ADJOURNING A HEARING BECAUSE OF A SICK NOTE: COURT OF APPEAL DECISION: MEDICAL EVIDENCE HAS TO ESTABLISH UNFITNESS TO ATTEND HEARING
There have been a number of cases recently relating to applications of hearings on health grounds, in particular the adequacy of the evidence. The relevant principles were reviewed by the Court of Appeal today in General Medical Council v Hayat [2018]…
COSTS AND “ABSURD” CONDUCT IN LITIGATION: HOW TO WASTE £1 MILLION…
This blog rarely looks at family cases. When it does it is often in relation to costs. Which is why the judgment of Mr Justice Francis in ABX v SBX [2018] EWFC 81 caught my eye. It raises one fundamental dilemma…
ADVOCACY THE JUDGE’S VIEW SERIES 3: PART 8: BREVITY
In this post I am encouraging you to read the speech of Lady Justice Rafferty to the Criminal Law Review Conference earlier this month. Much of the speech concerns issues in criminal law. However one passage is, in essence, about…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
NON-SERVICE OF THE CLAIM FORM: MORE CLAIMANTS DICING WITH PROCEDURAL DEATH (AND LOSING): JUDGE REFUSES TO PUSH THE ENVELOPE
I am grateful to David Turner QC for sending me a copy of the judgment in HHJ Klein (sitting as a High Court judge) in Capital Alternatives Sales and Marketing Ltd v Nabas & Ors [2018] EWHC 3345 (Comm). This is…
COSTS WHERE A PARTY SUES A NUMBER OF DEFENDANTS: DEFENDANTS ORDERED TO PAY SUCCESSFUL DEFENDANT’S COSTS: HIGH COURT APPEAL
I am grateful to Thomas Riis-Bristow, Associate Solicitor at Irwin Mitchell, for sending me a copy of the judgment of Mr Justice Lavender in McDermott -v- Inhealth Limited (19/07/2018), This deals with the issue of the appropriate costs order when…
CLAIMANT CANNOT ENTER JUDGMENT AFTER ACKNOWLEDGEMENT OF SERVICE IS FILED LATE: DENTON PRINCIPLES APPLIED TO GRANT DEFENDANT EXTENSION OF TIME TO DISPUTE THE JURISDICTION
The judgment in Cunico Resources NV & Ors v Daskalakis & Anor [2018] EWHC 3382 (Comm) addresses several procedural issues. Firstly the much debated question of whether a claimant can obtain judgment when the defendant has acknowledged service late. Mr Justice…
THE LEGAL CHRISTMAS MUSIC CONTEST 2018: RAISING MONEY FOR CHARITY: NAME THAT BAND
The Legal Christmas Music contest is back, for the third year running we will be helping charities. All that is required to enter is that you make, or agree you will make, a donation to a food bank: after that…
“THIS IS AN ARCHETYPAL CASE WHERE IT WOULD NOT BE APPROPRIATE TO GRANT RELIEF FROM SANCTIONS”: ANOTHER LATE COSTS BUDGET CASE
The judgment OF Mr Justice Bryan in BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor [2018] EWHC 3380 (Comm) provides, as the judge noted, an archetypal example of the way not to go about cost budgeting, coupled with…
BACK TO BASICS 18: WHEN IS A GOOD TIME TO APPLY TO EXTEND THE CLAIM FORM? NEVER, JUST NEVER
An enquiry today related to service of the claim form. What was the best way to get at extension of time. My answer was short. Applying to extend claim forms is a form of (basically reckless) gambling. Defendants can always…
THE ASSIGNMENT (OR NOVATION) OF CFAS: BOXING PROMOTER’S APPEAL SUFFERS KNOCKOUT BLOW BEFORE A PUNCH WAS THROWN
In Warren v Hill Dickinson LLP [2018] EWHC 3322 (QB) the proposed appellant did not get permission to appeal against a decision that an assigned (or novated) CFA remained valid. THE CASE The claimant argued that conditional fee agreements he had…
BACK TO BASICS 17: WHEN SHOULD A COST BUDGET BE FILED: WHERE THINGS GO WRONG
