ROBUST DECISION TO STRIKE OUT PERSONAL INJURY CLAIM FOR NON-COMPLIANCE WITH RULES IS UPHELD ON APPEAL: BANDWAGONS & CRASH HELMETS IN BRADFORD COUNTY COURT
I am grateful to barrister Toby Coupe for sending me a copy of the decision of HHJ Gosnell in Aslam -v- The Secretary of State for Justice (17/05/2019), a copy of which is available here. Aslam v Secretary of…
CASE NOT STRUCK OUT AFTER A FOUR YEAR DELAY: ALTERNATIVE “SANCTION” ORDERED INSTEAD
In Alba Exotic Fruit SH PK v MSC Mediterranean Shipping Company S.A. [2019] EWHC 1779 (Comm) HHJ Rawlings considered the appropriate sanction where there had been a four year delay by the claimant in pursuing an action. This case is…
A SECOND – IDENTICAL – APPLICATION WAS AN ABUSE OF PROCESS AND DISMISSED ON THAT GROUND ALONE
In Lambert v Forest of Dean District Council & Ors [2019] EWHC 1763 (Ch) ICC Judge Mullen rejected an application on the grounds that it was an abuse of process. An identical application had been made earlier and struck out…
CIVIL PROCEDURE BACK TO BASICS 53A: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES: ALI -v-CHANNEL 5
Shortly after I completed the post on Part 36 offers after the costs budget has been confined to court fees Professor Dominic Regan reminded me that there is another example in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC…
TWO SHORT TWEETS THAT SUM UP THE STATE OF COURT ADMINISTRATION IN 2019
In the civil courts we don’t have someone like the Secret Barrister who exposes, carefully, clearly and meticulously, the shortcomings in the justice system. However two tweets from yesterday seem to me to exemplify the current state of court administration….
CIVIL PROCEDURE BACK TO BASICS 53: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES
This may be an ambitious subject for the back to basics series. However here I want to look at the situation where a party has failed to file their costs budget timeously and the budget has been confined to court…
“A BIT OF A SHORT BALL”: STATING THE JUDGE’S PRELIMINARY VIEW AS TO CREDIBILITY DOES NOT AMOUNT TO BIAS
There is an interesting discussion as to Judicial bias in the judgment of Mrs Justice Theis in X v Y (Permission to Appeal) [2019] EWHC 1713 (Fam). “The interjections by the judge during the hearing should be viewed not as…
THE ROLE OF THE SOLICITOR IN PERSONAL INJURY LITIGATION: IDEAS TAKEN FROM THE SECRET BARRISTER
There was a tweet yesterday from someone (a non-lawyer) asserting that personal injury lawyers did not need to know the law. His purpose, I suspect, was to lead on to an argument that the work could be done by someone…
CIVIL PROCEDURE BACK TO BASICS 52: THE REPLY AND DEFENCE TO COUNTERCLAIM: TO REPLY OR NOT TO REPLY – THAT IS THE QUESTION
Here we take a quick look at the rules and practice directions in relation to filing a Reply and Defence to a Counterclaim. In particular claimants should be very aware of the fact that a defendant can apply to enter…
CIVIL PROCEDURE BACK TO BASICS 51: BULLOCK AND SANDERSON ORDERS: COSTS WHERE THERE ARE MULTIPLE DEFENDANTS
When writing the previous post about a Bullock order it struck me that there may be some people not quite certain of what a “Bullock order ” or “Sanderson order” is. This gives rise to a need to explain those…
THE TRIAL JUDGE COULD SAY BULLOCKS TO THE COST ORDER: ON APPEAL, HOWEVER, THE CLAIMANT SHOULD NOT HAVE BEEN SO BULLISH
In Fouladi v Darout Ltd & Ors [2019] EWHC 1674 (Ch) Mr Justice Henry Carr refused an appeal against the making of a “Bullock” order in relation to the costs of a fourth defendant. The claimant, however, was not successful…
MEMORY IS FLUID AND MALLEABLE: CENTRAL TO THE OUTCOME OF A TRIAL: GESTMIN CONSIDERED AND APPLIED
Another aspect of the judgment in Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) was the trial depended largely on the judge’s assessment of the evidence of the claimant. There was reference, unsurprisingly, to Gestmin. “Memory is fluid…
WHEN THE EXPERT WITNESS ACTUALLY SAYS THEY ARE AN “ADVOCATE”: WHAT IS GOING TO HAPPEN?
In LIC Telecommunications SARL & Anor v VTB Capital Plc & Ors [2019] EWHC 1747 (Comm) Mrs Justice Moulder made some telling observations in relation to the expert evidence. THE CASE The application concerned whether certain proceedings were duly authorised….
