APPEAL AGAINST DISPROPORTIONAL COSTS FAILS: REASONABLE TO USE LEADING COUNSEL IN A £25,000 CLAIM
In East Sussex Fire And Rescue Service v Austin [2019] EWHC 1455 (QB) Mrs Justice Lambert dismissed the defendant’s (paying party) appeal. The defendant argued that costs were disproportional, that the use of leading counsel was unreasonable – as was…
ATTEMPTING TO OBTAIN EXTENSIONS OF TIME BY INFORMAL EMAIL : THE COURT TAKES A “SINGULARLY DIM VIEW” OF ATTEMPTS BY PARTIES TO CIRCUMVENT THE RULES (OH, AND BUNDLES AGAIN)
In Saint Benedict Land Trust Ltd v London Borough of Camden & Anor [2019] EWHC 1433 (Ch) (17 May 2019) Mr Justice Marcus Smith took a very dim view indeed of an attempt by a litigant to obtain an extension…
PROVING THINGS 154: CLOSE CONNECTION IN TIME DOES NOT ESTABLISH CAUSATION IN A CLINICAL NEGLIGENCE CASE: EXPERTS STRAYING BEYOND THEIR AREA OF EXPERTISE
In AXO v Salisbury NHS Foundation Trust [2019] EWHC 1454 (QB) Mrs Justice YIP considered the issue of causation in a clinical negligence case. Liability was admitted but the claimant failed to establish causation. THE CASE The claimant child was…
COSTS & CASH FLOW: PAYMENT ON ACCOUNT PART WAY THROUGH AN ACTION: INTERIM PAYMENTS AND COST EFFECTIVE CONDUCT OF LITIGATION (ITS THE POST OFFICE CASE AGAIN)
The one certainty in litigation at the moment is that the Bates -v- Post Office case is going to keep providing plenty of material on evidence, procedure and costs. We see this in the judgment Bates & Ors v Post…
PROPORTIONALITY: A WARNING AGAINST A “CLIENT-CENTRIC” APPROACH: £74,000 REDUCED TO £15,000: HIGH COURT CASE ON APPEAL
In Malmsten v Bohinc [2019] EWHC 1386 (Ch) Mr Justice Marcus Smith allowed a paying party’s appeal in an assessment and reduced a bill from £74,328.90 to £15,000. There is a detailed consideration of how the proportionality test should be…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
A REFRESHER COURSE (1): THE STATEMENT OF TRUTH : “NOT AN IRRELEVANT MANTRA OR MERE VERBIAGE”
The previous post on this blog was about the importance of giving the source of information or belief and first hand witness evidence. However whenever a lawyer signs a document with a statement of truth they are taking their career…
THE DANGERS OF A LAWYER GIVING EVIDENCE: A “SOMEWHAT STRANGLED VERSION” OF THE SOURCE OF INFORMATION & BELIEF: SUMMARY JUDGMENT APPLICATION DISMISSED BECAUSE OF PAUCITY OF FIRST-HAND EVIDENCE
There are numerous posts on the blog about the need for first-hand evidence to be given, and the dangers of a lawyer making witness statements. These risks are exemplified in the judgment of Chief Master Marsh today in The David…
EXPERT WITNESSES: A CRISIS IN THE CRIMINAL COURTS – RECOMMENDED READING FOR ALL LITIGATORS
Matthew Scott’s “Barrister Blogger” blog is always an interesting read. His latest post Expert witnesses: a crisis in the criminal courts is essential reading for everyone involved in any type of litigation – and also for anyone who is an…
LIMITATION: SECTION 33 APPLICATION SUCCESSFUL – 38 YEARS AFTER THE EVENT COMPLAINED OF
In FZO v Adams & Anor [2018] EWHC 3584 (QB) Mrs Justice Cutts exercised the Section 33 discretion in a case brought 25 – 30 years after the expiry of the applicable limitation period and where the events happened 38…
MOTOR INSURERS BUREAU IS LIABLE TO COVER VEHICLE BEING DRIVEN OFF ROAD: COURT OF APPEAL DECISION TODAY
NB THE PRACTICAL EFFECT OF THIS DECISION WAS OVERTURNED BY THE THE MOTOR INSURERS (COMPULSORY INSURANCE) ACT 2022 In Motor Insurers’ Bureau v Lewis [2019] EWCA Civ 909 the Court of Appeal upheld the finding of Mr Justice Soole that…
COSTS AGAINST CHILDREN AND LITIGATION FRIENDS: COURT HAS A DISCRETION TO ORDER COSTS AGAINST CHILD LITIGANTS
In the judgment today in Barker v Confiànce Ltd & Ors [2019] EWHC 1401 (Ch) Mr Justice Morgan considered whether costs could be ordered against child claimants and/or their litigation friend. He found that no special principles apply to prevent…
PROCEDURAL ISSUES ON COMMITTAL APPLICATIONS: GETTING THE PROCEDURE RIGHT
The judgment of Mr Justice Warby in Quantum Tuning Ltd v White [2019] EWHC 1376 (QB) highlights some errors made in a committal application. Fortunately for the claimant in that case the procedural errors were overlooked and contempt established. Nevertheless…
MASTER ENTITLED TO STRIKE OUT UNPARTICULARISED GROUNDS OF DISPUTE IN SOLICITOR AND OWN CLIENT ASSESSMENT: BE PARTICULAR OR ELSE…