This may appear very basic. However I have seen both sides falling foul of this very recently. In particular the fact that the budget has to be filed with the directions questionnaire when the claim is limited to £50,000. THE…
PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
BEING A LITIGATOR: “WHAT I’D TELL A YOUNGER ME” (1): HILARY WETHERELL
Litigation is, ultimately, about people. This blog looks a lot at rules, statutes and the evidence of witnesses. It has also looked at the litigant’s experience of being involved in the civil courts. However (and whisper this quietly) litigators are…
PROVING THINGS 135: WHAT A DIFFERENCE CROSS-EXAMINATION CAN MAKE
There has been much controversy recently about the need for cross-examination when allegations are made. I have no intention of entering that controversy, however those who want to be fully informed on these matters should read the judgment of Mr…
EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS
There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts. There are a number of central…
LATE SERVICE OF THE PARTICULARS OF CLAIM AND ACCOMPANYING DOCUMENTATION: IT MAY STILL BE DANGEROUS – AND HERE’S WHY
We have looked twice already at the judgment in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB). One of the key findings in that case was that the claimant, who had served the particulars of claim, medical…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
SERVICE OF THE CLAIM FORM: WHERE THINGS CAN GO WRONG FOR THE DEFENDANT: RELIEF FROM SANCTIONS REFUSED
There are numerous cases reported on this blog where issues relating to service of the claim form have gone wrong for claimants. However, as we have recently seen, a failure to respond accurately and timeously to claim form issues can…
PROVING THINGS 134: WINNING A FEW BATTLES BUT LOSING THE WAR: ALL IS NOT ROSY IN THESE CLAIMANTS’ GARDEN
Law students have probably already been taught, and will be lectured for generations to come, about the implications of the Court of Appeal decision in Lejonvarn v Burgess & Anor [2017] EWCA Civ 254. If any of those law students plan…
CIVIL EVIDENCE AND LITIGANTS IN PERSON : THE DANGERS OF A JUDGE ASKING LEADING QUESTIONS
In Global Corporate Ltd v Hale [2018] EWCA Civ 2618 the Court of Appeal emphasised the dangers of a judge asking leading questions of a witness. It is a case that highlights the difficulties of trials involving litigants in person. THE…
GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION
A while back I wrote a post pointing out guidance on drafting witness statements given by the Western Australian Bar Association. I am grateful to Australian barrister David Laws for pointing out the new site where this guidance can be…
COST BUDGETING: THE PARTIES MUST KNOW WHERE THEY STAND: LEAVING HOURLY RATES “OPEN” IS INAPPROPRIATE
I am grateful Sam Hayman from Bolt Burdon Kemp to for sending me a copy of the decision of Mr Justice Jacobs in Yirenki -v- Ministry of Defence [2018] EWHC 3102 (QB). The judge allowed an appeal against a cost budgeting…
RUN UP COSTS OF £1.4 MILLION: EXPECT TO PAY A LARGE CHUNK OF THEM YOURSELF: “NO ONE ENTERS LITIGATION SIMPLY EXPECTING A BLANK CHEQUE”
There are interesting (and important) observations on the running up of costs in the judgment of Mr Justice Francis in WG v HG [2018] EWFC 70. This blog does not normally follow family law cases. However the question of costs is…
ANOTHER CASE OF SERVICE OF THE CLAIM FORM GOING AWRY: GO ON – DICE WITH PROCEDURAL DEATH: WHAT COULD POSSIBLY GO WRONG?
