LATE SKELETON ARGUMENTS, ADJOURNMENTS AND THE OVERRIDING OBJECTIVE
In Owgilo -v- The General Medical Council [2017] EWHC 419(Admin) Mr Justice Dove considered the situation when a witness statement was served late and the applicant requested an adjournment. The overriding objective played a prominent part in the decisions made….
WHAT A DIFFERENCE A DAY MAKES: ACTION BROUGHT IN TIME: COURT’S EARLIER REFUSAL TO EXTEND DISCRETION TO EXTEND TIME OVERTURNED
The judgment of the Court of Appeal in Otuo -v- Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136 shows the importance of calculating time periods for limitation. It shows what a difference a day makes KEY POINTS…
HIGH COURT WRITES AN OPEN LETTER TO LITIGANTS IN PERSON: STRIKING OUT CAN BE A BENEFIT NOT A BURDEN
There are aspects of the judgment of Mr Justice Walker in Chambers -v- Rooney [2017] EWHC 285 (QB) that amount to an open letter from the High Court to litigants in person. Some of the observations are aimed at everyone…
PREVENTING DEFENDANT FROM DEFENDING DAMAGES IS AN APPROPRIATE MEANS OF ENFORCING PEREMPTORY ORDERS: COURT OF APPEAL DECISION
Workman -v- Forrester [2017] EWCA Civ 73 is an important example of the courts using peremptory orders in an attempt to secure compliance. The Court of Appeal upheld a decision to make a peremptory order that allowed the claimants to…
MERRIX ON APPEAL TO THE HIGH COURT JUDGE: COSTS BUDGETING IS AS DEFINITIVE FOR PAYING PARTY AS IT IS FOR RECEIVING PARTY: JUDGMENT TODAY
In the judgment today in Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) Mrs Justice Carr allowed an appeal about the significance of costs budgeting when it comes to assessment. “In my judgment, the answer to…
SEXUAL ABUSE AND SECTION 33 OF THE LIMITATION ACT: COURT OF APPEAL OVERTURNS JUDGE’S ORDER
In Archbishop Michael George Bowen -v- JL [2017] EWCA Civ 82 the Court of Appeal overturned a judge’s decision under section 33 of the Limitation Act 1980. The judge had exercised the discretion in favour of the claimant. On appeal…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
TRIAL JUDGE’S REJECTION OF EXPERT WITNESS CREDIBILITY UPHELD BY THE COURT OF APPEAL: IF AN EXPERT KNOWS A PARTY THEY SHOULD SAY SO
In EXP -v- Barker [2017] EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness. “the starting point is to identify what the judge decided. He considered that the witness had…
ORAL CLOSING SUBMISSIONS ARE IMPORTANT: USE OF WRITTEN SUBMISSIONS IS “UNSATISFACTORY”
In Pimlico Plumbers Ltd -v- Smith [2017] EWCA Civ 51 the Court of Appeal stated that oral closing submissions are important. Relying on written submissions alone represents a “considerable risk”. THE CASE The Court of Appeal was considering an appeal…
E-DISCLOSURE: UNLESS ORDERS: STRIKING OUT, COMPLIANCE AND DENTON: DEFENDANTS COME TO GRIEF
There is a lot to consider in the judgment today of Mr Justice Green in Micheal -v- Phillips [2017] EWHC 42 (QB). It relates to inadequate disclosure; retention of electronic documents; peremptory orders and relief from sanctions. Things did not…
A COUNTERCLAIM IS SUBJECT TO THE SAME RULES AS LIMITATION AS A CLAIM: SECTION 35 OF THE LIMITATION ACT CONSIDERED BY THE COURT OF APPEAL
In the judgment today in Al-Rawas -v- Hassan Khan (A Firm) [2017] EWCA Civ 42 the Court of Appeal held that a counterclaim did not have any special status under the Limitation Act. It was subject to the same principles as…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
IF YOU DECIDE NOT TO TURN UP FOR COURT DON’T EXPECT MUCH SYMPATHY: COUNCIL TOLD TO GET ON ITS BIKE
The judgment of the Court of Appeal in Camden Borough Council -v- Humphreys [2017] EWCA Civ 24 illustrates the danger of a party deciding not to attend a hearing. THE CASE A recipient of a parking ticket, Mr Humphreys, had…
LIMITATION, EXTENSIONS AND THE HUMAN RIGHTS ACT: COURT OF APPEAL SAYS NO
For the second time within a week we have a case where the courts consider the discretion to extend time under s.7(5)(a) of the Human Rights Act 1998. In London Borough of Hackney -v- Williams [2017] EWCA Civ 26 the…
APPEALS, COUNTER-SCHEDULES AND A RESERVE POSITION: NOT MANNA FOR THE DEFENDANTS
We will be looking at the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 twice today. Here I want to look at the difficulties the defendant had in arguing a point in…
"UNNECESSARY, UNHELPFUL & UNACCEPTABLE" : OVER-LONG SKELETON ARGUMENTS – AGAIN.
