THE USE OF A SECOND REPORT IN THE LOW VALUE ROAD TRAFFIC PROTOCOL: FAILURE TO DISCLOSE FIRST REPORT TO THE DEFENDANT DID NOT LEAD TO MEDICAL EVIDENCE BEING EXCLUDED
I am grateful to barrister Kriti Upadhyay for sending me copies of the judgment of Mrs Justice Foster in Greyson -v- Fuller [2022] EWHC 211 (QB), a copy of which is available here Greyson v Fuller – HC Judgment 3-2-22…
HIGH COURT JUDGE OVERTURNS FINDINGS OF FUNDAMENTAL DISHONESTY AT TRIAL: “ALL CITIZENS ARE EQUALLY ENTITLED TO COME BEFORE THE COURTS IN CIVIL CLAIMS”
In Cojanu v Essex Partnership University NHS Trust [2022] EWHC 197 (QB) Mr Justice Ritchie overturned a trial judge’s findings of fundamental dishonesty. The fact that a claimant had lied about the cause of his injuries did not impact upon…
COURT OF APPEAL ISSUE WARNING AGAINST EXCESSIVE COSTS (INCLUDING THE COSTS OF APPEALS)
In The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 the Court of Appeal were concerned about the costs involved in litigation on what were, essentially, preliminary issues. This included the…
THE PROFOUND DIFFICULTIES IN REHEARING AN APPLICATION WHERE PERMISSION TO APPEAL WAS REFUSED: AN “EXCEPTIONAL JURISDICTION”: NUMEROUS BITES OF THE CHERRY NOT EASILY ALLOWED
In Dal v Bicknell & Anor [2022] EWHC 120 (Ch) Mr Justice Edwin Johnson considered the circumstances in which a party, refused permission to appeal, could seek to re-open the decision to refuse permission. The cases in which that can…
APPLICATIONS TO AMEND: TOWER BLOCKS, FIRE SAFETY AND “FACTS” PLEADED IN THE DEFENCE: COURT OF APPEAL DECISION
In Mulalley & Co. Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 the Court of Appeal upheld a decision that a claimant, seeking to amend its Particulars of Claim by referring to matters pleaded in the defence, was pleading…
YOU CAN’T RAISE A TOTALLY NEW POINT ON APPEAL: COURT OF APPEAL DOES NOT ALLOW A MAJOR CHANGE OF CASE
In London Borough of Brent v Johnson [2022] EWCA Civ 28 the Court of Appeal set out the difficulties for a party that wishes to take a fundamentally new or different point on appeal. This gives rise to major difficulties…
FAILING TO TAKE STEPS IN RELATION TO A VULNERABLE WITNESS RENDERED THE TRIAL UNFAIR: COURT OF APPEAL DECISION
In S (Vulnerable Party: Fairness Of Proceedings) [2022] EWCA Civ 8 the Court of Appeal set aside a judgment when the court had not appreciated that a key witness was a vulnerable witness and that steps needed to be taken…
THE GOOD LAW PROJECT JUDGMENT TODAY – TWO PROCEDURAL ISSUES: RELIEF FROM SANCTIONS & THE COURT’S APPROACH TO UNCHALLENGED WITNESS EVIDENCE
The Court of Appeal judgment today in The Good Law Project, R (On the Application Of) v Minister for the Cabinet Office [2022] EWCA Civ will, no doubt, be subject to much legal, and political, scrutiny. Here I want to…
SERVICE WITHOUT A SMILE: CLAIMANTS COME TO GRIEF IN THE COURT OF APPEAL: SENDING AN UNSEALED CLAIM FORM IS NOT GOOD SERVICE, THE CLAIMANTS COULD NOT RELY ON CPR 3.10
The first (but probably not the last) case on service of the claim form arrives in January, with the Court of Appeal decision in Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors [2022] EWCA Civ 14. It…
REVIEW OF 2021 (2): CIVIL LITIGATION CASE OF THE YEAR: MOTHER AND CHILD DO NOT BECOME HOMELESS AFTER SUCCESSFUL APPEAL
In Williams v Nilsson & Anor [2021] EWHC 3184 (Ch) HHJ Richard Williams (sitting as a High Court judge) allowed an appeal in a case relating to ownership of property. There is plenty about procedure and evidence in this case,…
SOLICITOR AND OWN COSTS ASSESSMENT: HIGH COURT UPHOLDS DECISION THAT CLIENT NOT LIABLE TO PAY ADDITIONAL COUNSEL’S FEES: SOLICITOR TERMINATED THE RETAINER AND COULD NOT RECOVER COSTS
I wrote about the first instance decision in Murray v Richard Slade And Co Ltd [2021] EWHC 3383 (QB), in two posts in January this year, the first is here, the second here. The claimant in that case (the solicitor…
CIVIL PROCEDURE BACK TO BASICS 92: RESILING FROM ADMISSIONS – A SUMMARY OF THE LAW
The judgment of Master Stevens in Shah v London Borough of Barnet [2021] EWHC 2631 (QB) provides an essential summary of the rules and case law in relation to resiling from admissions. The decision itself was looked at in an…
IS A CONDITIONAL FEE AGREEMENT UNENFORCEABLE IF THE SOLICITOR BREACHES THE CODE OF CONDUCT? MUCH TO THINK ABOUT?
