WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6TH APRIL 2021: THE DECLARATION THAT THE CLIENT HAS TO SIGN – AND WHY IT POINTS STRAIGHT BACK AT YOU
In addition to the new requirement for the solicitor to sign a declaration that the witness statement complies with the rules the witness themselves has to sign a declaration. The witness declaration, however, does not get the lawyer off the…
THINGS THAT LAWYERS DO TO ANNOY JUDGES: SCOWL AND POUT… & ROLL YOUR EYES
For the past two weeks we have been looking at some of the judgments of Canadian judge Mr Justice Joseph W. Quinn. To complete the series we will look again at the guidance he gave to the Ontario Bar Association in…
CLEAR FINDINGS OF FUNDAMENTAL DISHONESTY: NO SUBSTANTIAL INJUSTICE IN APPLYING THE PRINCIPLE: CLAIMANT IN AT THE DEEP END
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of HHJ Sephton QC (sitting as a High Court judge) in Iddon -v- Warner, a judgment given on the 2nd March 2021. A copy of…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6th APRIL 2021: THE DECLARATION THAT THE SOLICITOR HAS TO SIGN
One of the many requirements that come into force on the 6th April is the requirement for the solicitor to sign a declaration that the witness statement complies with the rules. This is not an obligation that can be taken…
AVOIDING PROBLEMS: TWELVE THINGS FOR LITIGATORS TO THINK ABOUT IN MARCH
I am here re-visiting advice first given in 2016. However everything written then appears equally valid today. Indeed the contents of this blog over the past five years serves basically amplifies every issue raised here. 1. NEVER, EVER, GUESS ABOUT…
GOING BANKRUPT DID NOT RELEASE BANKRUPT FROM A JUDGMENT DEBT: JUDGE GIVES PERMISSION FOR ENFORCEMENT PROCEEDINGS TO CONTINUE DESPITE A SUBSTANTIAL DELAY
In Jones & Pyle Developments Ltd v Rymell [2021] EWHC 385 (Ch) HHJ Paul Matthews found that a judgment debt was not released by bankruptcy. He also allowed enforcement proceedings to continue, despite a substantial delay. THE CASE The claimant…
PROVING THINGS 205: COUNSEL NOT ENTITLED TO £6,922,532 IN FEES BUT WERE ENTITLED TO EXEMPLARY DAMAGES
In Cakebread & Anor v Fitzwilliam [2021] EWHC 472 (Comm) Sir Ross Cranston (sitting as a High Court judge) considered an argument from the claimant barristers that an arbitrator had erred in refusing to award them their fees. The essential…
“WHAT’S THE DIFFERENCE BETWEEN KNOWLEDGE AND BELIEF?” WHY IS THIS IMPORTANT? 10 KEY POINTS RE-VISITED
The question “What’s the difference between knowledge and belief” was a search term that led to this blog yesterday. I mentioned this on Twitter and it has led to some interesting responses, ranging from the philosophical to the whimsical. You…
SETTING ASIDE A DEFAULT JUDGMENT: DELAY, FAILING TO KNOW THE CORRECT PROCEDURE AND ABSENCE OF MERITS: LORD CHANCELLOR WINS THE DAY…
The judgment of Master Thornett in The Lord Chancellor (as Successor to the Legal Services Comission) v Halberstadt-Twum (t/a Cleveland Solicitors) & Anor [2021] EWHC 413 contains some object lessons for anyone involved in an application to set aside default…
“DENTON PROOFING” YOUR PERSONAL INJURY PRACTICE – KNOWING WHERE THINGS GO WRONG AND PUTTING THEM RIGHT: WEBINAR 11th MARCH 2021
This blog has reported numerous cases where practitioners have fallen foul of the civil procedure rules. On the 11th March I am giving a webinar aimed at helping to avoid problems and also dealing with the steps that should be…
THE NEW WITNESS STATEMENT REQUIREMENTS AND ADMIRALTY CLAIMS: NEW RULES WILL APPLY
The new requirements for certification of witness statements in the Business and Property Courts come into force on the 6th April 2021. Initially it was thought that Admiralty claims may be excluded, because of the importance of contemporary statements in…
SNAILS, BOXES, RATES, OFFICES AND CIVIL PROCEDURE: A DRAFT JUDGMENT IS NOT AN INVITATION TO CRITIQUE IT
