UNSUCCESSFUL APPEAL AGAINST JUDGE’S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY
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
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…
HOURLY RATES ALLOWED SHOULD BE INCREASED, AT LEAST, BY INFLATION: APPEAL AGAINST SUMMARY ASSESSMENT OF COSTS ALLOWED.
I am grateful to Sean Linley for drawing my attention to the judgment of HHJ Hodge QC in Cohen v Fine & Ors [2020] EWHC 3278 (Ch).That judgment has some interesting things to say in relation to current hourly rates…
“PROCEDURAL RIGOUR IS IMPORTANT NOT FOR ITS OWN SAKE. IT IS IMPORTANT IN ORDER FOR JUSTICE TO BE DONE”
In R v Secretary of State for Health and Social Care and Secretary of State for Education ex parte Dolan and Others. [2020] EWCA Civ 1605 the Court of Appeal rejected an argument that the “lockdown” regulations were unlawful. However,…
“WHEN MUST AN UNSUCCESSFUL LITIGANT ACCEPT “NO” FOR AN ANSWER?”: COURT OF APPEAL DECISION
In Wingfield, R (on the application of) v Canterbury City Council & Anor [2020] EWCA Civ 1588 the Court of Appeal considered the provisions of CPR 52.30 which provide an extremely limited chance of persuading a court to reconsider a…
PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL
In Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Mr Justice Stewart overturned a decision in favour of claimant who had been struck by a cricket ball whilst walking near a cricket pitch. “… the defendant was…
PROVING THINGS 187: THE CAMERA MAY LIE: THE IMPORTANCE OF DATES ON PHOTOGRAPHS
Today we are journeying into the Family Court to look at the judgment of Mrs Justice Judd in K v G [2020] EWHC 3209 (Fam). It shows the importance of obtaining metadata in relation to documents. In this case the…
APPEALS, ISSUES OF FACT AND SAILING IN DIFFERENT OCEANS IN THE COURT OF APPEAL: CLINICAL NEGLIGENCE DECISION TODAY
In Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors [2020] EWCA Civ 1523 the Court of Appeal reiterated the difficulties faced by an appellant attempting to argue that the judge had erred in relation to findings of the…
CLAIMANT’S CASE STRUCK OUT BECAUSE IT SAID TWO CONTRADICTORY THINGS: “JANUS-FACED” PLEADINGS NOT ALLOWED
The judgment of Mr Justice Marcus Smith in Betesh Partnership -v- Evans [2020] EWHC 1589 (QB) contains interesting observations on the need for a claimant to plead a case that is not inconsistent. I am working and citing from the…
FUNDAMENTAL DISHONESTY, APPEALS AND RELIEF FROM SANCTIONS: CLAIMANT’S PROPOSED APPEAL COMES TO GRIEF
The judgment of Mr Justice Lavender in Kamara v Builder Depot Ltd [2020] EWHC 3046 (QB) contains a catalogue of material in relation to procedural issues and appeals. However, here, I want to concentrate upon the issues relating to fundamental…
COURT OF APPEAL CONSIDERS AWARD FOR AS TO COSTS ON ACCOUNT: WHAT IS A “REASONABLE SUM”? (£325,000 IN THIS CASE)
In Mousavi-Khalkali v Abrishamchi & Anor [2020] EWCA Civ 1493 we have a rare case of the Court of Appeal considering an appeal on an order that a party pay a sum on account of costs. THE CASE The Court…
ACKNOWLEDGMENT OF SERVICE FILED LATE – BUT JUDGMENT IN DEFAULT WAS IRREGULAR AND SET ASIDE: A REMINDER THAT THE RULES HAVE CHANGED
The judgment of Mr Justice Choudhury in MB v RBG [2020] EWHC 3022 (QB) is the first I have seen considering the new provisions of CPR 12.3 and the circumstances in which a default judgment can be set aside. It…
SWIFT -v- CARPENTER: THE SUBSEQUENT COSTS JUDGMENT: AN ADDITIONAL £65,095.65; INDEMNITY COSTS & INCREASED INTERESTS: THE WISDOM OF MAKING A PART 36 OFFER WHEN APPEALING
On the day when it is announced that the Court of Appeal refused permission to appeal in the case of Swift -v- Carpenter it is interesting to look at the subsequent judgment on costs given today in Swift v Carpenter…