In Ainsworth -v- Stewarts Law LLP [2019] EWCA Civ 897 HHJ Klein (sitting as a High Court judge) dismissed an appeal against an order dismissing a former client’s challenge to work done on documents. The Master held that the claimant’s…
THE EXPERT WITNESS AND THE “HIRED GUN”: THE FACT THAT EXPERTS WERE VERY EXPENSIVE (AND FEES WERE FIXED IN RETROSPECT) DID NOT MAKE THEM UNRELIABLE
In O’Leary v Mercy University Hospital Cork Ltd [2019] IESC 48 the Supreme Court of Ireland made some telling observations on the role of the expert witness. Problems with experts are clearly not confined to one jurisdiction. OPENING OBSERVATIONS OF…
ROBIN BUTCHARD: FRIEND, HUSBAND, FATHER, CRICKETER AND CLERK
Robin (“Rob”) Butchard was the Senior Clerk and Chief Executive at Zenith Chambers for many years. I was saddened to learn of his death yesterday. Here are a few personal words to mark the end of Rob’s remarkable innings. …
GUIDANCE ON INSTRUCTING EXPERTS (4): THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
This blog looked recently at the case of O v B-M [2019] EWFC B23 where the trial judge was critical of a jointly instructed expert’s attempt to find facts and state that something was “proven by overwhelming evidence”. That case contains…
ASKING QUESTIONS AFTER JUDGMENT: NOT TO BE USED IN AN ATTEMPT TO RE-OPEN THE CASE (OR ARGUE A DIFFERENT CASE ON DIFFERENT GROUNDS)
I am looking again at the decision in O v B-M [2019] EWFC B23. That case predates the more recent Court of Appeal judgment in Children [2019] EWCA Civ 898. However it is another example of a party attempting to use the…
THE APPOINTMENT OF A SINGLE JOINT EXPERT DOES NOT DISPLACE THE TRIAL JUDGE: EXPERTS SHOULD NOT “OVERREACH”
In O v B-M [2019] EWFC B23 Mr Recorder Allen QC noted that a Single Joint Expert had gone beyond their remit in making findings of “fact”. The parties do not “abdicate” findings to a single joint experts and the…
GUIDANCE ON INSTRUCTING EXPERTS (3): THE INSTRUCTION OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE
We are returning to the Civil Justice Council “Guidance for the instruction of experts in civil claims”. This time the guidance on the instruction of experts. Remember this guidance is incorporated into the rules. It provides a essential information as…
“VERY UNFORTUNATELY, ON TWO OCCASIONS… THE … JUDGE FELL ASLEEP”: APPEAL ALLOWED
In Science Museum Group v Wess [2019] UKEAT 0260 HHJ Auberach made a finding that the Employment Judge had fallen asleep. The appeal was allowed on this ground alone. “I find as a fact that, very unfortunately, on the afternoon…
GUIDANCE ON INSTRUCTING EXPERTS (2): THE APPOINTMENT OF EXPERTS: THE CIVIL JUSTICE COUNCIL GUIDANCE
The importance of the guidance given by the Civil Justice Council “Guidance for the instruction of experts in civil claims” is often overlooked. Not only are few people aware of exist of the guidance, fewer still are aware that it…
DRAFT JUDGMENTS “ARE NOT AN INVITATION TO TREAT”: COURT OF APPEAL SEEKS TO PUT AN END TO REQUEST THAT ARE “CONFRONTATIONAL AND DISRESPECTFUL”
In I Children [2019] EWCA Civ 898 the Court of Appeal gave clear guidance to practitioners who write to the court seeking “clarification” of a written judgment. There are clear parameters and the parties should not use the draft judgment…
GUIDANCE ON INSTRUCTING EXPERTS (1): GUIDANCE FROM THE LAWYERIST: “MUCH LIKE A COWBOY HERDING CATTLE”
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known and widely reported recently. This is one of the matters that crosses boundaries and gives rise to common problems across…
WHO IS AN EXPERT? NOW THERE’S A QUESTION: DEFINITIONS OF “EXPERT” CONSIDERED
The collapse of the “carbon credit fraud” prosecution today because an “expert” was found out to have no actual expertise leads to consideration of how exactly the courts define an “expert” . This does not give rise to a straightforward…
PROVING THINGS 153: “YOU DO NOT WIN A CASE ON INCONSISTENCIES”: WHEN THE APPLICANTS “PURSUED A CONFUSED AND POORLY EVIDENCED CASE FOR LITTLE PURPOSE”
Most cases are lost not on issues of law but on issues of evidence. In Stewart & Ors v Watkin [2019] EWHC 1311 (Ch) ICC Judge Barber was particularly scathing of the quality of the applicants’ evidence. The judgment contains…
“THIS WAS A DECISION TAKEN ON FACTS UNSUPPORTED BY EVIDENCE”: MASSIVE INCOMPETENCE BY THE PAROLE BOARD: WHERE TWO CASES GET CONFUSED – HOW CAN WE SLEEP AT NIGHT?