The judgment of Mr Justice Fordham in Isle Investments Ltd v Leeds City Council (Rev 1) [2021] EWHC 345 (Admin) contains a reminder of the point that a draft judgment is not an opportunity to re-open or critique the substance…
UNLESS ORDER MADE WHEN THE CLAIMANT HAD NOT PAID AN INTERLOCUTORY ORDER FOR COSTS
In Junejo v New Vision TV Ltd [2021] EWHC 449 (QB) Deputy Master Hill QC made a peremptory order that the claimant pay an order for costs. However that payment was to be by instalments. There is a useful review…
CIVIL PROCEDURE AND COSTS ROUND UP: FEBRUARY 2021
A round up of posts and articles about civil procedure and costs in February 2021. THE CIVIL PROCEDURE RULES The Law Society Gazette Litigants baffled as Civil Procedure Rules move to new site Litigation Futures Minister promises urgent review of…
THE JUDICIAL USE OF FOOTNOTES: A WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The number of people who had not read the judgement of Canadian judge J.W. Quinn looked at last Sunday made me think that this would be a good time to remind people of the judgment in Bruni -v- Bruni in 2010. The…
“THE DEVELOPING BODY OF LAW AS TO THE RELATIONSHIP BETWEEN COSTS MANAGEMENT AND DETAILED ASSESSMENT”: INTERIM ORDER FOR COSTS AFTER A TRIAL: 90% OF BUDGETED COSTS 70% OF INCURRED COSTS
The courts have been supportive of applications for interim costs for a successful party after a trial. The interim payment at this stage is not nominal and is normally firmly based on the budgeted costs. A working example can be…
MEDIATION PRIVILEGE UPHELD: “PARTIES MUST BE FREE TO CANDIDLY DISCUSS ALL OPTIONS FOR SETTLEMENT”
In E (A Child) (Mediation Privilege), Re [2020] EWHC 3379 (Fam) Mr L Samuels QC (sitting as a High Court Judge) granted an application to prevent a party relying on matters that took place in a mediation. “Parties must be…
“BUILD IT AND WHO CARES IF THEY COME”: THE REGISTER ON WHAT IS HAPPENING WITH THE COURT RULES AND LISTING ONLINE: THE ABSENCE OF “SCHOOL-GRADE WEB SKILLS”
An interesting explanation of why practitioners, and others, are having problems with access to rules of court and listing can be found in The Register – which provides news on technology for I T Professionals. The Register reports that the…
AN APPLICATION THAT WAS “OPPORTUNISTIC AND WITHOUT MERIT”: NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL
The issue of non-payment, or under-payment, of court fees was considered by the Court of Appeal in the judgment today in Butters & Anor v Hayes [2021] EWCA Civ 252. THE CASE During the course of an action the court…
THE RULES ARE BACK IN TOWN: ASKING WHERE THEY COULD BE FOUND…
After some, shall we say “adverse”, comments on the way that the Civil Procedure Rules are presented on the government website the “old” site has has been given a reprieve. ON THE JUSTICE WEBSITE The Rules are still available…
![WITNESS STATEMENTS IN THE DOCK AGAIN: "DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE"](https://i0.wp.com/www.civillitigationbrief.com/wp-content/uploads/2021/02/balalaika_garmon_shepherds_horn.jpg?resize=150%2C150&ssl=1)
WITNESS STATEMENTS IN THE DOCK AGAIN: “DESPITE HAVING EXPRESSLY ADOPTED THE WITNESS STATEMENTS IN EVIDENCE IN CHIEF [HE] COULD NOT CONFIRM THAT IT REPRESENTED HIS EVIDENCE”
The judgment of Mrs Justice Moulder in PJSC Tatneft v Bogolyubov & Ors [2021] EWHC 411 (Comm) provides a further example of the contention that obtaining witness evidence is probably not part of the “stock in trade” of those who…
CIVIL PROCEDURE BACK TO BASICS 91: MAKE SURE YOUR CLIENT IS STILL ALIVE WHEN YOU ISSUE – AT CERTAINLY AT THE TIME OF TRIAL: A SITUATION THAT IS UTTERLY BIZARRE
The facts in Amirtharaja & Anor v White & Anor [2021] EWHC 330 (Ch) are unusual to say the least. Someone who had died two years prior to issue was included as a party in a claim form. The matter…
I WILL WALK 150 MILES: MARCHING AGAINST CANCER IN MARCH…
There are few families, or workplaces, that are unaffected by cancer. Cancer Research UK is organising “Walk All Over Cancer”. Walking 10,000 a steps a day in March. HOW MANY STEPS IS THAT? It adds up. According to the…
