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,…
FINDINGS OF FUNDAMENTAL DISHONESTY SHOULD HAVE BEEN MADE BY TRIAL JUDGE: DEFENDANT’S APPEAL ALLOWED
The previous post dealt with a judgment of Mr Justice Martin Spencer overturning a judgment in favour of the claimant. The judgment in Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB) is in similar terms. Only on…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
COURT FEES AND STRIKING OUT: CROSS -v- BLACK BULL: PERMISSION TO APPEAL REFUSED
In January this year I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) 072 – Cross v Black Bull – Judgment.Where HH Judge Robinson allowed an appeal where the District Judge had struck out a case…
LIEN, THE SOLICITOR AND THE INSURER: NO SAFE HAVEN FOR DEFENDANTS
The judgment of the Supreme Court this morning in Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21. It confirms that solicitors are entitled to costs in cases where the defendant’s insurer, knowing of the solicitor’s involvement, settled…
WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: “SHEER INCOMPETENCE” DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION
CPR 17.(4) is always one of the most “challenging” sections of the Limitation Act in practice. Amending the name of a party after the expiry of the limitation period is not always easy. The judgment in Best Friends Group & Anor…
LISTING – WAITING TWO YEARS FOR PERMISSION TO APPEAL: 10 MONTHS TO HEAR AN APPLICATION: THIS IS NOT A MODERN JUSTICE SYSTEM
I’m quite happy to carry on posting about listing issues. Litigants should not suffer in silence. I post these three reports without comment. Delay of 10 months for listing of applications “Fast track personal injury claim in Central London County…
SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL
An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence. This case emphasises the importance of witnesses not…
LISTING IN THE COUNTY COURT: AN EVERY DAY STORY OF EVER DAY FOLK: “WE’VE GOT NO JUDGES”
Problems with listing are one of the hidden problems of civil procedure. Hearings are listed and then pulled out at the last moment, often after the parties have arrived at court. This is an issue that should be publicised. It…
SERVICE OF THE CLAIM FORM: DEFENDANTS HAVE A DUTY UNDER THE CPR TO POINT OUT TECHNICAL ERRORS (OR WHY LIFE HAS SUDDENLY GOT A LOT HARDER FOR DEFENDANT LAWYERS)
NB THIS DECISION WAS OVERTURNED ON APPEAL – SEE THE POST HERE I wrote earlier this week about the “tantalising” judgment of Master Bowles in the case of Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch). At…
THE DANGER OF ISSUING UNDER PART 8 AND THEN DOING VERY LITTLE: COURT UPHOLDS REFUSAL TO LIFT STAY: ACTION STRUCK OUT
I am grateful to barrister Richard Whitehall for sending me a copy of the decision of His Honour Judge Pearce in the case of Lyle -v- Allianz Insurance plc (Liverpool CC 21st December 2017). It is a case that illustrates…
COURT FEES AND STRIKING OUT: APPEAL AGAINST STRIKING OUT ALLOWED: CROSS -v- BLACK BULL – THE FULL JUDGMENT
I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) at the end of last year. The full judgment is now available and is attached here 072 – Cross v Black Bull – Judgment A SUMMARY The…
CIVIL LITIGATION REVIEW OF 2017 (IV): COSTS, BUDGETS, PROCEDURAL GAMES AND MISCONDUCT ON ASSESSMENT
This year has been a surprisingly muted year for costs cases, particularly in the higher courts. Several judgments were expected, however they rarely proved to be definitive or wide ranging. 2018 may be the year that some issues are resolved….
MAKE UP A FRAUDULENT CASE, TELL LIES TO THE COURT – GO TO JAIL: THE FORGED WILL CASE HAS A SEQUEL
An earlier post looked at Patel -v- Patel [2017] EWHC 133 (Ch) in which the judge disbelieved all the witnesses who gave evidence that a will had been made in 2005. The trial judge observed. “My remaining concern with Nirja’s evidence is…
SECOND ACTION NOT AN ABUSE OF PROCESS: COURT RESOURCES DOES NOT “TRUMP THE OVERRIDING NEED TO DO JUSTICE”
In Davies v Carillion Energy Services Ltd & Anor [2017] EWHC 3206 (QB) Mr Justice Morris upheld a finding that a second claim brought by the claimant was not an abuse of process. “…even post-Jackson, ultimately, the importance of the efficient…
PROVING THINGS 79: SOME THINGS JUST CAN’T BE A COINCIDENCE: A CAR CRASH OF A CASE
We have already looked today at the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors[2017] EWHC 3088 (QB). However that judgment also contains a close and careful analysis of witness evidence. “I start by asking myself this question:…
SIGNING THE STATEMENT OF TRUTH IN PRE-ACTION DOCUMENTS: WILL THE SOLICITOR GO TO JAIL OR NOT?
There has already been some discussion in the Gazette about the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors [2017] EWHC 3088 (QB). In particular the observations in relation to signature of documents by the legal representative. This…
LEGAL QUACKERY & AN “OVERWHELMING MIASMA OF FAKE LAW” : OBSTRUCTING JUSTICE AND OBSTRUCTING THE COURT SYSTEM
I usually confine this blog to cases relating to the law in England and Wales. However the judgment of Noonan J in Bank of Ireland Mortgage Bank -v- Martin & anor [2017] IEHC 707 was brought to my attention by an…
FABRICATING DOCUMENTS AND MISLEADING THE JUDGES: WHEN KEY DOCUMENTS ARE HIDDEN BEHIND THE CURTAINS IN COURT
The judgment of Mr Justice Henry Carr in Ghassemian v Chatsworth Court Freehold Company Ltd & Ors [2016] EWHC 872 (Ch) illustrates the lengths to which some litigants will go. The judge found that the applicant had forged documents, backdated applications…
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
ALLEGING AND FINDING FUNDAMENTAL DISHONESTY, PLEADING AND EVIDENCE: COURT OF APPEAL JUDGMENT TODAY
I am grateful to barrister Tom Vonberg for sending me a copy of the Court of Appeal decision today in Howlett -v- Ageas [2017] EWCA Civ 1696. Howlett & anr v Davies & anr- jt Final-1. Tom acted for the…
NOT PROCEEDING WITH LITIGATION FOR ONE YEAR IS NOT AN ABUSE OF PROCESS: THE ACTION WAS NOT BEING “WAREHOUSED”: BUT STILL A POINT TO WATCH
In Grenda Investments Ltd v Barton [2017] EWHC 2371 (Comm)Mr Justice Picken considered (and rejected) an argument that the claimant’s failure to proceed with litigation for a year amounted to an abuse of process. Although the application failed this case does…
ACTION WAS STATUTE BARRED AND AN ABUSE OF PROCESS: THE COURT WILL NOT SIMPLY REFEREE WHATEVER GAME A CLAIMANT WANTS TO PLAY
In Schweppe -v- Closier [2017] EWHC 1486 (TCC) Mr Justice Coulson struck out an action on the grounds it was statute barred and represented an abuse of process. The judgment is worth reading because it reviews the principles relating to…
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