FATAL ACCIDENT DAMAGES: A CLAIM FOR SERVICES CAN BE BASED ON THE COSTS OF COMMERCIAL REPLACEMENT – WITHOUT DISCOUNT
The Court of Appeal decision in Steve Hill Ltd v Witham [2021] EWCA Civ 1312 contains an important consideration of the basis upon which claims for loss of services are calculated in a fatal accident case. FATAL ACCIDENT -…
THE JUDGMENT IN JALLA -V- SHELL: THE JUDGMENT OF LORD JUSTICE UNDERHILL: THE ABSENCE OF ANY EXPLANATION FOR DELAY
The case of Jalla & Anor v Shell International Trading And Shipping Co. Ltd & Anor (Appeal 3: Refusal to Extend Time) [2021] EWCA Civ 1559 was covered in the previous post. It is worthwhile looking at the shorter judgment…
COURT OF APPEAL UPHOLDS DECISION NOT TO EXTEND TIME FOR COMPLIANCE WITH COURT ORDER: 28,000 CLAIMS BITE THE DUST
In the decision today in Jalla & Anor v Shell International Trading And Shipping Co. Ltd & Anor (Appeal 3: Refusal to Extend Time)[2021] EWCA Civ 1559 the Court of Appeal upheld a decision not to grant extensions of time…
INTERPRETERS, REMOTE HEARINGS AND A FAIR TRIAL: HIGH COURT APPEAL DECISION
In Gholizadeh v Sarfraz [2021] EWHC 2814 (Ch) Mr Justice Miles considered the issue of fairness when witnesses, giving evidence remotely, did not use a translator. We have a situation where the defendant’s representatives stated, openly, prior to trial that…
APPEAL WAS OUT OF TIME DUE TO FAILURE TO USE EFILING: A POINT TO WATCH
The judgment of Eason Rajah QC (sitting as a Judge of the Chancery Division)in Walker v The Official Receiver [2021] EWHC 2868 (Ch) highlights a problem with appeals in the Chancery Division. The appellant had problems because an appeal was to…
IN THE RUN UP TO HALLOWEEN: MISSIVES FROM THE BENCH: “THAT ONE’S HALF BLIND AND HALF DEAF. I CALL HIM THE COURT OF APPEAL”
In the run up to Halloween I thought I would repeat some of the “scary” posts on this blog. Here we look at a post from November 2018, a collection of Twitter comments about judicial interventions. “DJ Tynas at Macclesfield…
WHEN AT COURT MAKE SURE YOU CAN ALWAYS BE FOUND: PROMPTNESS, SETTING ASIDE AND CPR 39.3(5)
In Altaf & Ors v Close Brothers Ltd [2021] EWHC 2823 (QB) Mr Justice Fordham considered an application made by a defendant who left the court before the trial started. It highlights the importance of every litigant, once they arrive…
WHEN CAN A COURT TAKE ADDITIONAL LIABILITIES UNDER A CFA INTO ACCOUNT IN THE AWARD OF DAMAGES?
Another aspect of the Court of Appeal judgment in Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 was the Court of Appeal’s consideration of whether it was appropriate for the judge to take into account liabilities for costs under a…
WHY THE CIVIL PROCEDURE RULES COMMITTEE IS MORE APPROPRIATE THAN THE SUPREME COURT (FROM THE SUPREME COURT)
There is one passage in the Supreme Court judgment in Ho -v- Adelkun [2021] UKSC 43 that makes for interesting reading. The Supreme Court made it quite clear that, in procedural issues, the Civil Procedure Rules Committee is often a more…
THE CONSEQUENCES OF FAILING TO FILE AN ACKNOWLEDGMENT OF SERVICE: NO INJUSTICE WHEN A DEBARRED PARTY ATTENDED A TRIAL BY SKYPE: COURT OF APPEAL DECISION
In Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 the Court of Appeal rejected an argument that a defendant, who had not filed an acknowledgement of service and had been debarred from taking part in the action, suffered injustice…
PROVING THINGS 217: WHEN AN ACCIDENT IS UNEXPLAINED: RES IPSA LOQUITUR CANNOT ASSIST
The problems of establishing liability when its cause is not certain are set out in the judgment of Mr Justice Robin Knowles in Savigar v Ainscough Crane Hire Ltd [2021] EWHC 2707 (QB). THE CASE The claimant suffered serious…
THE DENTON CRITERIA: LATE APPEALS, NEW EVIDENCE AND PERMISSION TO APPEAL: A PROPOSED APPELLANT IS NOT ENTITLED TO TWO BITES OF THE CHERRY
The judgment of HHJ Karen Walden-Smith in Nagpal v Kumar [2021] EW Misc 17 (CC) illustrates the difficulties faced by a party that requires permission to appeal out of time and wishes to adduce new evidence at the proposed appeal….
