PROVING THINGS 144: THAT TEMPTATION TO PUT MATTERS IN THE SKELETON THAT AREN’T ESTABLISHED BY THE EVIDENCE: ALSO – THE POWER OF LISTS
We have looked before at attempts to use a skeleton argument to introduce evidence (often made in desperation to be fair). An example of this can be seen in a short passage in the judgment in Schettini v Silvestri & Ors…
TERMINATING A CFA WITH GOOD REASON: NO NEED FOR SOLICITORS TO WAIT FOR GODOT: ADVICE ABOUT “SETTLEMENT” COVERS THE MAKING OF AN OFFER
In Butler v Bankside Commercial Ltd [2019] EWHC 510 (QB) Mr Justice Turner upheld a decision of Master Yoxall holding that a client was liable to pay their solicitor’s costs after a conditional fee agreement came to an end when the…
PROVING THINGS 142: CLAIMANT HAS TO PROVE SIZE OF HIGHWAY DEFECT: PHOTOGRAPHS THAT WERE “ALMOST COMPLETELY USELESS”
The judgment today in Walsh v The Council of the Borough of Kirklees [2019] EWHC 492 (QB) contains an important message for anyone involved in highway or “tripper” litigation: the claimant has to have evidence to prove the size of the…
AGENCY FEES ALLOWED ON APPEAL: FULL COPY OF JUDGMENT AVAILABLE
I am grateful to barrister Paul Hughes for sending me a copy of the decision of HHJ Graham Wood QC in Beardmore -v- Lancashire County Council. The case considers the paying, and cost, of medical agency fees. A copy of…
IF YOU ARE AT TRIAL AND HAVEN’T PAID THE TRIAL FEE: STRIKE OUT IS AUTOMATIC: A FORMAL APPLICATION FOR RELIEF FROM SANCTIONS NEEDS TO BE MADE
In Hyslop -v- 38/41 CHG Residents Company Limited [2018] EWHC 3893 (QB) Mr Justice Freedman considered a case in which the fact that a claimant had not paid the trial fee only came to light at the trial itself. …
AN ANONYMOUS DRIVER CANNOT BE SUED: YOU’VE GOT TO HAVE SOMEWHERE TO SERVE…
In the judgment today Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 the Supreme Court overturned the Court of Appeal decision in relation to service when there is an unknown driver. The court cannot make an order that service…
PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE
In Perry v Raleys Solicitors [2019] UKSC 5 the Supreme Court restored the decision of the trial judge in relation to damages. One of the key issues was whether the Court of Appeal was correct to overturn the trial judge’s factual…
SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL
Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court. The expert…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL
In Petrou v Lambrou (t/a KCJ Builders) [2019] EWHC 166 (Comm) Mr Justice Freedman upheld the decision of a circuit judge who granted the defendant relief from sanctions when a witness statement was served late. Interestingly the judge, on appeal, exercised…
CONDITIONAL FEE AGREEMENT DID NOT CONTINUE AFTER A SOLICITOR HAD CEASED TO ACT: DEFENDANT NOT LIABLE TO PAY COSTS TO FIRST SET OF SOLICITORS
I am grateful to Matthew Hoe from Taylor Rose TTKW for sending me a copy of the decision of HHJ Wulwik in Roman -v- AXA Insurance PLC (13/12/2018). Roman v AXA Insurance [2018] (1) The judge found that a CFA with…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…
THE ORDER THE COURTS CAN MAKE WHEN A DEFENDANT HAS DIED AND THERE ARE NO EXECUTORS OR ADMINISTRATORS
Another aspect of the judgment Currie v Thornley & Anor [2019] EWHC. 172 (Ch) relates to the order the courts can make when a defendant in a civil action has died. THE CASE One of two defendants in a civil action had…
A WHOLE COURT OF APPEAL CASE ABOUT WHETHER IT IS APPROPRIATE TO DRAFT A “NON-ADMISSION”: NO DUTY ON A DEFENDANT TO SEEK OUT INFORMATION FROM A THIRD PARTY WHEN DRAFTING A DEFENCE
In the judgment today in SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 the Court of Appeal carried out a close analysis of the rules relating to pleading a defence. In particular the…
YOU CAN’T MAKE SOMEONE BANKRUPT IF THEY’VE GOT NOTHING: AN INTERESTING APPEAL
In Lock v Aylesbury Vale District Council [2018] EWHC 2015 (Ch) HHJ Hodge QC (sitting as a High Court judge) allowed an appeal against the granting of a bankruptcy petition. Essentially the petition should have not have been granted because the…
TIME FOR APPEALING: ANOTHER TRICKY POINT TO WATCH: TIME RUNS FROM THE DATE OF THE DECISION AND NOT ANY LATER DATE: A HELPFUL GUIDE TO THE PROCEDURE TO BE FOLLOWED
In McDonald v Rose & Ors [2019] EWCA Civ 4 the Court of Appeal highlighted an important point in relation to the time for appealing. Time for appealing runs from the date that the decision is given, not a later date….
