THE CURRENT IMPORTANCE OF PLEADINGS 89: AN APPELLANT CANNOT PURSUE AN UNPLEADED “NEW, NEW CASE”: APPEAL IN CASE AGAINST SOLICITORS WAS “WASTEFUL OF TIME AND RESOURCES”
This is a case that started off as a consideration of the way in which a defendant firm of solicitors adduced evidence to support assertions that there was a history of fraud in motor accident claims. The appellants here, the…
COST BITES 434 : JUDGE REFUSES TO INCREASE CLAIMANT’S BUDGET AFTER TRIAL, EVEN THOUGH IT WAS NOT OPPOSED BY THE DEFENDANT: A PARTY MADE NO ATTEMPT TO EXPLAIN WHY IT NEEDED TO SPEND THE PRICE OF THE AVERAGE UK HOUSE ON ADDITIONAL DISCLOSURE
We are looking at another attempt to vary a costs budget. In this case the attempt was made after the trial and after judgment. Both parties, initially, sought large variations. Only the claimant proceeded with the application in relation to…
COST BITES 433: WHAT ARE “SIGNIFICANT DEVELOPMENTS” WHEN YOU WANT TO VARY A COSTS BUDGET? WHY THERE WERE NO SUCH DEVELOPMENTS HERE
We are continuing our consideration at the appeal case where the defendant’s appeal against a decision to vary the claimant’s budget. The first reason the appeal was successful was because the first instance judge found that there were no “significant…
COST BITES 432: THE COURT CANNOT ALTER THE COSTS BUDGET UNLESS THERE ARE “SIGNIFICANT DEVELOPMENTS” : HIGH COURT DECISION
This case reiterates the essential point that the court has no freestanding discretion to vary a costs budget. An essential prerequisite of variation is that there must be a “significant development” that warrants a variation. There was no such development…
SERVICE POINTS 53: HOW DOES THE COURT PROTECT THE POSITION OF A PARTY WHO WANTS TO APPEAL DECISION IN RELATION TO JURISDICTION BUT RISKS “ACCEPTING” JURISDICTION IN THE MEANTIME? A PUZZLE SOLVED BY THE COURT OF APPEAL
This judgment highlights the risk that a party who wishes to dispute jurisdiction can accidentally accept it. What, if any, steps should the courts take to protect an appellant in these circumstances. The litigant may wish to appeal to a…
SHOULD AN ASSESSMENT OF DAMAGES GO AHEAD PENDING AN APPEAL? £8 MILLION COSTS COULD HELP AVOID £45 MILLION: THE TRIAL COULD MATERIALLY ADVANCE THE LITIGATION AND NARROW FUTURE DISPUTES
Here the court considered whether an assessment of damages should be stayed pending the claimants’ application for permission to appeal. This raised issues in relation to costs management and proportionality. The judge engaged in an exercise of looking at the…
CLAIMANT’S SUCCESSFUL APPEAL AGAINST THE STRIKING OUT OF A CASE BECAUSE A WITNESS STATEMENT HAD NOT BEEN PROVIDED: THE SMALL CLAIMS PROTOCOL IS (VERY) DIFFERENT…
I am grateful to barrister Simon Murray for sending me a copy of this decision that deals with some important procedural issues on the Small Claims Track. In particular it highlights the fact that witness statements are not mandatory on…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: WHAT IF ONE OF THE PARTIES WAS INNOCENT? COURT OF APPEAL CONSIDERS THE ISSUE: SOMETHING ABOUT LACHES TOO…
Setting aside a judgment obtained by fraud is very different to other applications to set aside. It requires a separate action and there is a high burden of proof. However what should happen if one of the parties to the…
THROWBACK FRIDAY: THE DUTY TO PUT YOUR CASE: FINDINGS MADE ON KEY POINTS THAT WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL (AUGUST 2017)
This week we look at an important decision of the Judicial Committee of the Privy Council from 2017. It is a reminder of the need for a party to put their case to the other side’s witnesses at trial. Here…
“GRASPING THE NETTLE”: “THERE HAS BEEN ENOUGH DELAY” IN THIS APPEAL: COURT CUTS THROUGH ISSUES AND REQUIRES APPELLANT TO MAKE AN ELECTION AS TO WHETHER HE REQUIRES AN ORAL HEARING
In this case an order for possession was obtained because of arrears of rent. The tenant appellant appealed. The arrears stand at £73,000 and there was a risk of further delay. The judge “grasped the nettle” in making the appellant…
COST BITES 426: COURT OF APPEAL OVERTURNS DECISION THAT A CLAIMANT IN THE SMALL CLAIMS TRACK SHOULD PAY COSTS AFTER DISCONTINUING: “THE SMALL CLAIMS TRACK IS DESIGNED TO BE DIFFERENT”
This case gives a clear message from the Court of Appeal about the critical importance of the “costs neutral” status of the Small Claims Track. The judgment makes it clear that the starting point is that costs are not recoverable…
COST BITES 425: THE EAT OVERTURNS AN ORDER “ASSESSING” COSTS: THE ET APPLIED THE WRONG TEST IN RELATION TO THE CLAIANT’S MEANS, AND THEN FAILED TO SHOW IT HAD ASSESSED THE COSTS SCHEDULE AT ALL..