I DON’T WANT YOUR SOLICITORS TO ACT FOR YOU: CLAIMANT’S APPLICATION FOR AN INJUNCTION REFUSED
In Glencairn IP Holdings Ltd & Anor v Product Specialities Inc (t/a Final Touch) & Anor [2019] EWHC 1733 (IPEC) HHJ Hacon dismissed the claimant’s application for an injunction to prevent the defendants’ solicitors acting for them. THE CASE The…
“CHARACTER EVIDENCE” IN CIVIL CASES: NOT ALLOWED (AND NOT MUCH USE ANYWAY)
In Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch) Mr Justice Nugee made some observations about evidence that was, in part, “character evidence”. THE CASE The claimant brought an action seeking damages after being advised to invest in…
PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS
In Bull v Desporte [2019] EWHC 1669 (QB) Mr Justice Knowles rejected the defendant’s argument that a Part 36 offer meant that she did not have to pay costs. THE CASE The claimant succeeded in an action for misuse of…
LATEST EDITION OF THE GUIDE TO FATAL ACCIDENTS: AVAILABLE NOW
There is, I suppose, no point in having a blog if you can’t tell people about your own books. The 4th edition of the Guide to Fatal Accidents is out and in (at least one) shop window. As well as…
BULLYING AT WORK: HOW DO YOU DEAL WITH IT? CONTRIBUTIONS FROM TWITTER
The earlier post dealt with useful links for dealing with bullying at work. Some people on Twitter also started to contribute. Additional contributions welcome, on Twitter or in the comments section to this blog. Mary Aspinall-Miles A topic that I…
PUTTING AN END TO BULLYING IN THE LEGAL PROFESSION: USEFUL LINKS
I was sad to read a Tweet from a practising barrister earlier today. The barrister tweets anonymously (and thus candidly). They describe a terrible situation of bullying within the legal profession and their decision to “bite back”. This led me…
INTERIM PAYMENT ON ACCOUNT OF COSTS: REASONS FOR REFUSING PERMISSION NOW AVAILABLE ON LINE
I wrote on the judgment in I – interim payment of costs. in an earlier post . I subsequently wrote that the defendant had been refused permission to appeal. The reasons are available on the Switalskis website, here. ” it seems entirely…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
RULE CHANGES (109): ELECTRONIC FILING, INCURRED COSTS AND THE CCMC, SMALL CLAIM HEARINGS IN PRIVATE
We are now on the 109th update to the Civil Procedure Rules. The three points I want to look at in particular are: mandatory electronic filing in the QBD; the costs of the CCMC being clearly categorised as incurred costs;…
CIVIL PROCEDURE BACK TO BASICS 49: THE CASE SUMMARY: THE RULES, SOME GUIDANCE AND AN EXAMPLE
A search term arrived on this blog today “how do I prepare a case summary for a civil litigation case”. A Case Summary should be prepared in virtually every Multi Track case. Very little is written about it. THE RULES…
CIVIL PROCEDURE BACK TO BASICS 48: AN APPLICATION TO SET ASIDE AN ORDER MADE WITHOUT NOTICE IS A REHEARING AND NOT A REVIEW (& NO NEED TO WORRY ABOUT THE TIBBLES CRITERIA GETTING ITS CLAWS INTO THE CASE EITHER)
One point that arose from the Court of Appeal decision in Al-Zahra (PVT) Hospital & Ors v DDM [2019] EWCA Civ 1103 contains observations which indicate that it is easy to lose sight of a basic point in relation to orders…
INTERIM PAYMENT ON ACCOUNT OF COSTS: PERMISSION TO APPEAL REFUSED BY THE COURT OF APPEAL
I wrote on the judgment in I – interim payment of costs. in an earlier post. An article on the Switalskis website today states that the Court of Appeal refused the defendant’s application for permission to appeal.( I know that the…
WHY DEFENDANTS HAVE TO KNOW THE RULES ABOUT SERVICE AND JURISDICTION AND ACT PROMPTLY: YOU’LL FIND YOURSELVES MAKING AN APPLICATION FOR RELIEF FROM SANCTIONS
