DENTON APPLIED TO LATE APPEAL: SUBMITTING SUBMISSIONS AFTER A HEARING AND THE NEED FOR CAUTION WHEN SEEKING DAMAGES UNDER THE HUMAN RIGHTS ACT
In Fayad, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 54 the Court of Appeal applied the Denton principles to a late appeal. Permission to appeal was refused. Mr Justice Singh had…
FUNDAMENTAL DISHONESTY ESTABLISHED ON APPEAL: WHEN A CLAIMANT DIGS A BIG HOLE FOR THEMSELVES THE COURT SHOULD NOT STRUGGLE TO EXTRACT THEM
In London Organising Committee of the Olympic And Paralympic Games (LOCOG) v Sinfield [2018] EWHC 51 (QB) Mr Justice Julian Knowles overturned a decision whereby a claimant was allowed damages. The claimant had been fundamentally dishonest in making a claim for…
WHEN THE PLEADINGS APPEAR TO HAVE BEEN PUT IN THE PAPER BIN AT TRIAL (SHADES OF THE OFFICE)
The judgment in Premier Paper Group Ltd v Buchanan McPherson Ltd [2018] EWCA Civ 15 contains some interesting observations about the way in which the parties departed from their pleadings. Although the claim succeeded this case how important it is that…
LIMITATION: DISEMBARKATION AND THE TWO YEAR LIMITATION PERIOD: THE BARQUE AND THE BIGHT
In Collins v Lawrence [2017] EWCA 2268 Civ Lord Justice Hamblen considered an issue under limitation and the Convention Relating to Carriage of Passengers and their Luggage by Sea (the “Athens Convention”). It serves as an important reminder that many cases…
THE BRIAN MAY COSTS CASE: TRANSCRIPT NOW AVAILABLE: PROPORTIONALITY APPEAL DID NOT BITE THE DUST
Thanks to the good offices of the ACL the judgment on appeal of May -v- Wavell Group Ltd is now available here. The claimant’s appeal on the issue of proportionality was allowed. The figure of £35,000 plus vat for costs…
COURT FEES AND STRIKING OUT: APPEAL AGAINST STRIKING OUT ALLOWED: CROSS -v- BLACK BULL – THE FULL JUDGMENT
I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) at the end of last year. The full judgment is now available and is attached here 072 – Cross v Black Bull – Judgment A SUMMARY The…
“SOMETIMES AN UNIMPRESSIVE WITNESS SPEAKS THE TRUTH”: FACT FINDING AND THE CIVIL COURTS: PRIVY COUNCIL OVERTURN FINDINGS OF FACT
In Cleare v The Attorney General & Ors (Bahamas) [2017] UKPC 38 the Privy Council was scathing of the method of fact finding of the trial judge. The judge erred in failing to consider the significance of medical evidence. ” It…
CIVIL LITIGATION REVIEW OF 2017 (IV): COSTS, BUDGETS, PROCEDURAL GAMES AND MISCONDUCT ON ASSESSMENT
This year has been a surprisingly muted year for costs cases, particularly in the higher courts. Several judgments were expected, however they rarely proved to be definitive or wide ranging. 2018 may be the year that some issues are resolved….
CIVIL LITIGATION REVIEW OF 2017 (I): “SURVIVING THE EMOTIONS OF LITIGATION” & “THINGS THAT IRRITATE JUDGES”
This is the fourth annual review on this blog. This year I have decided to break it into a number of reviews. First it is interesting to look at what is being read on this site and the search terms…
UNDERPAYMENT OF COURT FEES AND STRIKING OUT: CLAIMANT SUCCESSFUL ON APPEAL:
Exactly a year ago today His Honour Judge Robinson gave judgment in a case relating to under-payment the Court fees , see Wiseman -v- Martson. Judge Robinson gave judgment this morning in a case that covered similar ground. He allowed an…
THE COSTS OF PROVISIONAL ASSESSMENT: THE CAP ALWAYS FITS
In W Portsmouth and Company Ltd v Lowin [2017] EWCA Civ 2172 the Court of Appeal held that the cap on the costs of provisional assessment continues to apply even when a receiving party has beaten their own Part 36 offer…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
COURT OF APPEAL STATES INDEMNITY COSTS SHOULD HAVE BEEN AWARDED: SHOULD HAVE BEEN MORE BULLISH IN BRADFORD…
It is unusual for the Court of Appeal to interfere with a discretionary order in relation to costs. It is even more unusual for the court to replace an order for costs on the standard basis with indemnity costs. This…
COSTS DISALLOWED IN FULL DUE TO MISCONDUCT IN ASSESSMENT PROCESS: COURT OF APPEAL DECISION
In GSD Law Ltd v Wardman & Ors [2017] EWCA Civ 2144 the Court of Appeal upheld a decision whereby the claimants’ costs were disallowed because of misconduct during the assessment process. “The alleged misconduct in this case goes to…
WRITING TO THE COURT ON A UNILATERAL BASIS: COURT OF APPEAL SAYS DON’T DO IT
Several passages in the judgment in Zuma’s Choice Pet Products Ltd & Anor v Azumi Ltd & Ors [2017] EWCA Civ 2133 emphasise a point made earlier this year. A litigant should not write to the court on a unilateral basis….
