“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”
In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action. There are two particular aspects of the judgment of general interest. Firstly…
BREACH OF REGULATIONS IS IPSO FACTO NEGLIGENT: HIGH COURT JUDGMENT ON s.69 OF THE ERRA
I am grateful to Colm Nugent for sending me a copy of the judgment of HH Gore QC (sitting as a High Court judge) in Tonkins -v- Tapp (7th December 2018). The judgment deals with the issue of the relevance…
JUDICIAL FOOTNOTES: I’LL GIVE YOU FOOTNOTES : WIFE TRYING TO RUN HUSBAND OVER WITH A VAN IS “ALWAYS A TELLTALE SIGN THAT A COUPLE ARE DRIFTING APART”
The previous post on the judgment of Canadian judge J.W. Quinn. J. led (believe it or not) to a heated – and I hope not entirely serious – discussion between some of hte lawyers on which was the best footnote…
“LEAVE AN UNTRUTHFUL MAN IN THE WITNESS BOX LONG ENOUGH AND HE WILL REVEAL HIMSELF TO THE WORLD”: WHEN A WITNESS FALLS..
I have lost count of the number of times people have asked me where they can find that “Canadian” case “you know, the one with the judge”. It is a case about witness credibility, in a blunt style. The Hearing Clinic…
TOO MANY DOCUMENTS, TOO MANY AUTHORITIES: A REMINDER OF AN OLD FASHIONED REMEDY: BEWARE YE, BEWARE YE
When commenting on a recent case about committal in the Court of Appeal Professor Dominic Regan made the point that the first part of the hearing had been marked by judicial comments about the size of the bundles and number…
“CAN SOLICITORS BE RUDE IN THEIR CORRESPONDENCE TO THE OPPOSING CLIENT”? A RECAP OF ADVICE ON CONDUCT AND COURTESY
“Can solicitors be rude in their correspondence to the opposing client.” This was a search term that led someone to this blog earlier today. We don’t know whether this search was from a solicitor proposing to be rude, or the…
“THE STATE HAS SIMPLY WASHED ITS HANDS OF THE PROBLEM, LEAVING THE SOLUTION… TO THE GOODWILL, AND CHARITY, OF THE LEGAL PROFESSION”
Every sensible citizen should read the judgment of Sir James Munby in M v P [2019] EWFC 14. It is a classic case of the government creating a problem and leaving the victims unsupported (whilst it employs a formidable legal team…
SOMETHING FOR THE WEEKEND: THE THIRD POST THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
I am returning, again, to the consequences of the Court of Appeal judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, “the deliberate or reckless making of a false statement in a document verified by a statement of…
WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?
This topic follows directly on from the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement…
WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL
The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered by the entire profession. Particularly those who draft statements, and those…
SETTING ASIDE AN ORDER WHEN THE DEFENDANT DID NOT APPEAR: THE RULES SHOULD BE FOLLOWED
There are several unusual aspects about the decision of Salix Homes v Mantato [2019] EWCA Civ 445, not least it is an appeal directly from a Deputy District Judge to the Court of Appeal. In addition to the point of law…
A SECOND ACTION TO SET ASIDE AN EARLIER JUDGMENT OBTAINED BY FRAUD: SUPREME COURT DECISION: THE “BARE KNUCKLE FIGHT” OF THE LAW
In Takhar v Gracefield Developments Ltd & Ors [2019] UKSC 13 the Supreme Court held that a claimant could bring an action to set aside an earlier judgment which, it is alleged, was obtained by fraud. The judgment deals with two…
LATE APPLICATION TO AMEND DEFENCE AND WITHDRAW ADMISSION REFUSED: EVE OF TRIAL APPLICATIONS USUALLY CAUSE PROBLEMS
There is a second reason to look at the judgment today by Mr Justice Arnold in Freshasia Foods Ltd v Lu [2019] EWHC 638 (Ch). There was a decision in the judgment on a late application to amend and withdraw from an admission. …
WHAT IS THE ROLE OF THE LITIGATOR? WHAT HAPPENS WHEN YOU RAISE A RHETORICAL QUESTION ON TWITTER..