GRIFFITHS -V- TUI IN THE COURT OF APPEAL 3: THE CLAIMANT DID NOT HAVE A FAIR TRIAL: THE COURTS SHOULD NOT ALLOW LITIGATION BY AMBUSH: THE DISSENTING JUDGMENT
NB THE DECISION IN THIS CASE WAS OVERTURNED BY THE SUPREME COURT. THE SUPREME COURT ESSENTIALLY AGREEING WITH THE DISSENTING JUDGMENT OF BEAN LJ CONSIDERED IN THIS POST. THE SUPREME COURT DECISION IS DISCUSSED HERE. This is the third post…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL 2: THE OTHER GROUNDS OF APPEAL: AN EXPERT’S REPORT WITHOUT REASONING IS “ALL BUT WORTHLESS”
NB THE COURT OF APPEAL DECISION WAS SUBSEQUENTLY OVERTURNED BY THE SUPREME COURT – SEE THE DECISION HERE. This is the second post about the Court of Appeal decision in Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442. Here we…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL (1): JUDGES AND EXPERTS: THE COURT IS NOT A RUBBER STAMP
NB THE COURT OF APPEAL DECISION IN GRIFFITHS WAS OVERTURNED BY THE SUPREME COURT, SEE THE DISCUSSION HERE. This is the first of a series of posts that consider the Court of Appeal judgment in Griffiths v Tui (UK) Ltd…
WHEN AN EMAIL FROM A SOLICITOR IS EVIDENCE OF LOSS: EVIDENCE AT THE STAGE 3 STAGE CONSIDERED ON APPEAL
I am grateful to barrister Sarah Robson for bringing my attention to the decision of HHJ Jarman QC in Akram v Aviva Insurance Ltd [2021] EW Misc 16 (CC). This is a case that highlights the flexibility the courts have…
ASSESSING BILLS OF COSTS: GIVE DETAILS OF THE SIGNATORY AND OF THE FEE EARNERS OR YOUR BILL WILL STRUCK OUT: “AN OUNCE OF OPENNESS IS CHEAPER THAN ANY ARGUMENT”
I am grateful to solicitor Benjamin T Petrecz for drawing my decision to the judgment in Barking, Havering & Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 (QB) Mrs Justice Steyn (sitting with an assessor Master Brown) allowed…
INTERIM PAYMENTS WHEN THERE ARE A NUMBER OF DEFENDANTS: THE PRINCIPLES CONSIDERED BY THE COURT OF APPEAL
I am grateful to barrister Michael Lemmy for sending me a copy of the Court of Appeal judgment today in Buttar Construction Ltd -v- Arshdeep [2021] EWCA Civ 1408. The Court considered arguments about whether an interim payment should have…
MISSING WITNESSES: THE SUPREME COURT SAYS IT IS REALLY A MATTER OF COMMON SENSE
This blog has looked, many times, at the inferences that courts draw when witnesses do not give evidence at court. In Royal Mail Group Ltd v Efobi [2021] UKSC 33 the Supreme Court made it clear that the principles involved…
PEREMEPTORY ORDERS IN THE COURT OF APPEAL 2: MAKING CONCESSIONS AND PUTTING ALL YOUR EGGS IN ONE BASKET
There are twp other aspects of the Court of Appeal judgment in Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 that merit consideration. Firstly the claimant’s decision to make one application; the second related to concessions made…
CONSTRUING PEREMPTORY ORDERS: THE DATE FOR COMPLIANCE IS THE DATE FOR COMPLIANCE: COURT OF APPEAL DECISION
In Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 the Court of Appeal considered the construction of an “unless” order. It was held that the date for compliance on the order had to be construed as the…
JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK
In Elias & Anor v Blemain Finance Ltd [2021] EW Misc 15 (CC) HHJ Keyser QC overturned a decision allocation an action to the small claims track. The matter was re-allocated to the fast track. “… it seems to me…
