YOU CAN’T MAKE SOMEONE BANKRUPT IF THEY’VE GOT NOTHING: AN INTERESTING APPEAL
In Lock v Aylesbury Vale District Council [2018] EWHC 2015 (Ch) HHJ Hodge QC (sitting as a High Court judge) allowed an appeal against the granting of a bankruptcy petition. Essentially the petition should have not have been granted because the…
PUPILLAGE & HOW TO GET IT: A WHOLE NEW OUTLOOK: A WEBSITE WELL WORTH READING
One of the (many) surprising things I have come across as a result of starting this blog is a recommendation (almost a requirement) from a prominent set of chambers that their prospective pupils read it before attending for interviews ….
NON-PARTY COSTS ORDER AGAINST INSURER: UNTANGLING THE WEB
In Various Claimants v Giambrone & Law (a firm) & Ors [2019] EWHC 34 (QB) a non-party costs order was made against the defendant insurers. It provides a (fairly complex) example of a court determining a non-party order. This “summary procedure”…
TIME FOR APPEALING: ANOTHER TRICKY POINT TO WATCH: TIME RUNS FROM THE DATE OF THE DECISION AND NOT ANY LATER DATE: A HELPFUL GUIDE TO THE PROCEDURE TO BE FOLLOWED
In McDonald v Rose & Ors [2019] EWCA Civ 4 the Court of Appeal highlighted an important point in relation to the time for appealing. Time for appealing runs from the date that the decision is given, not a later date….
THE BUSINESS AND PROPERTY COURTS: GUIDANCE FOR THOSE WHO GO LIVE AT LEEDS
HHJ Malcolm Davis-White QC has sent out guidance for the County Court at Leeds Property and Business Work. Solicitors and advocates may want to note the strictures in relation the filing of bundles and skeleton arguments in particular. Note it…
APPEALS FROM DISTRICT JUDGES WHEN CASES HAVE BEEN RELEASED TO THEM: A POINT TO WATCH
The judgment of Mr Justice Morgan in Hilton v Cosnier [2018] EWHC 3728 (Ch) highlights a practical issue that is easy to overlook. Cases, that are normally tried by a Circuit Judge, can be released to a District Judge. Appeals from…
LEGAL FUTURES CIVIL LITIGATION CONFERENCE 19th MARCH 2019 (IF CARLSBERG DID CONFERENCES ABOUT LITIGATION…)
The Legal Futures Civil Litigation Conference is on the 19th March this year at the Grand Connaught Rooms in London. Details of the day and how to book can be found here. This should be a highly informative day. “This conference…
“A MISUSE OF JUDICIAL POWER”: A WITNESS SPEAKING TO LAWYER IN THE COURSE OF GIVING EVIDENCE DOES NOT JUSTIFY COMMITTAL OR STRIKING OUT A CASE
In the judgment today in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ the Court of Appeal robustly overturned a decision committing a witness to prison and striking out a case. It was found that the trial judge had,…
THE DEFENDANT’S “WRONG” APPLICATION TO DISPUTE JURISDICTION WAS STILL VALID: DEFENDANT ALLOWED EXTENSION OF TIME AND TO CORRECT APPLICATION
Twelve years ago, in Hoddinott and others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203; [2008] 1 WLR 806, the Court of Appeal held that the correct way for a defendant to challenge the validity of a claim form was to issue…
CLAIM FORM CASE IN THE COURT OF APPEAL: SERVICE OF CLAIM FORM BY UNAUTHORISED BODY DOES NOT RENDER SERVICE VOID (ALTHOUGH IT IS STILL NAUGHTY)
We have managed to get to the 15th day of the year without a service of the claim form case, to compensate for this there are two today. In Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ…
CIVIL PROCEDURE BACK TO BASICS 23: YOU CAN’T SUE THE DEAD: BUT YOU CAN SUE THEIR ESTATE: WHAT TO DO IF THERE IS NO ESTATE