There was much serious material being discussed at the Legal Futures Civil Litigation Conference yesterday. As best I could I was tweeting observations from the day. I tweeted the rhetorical question asked by Luke Tucker Harrison “What is the role…
PROVING THINGS 146: NO EVIDENCE AT ALL TO PROVE A LOSS, OR THAT THE DEFENDANT CAUSED ANY “LOSS” (THIS IS BECOMING A FAMILIAR STORY)
The number of people who are willing to commit to large scale, and expensive, litigation without having the basic evidence to prove their case on damages has proven to be a staple fare for this series. Another example is the…
SHOULD AN ERRANT EXPERT GO TO JAIL? COURT OF APPEAL DECISION: MAKING A FALSE STATEMENT SHOULD LEAD TO JAIL
In Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 the Court of Appeal set out clear guidance for courts considering sentencing in cases relating to reckless contempt on the part of expert witnesses. A “reckless” statement made…
LIABILITY OF McKENZIE FRIEND: EXCLUSIVE NOTE OF JUDGMENT:
There was considerable discussion yesterday about the decision of HHJ Eady (sitting as a High Court judge) in Wright -v-Troy Lucas. My colleague Colm Nugent has been kind enough to send me a note of the judgment (where he appeared…
WHO HAS WON AND WHO SHOULD PAY THE COSTS? WHEN “WHO PAYS THE CHEQUE” IS NOT A SUFFICIENT ANSWER
In Hamad M Aldrees & Partners v Rotex Europe Ltd [2019] EWHC 526 (TCC) Sir Antony Edwards-Stuart considered a case where it was far from clear that the “winning” party should recover its costs, The case is useful in that it…
INTERIM PAYMENTS ON ACCOUNT OF COSTS IN HIGH VALUE CASES: THE IMPORTANCE OF CASHFLOW RECOGNISED IN SHEFFIELD
I am grateful to Jim Gladman from Switalskis, solicitors for sending me a copy of the approved judgment of HHJ Robinson in I -v- Hull & East Yorkshire NHS Trust (25th February 2019). A copy of that judgment is available…
PERMISSION TO AMEND PLEADINGS TO PLEAD NEW CASE AFTER EXPIRY OF LIMITATION PERIOD REFUSED: COURT OF APPEAL DECISION: STICK TO THE PLEADINGS
In Samba Financial Group v Byers & Anor [2019] EWCA Civ 416 the Court of Appeal overturned an order allowing the claimant permission to amend its case. In essence the Court of Appeal decided that where a court was considering an…
THE POST OFFICE CASE (AGAIN): STRIKING OUT PASSAGES IN WITNESS STATEMENTS: THE DEFENDANT WITH SUPERNATURAL POWERS
For the third time today I am writing about the case of Bates & Ors v Post Office Ltd [2018] EWHC 2698 (QB). However we are now looking at the earlier interlocutory application by the defendant to strike out large parts…
CASE MANAGEMENT, “RELEVANCE” AND ATTEMPTS TO HOLD THE COURT “IN TERROREM”: MORE ON THE POST OFFICE CASE (SOME EXTRAORDINARY ISSUES HERE)
I am returning to the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) because parts of the judgment set out arguments and conduct of litigation that is, to say the least, unusual. This part…
ASSESSING WITNESS CREDIBILITY: WHEN POST OFFICE WITNESSES DO NOT DELIVER
The judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) is 1122 paragraphs long, following a two week long trial. There are aspects of this case I will look at again. However, it is interesting…
AGREEING EXTENSIONS OF TIME: ADVICE FROM M’ LEARNED FRIEND: “DON’T PANIC” AND BE TOTALLY CLEAR IN WHAT YOU ARE AGREEING
In his post yesterday Agreeing An Extension to the Limitation Period Nigel Poole QC dealt with some of the issues arising from the judgment in Cowan v Foreman and ors [2019] EWHC 349 (Fam) where Mostyn J suggested it was not possible for the…
GIVING NOTICE THAT YOU ARE GOING TO ATTACK AN EXPERT’S CREDIBILITY: ISSUES THAT ARISE WHEN EXPERT’S HAVE PRIOR DEALINGS WITH THE PARTIES
In Hamad M. Aldrees & Partners v Rotex Europe Ltd [2019] EWHC 574 (TCC) Sir Antony Edwards-Stuart expressed concern about an attack on the credibility of an expert witness. In that case there was no evidence to support an assertion that…
WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: A “CUT OUT AND KEEP” GUIDE: A JUDGMENT ON INTEREST OF INTEREST
The judgment of Mr Justice Bryan in Assetco Plc v Grant Thornton UK LLP [2019] EWHC 592 (Comm) provides a helpful review of the principles and authorities relating to the approach to be adopted when a claimant beats their own Part…
“THE CLAIMANTS MUST RUE THE DAY THEY REJECTED THE DEFENDANT’S OFFER”: CLAIMANT TO PAY STANDARD COSTS AFTER REJECTING VERY EARLY PART 36 OFFER
The costs judgment in Burgess & Anor v Lejonvarn [2019] EWHC 369 (TCC) is probably a judgment that should be shown to all litigants. The claimant rejected an offer of £25,000 and failed to beat that offer at trial. The defendant’s…
WHEN ENFORCEMENT PROCEEDINGS GO WRONG: IF YOU CAN’T OPERATE BY THE RULES THEY MAY TAKE YOUR LICENCE AWAY…
The enforcement of judgments is an aspect of civil procedure that rarely makes the law reports. In Rooftops South West Ltd & Ors v Ash Interiors (UK) Ltd & Ors [2018] EWHC 2799 (QB) Master Davison was highly critical of the…
EXPERTS WHO CAN’T REPORT IN TIME: BETTER READ THIS: IF YOU CAN’T REPORT ON TIME PROBABLY BEST NOT TO TAKE INSTRUCTIONS AT ALL…
In X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 HH Clifford Bellamy (sitting as a Deputy Circuit Judge) made some observations in relation to the role of the expert, particularly when that expert cannot report timeously. The…
BANKRUPTCY PETITION NOT SERVED PROPERLY: BANKRUPTCY NOT ANNULLED
There may well be a disturbance in the Force if there is not a service of the claim form case every few weeks. In Ardawa v Uppal & Anor [2019] EWHC 456 (Ch) Mr Justice Roth held that a judge could…
TIMING OF APPLICATIONS FOR ANONYMITY: CLAIMANTS SHOULD ACT WELL BEFORE TRIAL
In Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) Mr Justice Martin Spencer refused the claimant’s application for anonymity. He made important observations about when such an application should normally be made. THE TIMING OF APPLICATIONS After refusing…
POSTS ON STRESS AND LITIGATION: A RECAP: LITIGATION AND LITIGATORS IN A TOUGH WORLD
Comments on the post earlier this evening on dealing with stress have been supportive. This may be a good time to provide a recap of the posts and links already on this blog in relation to lawyers, litigation and stress….
HOW DO LAWYERS RELAX? GUIDANCE AND LINKS: FIND MUGGLES, START SEWING AND DISCONNECT FROM YOUR WORK
This post follows a tweet I received earlier this evening, from “Bunglingbarrister” Bunglingbarrister “Even when I’m not doing work I still think about it often. I don’t think it is healthy to never allow your brain to switch off….
ALLEGED “MISCONDUCT” DURING ASSESSMENT PROCESS DID NOT LEAD TO COSTS BEING DISALLOWED OR REDUCED: ATE PREMIUM WAS REASONABLE
In Murray v Oxford University Hospitals NHS Trust [2019] EWHC 539 (QB) Mr Justice Stewart rejected an argument that mistakes made by a claimant during the assessment of costs process should have led to costs being disallowed or reduced. The…
PROVING THINGS 145: WHEN EXPERTS ARE OF NO HELP AT ALL: IT IS THE FACTS THAT WON IT
I am giving a seminar on “Expert Witnesses and Liability” at the APIL Annual Conference in May. The judgment of HHJ McKenna (sitting as a High Court judge) in Al-Iqra & Ors v DSG Retail Ltd [2019] EWHC 429 (QB) gives…
PROVING THINGS 144: THAT TEMPTATION TO PUT MATTERS IN THE SKELETON THAT AREN’T ESTABLISHED BY THE EVIDENCE: ALSO – THE POWER OF LISTS
We have looked before at attempts to use a skeleton argument to introduce evidence (often made in desperation to be fair). An example of this can be seen in a short passage in the judgment in Schettini v Silvestri & Ors…
TERMINATING A CFA WITH GOOD REASON: NO NEED FOR SOLICITORS TO WAIT FOR GODOT: ADVICE ABOUT “SETTLEMENT” COVERS THE MAKING OF AN OFFER
In Butler v Bankside Commercial Ltd [2019] EWHC 510 (QB) Mr Justice Turner upheld a decision of Master Yoxall holding that a client was liable to pay their solicitor’s costs after a conditional fee agreement came to an end when the…
