITNESS IN FINDING FACTS AND ASSESSING CREDIBILITY
The recent posts on the assessment of witness credibility led an expert witness to enquire whether it was the function of an expert to comment on issues relating to credibility. There have been a number of cases where judges have…
MORE ON WITNESS EVIDENCE: CREDIBILITY IS MORE THAN DEMEANOUR: PLAUSABILITY “IS ALSO THE HALLMARK OF THE CONFIDENCE TRICKSTER DOWN THE AGES”
The previous post looked at witness credibility and the Gestmin principles. Litigators will also benefit enormously from reading the talk given at Bristol University Law School in December 2014 by Mr Justice Mostyn “The Craft of Judging and Legal Reasoning”. …
WITNESS CREDIBILITY: A SUMMARY OF THE APPROACH IN GESTMIN
A post last week dealt with issues relating to the judicial assessment of credibility. Here we look at one aspect of that in more detail. That is the decision in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor…
THE SOURCE OF INFORMATION AND BELIEF: AN ESSENTIAL ELEMENT OF ANY WITNESS STATEMENT: 10 KEY POINTS
This week the blog looks at some basic procedural issues. Today we are looking at witness statements, in particular the mandatory requirement that a witness give the source of their information or belief. There are many cases where this basic…
RELIEF FROM SANCTIONS APPLICATIONS: RE-VISITING THE BASICS: 10 POINTS TO IMPROVE THE ODDS:
It is now just over 8 years since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. This is a good time to re-visit the advice given shortly after the case as to increasing…
COURT AWARDS CLAIMANT DAMAGES FOR HARASSMENT: FORTHCOMING WEBINAR ON THE LAW OF HARASSMENT AND THE PERSONAL INJURY LAWYER
In Thomas Hodson Hodson Developments Ltd v Person Unknown & Ors [2022] EWHC 1960 (QB) Mr Justice Jay awarded damages in a case where he found that the defendants had harassed the claimant. An award was made for general damages…
JUST BECAUSE A MATTER IS TECHNICALLY COMPLICATED DOES NOT MEAN THAT EXPERTS NEED ATTEND TRIAL
In Siemens Mobility Ltd v High Speed Two (HS2) Ltd [2022] EWHC 2190 (TCC) Mrs Justice O’Farrell considered an argument that the technical issues that arose in an action led to the need for experts to attend court. This argument…
WITNESS CREDIBILITY IN CIVIL LITIGATION: A REMINDER OF SOME KEY POINTS
Many, if not most, civil cases that get to trial rest on issues of witness credibility rather than issues of law. These are the cases and decisions that rarely make the law reports, but do reflect the underlying reality of…
AN EXPERT WHO TENDED TOWARDS BEING AN ADVOCATE: YOU SAID SOMETHING DIFFERENT IN ANOTHER CASE: THE NEED FOR A MEASURED RESPONSE
It may be indicative that there are such a large number of cases where judges have criticised experts for veering towards advocacy that I sometimes hesitate as to whether they merit writing about. However such a tendency was noted by…
COST BITES 15: DEPARTING FROM THE GUIDELINE RATES FOR SPECIALIST WORK DONE OUTSIDE LONDON
In Lappet Manufacturing Company Ltd & Anor v Rassam & Ors [2022] EWHC 2158 (Ch) Mr Justice Adam Johnson allowed a higher hourly rate for a solicitor working outside London. The rate allowed, for a Nottingham firm, was £350 an…
THE 10 YEAR LONGSTOP PERIOD IN PRODUCT LIABILITY CLAIMS: A POINT TO WATCH
There is one very tricky area of limitation law that I wanted to return to following the judgment in Coote -v- Ullstein [2022] EWHC 606 (QB). The case was looked at in detail here. However I want to concentrate on the…
FAILURE TO COMPLY WITH PROTOCOL LEADS TO COSTS OF A MEDICAL REPORT NOT BEING RECOVERED
I was informed recently that permission to appeal was refused in the case of Greyson -v- Fuller. I am grateful to Simon Fisher from DWF for sending me a copy of the decision in Glendining -v- McCarthy,* where DDJ Causton…
A CLIENT DOES NOT OWE A “DUTY OF GOOD FAITH” TO A SOLICITOR ACTING UNDER A CONDITIONAL FEE AGREEMENT
In Candey Ltd v Bosheh & Anor [2022] EWCA Civ 1103 Lord Justice Coulson rejected an argument that a client, who has entered into a conditional fee agreement with a solicitor, owed a duty of good faith to that solicitor. …
A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON
In Nambiar v Solitair Ltd [2022] EWCA Civ 1135 the Court of Appeal held that an appeal against a committal order should be struck out as an abuse of process. Prior to sentencing the appellant had issued an earlier, identical,…