DEFENDANT GIVEN PERMISSION TO WITHDRAW ADMISSION: CHANGE IN VALUE OF THE CLAIM IS A RELEVANT CRITERIA
An earlier post looked at the decision in Wood -v- Days Health UK Ltd & Others [2016] WHC 1079 (QB) where a defendant was refused permission to withdraw from an admission. That decision was overturned by the Court of Appeal in Wood…
SECOND ACTION NOT AN ABUSE OF PROCESS: COURT RESOURCES DOES NOT “TRUMP THE OVERRIDING NEED TO DO JUSTICE”
In Davies v Carillion Energy Services Ltd & Anor [2017] EWHC 3206 (QB) Mr Justice Morris upheld a finding that a second claim brought by the claimant was not an abuse of process. “…even post-Jackson, ultimately, the importance of the efficient…
ASSIGNMENT OF CFAs: IT CAN BE DONE
In Budana v The Leeds Teaching Hospitals NHS Trust & Anor [2017] EWCA Civ 1980 the Court of Appeal decided that a CFA can be assigned from one solicitor to another. THE CASE The claimant was injured. She entered into a…
WHEN AN APPEAL MISSES THE POINT: APPELLANT FAILED TO IDENTIFY THE ISSUES ON APPEAL
There are some surprising observations in the judgment in The Bar Standards Board (BSB) v Crawford [2017] EWHC 3101 (Admin). Not the least that the appellant’s documents did not deal with central issues in the appeal. “The grounds of appeal in…
SECTION 33 DISCRETION UPHELD: ERRORS OF THE LAWYERS NOT NECESSARILY LAID AT THE DOOR OF A CLAIMANT
In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the Court of Appeal upheld a decision of the circuit judge allowing the claimant’s application under Section 33 of the Limitation Act 1980. The case is interesting because it supports the…
DEFENDANT ORDERED TO PAY AFTER THE EVENT PREMIUM OF £533,017.13 : EYE-WATERING DECISION FOR INSURERS
In Percy v Anderson-Young [2017] EWHC 2712 (QB) Mr Justice Martin Spencer held that an after the event premium of £533,107.13 was recoverable. There was no sympathy for the defendant. “… in my judgment, any sympathy for the Defendant here…
LEGAL AWARDS: HOW TO COME SECOND: A PRACTITIONER’S GUIDE: 10 KEY POINTS
If you play the mandolin then, by law, you have to learn a tune known as ’O sole mio. This is a tune made famous, to a certain generation, as “Just one Cornetto”. It was even a hit for Elvis Presley,…
AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
PROVING THINGS 75: PROVING CAUSATION ON AN UNDERTAKING TO PAY DAMAGES: THE INJUNCTION THAT COST THE APPLICANT TENS OF MILLIONS OF DOLLARS: ROUND 2
We have looked before at the decision in Fiona Trust & Holding Corporation -v- Yuri Privalov & others [2016]. An applicant for a freezing order was found to have obtained the order wrongly. Consequently they were ordered to pay damages that stretched…
A DUMPER TRUCK IS COVERED BY THE MIB AGREEMENT: STATUTORY CONSTRUCTION AND DIRECTIVES
In Lewington v The Motor Insurance Bureau [2017] EWHC 2848 (Comm) Mr Justice Bryan considered whether a stolen dumper truck being driven on a public road was covered by the MIB agreement. There was a clear, and unequivocal finding that it…
LIMITATION, THE CARE ACT, COUNTY COURT JURISDICTION AND DIFFICULT TRANSITIONAL PROVISIONS.