“THE DEFENDANTS DID NOT TAKE THE DIRECTIONS SERIOUSLY ENOUGH”: ANOTHER RELIEF FROM SANCTIONS CASE
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 1) [2019] EWHC 341 (QB) Mr Justice Warby granted the defendant relief from sanctions. However the observations made in relation to the conduct of litigation are…
“OUTSIDE THE REALMS OF FICTION”, NOT NECESSARILY A PRUDENT WAY TO CONDUCT LITIGATION: WITNESS STATEMENTS, WITNESS SUMMARIES AND RELIEF FROM SANCTIONS:
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2) [2019] EWHC 346 (QB) Mr Justice Warby granted limited relief from sanctions to a litigant in person who had served “witness summaries” rather than witness…
WHAT’S IN A NAME? “PAYOUTS”, “WINS” AND THE SERIOUSLY INJURED CLAIMANT
As lawyers we know, or should know, the dangers of putting pejorative labels on things. In litigation we are fortunate in that an attempt to label parties, or issues, pejoratively, often backfires. However we often see the pejorative labelling of…
CIVIL PROCEDURE BACK TO BASICS 33: INVALUABLE GUIDANCE ON EXPERT EVIDENCE FROM THE ICCA
The Inns of Court College of Advocacy has prepared a very useful guide called “Guidance on the preparation, admission and examination of expert evidence”. It is free of charge and can be downloaded . This post is just a summary…
PROVING THINGS 143: THE COURTS DON’T REALLY APPRECIATE EVIDENCE COMING FROM THE NEWS RATHER THAN THE PARTIES: (SHIPS, I SEE NO SHIPS)
In The Channel Tunnel Group Ltd & Anor (t/a “Eurotunnel”) v Secretary of State for Transport [2019] EWHC 419 (TCC) Mr Justice Fraser expressed concern that witness statements served by the Secretary of State in a civil action were almost immediately…
PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”
The judgment today in Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the…
AGENCY FEES ALLOWED ON APPEAL: FULL COPY OF JUDGMENT AVAILABLE
I am grateful to barrister Paul Hughes for sending me a copy of the decision of HHJ Graham Wood QC in Beardmore -v- Lancashire County Council. The case considers the paying, and cost, of medical agency fees. A copy of…
DEFAULT JUDGMENT SET ASIDE, RELIEF FROM SANCTIONS GRANTED: ACTION THEN STRUCK OUT: REMEMBERING THE BASIC OBLIGATION TO FILE A DEFENCE – ON TIME
In Workman v Deansgate 123 LLP [2019] EWHC 360 (QB) Mr Justice William Davis allowed an application to set aside a default judgment and relief from sanctions. The most surprising procedural aspect of this case is the defendant’s failure to file…
LIMITATION AND INHERITANCE ACT CLAIMS: SOMETHING TO WATCH CAREFULLY: AGREEING “LIMITATION AMNESTY” MAY NOT BE POSSIBLE
NB – THESE COMMENTS ON THE POWER TO AGREE AN AMNESTY WERE DOUBTED BY THE COURT OF APPEAL SEE THE POST HERE In Cowan v Foreman & Ors [2019] EWHC 349 (Fam) Mr Justice Mostyn set out some importance principles in…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
IF YOU ARE AT TRIAL AND HAVEN’T PAID THE TRIAL FEE: STRIKE OUT IS AUTOMATIC: A FORMAL APPLICATION FOR RELIEF FROM SANCTIONS NEEDS TO BE MADE
In Hyslop -v- 38/41 CHG Residents Company Limited [2018] EWHC 3893 (QB) Mr Justice Freedman considered a case in which the fact that a claimant had not paid the trial fee only came to light at the trial itself. …
STRIKING OUT AND SUMMARY JUDGMENT: ANOTHER CASE TO “CUT OUT AND KEEP”: ALS0 – THE EVIDENCE STOPS ONCE THE APPLICATION HAS BEEN HEARD
Some judgments extrapolate and summarise legal principles so succinctly that they can be regarded as “cut out and keep” guides to an area of law or practice. The judgment of Master Shuman in Capita Pension Trustees Ltd & Anor v Sedgwick…
PERMISSION TO AMEND GIVEN TO PLEAD COSTS PAID IN PREVIOUS ACTION AS DAMAGES: GAMBLING ON GETTING A SECOND CHANCE
In Playboy Club London Ltd v Banca Nazionale Del Lavora SPA [2019] EWHC 303 (Comm) the High Court granted the claimant permission to amend to include, as a claim for damages, the costs of a previous action. “I have come to…
You must be logged in to post a comment.