The judgment today in Babcock Marine (Clyde) Ltd v HS Barrier Coatings Ltd [2019] EWHC 1659 (TCC) highlights the need for defendants to be prompt if they are making an application in relation to service or jurisdiction. CPR 11 gives…
EXTENSION OF TIME FOR SERVICE SET ASIDE: THE DANGERS OF SEEKING TO EXTEND THE LIFE OF A CLAIM FORM ON A WITHOUT NOTICE BASIS – EXEMPLIFIED
In Al-Zahra (PVT) Hospital & Ors v DDM [2019] EWCA Civ 1103 the Court of Appeal allowed an appeal by defendants who objected to an extension of time being granted for service of the claim form. It is an object…
A PARTY CAN’T DUMP DOCUMENTS ON THEIR OPPONENT THE NIGHT BEFORE A HEARING: JUDGE REFUSES PERMISSION TO RELY ON EVIDENCE SERVED VERY LATE
In Willow Corp S.À.R.L. v MTD Contractors Ltd [2019] EWHC 1591 (TCC) Mr Justice Pepperall refused to allow a party to rely on documents served very late in an application for summary judgment. The late “dumping” of documents, the evening…
BUNDLES: CIVIL CASES IN THE FAMILY DIVISION: COMPLY WITH THE RULES
In Re XY [2019] EWHC 1610 (Fam) Mr Justice Williams made it clear that all cases heard in the Family Division are subject to the Division rules relating to bundles. “For applications such as those under the Inheritance (Provision for…
SHOULD THE COURT ORDER A SPLIT TRIAL ON LIMITATION? THE FUTILITY OF CITING DECIDED CASES: “SCRIPTURE FROM WHICH THE DEVIL MAY FREELY QUOTE”
In Hutson v Tata Steel UK Ltd [2019] EWHC 1608 (QB) Mr Justice Turner refused the defendant’s application for a split trial on limitation in a group action. The judgment makes it clear that there is no “burden” on any…
BENCH WARRANT ISSUED IN CIVIL ACTION: WARRANT ISSUED TO ENSURE DEFENDANT’S ATTENDANCE AT A HEARING
In Hanson & Ors v Carlino & Anor [2019] EWHC 1366 (Ch) Mr Justice Birss issued a bench warrant to ensure a defendant’s attendance at a hearing. The defendant had a history of non-compliance and attempts to avoid the…
WHEN THINGS GO WRONG IN LITIGATION (AND ONE DAY THEY WILL)- TELL SOMEONE, HAVE A PLAN, DON’T LIE, AND READ STEVE CORNFORTH’S BLOG
Steve Cornforth’s blog contains a post this week “Why does this keep happening?” He points to, yet another, case of a fee earner ” whose career in in tatters because they have tried to cover up mistakes”. The post contains…
MAKING APPLICATIONS IN ADVANCE OF A BREACH: WHY A STITCH IN TIME OFTEN, BUT NOT INVARIABLY, SAVES AN APPLICANT
The post earlier today about the decision in Bedzhamov & Ors Re Vneshprombank LLC [2019] EWHC 1430 (Ch) was an example of the court refusing an application for an extension of time made in advance of the date of breach. The…
APPLICATION FOR EXTENSION MADE AHEAD OF TIME REFUSED: AN UNREASONABLE SECOND BITE OF THE CHERRY
In Bedzhamov & Ors Re Vneshprombank LLC [2019] EWHC 1430 (Ch) Mrs Justice Falk refused an application for an extension of time that had been made ahead of the date of compliance. In these circumstances the courts will normally grant…
JOB ADVERT: HOUSING EXPERT FOR CITIZENS ADVICE
Citizens Advice have a job for a Housing Expert on a six month contract. Details are below. The job appears to be very flexible as it can run from either Leeds, London or Birmingham. HOUSING EXPERT Flexible hours Job reference: 000268…
CLAIMANT SUCCESSFUL IN APPEAL IN RECOVERING ADDITIONAL 10% IN DAMAGES WHEN OWN OFFER WAS BEATEN: THE ADDITIONAL AWARD SHOULD NOT BE CATEGORISED AS A “BONUS”
In JLE v Warrington & Halton Hospitals NHS Trust Foundation Trust [2019] EWHC 1582 (QB) Mr Justice Stewart overturned an order of the Master who declined to award the claimant an additional 10% in costs when they had beat their…
SIXTH ANNIVERSARY OF CIVIL LITIGATION BRIEF (AS A BLOG): A REVIEW OF ADVICE RECEIVED FROM ACROSS THE PROFESSION AND ACROSS THE WORLD
Today marks the 6th anniversary of the blog. Last year I did a detailed review of many of the series and key points over the previous years. To celebrate this year I am concentrating on the contributions made by others….