“THE DOG ATE MY HOMEWORK” EXCUSE DOESN’T WORK WELL IN COURT: THE JUDGE MAY HAVE BEEN WRONG ABOUT THE WAY “SIGNED FOR 1ST CLASS” OPERATED BUT THEY WERE RIGHT TO REFUSE RELIEF FROM SANCTIONS: COURT OF APPEAL DECIION
In Diriye v Bojaj & Anor [2020] EWCA Civ 1400 the Court of Appeal held that the judges who heard a relief from sanctions hearing below were in error about the way that “Signed for 1st class” post operated, however…
ILLEGALITY AND DAMAGES: SUPREME COURT DECISION: SOMEONE WHO COMMITS MANSLAUGHTER CANNOT BRING AN ACTION IN NEGLIGENCE
In Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43 the Supreme Court dismissed an appeal on the grounds that the claimant’s action was based on illegality. It found that someone found guilty of manslaughter due to diminished…
THE DANGERS OF APPLYING FOR NON-PARTY COSTS ORDERS: THE APPLICANT HAS TO PAY THE PRICE: COURT OF APPEAL DECISION TODAY
In the judgment today in Deepchand & Anor v Sooben [2020] EWCA Civ 1409 the Court of Appeal overturned a decision that there be no order for costs when a party made an unsuccessful application for a non-party costs order. …
PART 36: JUDGE WAS WRONG NOT TO ALLOW ENHANCED INTEREST WHEN CLAIMANT BEAT ITS OWN OFFER: COURT OF APPEAL DECISION
In the judgment today in Telefonica UK Ltd v The Office of Communications [2020] EWCA Civ 1374 the Court of Appeal overturned the decision of the trial judge not to award additional interest on damages and costs in a case…
SOLICITOR’S FEES NOT RECOVERABLE AFTER THEY HAD TERMINATED THE CONDITIONAL FEE AGREEMENT: HIGH COURT DECISION
In Toms (t/a Goldbergs Solicitors) v Brannan [2020] EWHC 2866 (QB) Mr Justice Griffiths dismissed a solicitor’s appeal against a decision that he was not able to recover costs from a client after a conditional fee agreement had been terminated….
CLAIMANT IN LOW-VALUE PERSONAL INJURY CASE NOT ENTITLED TO RELY ON EXPERT REPORTS WHEN PROTOCOL NOT COMPLIED WITH: JUDGMENT ON APPEAL
In Mason -v- Laing (Bradford County Court 20th January 2020 Mason v Laing) HHJ Gosnell held that a claimant that failed to comply with the requirements as to instructing experts prior to a Stage 3 hearing could not rely on…
EXTENSION OF TIME TO APPEAL REFUSED: HIGH COURT DECISION TODAY
In the judgment today in Jamous v Mercouris [2020] EWHC 2814 (QB) Mr Justice Murray refused a claimant’s application for permission to appeal out of time. It is a reminder that applications of extensions of time to appeal are dealt…
THE SOLICITOR’S FIDUCIARY DUTY TO THE CLIENT TO EXPLAIN COSTS: FAILURE TO PLACE CAP ON SUCCESS FEE MEANT AGREEMENT WAS UNENFORCEABLE: HIGH COURT DECISION
In Belsner v Cam Legal Services Ltd [2020] EWHC 2755 (QB) Mr Justice Lavender allowed an appeal whereby a firm of solicitors acting on behalf of a claimant were permitted to deduct 25% of the damages in addition to payment…
IF YOU FIGHT AN “ALL OR NOTHING CASE” THEN YOU CAN’T COMPLAIN IF YOU GET NOTHING
In Amin v Amin & Ors [2020] EWHC 2675 (Ch) Mr Justice Nugee made an important observation about the way in which parties present their case. It may benefit some litigants to put their case on an alternative basis. THE…
THE CARPENTER DECISION: THE BASIC PRINCIPLES: FAIR DAMAGES “NOT A PENNY MORE BUT NOT A PENNY LESS”
I have written before about how judges regularly go back to the basic principles of damages when faced with challenging issues in relation to personal injury damages. To a large extent this happened in the Court of Appeal decision in Swift…
TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADDUCE LATE WITNESS STATEMENT
In Bromford Housing Association Ltd v Nightingale [2020] EWHC 2648 Mr Justice Cavangh upheld a decision not to allow a claimant in possession proceedings to adduce evidence late. In a “rolled up” hearing he dismissed the claimant’s application for permission…
WE LOST, BUT WE STILL WANT 90% OF OUR COSTS: CLAIMANT’S UNSUCCESSFUL APPEAL: A DEVELOPING FIELD OF LAW?
