“THE COURT REFORM PROGRAMME IS MARKED BY RECKLESSNESS AND LACK OF FORESIGHT”: VIEWS FROM THE FRONT LINE: MORE RESPONSES TO THE JUSTICE COMMITTEE
The responses to the Justice Committee review are a virtual gold mine of information for anyone interested in civil procedure and the practical impact of court reforms. The reforms have not meant improvements, far from it. This can be seen…
TELEPHONE HEARINGS WHEN COUNSEL WON’T ANSWER THE TELEPHONE: THE UNHAPPY LORD JUSTICE
There is a short judgment recently arrived on BAILLI which fits in well with the earlier post about telephone and electronic hearings. In Nixon & Anor v Secretary of State for the Home Department [2017] EWCA Civ 2694 Lord Justice…
CIVIL PROCEDURE BACK TO BASICS 45: THE COURT CAN REDUCE THE NUMBER OF WITNESSES AND EVIDENCE BEFORE TRIAL
We are looking at CPR 33.2(3) in relation to the reducing of witnesses or identifying issues prior to trial. THE RULE CPR 32.2(3) “(3) The court may give directions – (a) identifying or limiting the issues to which factual…
TALES FROM THE APIL CONFERENCE 4: TIME ESTIMATES FOR HEARINGS (AND WHY YOU SHOULD VISIT KINGSTON UPON HULL)
There were difficult choices to be made when delegates selected their particular lectures at the recent APIL conference. In a show of northern solidarity (and because I am interested in these kind of things) I went to see District Judge…
CLOSING COURTS: MORE MADNESS AND MAYHEM FROM HMCTS: CLOSING MORE COURTS & NO PROPER RESEARCH (BUT THEY’VE PAID £30 MILLION TO “CONSULTANTS” SO EVERYTHING WILL BE FINE
Anyone concerned with access to justice knows that this includes physical access. There have to be courts for people to go to.I want to encourage everyone to read and to respond to the HMCTS document “Fit for the future: transforming…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
PROVING THINGS 149: A JUDGE CAN FIND DISHONESTY ON THE FACTS BEFORE THEM EVEN IF IT IS NOT PLEADED
We are staying with the decision of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC). The claimant in that case had not pleaded fraud. The judge rejected the argument that the absence…
CIVIL PROCEDURE BACK TO BASICS 44: JUST DON’T WRITE RUDE THINGS : LANGUAGE THAT IS “FAR REMOVED FROM THE PROFESSIONAL COURTESY THAT SOLICITORS ARE EXPECTED TO SHOW EACH OTHER”
Don’t write rude things. Not even in internal emails or texts. One day it may (and probably will) come back to haunt you. Read the judgment of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor…
DECISION OVERTURNED BECAUSE OF UNFAIR JUDICIAL TREATMENT: “TAKING UP THE CUDGELS OF CROSS-EXAMINATION”
There are few cases that are overturned on the grounds of unfair judicial treatment. However this was one of grounds the appeal was allowed today in Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 “On numerous occasions, the Judge…
TALES FROM THE APIL CONFERENCE 3: EXPERT WITNESSES ON LIABILITY: THE DEFENDANT’S EXPERT “DID NOT TREAT THE DEFENDANT’S CASE WITH THE IMPARTIALITY WHICH HIS DUTY TO THE COURT REQUIRES”
Yesterday, at the conference, I was talking on the subject of the use of expert witnesses in establishing liability. There is an almost immutable rule of law that a new case comes along the day after you have been lecturing…
TALES FROM THE APIL CONFERENCE 2: SOCIAL MEDIA NORTH OF THE BORDER: “HE WAS ONE OF A GROUP OF MEN SIMILARLY DRESSED EXCEPT FOR THE TARTAN OF THEIR KILT”
This year sees the first APIL President from Scotland, Gordon Dalyell. As soon as I sent out the previous post on social media a a Scottish Sheriff, Sheriff Cubie, sent me an example of the use of social media in…
TALES FROM THE APIL CONFERENCE 1: SOCIAL MEDIA AND THE PERSONAL INJURY LITIGATOR
I have been at the APIL annual conference this week. Ostensibly to give a talk about expert evidence, but a blogger (indeed any practising lawyer) can never miss an opportunity to pick up ideas. I went to a “Fee earner…