DAMAGES AND THE SCHEDULE OF DAMAGES IN PERSONAL INJURY CASES: AVOIDING THE PITFALLS: WEBINAR 4th MARCH 2021
This webinar on the 4th March 2021 is part of the Avoiding Pitfalls series. It looks at rules and practice relating to drafting and proving damages in personal injury cases. The webinar considers schedules of damages and proving damages with…
PROVING THINGS 204: WHY FIRST-HAND EVIDENCE IS IMPORTANT: “THE FIRST HAND EVIDENCE… IS TO BE PREFERRED OVER THOSE WHO GAVE EVIDENCE FOR THE BANK”
In Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Chief Insolvency Court Judge Briggs considered the Gestmin principles in a case where a bank failed to establish that a client had signed a guarantee. It is a good example…
CIVIL PROCEDURE BACK TO BASICS 90: APPEALS, RESPONDENT’S NOTICES AND DENTON
The Court of Appeal judgment in Unite the Union v Alec McfAdden [2021] EWCA Civ 199 highlights the needs for a party, responding to an appeal, to file a Respondent’s Notice if it wants to argue there are additional, or…
ADJOURNMENT OF TRIAL ON THE GROUNDS OF ILL-HEALTH: COURT OF APPEAL OVERTURNS DECISION THAT HEARING SHOULD GO AHEAD: A TRIAL SHOULD BE “FAIR IN ALL THE CIRCUMSTANCES”
“Applying for an adjournment on the grounds of ill health” is a common (indeed one of the most common) search terms that leads people to this blog. It is unusual to see a Court of Appeal decision on this issue….
CIVIL PROCEDURE BACK TO BASICS 89: THE 2% CAP ON COSTS BUDGETING: SOMETHING TO WATCH OUT FOR
Some draft orders for CCMCs I have seen recently included, towards the end a provision for the 2% cap on the budgeting process to be be applied. Anyone faced with such a draft should point to the provisions of CPR…
ADJOURNMENT OF A TRIAL IS A “LAST RESORT” (AND WILL RARELY OCCUR BECAUSE OF INABILITY OF SPECIFIC COUNSEL TO ATTEND)
The judgment of Mr Justice Fordham in Naylor v University Hospitals of Leicester NHS Trust [2021] EWHC 340 (QB) shows the difficulty of obtaining an adjournment of a trial date. The judge rejected an application on the grounds of…
“Closing argument was in writing: an eye-glazing, bum-numbing, disc-herniating total of 662 pages (single-spaced, medium-sized font and heavily footnoted)”: A good time to repeat one of our favourite cases…
Periodically I feel bound to remind people of the case of The Hearing Clinic (Niagara Falls) Inc -v- Ontario Ltd, Lewis & Lewis 2014 ONAC 5831 (CanLii) a decision of Mr Justice J.W.Quinn. In the middle of “lockdown”, when we may well…
“TOPSY TURVY STATUTORY CONSTRUCTION”: THE CORONAVIRUS ACT DOES NOT ALLOW THE BROADCASTING OF THE COURTS
In Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care [2021] EWHC 346 (Admin) Mr Justice Chamberlain rejected an argument that the Coronavirus Act implicitly gave the courts power…
WHERE HAVE ALL THE CIVIL PROCEDURE RULES GONE? (2): A LONG TIME MAY NOT BE PASSING (AND SOME – MAYBE NOT SO USEFUL – LINKS)
As an update on the decision to move the online version of the Civil Procedure Rules. David Wolfson QC, (Parliamentary Under-Secretary of State for Justice) tweeted yesterday that the problem had been recognised “I’ve asked my officials to look at…
WHEN YOUR PLEADED CASE IS DIFFERENT TO YOUR EVIDENCE: YOU ARE TAKING A HUGE GAMBLE (WHICH DIDN’T PAY OFF…)
The judgment of Gavin Mansfield QC (sitting as a High Court judge) in Puharic v Silverbond Enterprises Ltd [2021] EWHC 351 (QB) highlights the difficulties that can occur if the pleaded case differs from the evidence. Put bluntly running a…
THE TORT OF “BRINGING PROCEEDINGS FOR AN IMPROPER PURPOSE”: MAY STILL BE ALIVE, BUT NOT VERY WELL…
The judgment of Andrew Lenon QC in Kings Security Systems Ltd v King & Anor [2021] EWHC 325 (Ch) contains a detailed consideration of the tort of “bringing proceedings for an improper purpose”. This tort (may well) still exist, however…
WHERE HAVE ALL THE CIVIL PROCEDURE RULES GONE? WHEN WILL THEY EVER LEARN?