PART 36 & COSTS: DEFENDANT COULD NOT SHOW INJUSTICE WHEN IT ACCEPTED A PART 36 OFFER OUT OF TIME: “PART 36 IS INTENDED TO BE A TWO-WAY STRAIGHT AND NARROW HIGHWAY”
In Holly Wright (& others) -v- Birmingham City Council District Judge Baldwin (sitting as Regional Costs Judge)* rejected an attempt by a defendant to obtain its costs where it accepted the claimants’ Part 36 offers late. The judge held that…
AN APPLICATION FOR COMMITTAL THAT WAS “WHOLLY FRIVOLOUS” AND “BORDERS ON VEXATIOUS”: CLAIMANT NOW REQUIRES PERMISSION TO BRING SIMILAR COMMITTAL PROCEEDINGS…
For the second time today I am writing about an injunction case which failed because the claimant had failed to prove compliance with an order for service. However this particular case has more sinister overtones. The claimant attempted to bring…
PROVING THINGS 235: PROVING SERVICE: COUNCIL’S WHOLESALE FAILURE TO SERVE CLAIM FORMS PROPERLY: ATTEMPTS AT PERSONAL SERVICE WERE A PREREQUISITE TO SERVICE BY ALTERNATIVE MEANS
An important point as to service of the claim form arose in the judgment of Mr Justice Nicklin in Thurrock Council v Stokes & Ors [2022] EWHC 1998 (QB). The claimant had issued proceedings against multiple defendants. It obtained an…
HOW TO CALCULATE TIME IN THE CIVIL PROCEDURE RULES
Periodically I write reminders of the importance of being able to calculate time periods correctly. Sometime a miscalculation can lead to fundamental problems. AN EXAMPLE OF MISCALCULATION In Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) Mr Justice Martin Spencer overturned…
“KAFKAESQUE” PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A “TANGLE” AND A “MUDDLE”
In Anwer v Central Bridging Loans Ltd [2022] EWCA Civ 201 the Court of Appeal resolved procedural issues which it described as a “muddle” and “kafkaesque”. The issue was a simple one of whether a litigant was entitled to transcripts…
PERSUADING THE JUDGE TO CHANGE THEIR MIND AFTER JUDGMENT CAN BE AN EXPENSIVE STEP: COURT OF APPEAL DECISION
We have looked, many times, at issues relating to procedure after the handing down of a draft judgment. The Court of Appeal judgment in George v Cannell & Anor [2022] EWCA Civ 1067 highlights one of the difficulties that arise. …
A COURT, ON A SOLICITOR AND OWN CLIENT ASSESSMENT, CANNOT CONSIDER ASSERTIONS OF UNDUE INFLUENCE OR ECONOMIC DURESS: DEFENDANT’S SUCCESSFUL APPEAL
In Lisa Jones v Richard Slade And Company Ltd [2022] EWHC 1968 (QB) Mr Justice Johnson overturned a decision that the court, on a Solicitors Act assessment, can determine issues of undue influence or economic duress. The judge held that…
THERE IS NO OBLIGATION ON A CLAIMANT TO FILE A REPLY: THE BURDEN OF PROOF REMAINS WITH THE DEFENDANT
In Pistachios In the Park Ltd & Anor v Sharn Panesar Ltd [2022] EWHC 2088 (QB) Mr Justice Freedman pointed out that the appellant’s argument in relation to pleading and burden of proof ran contrary to the rules. There is…
“MISSING” WHATSAPP POSTS AND A PHONE LOST AT SEA: WHAT INFERENCES WOULD THE COURT DRAW?
The facts in Vardy v Rooney [2022] EWHC 2017 (QB) are well known and have received wide publicity. Here we look solely at the evidential issues relating to the “missing” evidence. In particular the amount of WhatsApp material that went…
COST BITES 14: TIME FOR PAYMENT OF COURT AWARD THERE SHOULD BE EVIDENCE TO SUPPORT ANY APPLICATION FOR FURTHER TIME
We are returning to the judgment in Vitol SA v Genser Energy Ghana Ltd [2022] EWHC 1955 (Comm) Ms Lesley Anderson QC (sitting as a Deputy High Court Judge). It is quite common for a party ordered to pay costs to…
CLAIMANT FAILS TO GET AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: IN A CASE WHERE THE COURT HAD LOST THE FILE AND NOT SENT OUT A SEALED CLAIM FORM WITHIN THE FOUR MONTH PERIOD
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL. SEE THE BLOG POST ABOUT THE APPEAL DECISION HERE. The judgment of Robin Vos (sitting as a Deputy Judge of the High Court) in Walton v Pickerings Solicitors & Anor…
COST BITES 13: A SUMMARY ASSESSMENT OF COSTS IN ACTION: TOO MANY LAWYERS, NO NEED FOR A QC
In Lenkor Energy Trading DMCC v Puri [2022] EWHC 1958 (Comm) the court carried out a summary assessment of the defendant’s costs, the grounds for the reductions are instructive. They show the grounds on which costs are reduced on assessment….
COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL
In Turner & Ors v Thomas & Anor (Costs) [2022] EWHC 1944 (Ch) Mr Justice Zacaroli considered the appropriate principles to be applied as to costs when a defendant was not a party to an appeal made by a co-defendant….
THE MANDATORY REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST AND A REMINDER
This checklist covers the basic element of witness statements. It does not cover all the requirements of statements in the Business and Property Courts, guidance on those specific rules can be found in several posts on this blog, here and…
THE IMPORTANT DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION TO SERVE A CLAIM FORM: “CLEAR WATER” BETWEEN THE TWO TESTS: COURT OF APPEAL OVERTURNS ORDER SETTING ASIDE A PROSPECTIVE APPLICATION FOR SERVICE
In ST v BAI (SA) Trading As Brittany Ferries [2022] EWCA Civ 1037 the Court of Appeal overturned a decision, itself made on appeal, where a prospective application to extend time for service of the claim form was set aside….
COST BITES 11: INTEREST ON COSTS: JUDGE FINDS IT APPROPRIATE TO BACKDATE INTEREST
In Vitol SA v Genser Energy Ghana Ltd [2022] EWHC 1955 (Comm) Ms Lesley Anderson QC (sitting as a Deputy High Court Judge) considered whether interest should be payable on costs from a date before judgment. She held that interest…
THE FIRST TIME YOU MAKE A CLAIM FOR DAMAGES – SHOULD NOT BE IN THE DRAFT ORDER AFTER THE COURT OF APPEAL HEARING
There is an interesting short judgment of the Court of Appeal in BG & Anor, R (On the Application Of) v Suffolk County Council (Consequentials) [2022] EWCA Civ 1053 relating to an attempt by the successful party to put an…
COST BITES 10: COURT OF APPEAL UNHAPPY AT £730,000 BILL FOR ONE DAY APPEAL: HOURLY RATES ABOVE GUIDELINES HAVE TO BE JUSTIFIED, COUNSEL’S FEES MUST BE REASONABLE AND PROPORTIONATE
In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061 the Court of Appeal were concerned about the level of costs being claimed in a one day appeal. The…
PROVING THINGS 234: PROVIDE AN EXPLANATION FOR DELAY BY EVIDENCE – NOT BY SUBMISSIONS
The judgment of Mr Justice Henshaw in Hays & Ors v Bloomfield Investments LLC [2022] EWHC 1648 (Comm) was on a very specific area of procedure. However there is one matter of more general interest. The need to have evidence…
PERIODICAL PAYMENTS AND PROVISIONAL DAMAGES: THE IMPORTANCE OF RECENT DEVELOPMENTS: WEBINAR 9th SEPTEMBER 2022
This webinar looks at recent cases in relation to periodical payments and provisional damages and considers their practical implications for personal injury practitioners. Booking details are available here. WEBINAR CONTENTS Cases to be considered include: The decision in Mathieu v…
COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A “SCORE DRAW” AND EACH SIDE GETS NO COSTS
In United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor [2022] EWCA Civ 1026 the Court of Appeal upheld a decision that there be no order for costs between the parties in judicial…
Witness statements in the client’s own words: Witness statements when the client’s first language is not English: Webinar today
I am giving a webinar on the 25th July 2022 at 12.00 on “Witness statements in the client’s own words: Witness statements when the client’s first language is not English.” Booking details can be found here. (The webinar will be…
YOU CAN’T RAISE A NEW CLAIM IN A RESPONSE TO A PART 18 REQUEST: THE PLEADED CASE REMAINS IMPORTANT
In Costa v DissociaDID Ltd & Anor [2022] EWHC 1934 (IPEC) HHJ Hacon rejected the defendants’ attempt to argue points that were not pleaded. The only time an issue had been raised was in response to Part 18 requests. This…
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