THE SIGNED SECRET BARRISTER T-SHIRT: NOW SILKY SMOOTH: NOW ARRIVED AT THE LAST STAGE OF ITS JOURNEY
The signed Secret Barrister T-shirt is on the last stage of its journey to the successful bidder. We now have evidence that it has been ironed and, in its perfect state, is on its way to the winning bidder. A…
AN ANONYMOUS DRIVER CANNOT BE SUED: YOU’VE GOT TO HAVE SOMEWHERE TO SERVE…
In the judgment today Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 the Supreme Court overturned the Court of Appeal decision in relation to service when there is an unknown driver. The court cannot make an order that service…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at the…
WHEN WITNESSES GO “UP HILL AND DOWN DALE” IN AN ATTEMPT TO JUSTIFY THE UNJUSTIFIABLE: TIME TO LOOK AT THE WAY STATEMENTS ARE PREPARED
The judgment of HHJ Stephen Davies (sitting as a judge of the High Court) in Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC) shows why witness statements should be considered carefully prior to…
WHEN EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee…
KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS
In Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in…
CIVIL PROCEDURE BACK TO BASICS 32: BEWARE YE, BEWARE YE, BEWARE YE THE HUMBLE WITNESS SUMMARY: IT COULD BITE BACK – WITH VENGEANCE
The earlier post on the judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited(Leicester County Court 21/01/2019) highlighted how dangerous it is for a party to serve a witness summary. Here we look at the rules relating to witness summaries, the…
COURT REFUSED TO ORDER THAT CONTESTED EVIDENCE BE REMOVED FROM EXPERT REPORTS
In A v B [2019] EWHC 275 (Comm) Mrs Justice Moulder refused the defendant’s application to declare inadmissible part of an expert report and a joint expert report. It was held that the principles in Rogers -v- Hoyle are of general…
EXAGGERATION IS NOT NECESSARILY FUNDAMENTAL DISHONESTY: WHEN THE DEFENDANT DIGS A BIG EVIDENTIAL HOLE FOR ITSELF
The judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited (Leicester County Court 21/01/2019) is available through a Linked In post provided by barrister Andrew Mckie. It provides a number of lessons for those collecting evidence. In a case where…
DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE
In Consult II SRO & Ors v Shire Warwick Lewis Capital Ltd & Ors [2019] EWHC 286 (Comm) Andrew Henshaw QC (sitting as a High Court Judge) refused the defendants’ application for relief from sanctions. The lack of a candid explanation…
“IF EVER THERE WERE A CASE IN WHICH THE COURT SHOULD REFUSE TO EXERCISE ITS DISCRETION IN FAVOUR OF GIVING THE CLAIMANTS ANY FURTHER INDULGENCE, THIS IS IT”
The judgment in Jetly & Anor v The Secretary of State for the Home Department [2019] EWHC 204 (Admin) sets out a series of surprising events. Mrs Justice Andrews came down very firmly against granting relief from sanctions. Many of the…
WHEN LITIGATION BECOMES A “VERBAL BRAWL”: DISCLOSURE MUST BE PROPORTIONATE
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2019] EWHC 154 (Ch) Master Shuman observed how disclosure applications could quickly become disproportional. The litigation had become a “verbal brawl”. It is an example of the dangers of losing sight…
CIVIL PROCEDURE BACK TO BASICS 31: SERVICE OF THE CLAIM FORM AT THE “LAST KNOWN ADDRESS”: FIVE KEY POINTS
Service at a defendant’s “last known address” is something that can be highly problematic. There are dangers in serving at an address unless you are wholly certain that the defendant still resides there. Here we look at the rules and…
STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can…
PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE
In Perry v Raleys Solicitors [2019] UKSC 5 the Supreme Court restored the decision of the trial judge in relation to damages. One of the key issues was whether the Court of Appeal was correct to overturn the trial judge’s factual…
SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL
Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court. The expert…
VIEWING THE WOOD FROM THE TREES: ASSESSING WITNESS CREDIBILITY: A “CUT OUT AND KEEP” GUIDE
The judgment of Teare J in Deripaska and Danilina v Chernukhin case [2019] EWHC 173 (Comm), is (at present) only available via a link on the Serle Court website. It is useful in that a few paragraphs encapsulate the judicial approach to…
CLAIMANTS IN A FATAL ACCIDENT CLAIM HAVE NOT “WON” ANYTHING: SETTLEMENT OF ACTION APPROVED: DETAILS KEPT CONFIDENTIAL
In Correa & Ors v BP Plc & Ors [2019] EWHC 232 (QB) Mrs Justice Yip approved damages in a fatal accident case. The judgment provides a great deal of anonymity but gives a real indication of the difficulties involved. “The…
CIVIL PROCEDURE BACK TO BASICS 30: THE ADVANTAGES OF APPLYING FOR AN EXTENSION BEFORE THE DATE OF BREACH: THE CASE KEEPS MOMENTUM
In Robert –v- Momentum Services Limited [2003] EWCA Civ 299 the Court of Appeal held that where an application for an extension of time is made before the expiry of the stipulated period this was not a case as one of relief from sanctions. The…
JUDGE WAS WRONG TO IMPOSE SECURITY FOR COSTS ORDER IN RESPONSE TO WITNESS STATEMENT BEING SERVED LATE: COURT OF APPEAL DECISION
In Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119 the Court of Appeal overturned a first instance decision where a summary judgment application was adjourned on terms that the defendant provided security for costs. The defendant…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL
In Petrou v Lambrou (t/a KCJ Builders) [2019] EWHC 166 (Comm) Mr Justice Freedman upheld the decision of a circuit judge who granted the defendant relief from sanctions when a witness statement was served late. Interestingly the judge, on appeal, exercised…
SERVICE OF CLAIM FORM BY EMAIL ALLOWED: THE SAFEGUARDS TO RESPONDENTS TO WITHOUT NOTICE APPLICATIONS.