In Nottinghamshire County Council v Belton, The Estate of & Anor [2017] EW Misc 26 (CC) His Honour Judge Godsmark QC considered an issue of jurisdiction and limitation in a claim being brought by a local authority to recover fees paid…
APPEALS ON FACTS AND WITNESS EVIDENCE: DAMNED IF THE WITNESSES AGREE: DAMNED IF THEY DON’T
The judgment of the Court of Appeal in Shittu v The Home Office [2017] EWCA Civ 1748 contains some interesting observations about attempts to appeal on findings of fact, “judgecraft” and fact-finding generally. “The case followed the pattern of many…
COURT OF APPEAL OVERTURNS SECTION 33 ORDER IN CLINICAL NEGLIGENCE CASE
In The Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711 the Court of Appeal overturned an order under Section 33 of the Limitation Act 1980. The trial judge found in favour of the claimant. This was held…
WHO WAS TELLING THE TRUTH? BOUDICCA, POSSESSORY TITLE AND THE JUDGE’S ROLE AS FACT FINDER: “DETERMINED COMPETITORS IN AN IMPLAUSIBILITY CONTEST”
In McClelland v Elvin & Ors [2017] EWHC 2795 (QB) Mr Justice Turner considered an appeal where the trial judge had found against a party claiming adverse possession. There are some interesting observations in relation to Roman Britain, grounds of…
BNM -v- MGN: A DECISION OF LIMITED PROPORTION
The Court of Appeal decision in BNM v MGN Ltd [2017] EWCA Civ 1767 has relatively limited impact. In particular it says little, if anything, about the proportionality itself. THE CASE The Court of Appeal were deciding an appeal following an…
SOLICITOR AND OWN CLIENT ASSESSMENTS: PROPORTIONALITY CONSIDERED
In October last year I wrote how a speaker at the Association of Cost Lawyers Conference predicted a rise in the number of solicitor and own-client assessments. It has to be said that there have been some interesting cases in…
APPEALING FINDINGS OF FACT: AN UNUSUAL ARGUMENT – TO NO AVAIL
In Bedford County Council v GE (Eritrea) [2017] EWCA Civ 1521 the appellant attempted to argue that the trial judge had erred on the facts. The arguments were given fairly short shrift. THE CASE After a hearing in the Court of…
ALLEGING AND FINDING FUNDAMENTAL DISHONESTY, PLEADING AND EVIDENCE: COURT OF APPEAL JUDGMENT TODAY
I am grateful to barrister Tom Vonberg for sending me a copy of the Court of Appeal decision today in Howlett -v- Ageas [2017] EWCA Civ 1696. Howlett & anr v Davies & anr- jt Final-1. Tom acted for the…
IF YOU WANT YOUR COSTS ASSESSED IMMEDIATELY AFTER AN APPEAL OR INTERLOCUTORY HEARING THEN YOU HAVE TO ASK : OTHERWISE YOU’LL JUST HAVE TO WAIT
Does a successful litigant on an interlocutory issue have a right to have their costs assessed immediately? That was the question addressed by the Court of Appeal in Khaira & Ors v Shergill & Ors [2017] EWCA Civ 1687 . This…
ESTIMATES OF COSTS AND THE FINAL BILL: SOLICITOR AND OWN CLIENT COSTS: CLIENT (PARTIALLY) SUCCESSFUL ON APPEAL
In Harrison v Eversheds Llp [2017] EWHC 2594 (QB) Mrs Justice Slade allowed, in party, a client’s appeal in relation to estimates of costs and final costs. It is a case that emphasises the importance of giving full information in relation…
SECTION 33 DISCRETION UPHELD ON APPEAL: DEFENDANT ORDERED TO PAY COSTS OF LIMITATION HEARING
In Mossa v Wise [2017] EWHC 2608 (QB) Mrs Justice Yip upheld a Master’s decision under Section 33 of the Limitation Act 1980. The Master’s decision that the defendant pay the costs of the issue of limitation was also upheld. THE…
CAPACITY TO LITIGATE : LITIGATION FRIEND CAN PROPERLY CONTINUE WITH ACTION WHERE CLAIMANT WAS WITHOUT CAPACITY AT BEGINNING OF CASE
I was speaking at the MASS conference yesterday about capacity and litigation. It is always the way of things that an interesting point on an issue comes up the day after a presentation. An issue on capacity to litigate arose…
PERMISSION TO APPEAL – TWO YEARS OUT OF TIME – SET ASIDE: COURT WAS “MISLED BY SERIOUS MISREPRESENTATIONS AND NON DISCLOSURES”
