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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
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AN APPLICATION THAT WAS "OPPORTUNISTIC AND WITHOUT MERIT": NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL

AN APPLICATION THAT WAS “OPPORTUNISTIC AND WITHOUT MERIT”: NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL

February 25, 2021 · by gexall · in Appeals, Civil Procedure, Court fees, Limitation, Striking out

The issue of non-payment, or under-payment, of court fees was considered by the Court of Appeal in the judgment today in  Butters & Anor v Hayes [2021] EWCA Civ 252. THE CASE During the course of an action the court…

CIVIL PROCEDURE BACK TO BASICS 90: APPEALS, RESPONDENT'S NOTICES AND DENTON

CIVIL PROCEDURE BACK TO BASICS 90: APPEALS, RESPONDENT’S NOTICES AND DENTON

February 23, 2021 · by gexall · in Appeals, Avoiding negligence claims, Civil Procedure

The Court of Appeal judgment in Unite the Union v Alec McfAdden [2021] EWCA Civ 199 highlights the needs for a party, responding to an appeal, to file a Respondent’s Notice if it wants to argue there are additional, or…

ADJOURNMENT OF TRIAL ON THE GROUNDS OF ILL-HEALTH: COURT OF APPEAL OVERTURNS DECISION THAT HEARING SHOULD GO AHEAD: A TRIAL SHOULD BE "FAIR IN ALL THE CIRCUMSTANCES"

ADJOURNMENT OF TRIAL ON THE GROUNDS OF ILL-HEALTH: COURT OF APPEAL OVERTURNS DECISION THAT HEARING SHOULD GO AHEAD: A TRIAL SHOULD BE “FAIR IN ALL THE CIRCUMSTANCES”

February 22, 2021 · by gexall · in Adjournments, Appeals

“Applying for an adjournment on the grounds of ill health” is a common (indeed one of the most common) search terms that leads people to this blog.  It is unusual to see a Court of Appeal decision on this issue….

USING PART 8 PROCEEDINGS INSTEAD OF APPEALING IS AN ABUSE OF PROCESS: A TAXING ISSUE OF SOME INTEREST

USING PART 8 PROCEEDINGS INSTEAD OF APPEALING IS AN ABUSE OF PROCESS: A TAXING ISSUE OF SOME INTEREST

February 17, 2021 · by gexall · in Abuse of Process, Appeals

In Revenue And Customs v MCX Dunlin (UK) Ltd [2021] EWCA Civ 186 the Court of Appeal held that the use of Part 8 proceedings, rather than a statutory route of appeal was an abuse of process. “… it seems…

SOLICITORS NOT ENTITLED TO INDEMNITY COSTS BY RELYING ON CONTRACTUAL TERMS: A FORMER CLIENT'S SUCCESSFUL APPEAL

SOLICITORS NOT ENTITLED TO INDEMNITY COSTS BY RELYING ON CONTRACTUAL TERMS: A FORMER CLIENT’S SUCCESSFUL APPEAL

February 14, 2021 · by gexall · in Appeals, Costs

I am grateful to barrister Ted Loveday for sending me a copy of the judgment of Mr Recorder Cohen QC in Carmen Chevalier-Firescu -v- Ashford LLP (29th January 2021, Central London County Court, a copy of which is availableChevalier-Firescu –…

WHEN A SOLICITOR SAYS "BURN IT" IN RELATION TO DOCUMENTS THIS GIVES RISE TO A PRIMA FACIE ISSUE OF  CONTEMPT OF COURT: COURT OF APPEAL DECISION TODAY

WHEN A SOLICITOR SAYS “BURN IT” IN RELATION TO DOCUMENTS THIS GIVES RISE TO A PRIMA FACIE ISSUE OF CONTEMPT OF COURT: COURT OF APPEAL DECISION TODAY

February 8, 2021 · by gexall · in Appeals, Committal proceedings, Conduct, Disclosure

In the judgment today in  Ocado Group PLC & Anr v McKeeve [2021] EWCA Civ 145 the Court of Appeal overturned a decision that  the court should not allow an application for contempt of court against a solicitor to proceed….

IF A DEFENDANT IS BEING SUED FOR TOO MUCH MONEY THEN IT SHOULD USE PART 36: COURT OF APPEAL OVERTURN DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS

IF A DEFENDANT IS BEING SUED FOR TOO MUCH MONEY THEN IT SHOULD USE PART 36: COURT OF APPEAL OVERTURN DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS

February 8, 2021 · by gexall · in Appeals, Costs, Part 36

In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123 the Court of Appeal overturned a decision that there be no order for costs. The fact that the claimant had succeeded on a fraction of its claim was not…

TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING

TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING

February 5, 2021 · by gexall · in Appeals, Applications, Civil Procedure

A real and profound warning about the dangers of issuing against someone without capacity is given in the judgment of  HHJ Hodge QC sitting as a judge of the High Court in Kumar v Hellard [2021] EWHC 181 (Ch).  …