JUDGE WAS CORRECT TO ORDER DEFENDANT TO FACE NORMAL CONSEQUENCES WHEN CLAIMANT BEAT THEIR OWN PART 36 OFFER: HIGH COURT DECISION
There is another aspect of the judgment in Elgamal v Westminster City Council [2021] EWHC 2510 (QB) that needs consideration. The judgment on fundamental dishonesty was considered in the previous post. The defendant was unsuccessful in their appeal against the…
EXAGGERATION OF INJURIES IS NOT NECESSARILY FUNDAMENTAL DISHONESTY: HIGH COURT DECISION
In Elgamal v Westminster City Council [2021] EWHC 2510 (QB) Mr Justice Jacobs rejected an appeal from a defendant that argued the trial judge should have found a claimant to be fundamentally dishonest. “The Defendant’s argument, based on the word…
DISCUSSIONS TO SELL LAND WERE WITHOUT PREJUDICE AND COULD NOT BE RELIED UPON AT HEARING: THE WITHOUT PREJUDICE RULE EXAMINED
In Windmill Holdings SPV Ltd v Adams & Anor (LAND REGISTRATION – ADVERSE POSSESSION – evidence) [2021] UKUT 228 (LC) The Upper Tribunal (Lands Chamber), Judge Elizabeth Cooke, upheld the decision of the First-tier tribunal excluding certain evidence on the…
SECTION 33 CONSIDERED IN THE COURT OF APPEAL: TRIAL JUDGE WAS CORRECT TO EXERCISE THEIR DISCRETION
In Blackpool Football Club Ltd v DSN [2021] EWCA Civ 1352 the Court of Appeal considered, and upheld, a decision on Section 33 where the discretion was exercised in favour of the claimant. This was in the context, however, of…
NEW RULES COMING INTO FORCE ON THE 1ST OCTOBER 3: PERMISSION TO APPEAL FROM FIRST INSTANCE JUDGEAFTER ADJOURNMENT
The rules currently provide that application for permission to appeal to the judge who made the decision must be made to the lower court at the hearing at which the decision to be appealed was made. If an application is…
FATAL ACCIDENT DAMAGES: COURT OF APPEAL UPHOLDS WIDOW’S CLAIM TO DAMAGES BASED ON “PRACTICAL REALITY”
In Paramount Shopfitting Company Ltd v Rix [2021] EWCA Civ 1172 the Court of Appeal rejected a defendant’s appeal in relation to the assessment of damages awarded to a widow. The widow’s husband had run a successful business. The fact that…
RELIEF FROM SANCTIONS GRANTED ON APPEAL WHERE A PARTY FAILED TO PAY THE COURT FEE
In Silber v London Borough of Barnet (HOUSING – CIVIL PENALTY – case struck out by FTT for failure to pay the hearing fee – criteria for relief from sanctions) [2021] UKUT 206 (LC) the Upper Tribunal allowed an appeal…
“… THE JUDGE COULD NOT UNDERSTAND WHY EITHER SIDE WAS PROPOSING TO SPEND LARGE SUMS ON LITIGATION THAT APPEARED BOTH FUTILE TO BRING AND SENSELESS TO DEFEND”: COURT OF APPEAL DECISION ON SECURITY FOR COSTS
The decision of the Court of Appeal in Heathfield International LLC v Axiom Stone (London) Ltd & Anor [2021] EWCA Civ 1242 is about security for costs. The “mysteries” as to why the action was being brought and defended, played…
MASTER WAS RIGHT TO SET ASIDE AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: ANOTHER CLAIMANT’S ACTION BITES THE DUST
The judgment of Mr Justice William Davis in Qatar Investment And Projects Holding Co & Anor v Phoenix Ancient Art S.A. [2021] EWHC 2243 (QB) adds to the many, many, cases on this blog that deal with the dangers relating…