The case and issues in Linklaters LLP -v- Mellish [2019] EWHC 177 (QB) have already made the headlines. The procedural aspects of the decision are also of interest. Firstly Mr Justice Warby made an order allowing service of the claim form…
PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED
In the judgment today in Howard v The Imperial London Hotels Ltd [2019] EWHC 202 (QB) Master Thornett had to consider whether periodical payments were suitable for someone with a very short life expectancy. The judgment is a careful and sensitive…
PROVING THINGS 140: SPECULATIVE EVIDENCE NOT ENOUGH TO PROVE A “LOSS OF CHANCE”
In Dymoke v Association for Dance Movement Pyschotherapy UK Ltd [2019] EWHC 94 (QB) Mr Justice Popplewell found that a claimant had not adduced sufficient evidence to prove a “loss of chance” in a claim for damages. This shows that a…
CONDITIONAL FEE AGREEMENT DID NOT CONTINUE AFTER A SOLICITOR HAD CEASED TO ACT: DEFENDANT NOT LIABLE TO PAY COSTS TO FIRST SET OF SOLICITORS
I am grateful to Matthew Hoe from Taylor Rose TTKW for sending me a copy of the decision of HHJ Wulwik in Roman -v- AXA Insurance PLC (13/12/2018). Roman v AXA Insurance [2018] (1) The judge found that a CFA with…
BEING A LITIGATOR “WHAT I’D TELL A YOUNGER ME”: THE SECRET BARRISTER’S SELF-DEFENCE INSTRUCTOR: SARAH ROBSON
The aim of this series is to give an insight into the experiences of a wide range of people involved in litigation. This interview, however, posed a unique problem: how do you interview someone with a black belt in Taekwando?…
CIVIL PROCEDURE BACK TO BASICS 29: EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE’S TERRITORY DON’T USUALLY FARE TOO WELL
We have seen several cases recently where judges have objected, in clear terms, to an expert trying to find “facts”. That is properly a matter for the trial judge. It is worthwhile looking at the guidance and cases on this…
LITIGATORS AND THE ART OF PERSUASION: USEFUL GUIDES (1): MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is, involved in the art of persuasion. Litigation is fundamentally about the art of persuasion. Persuasion is a litigator’s daily task: in correspondence, on the phone, with opponents. It is wrong to confine the consideration of this essential skill…
WHEN WITNESS STATEMENTS ARE USELESS (AND PROBABLY HARMFUL): A FEW CASES TO ILLUSTRATE A COMMON POINT
For the third (and last) time I am returning to the judgment of HHJ Halliwell in Currie v Thornley & Anor [2019] EWHC. 172 (Ch). This time the judge’s observations in relation to witness statements. Using witness statements to “argue” the case…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…
THE ORDER THE COURTS CAN MAKE WHEN A DEFENDANT HAS DIED AND THERE ARE NO EXECUTORS OR ADMINISTRATORS
Another aspect of the judgment Currie v Thornley & Anor [2019] EWHC. 172 (Ch) relates to the order the courts can make when a defendant in a civil action has died. THE CASE One of two defendants in a civil action had…
JUDGE ALLOWS CLAIMANT TO RELY ON MATTERS THAT TOOK PLACE AFTER TRIAL: VERY, VERY LATE AMENDMENT ALLOWED
There are several interesting procedural issues that arise in the judgment of HHJ Halliwell (sitting as a High Court Judge) in Currie v Thornley & Anor [2019] EWHC. 172 (Ch). One of which is the judge’s decision to allow the claimant…
FRESH PROCEEDINGS CAN BE ISSUED IF FIRST PROCEEDINGS ON BEHALF OF THE DECEASED WERE A NULLITY: DENTON CONSIDERED
In the judgment today in Hutson & Anor, The Personal Representatives of v Tata Steel UK Ltd [2019] EWHC 143 (QB) Mr Justice Turner considered several points relating to the ability of those acting on behalf of an estate to…
HAVING A COPY OF WITNESS STATEMENTS AVAILABLE AT COURT: IT IS IN THE RULES
One other aspect of the decision in Prosser v British Airways Plc [2018] EW Misc B13 is worth noting. There was a rare reference to the requirements of CPR 32.13(1). Copy witness statements must be available at the trial for inspection. …
PROVING THINGS 139: WHEN THE JUDGE HAS TO DECIDE WHETHER ITS ALL BEEN A BIT OF A CRUSH
Most of the cases looked at in this series are decisions in the High Court. However issues of witness credibility and accuracy are a constant issue throughout virtually every layer of court and tribunal. In Prosser v British Airways Plc [2018]…