THE RULES OF LITIGATION ARE DETAILED AND IMPORTANT: COURT REFUSES APPEAL - DEFENDANT'S ATTEMPT TO RE-LITIGATE HEARING WAS AN ABUSE OF PROCESS

THE RULES OF LITIGATION ARE DETAILED AND IMPORTANT: COURT REFUSES APPEAL – DEFENDANT’S ATTEMPT TO RE-LITIGATE HEARING WAS AN ABUSE OF PROCESS

February 4, 2021 · by gexall · in Appeals, Civil Procedure, Setting aside judgment

The judgment of Collins Rice J in  Vafa v Patel [2021] EWHC 198 (QB) shows the importance of knowing and complying with the rules.  The judge dismissed an appeal where it had been held that a defendant’s attempt to re-litigate…

BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL

BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL

February 1, 2021 · by gexall · in Appeals, Case Management, Civil Procedure

The judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC) sets out the judge’s concerns in relation to the over-lengthy documents filed in support of an application for…

SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN'T "WAIT AND SEE"

SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN’T “WAIT AND SEE”

January 28, 2021 · by gexall · in Appeals, Clinical Negligence, Personal Injury, Statements of Case

There is an interesting history in the judgment of Mr Justice Saini in in Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB).  It is a case that is an object lesson in the stringent requirements…

AN INTERESTING CASE IN THE COURT OF APPEAL: NO INTEREST AWARDED ON DAMAGES FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT

AN INTERESTING CASE IN THE COURT OF APPEAL: NO INTEREST AWARDED ON DAMAGES FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT

January 21, 2021 · by gexall · in Appeals, Damages, Interest

In Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49 the Court of Appeal upheld a decision not to award interest on damages for damages for malicious prosecution and misfeasance in public office. THE CASE The claimant…

PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER

PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER

January 17, 2021 · by gexall · in Appeals, Fatal Accidents, Liability

In the judgment in The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31 the Court of Appeal set out some importance principles in relation to claims based on the Occupiers’ Liability Act 1957.  The court upheld a…

LAWFULNESS OF DAMAGES BASED AGREEMENTS UPHELD BY THE COURT OF APPEAL

January 15, 2021 · by gexall · in Appeals, Costs

In a judgment given today the Court of Appeal upheld the decision at first instance in the judgment of HHJ Parfitt (sitting as a High Court Judge in Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch). THE COURT OF APPEAL JUDGMENT In…

PROVING THINGS 194: PROVING CAUSATION IS AN ESSENTIAL ELEMENT OF A CLAIM IN NEGLIGENCE

December 31, 2020 · by gexall · in Appeals, Civil evidence, Personal Injury, Statements of Case

The judgment of Mrs Justice Foster in Norfolk County Council v Durrant [2020] EWHC 3590 (QB) illustrates how it is essential for a claimant to prove causation in a case based on negligence.  It also highlights the need to consider,…

REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS

REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS

December 30, 2020 · by gexall · in Appeals, Avoiding negligence claims, Civil evidence, Civil Procedure, Costs, Relief from sanctions, Witness statements

Needless to say this has been an unusual year for litigators.   It is always interesting to review what have been the most popular posts on this blog and look at some facts and figures.  Can we tell anything about the…

MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION

MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION

December 16, 2020 · by gexall · in Appeals, Applications, Avoiding negligence claims, Extensions of time, Relief from sanctions

In IC v RC [2020] EWHC 2997 (Fam) Mrs Justice Knowles had to consider the Denton criteria and the slip rule.  It also serves as an important warning to anyone undertaking the task of drafting a court order.   “I…

THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL'S JUDGMENT IN O'CONNELL

THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL’S JUDGMENT IN O’CONNELL

December 15, 2020 · by gexall · in Appeals, Civil Procedure, Conduct

Draft judgments are often sent to parties in advance, but sent out on an “embargoed” basis – not to be disclosed until after the date they are formally handed down.  Recent comments on Twitter leads me to think that this…

UNSUCCESSFUL APPEAL AGAINST JUDGE'S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY

UNSUCCESSFUL APPEAL AGAINST JUDGE’S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY

December 10, 2020 · by gexall · in Appeals, Limitation

In Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) Mr Justice Saini dismissed a defendant’s appeal when a trial judge had allowed the claimant’s application under Section 33 of the Limitation Act 1980.  This judgment highlights…

CHALLENGING FINDINGS OF FACT NOT APPEALING TO THE COURT OF APPEAL: PROPOSED RESPONDENT MAY BE ABLE TO HAVE A SAY IN AN APPLICATION FOR PERMISSION TO APPEAL BASED ON FINDINGS OF FACT

CHALLENGING FINDINGS OF FACT NOT APPEALING TO THE COURT OF APPEAL: PROPOSED RESPONDENT MAY BE ABLE TO HAVE A SAY IN AN APPLICATION FOR PERMISSION TO APPEAL BASED ON FINDINGS OF FACT

December 9, 2020 · by gexall · in Appeals, Civil Procedure

In Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 the Court of Appeal expressed severe reservations about permission to appeal findings of fact having been granted.   The judgment indicates that, where findings of fact are challenged, the responding…

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