Here we are (unusually) looking at a decision of the Employment Appeal Tribunal. The case is unusual because the EAT overturned an order as to costs that had been made by the Employment Tribunal. One of the grounds may be…
SHOULD UNDUE DELAY AND “GROVIT” ABUSE LEAD TO AN ACTION BEING STRUCK OUT UNLESS THERE ARE COMPELLING REASONS NO TO DO SO? THE COURT OF APPEAL CONSIDER THE ISSUES
This is an important decision by the Court of Appeal on how the court should respond to an abuse of process caused by delay. The answer is that this kind of abuse is treated similarly to other types of abuse….
BACK TO BASICS MONDAY: WHAT DOCUMENTS NEED TO BE IN AN APPEAL BUNDLE? A JUDGMENT ON THAT VERY POINT:”DOCUMENTS GENUINELY REQUIRED FOR DETERMINATION OF THE APPEAL”
Over the years we have seen many dozens of cases where judges have been critical of the contents of bundles. I cannot recall a case where a judge has determined the contents in advance. We now have an example here. …
ATTEMPTING TO RE-WRITE A DRAFT JUDGMENT: THIS HARDLY EVER (IF EVER) PERSUADES A JUDGE THAT THEY WERE WRONG
The practice of sending out draft judgments in advance is undoubtedly helpful. It does, however, lead to some procedural difficulties in itself. We have seen numerous examples of the draft embargo on a judgment being breached. It is sometimes seen…
SEEKING A STAY PENDING AN APPEAL: “GENERALISED ASSERTIONS ARE NO SUBSTITUTE FOR EVIDENCE”: COURT REFUSES APPLICATION
This judgment emphasises the point that a party seeking a stay of a judgment cannot obtain this by “generalised assertions”. There are clear and well established criteria for the court to consider. A party making such an application must make …
SERVICE POINTS 50: IS SERVICE OF A TENANT AND AN ADDRESS STATED IN THE LEASE GOOD SERVICE WHEN THE TENANT IS NOT THERE? DOES THE CONTRACT OVERRIDE THE CPR?
This Court of Appeal decision considers issues in relation to contractual service. Does a contractual term in a lease saying that service of documents can take place at the property in question override the CPR provisions as to service? In…
LATE WITNESS STATEMENTS, RELIEF FROM SANCTIONS (OR NOT…) AND THE COURT OF APPEAL CONSIDERS “WHAT IS A TRIAL?”: THE DEFINITION PROVES TO BE VERY IMPORTANT FOR THIS APPELLANT…
One of the key factors in this Court of Appeal judgment was the meaning of the word “trial”. Curiously this is not defined in the rules and has only been considered in two previous cases. The issue was important…
WITNESS EVIDENCE WEDNESDAY: A JUDGE IS NOT BOUND TO ACCEPT ALL DOCUMENTARY EVIDENCE: THE CLAIMANT “HONESTLY BELIEVED” THE CASE BUT THIS DID NOT PROVE IT…
We are looking at a case where an unsuccessful claimant attempted to argue that the trial judge had got the facts wrong, in particular there was a failure to take account of documentary evidence. This judgment highlights the difficulties of…
“STING OPERATIONS”, SECRET AGENTS, NAIVE SOLICITORS DISCLOSING THEIR CLIENT’S PRIVILEGED INFORMATION, STRIKING OUT AND ABUSE OF PROCESS: COURT OF APPEAL DECISION HIGHLIGHTS THE MAJOR RISKS OF “PRIVILEGE HUNTING”
Here the Court of Appeal looks at one of the most remarkable issues of “litigation conduct” that has occurred in recent years. The claimants hired a “black ops” operative to befriend and obtain privileged and confidential information from the defendants’…