RISK ASSESSMENTS: USEFUL LINKS: A HOMAGE TO THOSE AT THE APIL CONFERENCE TODAY (OR AT LEAST THOSE WHO ATTENDED MY TALK…)
In a seminar I gave earlier today I was speaking about the central importance of risk assessments in relation to liability. Risk assessments can be important to establishing liability and practical knowledge of the nature of risk assessments is important. …
PROVING THINGS 148: FUNDAMENTAL DISHONESTY PROVEN: NO NEED TO WAIT FOR ASSESSMENT OF DAMAGES
In Patel v Arriva Midlands Ltd & Anor [2019] EWHC 1216 (QB) HHJ Melissa Clarke (sitting as a High Court Judge) accepted the defendant’s argument that the claimant was fundamentally dishonest. The claim was struck out under Section 57 of…
COURT REFORM: VIEW FROM THE DISTRICT JUDGES: “WE QUESTION WHETHER THERE HAS BEEN MEANINGFUL (AS OPPOSED TO TOKEN) CONSULTATION WITH ALL LEVELS OF THE JUDICIARY”
The Justice Committee is carrying out an inquiry into the ongoing court reforms. The written evidence it has received is available here. I just want to highlight the views from The Association of Her Majesty’s District Judges. This makes interesting…
APPEALING FINDINGS OF FACT: THE UPHILL BATTLE
In Staechelin & Ors v ACLBDD Holdings Ltd & Ors [2019] EWCA Civ 817 Lord Justice Lewison set out a “cut out and keep” guide for parties attempting to appeal findings of fact. A reminder of the uphill battle that appellants…
DEFENDANT CAN ONLY RESPOND TO THE CASE AS PLEADED: COURT REJECTS CLAIMANTS’ ATTEMPTS TO INTRODUCE NEW ISSUES
There are two judgments on BAILLI this morning in the Glaxosmithkline case where the judge has resisted the claimants’ attempts to widen the scope of their case beyond the pleaded case and the issues set out in a Group Litigation…
CIVIL PROCEDURE BACK TO BASICS 43: CROSS EXAMINING EXPERTS: USEFUL GUIDES AND LINKS
Cross-examining experts is possibly one of the most daunting aspects of advocacy. If an advocate gets into a “debate” with an expert then the advocate normally loses. If the advocate is too brutal the cross-examination can backfire, too supine and…
THE BALLAD OF READING COUNTY COURT LIFT: IN POETRY
Barrister Rawdon Crozier has put the plight of Reading County Court life into a poem. It speaks for itself, as all good poetry should. The Ballad of Reading County Court Lift I never saw a lift which looked With…
THE BALLAD OF READING COUNTY COURT LIFT: THIS IS A TRAGEDY NOT A COMEDY
The earlier post about the Twitter account of broken lift in Reading County Court has already led to a lot of responses. This is a battle being fought with humour, however its consequences are serious, profoundly serious. Many people have…
THE BALLAD OF READING COUNTY COURT LIFT: THE LIFT WITH ITS OWN TWITTER ACCOUNT – AN ESCALATING PROBLEM
Last week I went to Reading County Court. This was a new court to me and I asked the Legal Twitterati for directions (“out of the station turn left at Snappy Snaps”, for anyone who needs to know). What was…
JUDGE REFUSES TO RECUSE HIMSELF: DEFENDANT APPEALS: APPEAL DISMISSED: ANOTHER ROUND IN THE POST OFFICE SAGA: ATTEMPTS TO HOLD THE COURT “IN TERROREM” SHOULD BE EXPLAINED
I did not blog, immediately, after the judgment in Bates & Ors v Post Office Ltd (No 4) [2019] EWHC 871 (QB because I suspected (indeed it was inevitable, given its approach to this litigation) that the Post Office would…
COSTS, COSTS LAWYERS, RESERVED AND UNRESERVED ACTIVITIES: PAYING PARTIES’ ARGUMENTS LARGELY UNSUCCESSFUL
In Allen v Brethertons LLP [2019] EWHC B3 (Costs) Master Leonard determined that the work done by a cost lawyer, and the team working with her, were recoverable costs. I am grateful to Mark Carlisle for drawing my attention to…
INNS OF COURT TO DELIVER THE BAR COURSE AT 30% REDUCTION IN PRICE (BUT ONLY IN LONDON…)
Ever since I found out that prospective pupils are told by some chambers to read this blog in advance of pupillage interviews I have felt a duty to look after these involuntary readers when I can. I have been sent…