PROVING THINGS 155: WITNESS EVIDENCE THAT GOES WRONG: HOTEL PROPRIETOR NOT LIABLE TO GUEST FOR ASSAULT BY TRESPASSER
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB) Mr Justice Dingemans found that proprietors of a hotel had not been in breach of duty when some of their guests had been assaulted by a…
THE ASSESSMENT OF WITNESS EVIDENCE: NOT A MINER MATTER: WITNESSES TEND TO REMEMBER WHAT THEY WANT TO BELIEVE
Many judgments in contested trial contain a section where the judge gives an overview of the witness evidence, and their assessment of the credibility of those who gave evidence. The judgment of HHJ Eyre QC in The National Union of…
JOB ADVERTISEMENT: PUBLIC/IMMIGRATION SOLICITOR & TRAINING LEAD: BASED IN SHEFFIELD & WORKING FOR THE ANTI-TRAFFICKING AND LABOUR EXPLOITATION UNIT
Giles Peaker in the Nearly Legal Housing Law blog does a major public service in providing advertising for jobs in housing and social welfare. Giles is taking a rest from blogging at the moment and I have taken up the…
THINKING OF MAKING AN APPLICATION FOR A WITHOUT NOTICE INJUNCTION? BEST READ THIS JUDGMENT
Any public body, indeed anyone, considering making an application for a without notice injunction is best advised to read the judgment of Mr Justice Warby in Birmingham City Council v Afsar & Ors [2019] EWHC 1560 (QB). “Urgency can…
LITIGATION THAT WAS “TOTALLY OUT OF PROPORTION”: THE CLAIMANT SHOULD HAVE CUT THEIR CASE TO SUIT THEIR CLOTH: (SOMETHING ABOUT BUNDLES TOO)
In White Winston Select Asset Funds LLC & Anor v Mahon & Anor [2019] EWHC 1381 (Ch) HHJ Simon Barker QC had some telling words about the manner in which the claimant had conducted litigation. What is remarkable about this…
WITHOUT NOTICE INJUNCTIONS 1: CLAIMANT’S APPLICATION FOR AN INJUNCTION GOES DOWN THE PAN
The judgment in Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch) has only recently arrived on BAILLI. However it is a case that shows the importance of disclosure in relation to without notice injunctions. What…
CASES TAKEN OUT OF THE LIST AT THE LAST MINUTE BECAUSE OF “LACK OF JUDICIAL TIME”: WHAT ARE THE CAUSES? YOU BE THE JUDGE
Not for the first time I return to the matter of hearings being taken out of the list at the very last moment. This is a longstanding problem that is getting worse. There were reports last week of two sets…
DEFENDANT REFUSED PERMISSION TO RELY ON “SPECIALIST” EVIDENCE AS TO LIFE EXPECTANCY: THE CIRCUMSTANCES IN WHICH SUCH EVIDENCE IS ALLOWED AND CONSIDERED
In Dodds v Arif & Anor [2019] EWHC 1512 (QB) Master Davison refused the defendant’s application to rely on a specialist report in relation to the claimant’s life expectancy. The judgment also contains an important summary of the circumstances in…
SERVING ON NOMINATED SOLICITORS: WHEN, WHERE AND WHY: TRYING TO STAY OUT OF TROUBLE
This is not the first time I have written about the need for care when serving the claim form on solicitors. I suspect it won’t be the last. The cases just keep on coming.The Court of Appeal decision in Woodward &…
APPLICATION TO COMMIT REFUSED BECAUSE THE DEFENDANT WAS NOT IN BREACH OF THE ORDER: WORDS ARE IMPORTANT: THE NEED FOR REPRESENTATION IN COMMITTAL PROCEEDINGS
A constant, worrying, theme on this blog has been the need for (and funding of) representation of defendants in civil committal proceedings. These concerns run alongside the many and manifest procedural errors that applicants (and sometimes judges) make when committal…
AN OFFER THAT IMPOSES A CONDITION AS TO COSTS IS NOT A VALID PART 36 OFFER: MERE FAILURE TO ACCEPT REASONABLE OFFER DOES NOT LEAD TO INDEMNITY COSTS
In Knight & Anor v Knight & Ors (Costs) [2019] EWHC 1545 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that an offer that attempted to limit costs was not a valid Part 36 offer. The judge…
FOOTBALL CLUB’S APPLICATION DOES NOT GET EXTRA TIME: APPLICATION FOR RELIEF FROM SANCTIONS IN ORDER TO DISPUTE AUTHENTICITY OF DOCUMENTS IS REFUSED
In UTB LLC v Sheffield United Ltd [2019] EWHC 1377 (Ch) Mr Justice Fancourt refused Sheffield United’s application for relief from sanctions so as to allow it to dispute the authenticity of documents during the course of a trial. “A…
CLAIMANT LAWYERS: YOU MUST KNOW THE RULES RELATING TO SERVICE OF THE CLAIM FORM: YOU CAN’T EXPECT THE DEFENDANT TO HELP YOU OUT
One guarantee for anyone writing about civil procedure is that there will be a regular supply of what Master McCloud has described as ” a dry and unlovely crop of procedural service issues”, The Court of Appeal decision in Woodward…
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