This post is due to a search term that arrived on this blog today “how to join a deceased person to litigation”. The simple answer is that you can’t. An action has to be against the deceased’s estate. Attempting to…
BREXIT AND CIVIL PROCEDURE: EXPERTS ARE NOT BE CROSS EXAMINED ON FORESEEABILITY OF UK LEAVING THE EU
This is a far less exciting case than the headline suggests, however it is the first case I have seen about the impact of Brexit on civil procedure (albeit indirectly). In Canary Wharf (Bp4) T1 Ltd & Ors v European Medicines…
ADVOCACY THE JUDGE’S VIEW SERIES 3: PART 10: THE LAST POST: A CHANCE TO LOOK BACK ON THE THREE SERIES (SO FAR)
We have looked at guidance from judges from many parts of the world. Looking at what judges say about the way that cases are brought before them is a good way for advocates (and litigation lawyers in general) to know…
ADVOCACY: THE JUDGE’S VIEW: SERIES 3: PART 9: “DON’T BITCHSLAP YOUR OPPONENT”: GUIDANCE FROM A CRANKY JUDGE
Here we are going to the USA and looking at guidance given by Federal Judge Richard G Kopf in his blog Hercules and the Umpire. As every the aim here is to get you to read the original (follow the…
YOUR CHANCE TO WIN A SIGNED SECRET BARRISTER T-SHIRT: ONLINE AUCTION STARTS TODAY
With the help of the Secret Barrister we are once again raising money for the Billable Hour Charity, giving you a chance to win a signed Secret Barrister T-shirt. THE SHIRT This is one of the T-shirts designed for…
DEFENDANT’S APPLICATION FOR PRE-ACTION DISCLOSURE REFUSED: AN ORDER WOULD NOT SAVE COSTS OR ASSIST THE DISPUTE TO BE RESOLVED WITHOUT PROCEEDINGS
In Lacey v Leonard [2018] EWHC 3528 (QB) Mrs Justice Slade DBE upheld a decision refusing the defendant’s application for pre-action disclosure. The primary ground for refusal was that disclosure of medical records, and various documents relating to employment, would not…
LITIGANTS IN PERSON AND THE USE OF COURT TIME: AN EXAMPLE OF THINGS TO COME?
The case of Zaman v Portsmouth City Council [2018] EWHC 3592 (QB) makes interesting reading for anyone concerned about the effect that the increasing number of litigants in person could have on the court system. THE CASE The claimant sought payment…
FIXED COSTS DO NOT APPLY WHEN THEY ARE INCONSISTENT WITH THE TERMS OF CONSENT ORDER: JUDGMENT ON APPEAL IN THE COUNTY COURT
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL IN Ho v Adelekun [2019] EWCA Civ 1988, see the discussion here. I am grateful to Sam Hayman and Tom Jenkinson from Bolt Burdon Kemp for sending me a copy…
WITNESS STATEMENTS AND TRANSLATION: WHY YOU CAN’T RELY ON PD 22 IN RELATION TO WITNESS STATEMENTS
This is the third post on this subject in one day. Someone responded to the first post on the need to for witness statements to be in the language of the witness by asserting that Practice Direction 22 could be…
THE STATEMENT OF TRUTH AND WITNESSES WITH POOR ENGLISH: PRACTICE DIRECTION 22
The post earlier today about witness statements in a foreign language led (almost immediately) to a telephone enquiry as to what happens when a party cannot read or understand the statement of truth in a statement of case. The answer…
WHEN A WITNESS CANNOT SPEAK ENGLISH: INTERPRETING THE RULES: GUIDANCE FROM THE CASES
If a witness cannot speak English and a witness statement is required what needs to be done? There are several cases where the issue of translation has caused a problem at trial. The best guidance comes from the Family Division….
DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
ARROGANT, RUDE, SEXIST (AND AT TIMES BARELY LITERATE): THE MINISTRY OF JUSTICE: WE ALL DESERVE BETTER MUCH, MUCH BETTER
My “litigator’s New Year’s resolution” for 2019 was to recommend that everyone read more of Emily Dugan’s work on exposing the impact of the cuts at the Ministry of Justice. When I wrote the “resolution” I could not have conceived…
CIVIL PROCEDURE BACK TO BASICS 22: WHEN THE CLAIMANT ADOPTS ALLEGATIONS OF CONTRIBUTORY NEGLIGENCE: HOIST ON YOUR OWN PETARD
This post follows on from the previous post in relation to pleading the Defendant’s case in the alternative. Here we are looking at cases where a defendant pleads allegations of negligence and the claimant uses those allegations as allegations against the…
SKELETON ARGUMENTS: BE SUCCINCT AND TO THE POINT: “THE ISSUE WAS ALL BUT LOST IN THE PLETHORA OF PAPER”: COURT OF APPEAL FIRES WARNING SHOT
Now that Lord Justice Jackson has retired someone needs to take his place to provide the (more or less quarterly) reminder to practitioners to keep skeleton arguments short and to the point. Step in Lord Justice Hickinbottom in Harverye v The…
EXPERT WITNESS INDEPENDENCE AND IMPARTIALITY: HOW DO YOU DEAL WITH THE “BOMBASTIC BULLSHITTER”? A CHECKLIST TO ENSURE EXPERT IMPARTIALITY
I am grateful to Professor Penny Cooper for sending me a copy of the report she authored with Dr Michelle Mattison for the Expert Witness Institute – “Towards Expert Witness Independence and Impartiality”. This post is just a snapshot, to…
CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR
Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s…
BEING A LITIGATOR: “WHAT I’D TELL A YOUNGER ME” 2: BRIE STEVENS-HOARE QC
In the second in this series I popped into chambers at Hardwicke and spoke to property and probate law litigator Brie Stevens-Hoare QC. A QC since 2013 Brie is also Deputy Adjudicator to HM Land Registry and sits as a fee-paid…
ADVERSE INFERENCES DRAWN WHEN SOLICITOR DID NOT GIVE EVIDENCE: IF YOU’VE HAD £22 MILLION YOU NEED TO EXPLAIN IT
In The Lord Chancellor v Blavo & Co Solictors Ltd & Anor [2018] EWHC 3556 (QB) Mr Justice Pepperall found it was appropriate to draw adverse inferences when key participants did not give evidence. It is another example of the principles…
A NEW YEAR’S RESOLUTION FOR LITIGATORS: READ BUZZFEED MORE OFTEN: FIND OUT WHAT JUDGES REALLY THINK AND THE MOJ’S HIGHLY “SELECTIVE” USE OF STATISTICS
I have written before about the impressive work done by the journalist Emily Duggan on Buzzfeed News. Emily is one of the people who keeps a close, and sceptical, eye on what we are being told about reforms to the …
CIVIL LITIGATION REVIEW OF 2018 3: THE OPENING LINES OF JUDGMENTS: THE CACTI WINS IT…
Every year we look at the contenders for the best opening lines of a judgment. This year we have even looked abroad. The winner comes, perhaps surprisingly, from the Intellectual Property and Enterprise Court. THE TATOO ARTIST -v- THE…
CIVIL LITIGATION REVIEW OF 2018 2: CASE OF THE YEAR: HOW WINNING ON A PRELIMINARY ISSUE CAN LEAD YOU UP THE GARDEN PATH
There are no objective criteria for selecting case of the year. This year I have chosen Burges & Anor v Lejonvarn [2018] EWHC 3166 (TCC). This case is a classic illustration of a basic failure to prove things. It is of central…
CIVIL LITIGATION: REVIEW OF 2018 1: FACTS AND FIGURES: MOST READ POSTS & INTERESTING SEARCH TERMS
Rather than try one all-encompassing review of the year this will be done in a series of posts. THE TOP TEN BLOG POSTS OF 2018 With over 1, 145,000 views the blog remains fairly popular. It is interesting to see…
BAD WEATHER MEANT COURT SHOULD HAVE GRANTED AN ADJOURNMENT: THE RELEVANT PRINCIPLES CONSIDERED
In Pari-Jones v CPS [2018] EWHC 3482 (Admin) the Administrative Court allowed an appeal against a decision not to adjourn a trial. The magistrates’ court simply went ahead without referring to any of the relevant legal principles. Although these were criminal…
CLAIMANT BEATS ITS OWN PART 36 OFFER ON COSTS: DOESN’T GET ADDITIONAL 10%: “UNJUST” CONSIDERED
NB THIS DECISION WAS OVERTURNED ON APPEAL, SEE THE POST 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” A claimant who beats their own…
BOOK REVIEW: IN YOUR DEFENCE: A BARGAIN AT ANY PRICE