THROWBACK FRIDAY: ANOTHER (YES ANOTHER) CASE WHERE A LITIGANT ARGUED “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS” (OCTOBER 2024)
This week we have been looking at could broadly be called “ambitious” arguments by, or on behalf of, litigants as to why they should not pay costs. There are a surprising number of such cases. Here we revisit a post…
CIVIL PROCEDURE, OPAQUE EVIDENCE AND “YOU SHOULD HAVE KNOWN”: ARGUMENTS THAT HAVE BEEN REJECTED BY THE COURTS – TWO EXAMPLES AND THE UNHAPPY CONSEQUENCES FOR THE LITIGANTS…
We are looking at an argument deployed in a case we considered earlier today. It was an argument that the defendants should have been able to “divine” from the oblique nature of the claimant’s evidence that funding was not in…
CAN THE COURT REFUSE TO ISSUE A CLAIM FORM? CAN THE STAFF LAWFULLY REFER THE ISSUE TO THE JUDGE? AN UNUSUAL APPLICATION FOR JUDICIAL REVIEW
Here we look at an unusual application for judicial review. It is all about the powers of the County Court to refer matters, upon issue, to the judge for consider. It makes clear that court staff have no power to…
HALLUCINATED CASE LAW AND THE CROWN PROSECUTION SERVICE (OF ALL BODIES…)
All cases of hallucinated cases are serious, however some may be more serious than others. If we have a situation where the Crown Prosecution Service files documents which rely on cases that simply do not exist, this has to be…
MAZUR MATTERS 64: THE COURT REJECTS WOULD BE APPELLANT’S ARGUMENT THAT A CLAIMANT’S REPRESENTATIVE HAD NO RIGHT OF AUDIENCE
The Court considered a “Mazur” type argument in this application for permission to appeal. The appellant arguing that the claimant had never been lawfully represented at previous hearings. This argument did not get very far. The judge indicated that, even…
THROWBACK FRIDAY: THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: ANOTHER CASE WHERE (MIS) SERVICE OF THE CLAIM FORM LED TO GRIEF
We are going back to July 2018 where the High Court overturned a first instance decision in favour of a claimant on a service of the claim form issue. The judgment is particularly important because the first-instance judgment appeared to…
A JUDGE SHOULD NOT HAVE PREVENTED A DEFENDANT TENANT SPEAKING AT A POSSESSION HEARING JUST BECAUSE THEY HAD NOT FILED A DEFENCE: THE CIVIL PROCEDURE RULES HAVE PRIMACY OVER A PEREMPTORY ORDER
I am grateful to barrister James Stark for sending me a copy of this judgment which is important to all those involved in landlord and tenant litigation, but also raises interesting issues as to how far an order of the…
PERSONAL INJURY MATTERS 17 (1): LIABILITY CATCHUP (1): PUB OPERATOR IS NOT VICARIOUSLY LIABLE FOR DOORMEN’S ACTS: A CONCLUSION REACHED “WITH REGRET”
To ensure that those CLB readers who are personal injury litigators are not neglected there is a short series this work looking at recent decisions in relation to liability (a similar series on damages will feature in a few weeks…
COST BITES 411: HOW DOES A COURT DETERMINE THE AMOUNT OF AN INTERIM PAYMENT AS TO COSTS WHEN THE CASE HAS NOT BEEN BUDGETED? SHOULD A PAYMENT BE ORDERED AT ALL?