There have been a series of judgments in the civil courts, notably from Jackson L.J., commenting on the length of skeleton arguments. The criminal courts are not immune. In R -v- Brandford [2016] EWCA Crim 1749 the Court of Appeal…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
PAYING THE CORRECT COURT FEE, AMENDMENT & STRIKING OUT: ANOTHER DECISION
There have been a number of cases in relation to the consequences for a claimant when the correct court fee has not been paid upon issue. This issue was considered by His Honour Judge Robinson this week in an appeal…
CIVIL COMMITTAL PROCEEDINGS: STILL A MATTER FOR GRAVE CONCERN
I have written several times about the problems in obtaining representation and funding for civil committal proceedings. The judgement of the Court of Appeal yesterday in Devon County Council -v- Kirk [2016] EWCA Civ 1221 exemplifies the difficulties and…
CIVIL PROCEDURE: THE BEHRENS' EFFECT
His Honour Judge Behrens, the resident Chancery judge in Leeds, retires tomorrow. This led me to consider the contribution he has made to civil procedure. JOHN BEHRENS AT THE BAR I could begin by telling of the meticulous neatness of…
WITNESS STATEMENTS & DISCLOSURE: OMISSIONS MEAN THAT CASE FAILS AT SECOND HURDLE AND HAS TO GO BACK TO THE START
S When a proponent of proportionate litigation, such as Jackson L.J., orders a retrial in a case where the judgment was for £4,449 the case merits examination. In Knowles -v- Watson [2016] EWCA Civ 1122 a re-trial was ordered because…
THIRD PARTY FUNDING: YOU WANT THE PROFITS YOU TAKE THE RISKS: EXCALIBUR IN THE COURT OF APPEAL
In Excalibur Ventures LLC -v- Texas Keystone LLC [2016] EWCA Civ 1144 the Court of Appeal confirmed that commercial funders are liable to indemnify on the indemnity costs basis. “I can see no principled basis upon which the funder can…
QADER 2: REMAINING PROBLEMS AND ISSUES: THE CONTINUING DEBATE
The post yesterday on the Qader decision has led to a large number of comments. These are easy to overlook. I have placed the comments here since these outline the issues that remain unresolved. I have added some sub-headings, but…
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
QADER IN THE COURT OF APPEAL: FIXED COSTS NO LONGER APPLY TO ACTIONS ALLOCATED TO THE MULTI TRACK
Perhaps the most surprising thing about the decision of the Court of Appeal in Qadar -v- Esure [2016] EWCA Civ 1109 is the route that had to be taken to get to the result. The Court of Appeal added, to…
SERVING WITNESS STATEMENTS LATE: THERE IS NO CLEARWAY BACK
In Clearway Drainage Systems Ltd -v- Miles Smith Ltd (08/11/2016) the Court of Appeal upheld a decision not to grant the claimant relief from sanctions when witness statements were served late. Here we look at the first instance decision in…
A DISPOSAL IS A "TRIAL": COURT OF APPEAL DECISION TODAY
Several people have kindly sent me details of the Court of Appeal decision in Bird -v- Acorn Group Limited [2016] EWCA Civ 1096. The Court considered whether a matter listed for a disposal under the EL/PL Protocol was a “trial”…
WHAT IS MEANT BY AN "INDEPENDENT" EXPERT? CASES ON EXPERTS THIS WEEK III
In Hopkinson -v- Hickton [2016] EWCA Civ 1057 the Court of Appeal considered what was meant by an “independent” expert. KEY POINTS The fact that a valuer, appointed to value a property by the parties under the terms of a…
HIGH COURT OVERTURNS DECISION TO GRANT RELIEF FROM SANCTIONS: NON-COMPLIANCE CANNOT AMOUNT TO "GOOD REASON"
In Pittville Ltd -v- Hunters & Frankau Limited [2016] EWHC 2683 Mr Justice Snowden overturned the decision of a Deputy Master granting relief from sanctions. The judgment contains an important consideration of the question of “good reasons” for…
NO RELIEF FROM SANCTIONS WHEN COSTS BUDGET FILED LATE: THE DECISION IN DETAIL
We have looked, briefly, at the Court of Appeal decision in Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001. I am grateful to Aaron Vodden of Hempsons for sending me a copy of the transcript which…
LATE ACCEPTANCE OF CLAIMANT'S PART 36 OFFERS: TWO CONTRASTING CASES & THE GREAT DEBATE
There is an ongoing debate about whether the Defendant should, or does, face any adverse consequences when a Claimant’s Part 36 offer is accepted late. I had a recent email from solicitor John McQuater of Atherton Godfrey. Here I…
PROPORTIONATE COSTS IN A FAMILY CASE: £33,813 REDUCED TO £3,737.50
