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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL

BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL

February 1, 2021 · by gexall · in Appeals, Case Management, Civil Procedure

The judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC) sets out the judge’s concerns in relation to the over-lengthy documents filed in support of an application for…

SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN'T "WAIT AND SEE"

SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN’T “WAIT AND SEE”

January 28, 2021 · by gexall · in Appeals, Clinical Negligence, Personal Injury, Statements of Case

There is an interesting history in the judgment of Mr Justice Saini in in Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB).  It is a case that is an object lesson in the stringent requirements…

AN INTERESTING CASE IN THE COURT OF APPEAL: NO INTEREST AWARDED ON DAMAGES FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT

AN INTERESTING CASE IN THE COURT OF APPEAL: NO INTEREST AWARDED ON DAMAGES FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT

January 21, 2021 · by gexall · in Appeals, Damages, Interest

In Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49 the Court of Appeal upheld a decision not to award interest on damages for damages for malicious prosecution and misfeasance in public office. THE CASE The claimant…

PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER

PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER

January 17, 2021 · by gexall · in Appeals, Fatal Accidents, Liability

In the judgment in The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31 the Court of Appeal set out some importance principles in relation to claims based on the Occupiers’ Liability Act 1957.  The court upheld a…

LAWFULNESS OF DAMAGES BASED AGREEMENTS UPHELD BY THE COURT OF APPEAL

January 15, 2021 · by gexall · in Appeals, Costs

In a judgment given today the Court of Appeal upheld the decision at first instance in the judgment of HHJ Parfitt (sitting as a High Court Judge in Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch). THE COURT OF APPEAL JUDGMENT In…

PROVING THINGS 194: PROVING CAUSATION IS AN ESSENTIAL ELEMENT OF A CLAIM IN NEGLIGENCE

December 31, 2020 · by gexall · in Appeals, Civil evidence, Personal Injury, Statements of Case

The judgment of Mrs Justice Foster in Norfolk County Council v Durrant [2020] EWHC 3590 (QB) illustrates how it is essential for a claimant to prove causation in a case based on negligence.  It also highlights the need to consider,…

REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS

REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS

December 30, 2020 · by gexall · in Appeals, Avoiding negligence claims, Civil evidence, Civil Procedure, Costs, Relief from sanctions, Witness statements

Needless to say this has been an unusual year for litigators.   It is always interesting to review what have been the most popular posts on this blog and look at some facts and figures.  Can we tell anything about the…

MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION

MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION

December 16, 2020 · by gexall · in Appeals, Applications, Avoiding negligence claims, Extensions of time, Relief from sanctions

In IC v RC [2020] EWHC 2997 (Fam) Mrs Justice Knowles had to consider the Denton criteria and the slip rule.  It also serves as an important warning to anyone undertaking the task of drafting a court order.   “I…

THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL'S JUDGMENT IN O'CONNELL

THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL’S JUDGMENT IN O’CONNELL

December 15, 2020 · by gexall · in Appeals, Civil Procedure, Conduct

Draft judgments are often sent to parties in advance, but sent out on an “embargoed” basis – not to be disclosed until after the date they are formally handed down.  Recent comments on Twitter leads me to think that this…

UNSUCCESSFUL APPEAL AGAINST JUDGE'S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY

UNSUCCESSFUL APPEAL AGAINST JUDGE’S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY

December 10, 2020 · by gexall · in Appeals, Limitation

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

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

December 9, 2020 · by gexall · in Appeals, Civil Procedure

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.

HOURLY RATES ALLOWED SHOULD BE INCREASED, AT LEAST, BY INFLATION: APPEAL AGAINST SUMMARY ASSESSMENT OF COSTS ALLOWED.

December 2, 2020 · by gexall · in Appeals, Assessment of Costs, Costs, Summary assessment,

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"

“PROCEDURAL RIGOUR IS IMPORTANT NOT FOR ITS OWN SAKE. IT IS IMPORTANT IN ORDER FOR JUSTICE TO BE DONE”

December 1, 2020 · by gexall · in Appeals, Written advocacy

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

“WHEN MUST AN UNSUCCESSFUL LITIGANT ACCEPT “NO” FOR AN ANSWER?”: COURT OF APPEAL DECISION

December 1, 2020 · by gexall · in Access to justice, Appeals, Civil Procedure

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

PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL

November 26, 2020 · by gexall · in Appeals, Personal Injury

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

PROVING THINGS 187: THE CAMERA MAY LIE: THE IMPORTANCE OF DATES ON PHOTOGRAPHS

November 26, 2020 · by gexall · in Appeals, Civil evidence, Witness statements

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

APPEALS, ISSUES OF FACT AND SAILING IN DIFFERENT OCEANS IN THE COURT OF APPEAL: CLINICAL NEGLIGENCE DECISION TODAY

November 18, 2020 · by gexall · in Appeals, Applications, Civil evidence, Clinical Negligence

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

CLAIMANT’S CASE STRUCK OUT BECAUSE IT SAID TWO CONTRADICTORY THINGS: “JANUS-FACED” PLEADINGS NOT ALLOWED

November 16, 2020 · by gexall · in Appeals, Applications, Damages, Statements of Case

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

FUNDAMENTAL DISHONESTY, APPEALS AND RELIEF FROM SANCTIONS: CLAIMANT’S PROPOSED APPEAL COMES TO GRIEF

November 13, 2020 · by gexall · in Appeals, Applications, Fundamental Dishonesty, Relief from sanctions

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)

COURT OF APPEAL CONSIDERS AWARD FOR AS TO COSTS ON ACCOUNT: WHAT IS A “REASONABLE SUM”? (£325,000 IN THIS CASE)

November 12, 2020 · by gexall · in Appeals, Costs, Interim Payments

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…

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