THE CIVIL JUSTICE SYSTEM DOES NOT COWER IN THE SHADOWS: IT IS DIFFICULT FOR LITIGANTS TO BE ANONYMOUS: NO “PARLIAMENTARY PRIVILEGE” HERE
If you are ever asked the question as to what the similarities are between dancers at Spearmint Rhino and employees of Members of Parliament then there is only one appropriate answer. They have both applied for, and been refused, permission…
EXTENSIONS OF TIME AND THE DENTON CRITERIA: WHEN IT IS UNSATISFACTORY FOR AN APPELLANT TO GO HUNTING
In Secretary of State for Work and Pensions & Anor v Hughes & Ors [2021] EWCA Civ 1093 the Court of Appeal were, shall we say, slightly unimpressed by an argument that a judge should have applied the Denton test…
DEFENDANT REFUSED PERMISSION TO WITHDRAW FROM AN ADMISSION: COURT OF APPEAL UPHOLDS DECISION OF HIGH COURT JUDGE
In J v A South Wales Local Authority [2021] EWCA Civ 1102 the Court of Appeal upheld an earlier decision refusing a defendant permission to resile from an admission. “There is no doubt that the checklist at paragraph 7.2 is…
DENTON, APPLICATIONS, THE COURT OF APPEAL AND THE ADMINISTRATIVE COURT: WHEN THE COURT TELLS YOU THAT SPECIFIC APPLICATIONS ARE NEEDED IT IS A GOOD IDEA TO MAKE THEM
In Mahmud, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 1004 the Court of Appeal sent out a reminder that the need to comply with the Civil Procedure Rules extends to the Administrative…
“FOR THOSE WHO BELIEVE THAT MOST CIVIL LITIGATION DOES NOT END UP BEING ABOUT THE COSTS… LOOK AWAY NOW”: COURT OF APPEAL ON NON-PARTY COSTS ORDERS
In Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret Ve Sanayi AS v Aytacli [2021] EWCA Civ 1037 the Court of Appeal upheld a judge’s decision not to make a non-party order against a director of a litigant company. The…
ROAD TRAFFIC ACCIDENTS, FIXED COSTS, A DECEASED CLAIMANT AND THE COURT OF APPEAL
In the judgment today in West v Burton [2021] EWCA Civ 1005 the Court of Appeal held that a case pursued by the estate of a deceased person was not subject to the fixed costs provisions of Section III of…
APPEAL COURT CANNOT IMPOSE COSTS CONDITION WHEN GIVING PERMISSION TO APPEAL IN SMALL CLAIMS TRACK APPEAL
The judgment of the Court of Appeal today in Smith v The Royal Bank of Scotland Plc [2021] EWCA Civ 977 highlights the fact that the small claims track is a “no costs” regime, even when matters reach the Court…
“THE SOMETIMES HARSH, EVEN BRUTAL, DEFAULT CONSEQUENCES OF 36.17 MUST BE APPLIED IN THE PRESENT CASE”: RECOVER £10 IN DAMAGES AND STILL GET COSTS ON THE INDEMNITY BASIS
In Shah & Anor v Shah & Anor [2021] EWHC 1668 (QB) Mrs Justice Collins Rice upheld the decision of the trial judge that the defendants should bear the normal Part 36 consequences when the claimants had made a Part…
THE USE OF EXPERT WITNESSES TO CONSTRUE EUROPEAN DIRECTIVES AFTER BREXIT: HOW THE COURT WORKS WITH “ONE OR BOTH HANDS TIED BEHIND ITS BACK”
In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) Mr Justice Martin Spencer considered the “nightmare position” the courts are now in as a result of the European Union (Withdrawal) Act 2018 in relation to interpreting European Directives. This…
COURT REFUSED PERMISSION TO SERVE RESPONDENT’S NOTICE LATE: DENTON PRINCIPLES APPLIED