The judgment of Mr Justice Trower in Winros Partnership v Global Energy Horizons Corporation [2021] EWHC 3410 (Ch) gives much for lawyers to think about. Here I want to concentrate on one element of that judgment- does a failure to…
ROUTE OF APPEAL FROM COMMITTAL DECISIONS IN THE DIVISIONAL COURT: GO TO THE SUPREME COURT DIRECTLY
The observations at the end of the Divisional Court judgment in National Highways Ltd v Buse & Ors [2021] EWHC 3404 (QB) are of some interest. The Court held that the appropriate route to appeal committal decisions made in the…
THE SOLICITORS DISCIPLINARY TRIBUNAL CAN AWARD COSTS ON THE INDEMNITY BASIS: APPEAL ON THIS ISSUE COMPROMISED
In October 2020 I wrote about the case of SRA -v- Ahmud where the Solicitors Disciplinary Tribunal were highly critical of the steps taken by the SRA in investigating and bringing a claim alleging dishonesty. That case has a short coda in…
CLAIMANT’S APPLICATION FOR RELIEF FROM SANCTIONS REFUSED: A PARTY MORE INTERESTED IN APPEALING A COURT ORDER THAN COMPLYING WITH ITS TERMS…
In Day v Womble Bond Dickinson (UK) LLP [2021] EWHC 3236 (QB) Deputy Master Toogood refused a claimant’s application for relief from sanctions when there had been a four month delay in applying for permission to amend the Particulars of…
A DEFENDANT CAN RARELY (IF EVER) COMPEL A CLAIMANT TO JOIN OTHER DEFENDANTS TO AN ACTION: COURT OF APPEAL EXTRACTS CLAIMANT FROM A DIFFICULT SITUATION
In Pawley v Whitecross Dental Care Ltd & Anor [2021] EWCA Civ 1827 the Court of Appeal overturned an order that allowed a defendant to add additional defendants to a claim. Making such an order exposed the claimant to the…
SKELETON ARGUMENTS: NOT TOO LONG, NOT TOO SHORT: MISSIVE FROM THE HIGH COURT: THE IMPORTANCE OF GETTING THEM “JUST RIGHT”
In Overd & Ors v The Chief Constable of Avon And Somerset Constabulary [2021] EWHC 3100 (QB) Mr Justice Linden reminded advocates of the guidance relating to skeleton arguments. One was too long, the other too short. THE…
TRIALS ON PRELIMINARY ISSUES, CALDERBANK OFFERS AND COSTS: COURT OF APPEAL REJECT SUBMISSION THAT “WOULD REPRESENT THE ANTITHESIS OF GOOD POLICY” & “REWARD BAD BEHAVIOUR”
In the judgment in McKeown v Langer [2021] EWCA Civ 1792 the Court of Appeal rejected an argument that a Calderbank offer had the same effect as a Part 36 offer when a court was considering the issue of costs…
ARE PARTICULARS OF CLAIM PROPERLY SERVED IF SENT (AT THE 12th HOUR) IN THE POST WITH THE CLAIM FORM? CIRCUIT JUDGE DECISION ON APPEAL
I am grateful to barrister Christopher Johnson for sending me a copy of the judgment of HHJ Ralton in the case of Ellis -v- The Chief Constable of Avon & Somerset Constabulary (HHJ Ralton, 16th November 2021). The judge was…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: “MAINTAINING THE LIE ALL THE WAY TO THE COURT OF APPEAL”
The Court of Appeal judgment in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766 contains an important discussion of the circumstances in which it is possible to bring a second action to set aside…
COURT OF APPEAL OVERTURNS DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS: COMMITTAL APPLICATIONS ARE NOT SUBJECT TO ANY SPECIAL RULES