I have said before that it is the criminal (and family) lawyers that have the best tales. However there are always things we can learn. If you have a Kindle (or access to the Kindle app) “In Your Defence” by Sarah…
THE LEGAL CHRISTMAS MUSIC CONTEST 2018: THE WINNER
There were a large number of entries for the 2018 contest, all the entries can be seen here. There were reports of groups of lawyers taking parcels to their local foodbank. However, unfortunately, there can only be one winner. THE…
“DENTON” PRINCIPLES DO NOT APPLY TO SECTION 33 APPLICATIONS: HIGH COURT REJECTS DEFENDANT’S ARGUMENT THAT RELIEF FROM SANCTIONS PRINCIPLES SHOULD BE APPLIED TO LIMITATION ACT
In Ellis v Heart of England NHS Foundation Trust & Ors [2018] EWHC 3505 (Ch) HHJ McKenna (sitting in the High Court) roundly rejected an argument that the court should apply “Denton” type guidance to a claimant’s application to disapply the…
“MY SOLICITOR WROTE THAT STATEMENT”: A FAMILIAR TALE: HAVING A PLAN TO PROTECT YOURSELF
The previous post dealt with a case where the claimant’s witness statement was found to be “largely fictional”. This coincided with a number of posts on Twitter with various lawyers and judges (duly anonymous) commented on the situations in which…
THE WITNESS WHOSE STATEMENT WAS “SOMEWHAT FICTIONAL”: EXCELLENT EXPERTS WHO ROSE ABOVE THE FRAY
There are several aspects of the judgment in JAH v Burne & Ors [2018] EWHC 3461 (QB) that are of interest to civil litigators. Firstly it is another example of a case where the claimant’s witness statement was not accepted (at…
THE LEGAL CHRISTMAS MUSIC CONTEST 2018: ENTRIES
The Legal Christmas Music contest has now closed. The entries have been on a high standard, we are awaiting a reserved judgment from the experienced judging panel. THE CONTEST: A REMINDER This year we were looking for the best…
UNANTICIPATED SIZE OF DISCLOSURE WAS AN “UNANTICIPATED DEVELOPMENT”: UPWARD REVISION OF COST BUDGET ALLOWED
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2018] EWHC 3532 (QB) Master Davison allowed an upward variation of the cost budget. The scale of disclosure given by the defendant could not have been anticipated and it was reasonable…
STRIKING OUT A SECOND ACTION: DIFFERENT CLAIMANT BUT ESSENTIALLY THE SAME ACTION: HIGH COURT DECISION TODAY
In the judgment today Samuel v Samuel & Ors [2018] EWHC 3513 (Ch) Master Teverson struck out an action as an abuse of process. There had been earlier proceedings of a similar nature that had been compromised. Although there was…
NEW DISCLOSURE SCHEME IN THE BUSINESS AND PROPERTIES COURTS: USEFUL LINKS AND GUIDANCE
The Disclosure Pilot Scheme for the Business and Properties Courts commences on the 1st January 2019. Here are some links to guides, written by practitioners, to the practical impact of the Pilot Scheme. THE RULES AND PRACTICE DIRECTIONS The Draft…
THE CIVIL PROCEDURE BACK TO BASICS SERIES 20: A RECAP
The purpose of this series is to provide short and basic summaries of some of the key points of civil procedure. Often a post is due to an observation made in a recent case, a comment on Twitter or a…
BACK TO BASICS 14: SERVICE OF THE CLAIM FORM ON A SOLICITOR
In the case I wrote about yesterday, Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch), the very basic errors made by the claimant’s solicitor in relation to service of the claim form were held to amount to “misconduct” (albeit in…
NOT TELLING THE CLAIMANT THE AMOUNT OF HIS DAMAGES: JUDICIAL APPROVAL OBTAINED
In EXB v FDZ & Ors [2018] EWHC 3456 (QB) Mr Justice Foskett had to consider the approach of the court when it was felt to in the claimant’s best interests not to be told of the size of his award…
THE CONSEQUENCES WHEN SERVICE OF THE CLAIM FORM GOES WRONG: SOLICITOR’S LIEN OVERRIDDEN: NOT KNOWING THE RULES IN RELATION TO SERVICE AMOUNTS TO “MISCONDUCT”
The judgment in Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch) shows another case that has been made problematic because of basic errors in failure of service of the claim form. The errors made by the solicitors in that…
BACK TO BASICS 19: COSTS BUDGETING WHEN CASE IS MORE THAN £25,000 BUT LESS THAN £50,000
There are special rules governing budgets in cases where the claimant claims more than £25,000 but less than £50,000. Firstly the budget has to be filed much earlier. Secondly the budget “must” only be the first page of Precedent H….
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
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