In K -v- K [2016] EWHC 2002 (Fam) Mr Justice Macdonald reduced the costs of a successful party to an appeal in a family case. “The stringent test of proportionality in relation to costs incurred applies with equal force in…
THAT JUDGE IS BIASED AGAINST ME, WE CAN'T GO ON: THE APPROPRIATE RESPONSE
As we have seen many times in this blog trial judges sometimes have to make robust findings of fact about the credibility of witnesses. In Howe -v- Gossop [2016] EWHC 2169 (Ch) His Honour Judge Behrens (sitting as a High…
THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED
The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change. There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court. Coincidentally…
REVISITING WHITEHOUSE -v- JORDAN 2: ON THE LAWYERS DRAFTING THE EXPERTS' REPORTS
The first post in this series on the judgments in Whitehouse -v- Jordan in the Court of Appeal and House of Lords looked at the point that, at the appeal stage, the courts were only concerned with whether they could…
ADVOCACY – THE JUDGE’S VIEW V: TO PERSUADE A JUDGE THINK LIKE A JUDGE
This series looks at the views from judges around the world and the advice they give to advocates. Here we look at the article from J. Frederic Voros, jr for the Utah State Bar: To Persuade a Judge, Think Like…
FAILING TO FILE A COST BUDGET AND REFUSAL TO GRANT RELIEF FROM SANCTIONS: A HARSH LESSON
If a litigation solicitor is ever given the job of designing wallpaper here are the three key things that should form the recurring motif. The costs budget is due 21 days before the first case management conference. Where the claim…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID? WHEN THE CFAS DID NOT COVER THE COSTS: BAD NEWS FOR SOLICITORS AND COUNSEL
The judgment today of Mr Justice Warby in Radford -v- Frade [2016] EWHC 1600 (QB) contains an important warning in relation to the construction of CFAs both for solicitors and counsel. KEY POINTS A solicitor entered into a CFA with…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
SWITCHING FROM LEGAL AID TO CFA: THE SUCCESSFUL APPEAL
The saga relating to the assessment of costs where a claimant changed from public funding to a conditional fee agreement has been dealt with many times on this blog*. All of these issues are now dealt with in the judgment…
PROVING THINGS 22: DAMAGES, MITIGATION , PART 36 (AND EVEN SOMETHING ABOUT BUNDLES)
The Court of Appeal decision today in Pawar -v- JSD Haulage Ltd [2016] EWCA Civ 551 contains some important lessons in relation to proving damages, mitigation of loss and Part 36 offers. “The fact that a claimant does not mitigate…
ADVOCACY – THE JUDGE’S VIEW IV: "AVOID BULLSHIT, SMOKE AND MIRRORS" (OH AND BEWARE OF "WELL PADDED VANITY")
In the fourth in this series we are returning to Australia and looking at the guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember…
THE HARB CASE: IT'S ALL ABOUT THE EVIDENCE: A TRIAL JUDGE MUST "SHOW THEIR WORKINGS"
The Court of Appeal judgment in Harb -v- HRR Prince Abdul Aziz Bin Fahd Bin Abdud Aziz [2016] EWCA Civ 556 has attracted a lot of attention because of the comments the Court made about the allegations of judicial bias….
EXTENSION OF THE CLAIM FORM: A RARE SUCCESS FOR A CLAIMANT (BUT IT HAS GOT A LOT TO DO WITH CONDUCT)
Most cases relating to extensions of time for service for the claim form end badly for the claimant. The decision of Mr Justice Roth in The Khan Partnership LLP -v- Infinity Distribution Limited [2016] EWHC 1390 (Ch) is an exception….
INDEMNITY COSTS ON APPEAL AFTER PART 36 OFFER
For the second time today I express my thanks to John McQuater. This time for drawing my attention to the Court of Appeal decision on costs in Summers -v- Bundy (11/02/2016)* This case shows the importance of making Part 36…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
QOCS CONTINUE TO APPLY ON APPEAL: HIGH COURT DECISION
In Parker -v- Butler [2016] EWHC 1251 (QB) Mr Justice Edis decided that QOCS protection continued to apply when a claimant appealed. “To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in…
I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME
One of aspects of the judgment in McTear -v- Englehard [2016] EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos in relation to the nature of the correspondence between the parties. “It would seem…
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
You must be logged in to post a comment.