APPEALS FROM DISTRICT JUDGES WHEN CASES HAVE BEEN RELEASED TO THEM: A POINT TO WATCH
The judgment of Mr Justice Morgan in Hilton v Cosnier [2018] EWHC 3728 (Ch) highlights a practical issue that is easy to overlook. Cases, that are normally tried by a Circuit Judge, can be released to a District Judge. Appeals from…
THE DEFENDANT’S “WRONG” APPLICATION TO DISPUTE JURISDICTION WAS STILL VALID: DEFENDANT ALLOWED EXTENSION OF TIME AND TO CORRECT APPLICATION
Twelve years ago, in Hoddinott and others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203; [2008] 1 WLR 806, the Court of Appeal held that the correct way for a defendant to challenge the validity of a claim form was to issue…
CLAIM FORM CASE IN THE COURT OF APPEAL: SERVICE OF CLAIM FORM BY UNAUTHORISED BODY DOES NOT RENDER SERVICE VOID (ALTHOUGH IT IS STILL NAUGHTY)
We have managed to get to the 15th day of the year without a service of the claim form case, to compensate for this there are two today. In Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ…
DEFENDANT’S APPLICATION FOR PRE-ACTION DISCLOSURE REFUSED: AN ORDER WOULD NOT SAVE COSTS OR ASSIST THE DISPUTE TO BE RESOLVED WITHOUT PROCEEDINGS
In Lacey v Leonard [2018] EWHC 3528 (QB) Mrs Justice Slade DBE upheld a decision refusing the defendant’s application for pre-action disclosure. The primary ground for refusal was that disclosure of medical records, and various documents relating to employment, would not…
LITIGANTS IN PERSON AND THE USE OF COURT TIME: AN EXAMPLE OF THINGS TO COME?
The case of Zaman v Portsmouth City Council [2018] EWHC 3592 (QB) makes interesting reading for anyone concerned about the effect that the increasing number of litigants in person could have on the court system. THE CASE The claimant sought payment…
FIXED COSTS DO NOT APPLY WHEN THEY ARE INCONSISTENT WITH THE TERMS OF CONSENT ORDER: JUDGMENT ON APPEAL IN THE COUNTY COURT
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL IN Ho v Adelekun [2019] EWCA Civ 1988, see the discussion here. I am grateful to Sam Hayman and Tom Jenkinson from Bolt Burdon Kemp for sending me a copy…
DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
SKELETON ARGUMENTS: BE SUCCINCT AND TO THE POINT: “THE ISSUE WAS ALL BUT LOST IN THE PLETHORA OF PAPER”: COURT OF APPEAL FIRES WARNING SHOT
Now that Lord Justice Jackson has retired someone needs to take his place to provide the (more or less quarterly) reminder to practitioners to keep skeleton arguments short and to the point. Step in Lord Justice Hickinbottom in Harverye v The…
CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR
Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s…
COSTS AND “ABSURD” CONDUCT IN LITIGATION: HOW TO WASTE £1 MILLION…
This blog rarely looks at family cases. When it does it is often in relation to costs. Which is why the judgment of Mr Justice Francis in ABX v SBX [2018] EWFC 81 caught my eye. It raises one fundamental dilemma…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
THE ASSIGNMENT (OR NOVATION) OF CFAS: BOXING PROMOTER’S APPEAL SUFFERS KNOCKOUT BLOW BEFORE A PUNCH WAS THROWN
In Warren v Hill Dickinson LLP [2018] EWHC 3322 (QB) the proposed appellant did not get permission to appeal against a decision that an assigned (or novated) CFA remained valid. THE CASE The claimant argued that conditional fee agreements he had…
PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
CIVIL EVIDENCE AND LITIGANTS IN PERSON : THE DANGERS OF A JUDGE ASKING LEADING QUESTIONS
In Global Corporate Ltd v Hale [2018] EWCA Civ 2618 the Court of Appeal emphasised the dangers of a judge asking leading questions of a witness. It is a case that highlights the difficulties of trials involving litigants in person. THE…
COST BUDGETING: THE PARTIES MUST KNOW WHERE THEY STAND: LEAVING HOURLY RATES “OPEN” IS INAPPROPRIATE
I am grateful Sam Hayman from Bolt Burdon Kemp to for sending me a copy of the decision of Mr Justice Jacobs in Yirenki -v- Ministry of Defence [2018] EWHC 3102 (QB). The judge allowed an appeal against a cost budgeting…
ANOTHER CASE OF SERVICE OF THE CLAIM FORM GOING AWRY: GO ON – DICE WITH PROCEDURAL DEATH: WHAT COULD POSSIBLY GO WRONG?
When lecturing at the Zenith Chambers personal injury course this Thursday I only offered one prediction for civil procedure: “I’ll be here next year talking about claim form cases reported over the previous 12 months where things have gone wrong.” …
ACTION SHOULD NOT HAVE BEEN STRUCK OUT: DENTON PRINCIPLES NOT ENGAGED IN FAILING TO SERVE PARTICULARS OF CLAIM AND MEDICAL REPORT
In the judgment today in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB) Mr Justice Martin Spencer allowed an appeal against an action being struck out. The case has many procedural complexities. Here we look at…
YOU CANNOT ARGUE A “NEW” CASE AT THE APPEAL STAGE: “RACING” DRIVERS NOT INVOLVED IN A CRIMINAL JOINT ENTERPRISE: FATAL ACCIDENT ACT DAMAGES AWARDED
In Wallett & Ors v Vickers [2018] EWHC 3088 (QB) Mr Justice Males overturned a decision in favour of the defendant and awarded damages to the estate of a deceased driver. The important procedural issue is that the defendant were not…
LIVE COURT OF APPEAL STREAMING – GIVES YOU A GRANDSTAND SEAT
The Court of Appeal pilot scheme for live streaming will start on Thursday, details are available on the Court and Tribunals Judiciary website. THE FIRST MATCH… The first case to be heard with live streaming concerns West Ham United football…
COURT HAS NO POWER TO MAKE AN ORDER FOR COSTS ON ACCOUNT AFTER ACCEPTANCE OF A PART 36 OFFER: HIGH COURT DECISION
NB THIS DECISION WAS NOT ACCEPTED AND EFFECTIVELY OVERRULED BY THE COURT OF APPEAL IN Global Assets Advisory Services Ltd & Anor v Grandlane Developments Ltd & Ors [2019] EWCA Civ 1764. It was held that the court does have a…
RESPONDENTS ALLOWED TO COMMENT AT HEARING : NEVERTHELESS SURVIVES A COSTS ORDER ON APPEAL
In Bhogal & Anor v Knight [2018] EWHC 2952 (Ch) the appellants failed in their appeal following an order that the respondent pay the costs of their initial application. The procedure described in the judgment is instructive. It was yet another…
ADVISING YOUR CLIENT ON LITIGATION RISKS 5: IF YOU DON’T PAY COSTS BEFORE ISSUE IT COULD BE VERY EXPENSIVE AFTERWARDS
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the High Court decision in Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). It is one of those cases that illustrate…
PROVING THINGS 131: IN THE ABSENCE OF EVIDENCE THE COURT SHOULD NOT DRAW INFERENCES IN SOLICITOR’S COSTS CASE
The judgment in Gill v Heer Manak Solicitors [2018] EWHC 2881 (QB) is one of those cases that will get costs lawyers excited. However it is not so much a case about costs as a case about evidence, or the absence…