From the day this blog started there has always been a link to the Civil Procedure Rules. These were available, in an easily accessible form, on the Ministry of Justice website. They may still be there – but not for…
A “WHOLLY UNRELIABLE” WITNESS IS NOT NECESSARILY A DISHONEST ONE: ALLEGATIONS OF FUNDMENTAL DISHONESTY NOT ACCEPTED BY JUDGE
In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB) HHJ Platts (sitting as a High Court Judge) rejected the defendant’s case that a witness who was “wholly unreliable” was also fundamentally dishonest. “Failing…
CONTRACTUAL CLAIM FOR COSTS CONSTRUED AS BEING COSTS ON AN INDEMNITY BASIS
In Criterion Buildings Ltd v McKinsey & Company Inc (United Kingdom) & Anor [2021] EWHC 314 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) rejected a paying party’s argument that it did not have to pay the costs…
USING PART 8 PROCEEDINGS INSTEAD OF APPEALING IS AN ABUSE OF PROCESS: A TAXING ISSUE OF SOME INTEREST
In Revenue And Customs v MCX Dunlin (UK) Ltd [2021] EWCA Civ 186 the Court of Appeal held that the use of Part 8 proceedings, rather than a statutory route of appeal was an abuse of process. “… it seems…
REPLIES TO DEFENCES: WHY AND WHEN…
A post yesterday made me think that this is an opportune time to re-visit the function of the Reply in litigation. I am here concerned only with a Reply to a Defence which is, essentially voluntary, not a Defence to…
EVIDENCE AND WITNESS STATEMENTS: AVOIDING THE PITFALLS: WEBINAR 25th FEBRUARY 2021
I am giving a webinar on avoiding the pitfalls in evidence and witness statements on the 25th February 2021. Details are available here. “Unfortunately, rules practice directions and guidance as to the content of witness statements appeal to be…
YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM
About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …
NEW RULES COMING INTO FORCE IN APRIL 2021 4: NON-DISCLOSURE OF AFFIDAVITS
A new rule coming into force on the 6th April 2021 expressly extends the prohibition on the use of witness statements in proceedings to affidavits. THE ISSUE There is currently a lacuna in the rules. There is a prohibition on…
VICARIOUS TRAUMA IN THE LEGAL PROFESSION: A REVIEW: A BOOK WELL WORTH BUYING
This is a book that is long overdue. A careful and detailed consideration of issues relating to trauma and burnout in the legal profession. It is both topical (covering the impact of Covid) and also wider ranging than the short…
ARGUING ABOUT COSTS – WHEN YOURS ARE BIGGER THAN THEIRS
In HXA & Anor v Surrey County Council [2021] EWHC 250 (QB) Deputy Master Bagot QC struck out part of the claimant’s claim for damages against the defendant local authority. This blog, however, is interested in the question of costs….
ANOTHER UNSUCCESSFUL ATTEMPT TO SQUEEZE EXPERT EVIDENCE INTO A WITNESS STATEMENT
A common search term that leads to this blog is “opinion evidence in witness statements”, this remains a major issue in many areas of practice. It can be seen in the judgment of HHJ Hacon in Penhallurick v MD5 Ltd…
THE IMPORTANCE OF ACCURATE WITNESS STATEMENTS: TURN DOWN £60,000 AND PAY OUT £90,000 INSTEAD…
One case that exemplifies the dangers of taking an “incomplete” witness statement is the decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC. This case gives a working example of the…
SOLICITORS NOT ENTITLED TO INDEMNITY COSTS BY RELYING ON CONTRACTUAL TERMS: A FORMER CLIENT’S SUCCESSFUL APPEAL
I am grateful to barrister Ted Loveday for sending me a copy of the judgment of Mr Recorder Cohen QC in Carmen Chevalier-Firescu -v- Ashford LLP (29th January 2021, Central London County Court, a copy of which is availableChevalier-Firescu -…
KIDS CLUB AND THE DANGERS OF SELECTIVE EVIDENCE: WITNESS STATEMENTS IN AN INSOLVENCY CONTEXT
The decision in the Official Receiver -v- Batmanghelidh and others [2021] EWHC 175 (Ch) involves some consideration of the way in which the claimant presented the evidence. Whilst the claimant was under a particular duty in this case this involves…
PROCEDURE, SUMMARY JUDGMENT, “SURMISE AND MICAWBERISM” AND… THE ROYAL FAMILY
A blog about civil procedure doesn’t get to write about the Royal Family much. However the judgment of Mr Justice Warby in HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) strays into our territory. There…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
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