Knowledge of the principles dealing with payments on account is important for all litigators. For successful parties it is a major aid in relation to cash flow. For the losing party a payment on account will reduce the interest payable. …
EXPERT WATCH 54 : THE DEPUTY MASTER SHOULD NOT HAVE IGNORED THE EXPERT EVIDENCE BEFORE THE COURT: IT WAS RELEVANT AND ADDRESSED THE CENTRAL ISSUE
We are looking at a case where, on appeal, the judge found that a Deputy Master fell into error by failing to take into account relevant expert evidence provided by a claimant. The judge held that the Master had misunderstood…
A SOLICITOR SHOULD JUST NOT BE SAYING THIS IN A WITNESS STATEMENT: IT “STRAYED WELL BEYOND WHAT SHE COULD LEGALLY GIVE EVIDENCE ABOUT FROM HER OWN KNOWLEDGE INCLUDED HEARSAY FROM AN UNNAMED SOURCE AND INCLUDED STATEMENTS OF OPINION WHICH SHE DID NOT HAVE THE EXPERTISE TO GIVE…”
There are numerous cases reported on this blog where judges have been critical of the “evidence” given by solicitors in witness statements. In many cases, even on cursory examination, it transpires that the lawyer is not in a position to…
COST BITES 407: COURT OF APPEAL OVERTURNS DECISION STRIKING OUT POINTS OF DISPUTE BECAUSE OF NON-AINSWORTH COMPLIANCE: JUDGMENT GIVEN TODAY
In this case the Court of Appeal overturned a decision, itself made on appeal, which had struck out a crucial paragraph of Points of Dispute to a bill of costs. The crucial point here, however, is that this is not…
THE CURRENT IMPORTANCE OF PLEADINGS 85: THERE IS NO “FREE PASS” WHEN AN ACTION IS BROUGHT ON BEHALF OF MULTIPLE CLAIMANTS: “THERE IS A DEFINITE SENSE OF THE CLAIMANTS THRASHING ABOUT, TRYING TO FIND ANY ISSUES WHICH COULD BE TRIED WHICH AVOIDED ANY INVESTIGATION OF ANY FACTS.”
We are returning to this Court of Appeal decision for a second time. Initially we looked at the judgment in relation to the outcome – that the claims could be brought together. However there are important points made here in…
FIVE THOUSAND CLAIMANTS AND JUST EIGHT COURT FEES: COURT OF APPEAL UPHOLDS DECISION ON CPR 7.3
In this case the Court of Appeal upheld a decision that some 5,000 individual small value cases could proceed together as, essentially, one action. The provisions of CPR 7.3 were considered and the Court held that the High Court Judge…
THE COURT WAS WRONG NOT TO STRIKE THE DEFENCE OUT: A FAILURE TO DISPUTE A POINT IN THE JERSEY COURTS MEANT IT WAS NOT OPEN TO A DEFENDANT TO ARGUE IT IN A SECOND ACTION
This is a case where, on appeal, it was held that it was not open to a defendant to bring an action because they had already had the ability to raise issues with a court in Jersey. The judge held…
ASKING THE JUDGE QUESTIONS AFTER JUDGMENT IS DELIVERED: THEY HAVE TO BE NECESSARY TO ENABLE THE PARTIES TO UNDERSTAND THE REASONING OF THE DECISION (AND THESE GO TOO FAR…)
As you can see from the “Related Posts” section below this is not the first time we have considered the position where a losing litigant has written to the judge seeking “clarification” and where the judge has felt that this…
THE CURRENT IMPORTANCE OF PLEADINGS 83: THE CASE OF THE SOLICITOR’S LIEN: THE JUDGE SHOULD NOT HAVE DECIDED AN APPLICATION TO STRIKE OUT ON THE BASIS OF AN UNPLEADED CASE
We look at a case that relates to a solicitor’s lien and alleged breach of duty by those solicitors. It also deals with the basis upon which a judge should determine an application to strike out/summary judgment – making it…
THE COURT OF APPEAL OVERTURNS A JUDICIAL REVIEW DECISION IN FAVOUR OF A SOLICITOR: THE OMBUDSMAN GOT NOTHING WRONG (QUITE A LOT HERE ABOUT VULNERABLE CLIENTS AS WELL…)
In a judgment today the Court of Appeal have overturned a High Court decision that was (partially) in favour of a solicitor who had sought judicial review of a decision of the Legal Ombudsman. The Court has restored the Ombudsman’s…
THE CURRENT IMPORTANCE OF PLEADINGS 82: THERE MAY BE A POTENTIALLY VIABLE CLAIM HERE BUT YOU HAVEN’T PLEADED IT: COURT OF APPEAL OVERTURN A DECISION TO GRANT PERMISSION TO AMEND COUNTERCLAIM
Here we have an unusual example of the Court of Appeal overturning a decision granting permission to amend a statement of case (in this case a counterclaim). The Court of Appeal held that the pleading did not give the information…