CIVIL PROCEDURE BACK TO BASICS 28: EXHIBITS TO WITNESS STATEMENTS AND AFFIDAVITS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
ANOTHER CIVIL CONTEMPT OF COURT OVERTURNED: BREACHES OF REQUIREMENT FOR A FAIR HEARING MEANT ORDER MUST BE QUASHED
I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure. It is as though all the strictures against fair…
WHEN YOU’VE SPENT ALL YOUR MONEY ON LEGAL COSTS: NO REMEDY AVAILABLE: LITTLE SYMPATHY WHEN YOUR NET INCOME IS THE SAME AS A CIRCUIT JUDGE
This blog usually looks at family cases in the context of evidence or costs. The decision in Daga v Bangur [2018] EWFC 91 has a salutary tale to tell in relation to costs. There is also an interesting comparison in relation…
CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT
One matter that all litigators must be aware of is that there is a risk of waiving privilege when mentioning legal advice in a witness statement. This can (and does) happen even when the statement states, expressly, that the maker…
ORDER GRANTING TIME TO EXTEND SERVICE SET ASIDE: THE DEEMED DATE FOR SERVICE OF THE CLAIM FORM: A BLAST FROM THE PAST: STILL APPLIES TO SERVICE ABROAD
The judgment in Punjab National Bank (International) Ltd v Srinivasan & Ors [2019] EWHC 89 (Ch) contains two interesting lessons (i) a court can always set aside an order extending time for service of proceedings; (ii) the “old” rules relating to…
WHEN THE COURT LETS YOU DOWN: A WORRYING CHRONOLOGY
In BC v BG [2019] EWFC 7 the court rejected an application to set aside an arbitration award made in ancillary relief proceedings. The application was unsuccessful (and the applicant awarded to pay costs). However the issue of concern is the…
CIVIL PROCEDURE BACK TO BASICS 26: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the discretion…
THE ADMISSIBILITY OF POLICE REPORTS AS EVIDENCE: NO NEGLIGENCE WHEN DRIVER FEARED HE WAS TO BE ASSAULTED: A CASE TO POINT
In Mohmed v Barnes & Anor [2019] EWHC 87 (QB) Mr Justice Turner found that a driver had not been negligent when he drove into a pedestrian an attempt to escape an assault. The case is important in relation to an…
UNDERSTANDING LEGAL TERMINOLOGY: USEFUL GUIDANCE: IT DOESN’T ALL RES IPSA LOQUITUR YOU KNOW
The Radio 4 programme “Word of Mouth” had a programme last week on “legal language”: “demystifying the language of the court room”. This led one of the participants, barrister, author and blogger Lucy Reed to write a post “Why do…
ASSESSING WITNESS CREDIBILITY: EX-FOOTBALL CLUB DIRECTORS’ EVIDENCE: ITS ALL A LOAD OF COBBLERS
This blog has looked at issues of witness credibility many times. There is a useful summary in the judgment of HHJ Simon Barker QC in Northampton Borough Council v Cardoza & Ors [2019] EWHC 26 (Ch) contains a review of the…
DETAILED ASSESSMENTS WILL NOT OVERSTEP THE MARK: THE COURTS WILL NOT (GENERALLY) REVISIT MATTERS RELATING TO THE CONDUCT OF THE CASE ON ASSESSMENT
There is an interesting and important judgment by Deputy Master Friston in Andrews v Retro Computers Ltd [2019] EWHC B2 (Costs) which highlights the dangers of attempting to use detailed assessment as a means of challenging the receiving party’s conduct. I…
THE LANGUAGE OF LAW: A JUDGMENT THAT IS WRITTEN FOR THE BENEFIT OF A CHILD
A short tweet I did yesterday has caused dozens of comments. It is not about a civil case but a family case. However it is a matter of universal interest, the language of law. In this case the judgment had…
CIVIL PROCEDURE: BACK TO BASICS 25: FATAL ACCIDENT ACT LIMITATION PERIODS AND CHILDREN
The law of limitation for Fatal Accidents Act claims for children is often misunderstood. Here we look at the limitation period in relation to fatal accident claims and children. There are two issues: the limitation period when any of…
PRACTICE NOTE: BUSINESS AND PROPERTY COURTS IN MANCHESTER: NO BUNDLE NO HEARING
Below I reproduce a Practice Note issued Mr Justice Barling, Vice-Chancellor of the County Palatine of Lancaster. It deals with a transition process up to the point where (later this year) parties can file all documents electronically in the Manchester…
LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and…
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