CIVIL PROCEDURE BACK TO BASICS 42: WHY A DAY EARLY IS SO VERY DIFFERENT TO A DAY LATE: THE ROBERT CRITERIA
There is a world of different between a prospective and retrospective application to extend time, or comply with an order. Every litigator has to know about Robert -v- Momentum Services [2003] EWCA Civ 229. An application made in advance means that the…
FATAL ACCIDENTS: PROPOSED AMENDMENTS TO BEREAVEMENT PAYMENTS : ADVANCE NOTICE FOR LECTURES LATER IN THE YEAR (AND A NEW EDITION OF A BOOK…)
The government is, at long last, putting forward a draft remedial order to amend Section 1A of the Fatal Accidents Act 1976. This would allow cohabitees, who have been living together for more than two years, to recover the statutory…
APPEALING FINDINGS OF FACT: SEEKING FURTHER INFORMATION AND THE CONSTRUCTION OF EXPERT EVIDENCE
I am grateful to Charles Bagot QC for sending me a copy of the judgment of Mr Justice Birss in Price -v- Cwm Taf University Health Board [2019] EWHC 938 (QB). A transcript of the case is available on the…
CIVIL PROCEDURE BACK TO BASICS 42: NON-DISCLOSURE OF DOCUMENTS DURING THE COURSE OF PROCEEDINGS
This post arises out of a Twitter discussion. Someone was reporting that documents that had been disclosed during the course of ongoing litigation were being put copied onto social media. Is this allowed? THE RULES: NON-DISCLOSURE OF DOCUMENTS This is…
CIVIL PROCEDURE BACK TO BASICS 41: SEEKING CLARIFICATION OF A PART 36 OFFER: CPR 36.8
The decision in Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 , looked at earlier in this blog highlighted one part of CPR Part 36 that often goes unnoticed. It is important that a recipient of a Part 36 offer…
WHEN THINGS GO WRONG FOR A DEFENDANT AT TRIAL: FOUR LESSONS FROM ONE CASE: WHEN YOU HAVE AN EXPERT WHO STATES THEY ARE “BIASED”…
In Hanbury & Anor v Hugh James Solicitors (a firm) [2019] EWHC 1074 (QB) Mrs Justice Yip found that a firm of solicitors had been negligent in its conduct of a fatal accident case. There are a number of lessons…
DEFENDANT’S PART 36 OFFER WAS VALID: COURT OF APPEAL UPHOLD OFFER THAT REFERRED TO UNPLEADED COUNTERCLAIM AND SOUGHT 8% INTEREST AFTER EXPIRY
In Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 the Court of Appeal upheld a finding that a defendant’s Part 36 offer was a valid one. The offer related to a counterclaim that had yet to be…
LAWYERS, DEADLINES AND PROCRASTINATION: HOW DO YOU DEAL WITH IT? (“A DEADLINE… THAT IS ALL”)
Many of the cases that appear on this blog, particularly those dealing with sanctions and service, arise because things are left to the very last minute. We have looked before at lawyers and procrastination. I thought that perhaps this is…
COURT COULD NOT GO OUTSIDE FIXED COSTS REGIME: HOWEVER AN ORDER SEEKING INDEMNITY COSTS IS NOT AN “INTERIM” APPLICATION
I am grateful to Matthew Hoe from Taylor Rose for sending me a copy of the judgment of Mrs Justice Carr in Parsa -v- D.S. Smith PLC (25th March 2019) Parsa v D.S. Smith PLC – Approved Judgment -…
ASSESSING EVIDENCE 26 YEARS AFTER THE EVENT: THE JUDICIAL APPROACH
In Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1043 (Ch) John Kimbell QC (sitting as a High Court Judge) considered the question of assessing evidence of a brief incident, 26 years after the event, in a case…
CIVIL PROCEDURE BACK TO BASICS 40: HOW CIVIL JUDGES DECIDE CASES
In Knight & Anor v Knight & Ors [2019] EWHC 915 (Ch) HHJ Matthews (sitting as a High Court Judge) set out a summary of how civil judges decide cases. It is a useful reminder to all of those involved…
BEING A LAWYER AND BEING A PARENT: CAN THE TWO BE COMBINED? GUIDANCE FROM OUR FRIENDS ON TWITTER, WELL HERE’S A START AT LEAST
For the next crowd-s0urced advice to the profession we are looking at the difficult combination of lawyerhood and parenthood. How do you combine the two. What practical advice can you offer to those who try to combine practice with parenthood. …