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
“PUT BLUNTLY THESE ARGUMENTS ARE MISCONCEIVED”: ADMINISTRATIVE COURT IN A VERY ROBUST MOOD OVER COSTS
In Kay, R (On the Application Of) v Scan-Thors (UK) Ltd & Anor (Costs) [2018] EWHC 2842 (Admin) the Divisional Court dealt robustly with arguments made by an interested party attempting to resist an order for costs. “Put bluntly, these submissions…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
ADVISING YOUR CLIENT ON LITIGATION RISKS 4: THE SCOPE OF THE SOLICITOR’S RETAINER: TURN DOWN AN OFFER OF £500,000 AND LOSE – THREE TIMES
In Lyons v Fox Williams LLP [2018] EWCA Civ 2347 the Court of Appeal turned down the claimant’s appeal. The claimant had been unsuccessful in an action for professional negligence against a firm of solicitors. He was equally unsuccessful on appeal….
WITNESS STATEMENTS AND WITNESS EVIDENCE: DO YOU KNOW ABOUT CPR 32.5(4): “LATE EVIDENCE” SHOULD BE HARD TO ADDUCE
In the judgment today in The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD [2018] EWCA Civ 2342 the Court of Appeal allowed an appeal against a claimant being successful in a Section 33 application. There is an…
MARMITE: SKELETON ARGUMENTS: “SO CALLED”: ATTEMPTS TO APPEAL THE FACTS: A SPREAD OF ISSUES CONSIDERED
In Solicitors Regulation Authority v Day & Ors [2018] EWHC 2726 the Divisional Court rejected the SRA’s appeal against a decision of the Solicitors’ Disciplinary Tribunal. There are some interesting comments about the number of documents and the length of skeleton’s…
LIMITATION PERIODS AT SEA: A CAUTIONARY TALE FROM THE SUPREME COURT: A WAKE UP CALL FOR PERSONAL INJURY LITIGATORS -YOU MUST KNOW ABOUT DIFFERING LIMITATION PERIODS
This blog has, on many occasions, warned about the dangers posed by “different” limitation periods. This danger can be seen in the decision of the Supreme Court today in Warner v Scapa Flow Charters (Scotland) [2018] UKSC 52. I must emphasise…
A CLAIM FORM CASE IN THE COURT OF APPEAL: GOOD NEWS FOR CLAIMANTS: STAY A WHILE AND FIND OUT
In the judgment today in Grant v Dawn Meats (UK) [2018] EWCA Civ 2212 the Court of Appeal held that an order staying an action also imposed a stay on the obligation to serve the claim form. The claim form was…
USING A SKELETON ARGUMENT TO TRY TO FILL GAPS IN THE EVIDENCE THIS IS NOT GOING TO END WELL…
The judgment today in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) makes interesting reading. The appeal concerned criticisms of the conduct of a trial by a circuit judge. The main difficulty was that the…
PROVING THINGS 129: IMPATIENT PATIENT DID NOT BREAK THE CHAIN OF CAUSATION: SUPREME COURT DECISION TODAY
The Supreme Court decision today in Darnley -v- Croydon Health Service NHS Trust [2018]UKSC 50 marks a development in the law of negligence, and also in relation to proving causation. “Far from constituting a break in the chain of causation,…
APPEALING A SECTION 33 DECISION – IS HARD TO DO: KIMATHI IN THE COURT OF APPEAL
In refusing permission to appeal in Kimathi & Ors v Foreign & Commonwealth Office [2018] EWCA Civ 2213 the Court of Appeal emphasised the difficulty involved in appealing a discretionary decision made under Section 33 of the Limitation Act 1980. “The…
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