When lecturing at the Zenith Chambers personal injury course this Thursday I only offered one prediction for civil procedure: “I’ll be here next year talking about claim form cases reported over the previous 12 months where things have gone wrong.” …
A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES…
a As a blogger feedback comes in many forms. Yesterday I had an email from a litigant in person. The method described may well become more prevalent. THE EMAIL “Mr Exall, I wrote to you this time last year with…
ACTION SHOULD NOT HAVE BEEN STRUCK OUT: DENTON PRINCIPLES NOT ENGAGED IN FAILING TO SERVE PARTICULARS OF CLAIM AND MEDICAL REPORT
In the judgment today in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB) Mr Justice Martin Spencer allowed an appeal against an action being struck out. The case has many procedural complexities. Here we look at…
YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 9: IS IT ART? OR IS IT THERE TO SERVE?
This week the candidates were buying and selling modern art. How did our litigator Sarah Ann frame up? Was her contribution sketchy or abstract? THE TASK Sarah was part of a group looking for modern art for a high-end…
LINKS TO GUIDANCE ON DRAFTING WITNESS STATEMENT: INTERACTIVE BLOGGING
Yesterday I was speaking on the APIL Fatal Accidents course. One of the points I was making was the importance of reading the rules and and guidance in relation to the drafting of witness statements. The delegates asked for links…
THE EFFECT OF A WITHDRAWN PART 36 OFFER : DEFENDANTS NOT ENTITLED TO COSTS, BUT LED TO NO ORDER FOR COSTS THROUGHOUT
There is an interesting judgment in Britned Development Ltd v ABB AB & Anor [2018] EWHC 3142 (Ch) which should be read by anyone thinking of withdrawing a Part 36 offer. The defendants in this case made a Part 36 offer…
DOES WHAT YOU WEAR MATTER? GUIDANCE FOR ADVOCATES AND LITIGANTS
Does how you dress affect how you are perceived? A recent tweet (from the USA) contained a complaint from a lawyer that a judge had upbraided them in court for not wearing a tie. The lawyer asserted that there were…
THE DANGERS OF PLEADING DISHONESTY: PART OF REPLY TO DEFENCE STRUCK OUT
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2018] EWHC 1376 (Ch) Master Shuman provides an succinct summary of the principles relating to pleading dishonesty. Part of a Reply that alleged dishonesty was struck out. THE CASE The claimant…
LET US JUST IGNORE THE PLEADED CASE (MY PLEADED CASE ANYWAY): WHEN THE PARTIES COULDN’T EVEN AGREE ON A STATEMENT OF ISSUES
There is an interesting passage in the judgment of HHJ Klein (sitting as a judge of the High Court) in UK Learning Academy Ltd v The Secretary of State for Education [2018] EWHC 2915 (Comm). It relates to the statements of…
SURVEY ON WITNESS STATEMENTS: WORKING PARTY SURVEY: A REMINDER OF PAST COMMENTS … SOME CHESTNUTS HERE
The Witness Evidence Working Group is carrying out a survey of the use of witness statements in the Business & Property Courts. Here I provide a link to the post and a reminder of the comments that some judges have…
SENIOR COURTS COSTS OFFICE GUIDE 2018
The new Senior Court Costs Office Guide has been published. This replaces the 2013 version with immediate effect. It is available on the link in the page here. The new guide Deals with all changes since 2013. Deals with the electronic…
THE COURT CAN (AND IN THIS CASE SHOULD) ORDER ADDITIONAL SECURITY FOR COSTS
I am grateful to solicitor Shimon Goldwater for sending me a copy of the judgment of Mrs Justice Moulder in Mayr -v- CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3093 (Comm). It relates to the principles to be applied when…
APPLYING FOR RELIEF FROM SANCTIONS: 14 KEY POINTS TO HELP EASE THE STRAIN
There was a nice tweet earlier today from pupil barrister Miranda Grell explaining she had just appeared in her first relief from sanctions application and had found this blog useful. This reminded me that it may be a good time…
STRESS, LAWYERS & LITIGATORS: PRACTICAL LINKS AND PRACTICAL STEPS
The blog post yesterday on Litigation in a tough world let to more responses that I could possibly have mentioned. It has led to a lot of comment and support on Twitter, from solicitors, from the Bar and from many…
YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 8: “THE BIGGEST ATTEMPT AT ROBBERY SINCE HATTON GARDEN”: DID OUR LAWYER GET THEIR HANDS DIRTY?