DOES THE BASIC LAW OF EVIDENCE AND PROCEDURE RUN IN THE IMMIGRATION IMMIGRATION UPPER TRIBUNAL? A MATTER OF CONCERN TO US ALL
The Immigration Upper Tribunal does not appear to recognise some of the basic principles of civil evidence and appellate jurisdiction. Certainly this is the impression you get when reading the judgment of Lord Justice Davis in Palash v Secretary of…
PROVING THINGS 147: CLAIM FOR NOT PURSUING NEGLIGENT SOLICITORS LEADS TO NOMINAL DAMAGES ONLY: NO DAMAGES FOR “LOSS OF CHANCE”
The judgment in Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce also contains yet another example of claimants failing to prove any loss at trial. There was no evidence to support any claim for…
WITNESS STATEMENTS WHEN THE WITNESS CANNOT READ ENGLISH: NOT GROUNDS FOR STRIKING OUT, RELIEF FROM SANCTIONS MAY NOT BE REQUIRED
In Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce (sitting as a High Court Judge) considered the issues that arose when a point arose at the beginning of a trial in relation to signature…
NEW PRECEDENT R: STARTED TODAY (CONTAIN YOUR EXCITEMENT): USEFUL LINKS AND GUIDANCE
Credit to Costs Lawyer Jessica Swannell for reminding people on Linked In that the new Precedent R must be used from today. It is a good time to provide a link to the new form and some useful posts and…
ALLOCATION TO LEVEL OF JUDGE : “FAME” DOESN’T MATTER – THE TIME IT WILL TAKE TO OBTAIN A HEARING DOES
In Schumacher v Clarke [2019] EWHC 1031 (Ch) Chief Master Marsh held that the time it would take to obtain a hearing date is a factor in relation to which judge the matter would be allocated to. The Master also…
CIVIL PROCEDURE BACK TO BASICS 39: A NOTICE TO ADMIT FACTS: THE RULES AND CASE LAW
In a discussion about the 20th anniversary of the Civil Procedure Rules on Twitter today someone asked if “Notices to Admit Facts” were still available, they had not seen one for a long time. The rules still permit parties to…
tWENTY YEARS OF THE CIVIL PROCEDURE RULES: ALL THAT TIME AND THEY HAVE MADE FEW FRIENDS
I have already done a post on the 20th anniversary of the Civil Procedure Rules on the 26th April. In an effort to find supporters I tried again. The Civil Procedure Rules, it appears, has very few friends… …
CIVIL PROCEDURE BACK TO BASICS 38: THE DEFENCE TO COUNTERCLAIM
The previous post was about the “reply”. The rules relating to a Defence to Counterclaim are different. Very importantly the timing of the defence to counterclaim is different. There is an obligation on a claimant to properly and fully plead…
CIVIL PROCEDURE BACK TO BASICS 37: THE EVER SO HUMBLE REPLY: CANNOT BE USED TO BRING A NEW CLAIM
The closing passages of the judgment in Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) dealt with the Claimant’s reply. It is worthwhile looking at the rules and case law relating to this aspect of civil procedure. …
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT’S LATE APPLICATION TO RE-CAST ITS CASE
In Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) Martin Griffiths QC, sitting as a High Court judge, disallowed a late application to amend. It is another example of an application being made shortly before trial,…
AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors [2019] EWHC 949 (Ch) which provide another example. THE…
WITHOUT NOTICE APPLICATIONS: THE DUTY OF FULL AND FAIR DISCLOSURE – A CASE THAT ILLUSTRATES THE POINT
There is an interesting discussion of the duty to give full and fair disclosure in the judgment of HHJ Klein (sitting as a High Court judge) in Wild Brain Family International Ltd v Robson & Anor [2018] EWHC 3163 (Ch). …
CIVIL PROCEDURE BACK TO BASICS 36A: UNDERSTANDING “LITIGATION WISHFUL THINKING”
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
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