There is a separate aspect of the decision of Mr Justice Lavender in SGI Legal LLP v Karatysz [2021] EWHC 1608 (QB) that warrants attention, the judge’s refusal to extend time for service of a respondent’s notice. “The purpose of a…
DEDUCTION OF LEGAL FEES FROM THE CLIENT’S DAMAGES: SOLICITORS SUCCESSFUL ON APPEAL
The decision of Mr Justice Lavender in SGI Legal LLP v Karatysz [2021] EWHC 1608 (QB) is part of the long, and continuing, battle relating to the deduction of legal fees by solicitors from claimant’s damages. In this case the…
NO NEED TO CALL CLAIMANT’S MEDICAL EXPERT IN A FAST TRACK TRIAL: MUST BE A GOOD REASON TO DEPART FROM THE NORMAL PROCEDURE
I am grateful to Claire Haley from Aegis Legal for sending me a copy of the judgement of HHJ Freedman in Taylor -v- TUI UK Limited (County Court at Newcastle 22nd January 2021). The judge overturned a decision that the…
ARGUING THAT A CONVICTION FOLLOWING A GUILTY PLEA WAS WRONG: GUIDANCE FROM THE COURT OF APPEAL
In Munir v Revenue And Customs [2021] EWCA Civ 799 the Court of Appeal considered the steps available to a litigant who wished to argue that a criminal conviction was erroneous. In particular a litigant most probably needs to waive…
COURT OF APPEAL ENCOURAGES LITIGANTS TO GET INTO GEAR ON LISTS OF ISSUES AND SUGGESTIONS FOR MEDIATION
In Gregor Fisken Ltd v Carl [2021] EWCA Civ 792 the Court of Appeal made observations about two issues: the drafting of a list of issues; the failure to consider mediation. “It appears that the list of issues agreed by…
APPLICATIONS BY EMAIL: JUDGES SHOULD BE ALERT AND THE PROCESS PROCEDURALLY FAIR: COURT OF APPEAL DECISION
There are some case where the parties attempt to litigate by correspondence, particularly correspondence with the court. Letters and emails proliferate, with no real structure. The rules of evidence, and the difference between “facts”, “arguments” and “submissions” are usually entirely…
WHEN DOES THE LIMITATION PERIOD START TO RUN WHEN A BARRISTER GIVES TWO ADVICES?
In Sciortino v Beaumont [2021] EWCA Civ 786 the Court of Appeal allowed a claimant’s appeal against a finding that a negligence action against a barrister was statute barred. Although this is a case about limitation and negligence it has…
CLAIMANT SUCCESSFUL ON APPEAL IN APPLICATION FOR NON-PARTY DISCLOSURE: THEY “SHOULD NOT HAVE HAD TO MAKE THE DISCLOSURE APPLICATION IN THE FIRST PLACE”
In Sparkes v London Pension Funds Authority & Anor [2021] EWHC 1265 (QB) Mr Justice Murray allowed an appeal and made an order for non-party disclosure in favour of a claimant. There are few appellate decisions in relation to non-party…
SEEKING PERMISSION TO APPEAL: THE COVID PROTOCOL MAKES NO DIFFERENCE TO THE TIME LIMITS: A POINT TO REMEMBER
In Claydon Yield-O-Meter Ltd v Mzuri Ltd & Ors [2021] EWHC 1322 (IPEC) HHJ Hacon rejected an argument that the Covid Protocol had any effect on the provisions for applying for permission to appeal. The proposed appellants should have applied…
DEFAULT COSTS CERTIFICATE NOT SET ASIDE: SERVICE BY EMAIL WAS WRONG, BUT RECTIFIABLE: RELIEF FROM SANCTIONS REFUSED
Cases on Default Costs Certificates appear to be like London Buses – they come along in twos. Here we have the second case in two days. In Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205…
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