DESIGNATED CIVIL JUDGES SHOULD BE CAREFUL WHO IS GIVEN THE TASK OF TRYING COMPLEX TRIALS: COURT OF APPEAL MISSIVE TO DESIGNATED CIVIL JUDGES (& MANY OTHERS…)
Here we look at some comments made yesterday by the Court of Appeal. The court allowed an appeal by a defendant in a personal injury case. The case was heard by a Deputy District Judge. The court was clear that…
THE CURRENT IMPORTANCE OF PLEADINGS 81: IF YOU ARE RELYING ON A STATUTE THAT WASN’T ACTUALLY IN FORCE ON THE DATE IN QUESTION IT MAY HAVE BEEN BETTER FOR YOU TO HAVE PLEADED THIS…
Here we have an unusual case where the trial judge’s findings in favour of the defendant were overturned on appeal. One particular feature of this case is the fact that the claimant relied on a statute that was actually in…
COST BITES 402: DOES THE FACT THAT LEGAL FEES HAVE BEEN PAID BY RELATIVES MEAN THAT A RESPONDENT IS NOT LIABLE TO PAY COSTS? THE INDEMNITY PRINCIPLE CONSIDERED
Here the court considered an argument that the indemnity principle meant that an unsuccessful respondent was not liable to pay the appellant’s costs. It was clear that the fees in question had been paid by family members and not the…
ASSESSORS IN THE COURT OF APPEAL IN ADMIRALTY CASES: WHY WERE THEY NECESSARY? APPELLANTS MAY HAVE SUFFERED FROM THAT SINKING FEELING …
I don’t know if there are many shipping lawyers who read this site. Here we have a very niche part of a judgment in relation to Admiralty Court procedure. The appeal was originally adjourned because there appeared to be a…
COST BITES 401: COURT OF APPEAL OVERTURNS TRIAL JUDGE’S DECISION ON COSTS: THE COMPLICATIONS THAT OCCUR WHEN A COURT IS ASKED TO TAKE DISHONESTY INTO ACCOUNT WHEN MAKING AN AWARD OF COSTS…
Here the Court of Appeal grappled with some interesting issues when it overturned a trial judge’s decision to make no order for costs. The Court of Appeal stated that although the judge had been critical of the conduct of the…
COST BITES 400: MASTERCARD FUNDER FAILS IN THE JUDICIAL REVIEW OF ITS SHARE OF THE PROCEEDS : IT TURNS OUT THAT LITIGATION IS NOT PRICELESS
We have got to number 400 in this series. It is perhaps fitting we deal with (what may well be) the tail end of a mammoth case. Further it is a case where litigation funders felt that they had not…
THE JUDGE WAS ENTITLED TO BELIEVE THE CLAIMANT AND FIND THAT HE WAS NOT FUNDAMENTALLY DISHONEST: DEFENDANT’S APPEAL HITS A BARRIER
Here we look at what was, essentially, an attempt to appeal a trial judge’s findings of fact. It did not fare well. The judge found that the trial judge was entitled to reach the conclusions he did. The absence of…
BACK TO BASICS MONDAY: THE DUTY TO SERVE A NOTICE OF APPEAL “AS SOON AS IS PRACTICABLE”
This post arises from the observations of the judge in a case we looked at last week. In essence it is not enough to simply issue a notice of appeal or an application notice. The rules require that you serve…
AN OFFER TO SETTLE THAT DOES NOT INCLUDE PROVISION FOR COSTS MAY WELL BE INEFFECTIVE: IT CERTAINLY WILL NOT LEAD TO A PETITION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
Here we look at an argument that a petition should be struck out because the respondents had made a reasonable offer to resolve the issues between the parties. The Court of Appeal observed that the “reasonable offer” did not include…
COST BITES 395: A RETAINER WAS NOT A CONTENTIOUS BUSINESS AGREEMENT BECAUSE THE TERMS IN RELATION TO HOURLY RATES RENDERED IT TOO UNCERTAIN (COURT OF APPEAL DECISION YESTERDAY)
This appeal has been much discussed in the specialist press. A solicitor’s client argued that the terms of a retainer rendered in a Contentious Business Agreement. This would have given her greater scope to dispute the bills. The Court of…
A CLAIMANT’S SUCCESSFUL APPEAL IN A HOUSING DISREPAIR CLAIM: THE DISTRICT JUDGE WAS WRONG TO ALLOCATE THE MATTER TO THE SMALL CLAIMS TRACK…
I am grateful to Craig Leigh, for sending me a copy of this judgment in relation to an appeal about allocation in a housing disrepair case. It deals with important principles relating to the allocation of housing disrepair cases. The…
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