It is unusual for this blog to look at decisions relating to Parole Board. However the careful gathering and analysis of evidence is central to every litigator’s role. A remarkable set of facts is outlined in the judgment of HHJ…
COURT OF APPEAL: NOT TOO KEEN ON PERMISSION BEING GRANTED FOR “ACADEMIC” ARGUMENTS
In J-S (Children) [2019] EWCA Civ 894, the Court of Appeal declined to hear an argument that was “academic”. It also gave guidance to judges when considering applications for permission to appeal on the “other compelling reason for an appeal”…
PART 36 OFFER ON HOURLY RATE WAS VALID: HOWEVER INJUSTICE TEST MEANT CLAIMANT WOULD NOT RECOVER AN ADDITIONAL AMOUNT: MERE GAMESMANSHIP SHOULD BE AVOIDED
In White & Anor v Wincott Galliford Ltd [2019] EWHC B6 (Costs) Deputy Master Friston considered the effect of a Part 36 offer on the hourly rates to be applied on an assessment of costs. It was held that the…
PERMISSION TO APPEAL: THE RELEVANT TEST: NO REQUIREMENT THAT SUCCESS BE PROBABLE OR MORE LIKELY THAN NOT
In R (A Child) [2019] EWCA Civ 895 the Court of Appeal set out the criteria for permission for appeal. “The test for the grant of permission to appeal on an application to the Court of Appeal or to the…
HOUSING AND LEGAL WORK IN NON-PROFIT VOLUNTARY ORGANISATIONS: ADVERTISE YOUR JOBS HERE
One of the doyennes of legal bloggers, Giles Peaker, has taken a short break. This leaves at least two gaps in the provision of the valuable services he gives the legal community. HOUSING AND VOLUNTARY SECTION LAWYERS – PLACE YOUR…
CIVIL PROCEDURE BACK TO BASICS 47: THE FORMAL (AND MANDATORY) REQUIREMENTS OF A WITNESS STATEMENT: A CHECKLIST
Another short post caused by a discussion on Twitter about the number of witness statements that fail to comply with the most basic, mandatory, obligations in the Rules. The formal requirements of a witness statement are overlooked at the litigator’s…
CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET
There is an ongoing debate going on on Twitter at the moment about “how to instruct counsel”. More particularly the problems caused by “instructions” being sent in a chain of emails (or other electronic communication) with major difficulties in finding…
PROVING THINGS 152: CLAIMANT, BRINGING ACTION 50 YEARS AFTER THE EVENT, NOT QUITE THROWN TO THE WOLVES, BUT…
Davies v Wolverhampton Wanderers Football Club (1986) Ltd [2019] EWHC 1252 (Ch) is an example of a case that rested on a very thin strand of , as it turned out extremely flimsy, evidence. “He is giving evidence about events…
ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION
In Hilson v McCarthy [2019] EWHC 1110 (Admin) the Divisional Court confirmed that the appellants had harassed a judge unlawfully and amounted to harassment. It is an important case for anyone involved in the legal system. “in examining the nature…
RESILING FROM ADMISSIONS – ISN’T THAT EASY : WITH A HOMAGE TO THE WIT AND WISDOM OF RALPH GUIDE DOG (RETIRED)
I got nudged into writing this post on withdrawing from admissions by Ralph Guide Dog, (Retired). So, especially for Ralph – who has always taken a keen interest in all things legal, the latest High Court decision on resiling from…
ANOTHER TRIAL BUNDLE CASE: ACTION STRUCK OUT FOR FAILURE TO PREPARE TRIAL BUNDLE: APPEAL AGAINST STRIKING OUT DISMISSED
In Al-Balhaa v Raphael & Ors [2019] EWHC 1323 (QB) Mr Justice Nicol upheld a finding that the action was struck out because of the claimant’s failure to prepare a trial bundle and relief from sanctions should not be granted. …
A CAVALCADE OF COSTS CASES: HOLIDAY READING: SOMETHING TO CHEER UP COST LAWYERS OVER THE BANK HOLIDAY WEEKEND…
A number of costs cases have arrived on BAILLI all are decisions of Master Rowley relating to costs. EXCLUDING INTEREST ON COSTS MEANS THAT THIS IS NOT A PART 36 OFFER Ngassa v The Home Office & Anor [2018] EWHC…
