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…
SECOND ACTION STRUCK OUT AS AN ABUSE OF PROCESS: COURT OF APPEAL DECISION
The question of whether a “second action” is an abuse of process is not one that gives an automatic, or easy, answer. The factors were considered today by the Court of Appeal in Harbour Castle Ltd v David Wilson Homes Ltd…
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…
“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,…
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…
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…
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…
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…
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…
SOLICITORS AND EXPERT WITNESSES CAN GO TO JAIL: WITNESS STATEMENTS AND THE VASTLY CHANGED MEDICAL REPORT
In Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) Mr Justice Garnham found a solicitor and a doctor in contempt of court. The solicitor was imprisoned for 12 months, the doctor given a six month sentence,…
STATEMENTS OF CASE: KEEP THEM SIMPLE: NO NEED TO PLEAD A REFERENCE TO SIR CHRISTOPHER WREN IN A CASE ALLEGING BREACH OF CONTRACT
In Portland Stone Firms Ltd & Ors v Barclays Bank Plc & Ors [2018] EWHC 2341 (QB) Mr Justice Stuart-Smith had some telling observations about the way in which statements of case should be drafted. “The applications before the Court have…
SECOND ACTION NOT STRUCK OUT AS AN ABUSE OF PROCESS: CLAIM IN DECEIT CAN CONTINUE AFTER CLAIM IN NEGLIGENCE FAILED: THE CLAIMANT NEED NOT HAVE GAMBLED ON FRAUD CLAIM FIRST TIME AROUND
In Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025 the Court of Appeal overturned a ruling that an action in deceit was an abuse of process. The claimant’s action in negligence failed because there was…
THE FACT THAT A DEFENDANT CANNOT PAY A JUDGMENT DOES NOT MAKE THE ACTION AN ABUSE OF PROCESS: CLAIMANT GRANTED SUMMARY JUDGMENT
In Caribonum Pension Trustee Ltd & Anor v Pelikan Hardcopy Production AG [2018] EWHC 2321 (Ch) Master Clark rejected an argument that the fact that a defendant was never going to be able to pay a judgment meant that the action…
THE “CONDUCT OF LITIGATION” CONSIDERED: WHEN NON-AUTHORISED PERSONS ATTEMPT TO ELBOW IN ON LITIGATION
We are looking for the third (and final) time at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). The judge considered the meaning of “conduct of litigation” as defined by the Legal Services Act…
SHOULD PROCEEDINGS BE STRUCK OUT WHEN THEY ARE ISSUED AND SERVED BY AN UNAUTHORISED ENTITY? TWO CASES THAT AID THE CLAIMANT
The judgment of HHJ Worster In Kassam -v- Gill (13th August 2018, County Court at Birmingham) is available on Lawtel. There are several procedural aspects of that case that are of general interest and which I will look at over…
BREACHING THE RULES, RELIEF FROM SANCTIONS, PERMISSION TO APPEAL AND THE CORRECT JUDGE TO HEAR THE APPEAL
There is much for the litigator to ponder in the Court of Appeal judgment in Broughal v Walsh Brothers Builders Ltd & Anor [2018] EWCA Civ 1610. Firstly how did the claimant come to be in a position when it breached…
UNDERPAYMENT OF COURT FEES IS AN ABUSE OF PROCESS: HOWEVER DESPITE THIS AN ACTION WAS ISSUED WITHIN TIME & WOULD NOT BE STRUCK OUT
In the judgment today in Atha & Co Solicitors v Liddle [2018] EWHC 1751 (QB) Mr Justice Turner considered the issue of whether a failure to pay the correct fee on the issue of proceedings meant that a claim was…
CASE STRUCK OUT BECAUSE WITNESS EMAILED SOLICITORS AND COUNSEL & SPOKE TO THIRD PARTIES WHILST IN THE COURSE OF GIVING EVIDENCE
NB THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 In Hughes Jarvis Limited v Searle [2018] EW Misc B6 (CC) Her Honour Judge Clarke struck out the claimant’s case…
COURTESY, CONDUCT AND LITIGATION: A ROUND UP OF THE POSTS
Last week I set out the responses on Twitter about professional courtesy and conduct. This is a good opportunity to recap on the four posts on this subject. “AGGRESSIVE CORRESPONDENCE” AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED…
TRANSFER FROM COUNTY COURT TO HIGH COURT: YOU CAN ASK FOR THIS ONLY ONCE: A DISCRETION TO BE EXERCISED “WITH GREAT CIRCUMSPECTION”
In Bass v Ministry of Defence [2018] EWHC 1297 (QB) Master Davison held it was an abuse of process for a party to make an application to transfer to the High Court when a similar application had been made, and refused,…