In Loveridge & Anor v Loveridge [2021] EWCA Civ 1697 the Court of Appeal overturned a decision that should be no order for costs following the withdrawal of committal proceedings. The Court also allowed costs on the indemnity basis from…
MODERN SLAVERY AND THE LIABILITY OF AN INSURER: COURT REJECTS ARGUMENT THAT INSURERS ARE LIABLE TO INDEMNIFY “EMPLOYERS” IN MODERN SLAVERY CASE
In the decision today in Komives & Anor v Hick Lane Bedding Ltd & Anor [2021] EWHC 3139 (QB) Mrs Justice May refused the claimants’ appeal on the issue of whether an insurer was entitled to avoid an employer’s liability…
DENTON PRINCIPLES CONSIDERED IN APPLICATION TO APPEAL OUT OF TIME : PERMISSION GRANTED
In Kumar v Secretary of State for Business, Energy and Industrial Strategy & Anor [2021] EWHC 2965 (Ch) ICC Judge Barber considered the Denton principles in an application for permission to appeal out of time. The appellant’s application was granted….
PROVING THINGS 218: THE NEED TO PROVE CAUSATION IN ADDITION TO BREACH OF DUTY
The Court of Appeal judgment in Cunningham v Rochdale Metropolitan Borough Council [2021] EWCA Civ 1719 highlights the need to prove issues of causation in addition to breach of duty. THE CASE The claimant is a teacher who was attacked…
COURT OF APPEAL GUIDANCE ON REDACTION OF DOCUMENTS: OBJECTIONS SHOULD BE MADE WELL AHEAD OF TRIAL
In Promontoria (Oak) Ltd v Emanuel & Ors [2021] EWCA Civ 1682 the Court of Appeal set out some guidance in relation to the approach of the courts when documents are redacted. In particular issues relating to redaction should not…
THE COURT OF APPEAL AND FAILURE TO PAY THE TRIAL FEE: RELIEF FROM SANCTIONS GRANTED EVEN THOUGH NO FORMAL APPLICATION WAS BEFORE THE COURT
In the judgment in Boodia v Yatsyna [2021] EWCA Civ 1705 the Court of Appeal allowed a decision that a Circuit Judge had made with a heavy heart. The judgment reviews the cases in relation to non-payment, or late payment,…
THE INTOXICATED PASSENGER AND ESTABLISHING CONTRIBUTORY NEGLIGENCE: COURT OF APPEAL DECISION
In Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 the Court of Appeal upheld a finding that a claimant could be contributory negligent even when drunk. However it is important that the facts of this case are looked…
SOLICITOR SHOULD NOT HAVE BEEN COMPELLED TO ATTEND COURT TO GIVE EVIDENCE IN A WASTED COSTS APPLICATION
In Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 the Court of Appeal overturned a decision that a solicitor should be compelled to attend court to give evidence in a wasted costs application. “Any requirement for a solicitor…
EXCEPTIONS TO THE FIXED COSTS REGIME: DEFENDANT’S APPEAL DISALLOWED: JUDGE ENTITLED TO FIND THAT EXCEPTIONAL CIRCUMSTANCES APPLIED
A case, newly arrived on BAILII today relates to whether a District Judge was correct to award costs outside the fixed costs regime. In Lloyd 2 Sisters Poultry Ltd (Costs) [2019] EW Misc 18 HHJ Howells refused a defendant’s appeal…
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…
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