APPELLANT’S COSTS OF APPEAL WERE “MANIFESTLY UNREASONABLE” : COURT OF APPEAL REDUCES £71,072 SCHEDULE TO £13,000
A short postcript to the Court of Appeal judgment in Jofa Ltd & Anor v Benherst Finance Ltd & Anor [2019] EWCA Civ 899 makes some telling remarks about the cost of appeals. “the amount of costs claimed by the…
PART 36 OFFER ON COSTS THAT STATES IT IS “EXCLUSIVE OF INTEREST” IS STILL A VALID OFFER: HIGH COURT DECISION CONSIDERED
I am grateful to barrister Jamie Carpenter for sending me a copy of the decision of Mr Justice Nicol in Horne -v- Prescot (No 1) Ltd 2019 1322 (QB). The case relates to whether a Part 36 offer on costs,…
EXPERT EVIDENCE, LAW, PRACTICE AND PROCEDURE: WEBINAR 2nd JULY 2019
There are more than 500 posts on this blog that deal with, or mention, expert evidence. It is a central feature of much litigation. I am giving a webinar on the relevant law, practice and procedure of experts on the…
PROVING THINGS 151: DEPENDENCY IN A FATAL ACCIDENT ACT CLAIM: ADULT CHILD DEPENDANTS RECEIVE DAMAGES FOR FUTURE CONTRIBUTIONS TO WEDDINGS AND TOWARDS THEIR FIRST HOME
In AB v KL [2019] EWHC 611 (QB) David Edwards QC (sitting as a judge of the High Court) considered the nature of the evidence needed to establish damages under the Fatal Accidents Act 1976. It is also important both…
ADVICE FROM ACROSS THE PROFESSION AND AROUND THE WORLD: “CROWD SOURCED” GUIDANCE: THANKS FOR ALL THE TWEETS
There have been a number of occasions when I have put contributions from people on Twitter on this blog. This is usually in response to specific questions and issues raised. People have been generous in their time and Advice. I…
PART 36: WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: NO INTEREST ON THE ADDITIONAL £75,000
In FZO v Adams & Anor [2019] EWHC 1286 (QB) Mrs Justice Cutts considered the issue of whether interest was payable on the additional sums that a defendant pays when a claimant beats their own Part 36 offer. THE CASE…
PROVING THINGS 150: CLAIMANT FAILS TO ESTABLISH THAT THE MOVE FROM LEGAL AID TO CONDITIONAL FEE AGREEMENT WAS A REASONABLE STEP
In YZ v Gloucestershire Hospitals NHS Foundation Trust [2019] EWHC B4 (Costs) Master Gordon-Saker found that the claimant had not established good grounds for changing from legal aid to a conditional fee agreement. Although this is a costs issue, it…
REASONABLE COSTS WERE PROPORTIONATE: MORE THAN MONEY AT STAKE – COSTS NOT REDUCED
In Various Claimants (In Wave 2 of the Mirror Newspapers Hacking Litigation) v MGN Ltd[2018] EWHC B19 Master Saker had to consider the issue of proportionality of costs directly, and held that – on the facts of that case -…
THE PURPOSE OF PUPILLAGE – JUDICIALLY DEFINED
In Ekperigin v Bar Standards Board [2019] EWHC 1292 (Admin) Holman J considered the purpose of pupillage. “It is the stage in which, by a form of “osmosis”, a barrister at the outset of his*career learns and absorbs what it…
SIGNATURES, ELECTRONIC SIGNATURES AND STATEMENTS OF TRUTH: A BRIEF REFRESHER
One aspect of the decision in Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 that may be unique is the fact that the court will be considering the statement of truth certified by an electronic signature. That case emphasises, if…
TRYING TO SERVE A SUPPLEMENTAL EXPERT’S REPORT: WHEN DO THE DENTON PRINCIPLES APPLY?
In Global Horizons Corporation -v- Gray [2019] EWHC 1132 (Ch) Mr Justice Arnold considered the question of when the Denton principles apply to service of a “supplementary” medical report. “… the question of whether an application for permission to…
BECOME ONE OF THE GREAT (NON-ALCOHOLIC) WINE OR BEER BUFFS (AND THERE IS CHOCOLATE IN IT TOO)
The Auxilium Group have laid down a challenge to get people interested in non-alcoholic wine and/or beer. Write a review in the style of one of the great wine buffs of our time. They have sent me the rules. THE…
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