The judgment of Mr Justice Miles in Terracorp Ltd v Mistry & Ors (Rev 1) [2020] EWHC 2623 (Ch) contains an interesting review of the principles relating to costs where a party has failed on a number of issues. It…
COSTS ORDERED AGAINST ONE DEFENDANT WHEN CLAIMANT HAD SETTLED AGAINST ANOTHER: A DEFENDANT’S UNSUCCESSFUL APPEAL
In Oberholster v Optical Express Ltd & Anor [2020] EWHC 2635 (QB) Mr Justice Freedman dismissed a defendant’s appeal against a costs order against it. The case deals with the problematic issue of costs if a claimant settles the claim…
EMPLOYER’S LIABILITY AND THE PRACTICAL JOKER: THE “LOWEST FORM OF HUMOUR” DOES NOT LEAD TO VICARIOUS LIABILITY
In Chell v Tarmac Cement And Lime Ltd [2020] EWHC 2613 (QB) Mr Justice Martin Spencer upheld a decision that an employer was not vicariously liable for a practical joke in the workplace. “The practical joke must be the lowest…
THE BILLABLE HOUR COOKBOOK 2020: A CALL FOR RECIPES: DEADLINE DATE 25th OCTOBER (AN EXTENSION OF 14 DAYS…)
The 2020 edition of the Billable Hour Cookbook is now accepting submissions for publication towards the end of the year. This year, submissions are restricted to people within the legal community (Lawyers, Legal academics, Legal Execs, Paralegals, Judges and Law…
“A MOST UNUSUAL CASE”: “A JUDGE’S DRAFT JUDGMENT IS NOT AN INVITATION TO TREAT”
In FS v RS and JS [2020] EWFC 63 Sir James Munby warned against trying to re-open cases after judgment has been given. There were several attempts to re-open the judgment after it was given. It is the only judgment…
FUNDAMENTAL DISHONESTY AND WASTED COSTS AGAINST A SOLICITOR: THE BURDEN IS ON THE APPLICANT TO PROVE CAUSATION
The judgment of Mrs Justice Lambert in Razaq v Iqbal & Ors [2019] EWHC 3924 (QB) provides an interesting example of a failure to prove causation in a wasted costs application. A solicitor had been negligent in failing to pass…
VIDEO EVIDENCE NOT ALLOWED AT TRIAL: APPEAL AGAINST REFUSAL DISMISSED: A “STORM IN A TEACUP”
In Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB) Mrs Justice Lambert dismissed an appeal against a refusal by a defendant to allow video evidence to be adduced at trial. The evidence was not relevant and…
FATAL ACCIDENT: LEGAL COSTS OF ATTENDING INQUEST WERE RECOVERABLE: THE DANGERS TO DEFENDANTS OF MAKING AN EQUIVOCAL “ADMISSION”
In the judgment today in Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) HHJ Pearce upheld a decision that the legal costs incurred in attending an inquest were recoverable as costs in a subsequent action for…
THE DIFFICULTY IN APPEALING A DENTON TYPE DECISION
The second issue in judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) was whether the appellant was able to appeal the District Judge’s refusal to grant relief…
DENTON PRINCIPLES APPLY WHERE WITNESS EVIDENCE SERVED LATE
The judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) considers the issue of whether the Denton principles apply when a witness statement is served late but there…
SEEK PERMISSION TO APPEAL PROMPTLY (AND TELL THE JUDGE ABOUT IT): “A close analysis of the parties’ cases thus reveals a fractal pattern of progressively complex and ever-finer recursive detail of sharply declining significance.”
The judgment of Mr Justice Turner in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) discloses an unusual turn of events in relation to an appeal. It contains some important observations about the…
UNSUCCESSFUL APPEAL “TO ESTABLISH THE LIBERTY OF INEBRIATED ENGLISH SUBJECTS TO BE ALLOWED TO LIE UNDISTURBED IN THEIR OWN VOMIT SOAKED CLOTHING”
In Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB) Mr Justice Turner dismissed the claimant’s appeal. The claimant complained that police officers had removed her outer clothing and provided her with dry clothing at a time when…
JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADJOURN AND NOT TO ALLOW SINGLE WITNESS IN PLACE OF JOINT WITNESS: HIGH COURT DECISION TODAY
In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB) Mr Justice Martin Spencer refused a claimant’s appeal where it was argued that a trial judge should have adjourned a trial and given the claimant permission to rely on…
WHEN SHOULD A LITIGATION FRIEND BE LIABLE FOR COSTS? INTERESTING COURT OF APPEAL DECISION
In Glover v Barker & Ors [2020] EWCA Civ 1112 the Court of Appeal overturned a decision where costs were awarded against a litigation friend. It is a particularly important judgment for those acting as litigation friends for defendants. THE…
THE LIMITATION PERIOD, PERSONAL INJURY AND THE RESTORATION OF A COMPANY: A HIGH COURT DECISION
In Holmes v S & B Concrete Ltd [2020] EWHC 2277 (QB) Mr Justice Martin Spencer considered the issues surrounding the claimant’s argument that the limitation period in a personal injury action was suspended when a company was wound up….
EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED BY THE COURT OF APPEAL. THE COURT OF APPEAL JUDGMENT IS CONSIDERED HERE. In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer considered the question of the approach of…
PROVING PROPENSITY AND SIMILAR FACT EVIDENCE IN CIVIL CASES: COURT OF APPEAL JUDGMENT TODAY
In the judgment today in R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088 the Court of Appeal set out the principles relating to similar fact evidence in civil and family cases. The case is also an example…
PROVING THINGS 181: THE ART GALLERY, THE MILKMAN AND THE 1992 REGULATIONS…
It is rare for this blog to look at Scottish cases. However the judgment of the Sheriff Appeal Court in APPEAL BY ANDREW WRIGHT v NATIONAL GALLERIES OF SCOTLAND [2020] ScotSAC Civ 6 raises an issue that is common to…
COUNSEL’S FEES ARE RECOVERABLE ON A CASE THAT LEAVES THE PORTAL: WHEN A TRAIL OF BREADCRUMBS LEADS NOWHERE
In the judgment today in Finsbury Food Group Plc v Dover [2020] EWHC 2176 (QB) Mrs Justice Lambert rejected the defendant’s arguments that counsel’s fees were not recoverable. “I do not accept that leaving the legal costs of valuing a…
EVIDENCE OBTAINED BY TORTURE: THE SUPREME COURT CONSIDERS THE APPROPRIATE APPROACH WHEN TORTURE CANNOT BE PROVEN
In the judgment today in Shagang Shipping Company Ltd v HNA Group Company Ltd [2020] UKSC 34 the Supreme Court sends out a clear message about the use (or rather non-use) of evidence obtained by torture in civil proceedings. This…
PROVING THINGS 178: PROVING PREJUDICE: THE NEED FOR SPECIFIC EVIDENCE
There is another aspect of the Court of Appeal decision in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 that justifies closer examination. That is the court’s observations on the judge’s finding of prejudice. The Court of Appeal…
CORONAVIRUS LAW: COVID AND CONTACT BETWEEN PARENTS AND CHILD
The number of cases dealing with issues relating to COVID have reduced. However issues still arise. In the judgement today in D-S (Contact With Children In Care: Covid-19) [2020] EWCA Civ 1031 the Court of Appeal set out clear principles…
RELIEF FROM SANCTIONS ALLOWED WHEN JUDGE HAD RESERVATIONS AS TO WHETHER STRIKING OUT ORDER SHOULD EVER HAVE BEEN MADE
In Barakat v Greycourt Ltd [2020] EWHC 643 (Ch) Mr Justice Fancourt granted relief from sanctions to an appellant whose appeal had been struck out without notice. One thing of note in this judgment is the order striking out the…
HIGH COURT JUDGE OVERTURNS FINDING THAT THERE WAS NO FUNDAMENTAL DISHONESTY: CLAIMANT HAS TO PAY DEFENDANT’S COSTS
In Pegg v Webb & Anor [2020] EWHC 2095 (QB) tMr Justice Spencer overturned a finding of a trial judge that a claimant had not been fundamentally dishonest. The claimant had been dishonest in the failures to give full disclosure…
USING RTA PROTOCOL AND PART 8 PROCEDURE INAPPROPRIATELY DID NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
The Court of Appeal today gave judgment in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 and overturned the decision to strike out an action because it had been issued inappropriately using the portal and Part 8…
OPENING LINES OF JUDGMENTS: “DUMB, DUMB, DUMB”: “WE SHOULD AVOID DOING DUMB THINGS. ESPECIALLY ONES THAT ARE DUMB”
I often do an annual review of opening lines of judgments. This review has never had any jurisdictional limits. For that reason I am able to review the judgment yesterday of the United States Court of Appeals for the Ninth…
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