We have one surviving lawyer – Sarah Ann. This week she switched teams – to “Collaborative” and turned her hand to garden design, even getting her hands dirty in the process. Her team won. This series continues for another week….
PROVING THINGS 133: FALLING OFF A BED AND THE PIECES OF THE JIGSAW
The case of Busby v Berkshire Bed Company Ltd [2018] EWHC 2976 (QB) was one of those cases that centred on credible evidence. It is an example of where witnesses can be totally honest but mistaken in their recollection. The judge…
THE LORD CHIEF JUSTICE’S REPORT 2018: SELECTED EXTRACTS
The Lord Chief Justice’s Report for 2018 is available if you follow the link here. Much of it is important. I have selected extracts that may be of particular interest to litigators. (There is an argument that some key indicators that…
YOU CANNOT ARGUE A “NEW” CASE AT THE APPEAL STAGE: “RACING” DRIVERS NOT INVOLVED IN A CRIMINAL JOINT ENTERPRISE: FATAL ACCIDENT ACT DAMAGES AWARDED
In Wallett & Ors v Vickers [2018] EWHC 3088 (QB) Mr Justice Males overturned a decision in favour of the defendant and awarded damages to the estate of a deceased driver. The important procedural issue is that the defendant were not…
LITIGATION IS A TOUGH WORLD: IF YOU MAKE MISTAKES: GET HELP – PLEASE
The decision of the Administrative Court in Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin) has already received wide publication. The Court overturned a decision of the Solicitors Disciplinary Tribunal not to strike off solicitors who had been dishonest. It…
LIVE COURT OF APPEAL STREAMING – GIVES YOU A GRANDSTAND SEAT
The Court of Appeal pilot scheme for live streaming will start on Thursday, details are available on the Court and Tribunals Judiciary website. THE FIRST MATCH… The first case to be heard with live streaming concerns West Ham United football…
THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points of…
COURT HAS NO POWER TO MAKE AN ORDER FOR COSTS ON ACCOUNT AFTER ACCEPTANCE OF A PART 36 OFFER: HIGH COURT DECISION
NB THIS DECISION WAS NOT ACCEPTED AND EFFECTIVELY OVERRULED BY THE COURT OF APPEAL IN Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764. It was held that the court does have a…
SOLICITOR AND OWN CLIENT COSTS: AN AGREEMENT TO PAY A SPECIFIC SUM FOR PAST COSTS NOT UNFAIR AND NOT SET ASIDE
The judgment of Master Brown in Whitaker v Richard Slade & Company Plc [2018] EWHC B17 (Costs) may have some interesting implications for solicitor and own-client costs. In particular the finding that an agreement in relation a specific sum for work…
DOES A COUNTERCLAIMING DEFENDANT HAVE THE BENEFIT OF QOCS? NOT IN THIS COURT: THERE ARE NOW TWO (CONFLICTING) JUDGMENTS ON THIS ISSUE
I am grateful to Barrister Kevin Latham for sending me details of the decision of HHJ Venn in Waring -v- McDonell [2018] EW Misc B11 (CC). A link to the full decision is also available at the foot of Kevin’s…
GUIDANCE TO EXPERTS, STRAIGHT FROM THE BENCH: ONLY PUT YOUR HAT WHERE YOU CAN REACH IT: AVOID EXPERT-WITNESS-ITIS
There are several series on this blog which features judges giving advice to advocates. In his keynote address to the Bond Solon Experts conference Lord Justice McFarlane gives advice to experts. As ever the aim of this post is to…
101st CPR UPDATE: WELCOME TO THE VIDEO LINK WORLD
The 101st update to the Civil Procedure Rules apply from 8th and 30th November 2018. The main development is a procedure whereby applications to set aside default judgment may be heard by video link. SETTING ASIDE DEFAULT JUDGMENTS: HEARD BY…
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