In Kovarska v Otkritie International Investment Management Ltd & Ors [2017] EWCA Civ 1485 the Court of Appeal set aside an extension of time for appealing. The order had been granted without a hearing. It was held that the Court…
YOU CAN’T APPEAL ON A POINT THAT YOU HAVEN’T PLEADED: DEFENDANT’S ARGUMENTS GO DOWN THE PAN
There are periodic reminders from the court as to how important the statement of case is. This can be seen in the judgment today in Watt v Dignan & Ors [2017] EWCA Civ 1390. “I do not agree that a…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
COST BUDGETING: THE CASES AND POSTS IN ONE PLACE
There is a specific section on relief from sanctions on this blog which links to all the posts and related cases on CPR 3.9. Here I am starting to do the same for costs budgeting. Here, however, I aim to…
WHEN A JUDGMENT STARTS “OH DEAR, OH DEAR, OH DEAR”: CAR CRASHES AND MOTORWAY PILE UPS IN THE UPPER TRIBUNAL: UPPER TRIBUNAL JUDGE RENDERED SPEECHLESS
This blog sometimes looks at tribunal decisions, primarily in the context of procedural issues. These issues abound in the decision of Upper Tribunal judge Nicholas Wikeley in AF v Secretary of State for Work and Pensions (DLA) (No2) (Tribunal procedure and…
ABSENCE OF RISK ASSESSMENTS LEADS TO JUDGMENT FOR DEFENDANT BEING OVERTURNED: THE SECOND PART OF POWELL -v- WATFORD BOROUGH COUNCIL
The first part of the decision of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB)was considered in detail in the previous post. Mr Justice Jay held that a peremptory order had not been complied with and the defence…
THE DUTIES OF A SOLICITOR IN LITIGATION: NO DUTY TO TEMPT THE CLIENT TO PURSUE LARGE SUMS: ADVERTISING “TURNED THE CLIENT’S HEAD” AND LED TO INCORRECT ASSERTIONS
In Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303 the Court of Appeal considered the extent of a solicitor’s duty and retainer. It is significant in that it: States that the courts should approach the issue of fixed…
DEFENDANT DEBARRED FROM CALLING WITNESS EVIDENCE AT TRIAL: COURT OF APPEAL OVERTURNS FINDING FOR DEFENDANT
The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary is a long-running saga. We have looked at it twice before. The incident occurred in 2009. In 2013 the Court of Appeal overturned a judge’s decision to grant…
SERVICE ON A NOMINATED SOLICITOR: BE CLEAR WHO YOU REPRESENT: “A THOROUGHLY TECHNICAL POINT”, UNATTRACTIVE, MISCONCEIVED AND “REFLECTS NO CREDIT ON THE INSURERS OR THEIR ADVISERS”
Earlier this week Master McCloud commented upon “a dry and unlovely crop of procedural service issues” in the Masters’ Corridor. These issues may well follow the Masters around. Master Davison sits as a Recorder. In that capacity he decided an…
COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: A RECAP AND REVIEW OF THE EARLIER CASE MENTIONED
I am writing, again, about the the judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB). The point the case makes about the correct route of appeal has been commented on, however I had not anticipated…
DESTINATION OF APPEALS FROM A DISTRICT JUDGE ALLOCATED A CIRCUIT JUDGE’S WORK: IMPORTANT WORDS ON COMMUNICATING WITH THE COURT
The judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB) is of considerable importance in relation to the correct route for appeals. It was held that the correct route of appeal from a district…
A GOOD REASON WHY YOU SHOULD LOVE (OR AT LEAST MEDIATE WITH) THY NEIGHBOUR: INDEMNITY COSTS OF £200,000
The Court of Appeal judgment in Dickinson & Anor v Cassillas [2017] EWCA Civ 1254 serves as a warning for anyone involved in a neighbour dispute. The Court dismissed the appellants’ appeal in relation to findings against them after a trial….
QOCS: THE TRANSITIONAL PROVISIONS CONSIDERED BY THE COURT OF APPEAL: CLAIMANTS CANNOT BLOW HOT AND COLD
In the judgment today in Catalano -v- Espley Tyas Development Group Limited [2017] EWCA Civ 1132 the Court of Appeal considered the transitional provisions relating to QOCS. “We cannot accept that Mr McGee is right. Not only does he seek…
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