JUDGE SHOULD NOT HAVE MADE COSTS ORDER WHICH WIPED OUT CLAIMANT'S DAMAGES: COURT OF APPEAL DECISION TODAY
In Begum -v- Birmingham City Council [2015] EWCA Civ 386 the Court of Appeal allowed an appeal by a claimant where the decision on costs at first instance effectively deprived her of damages. THE CASE The issue is succinctly summarised…
COURT CANNOT RE-OPEN "FINAL JUDGMENT": ISSUES RELATING TO DEFENDANT'S CAPACITY: EVESHAM –v- WERRETT CONSIDERED
In the judgment today in Eversham & Pershore Housing Association Ltd -v- Werrett [2015] EWHC 1060 (QB) Mr Justice Nicol held that the court could not re-open a decision because of later evidence in relation to the defendant’s capacity. THE…
HAYWARD MAY HAVE BEEN WAYWARD BUT THERE WAS NO LOOKING BACKWARD: SETTLED CLAIM NOT RE-OPENED
In Hayward -v- Zurich Insurance Company PLC [2015] EWCA Civ 327 today the Court of Appeal overturned a decision that a claimant should repay a large part of a personal injury award from an earlier settled action. This decision makes…
ITS NOT WHAT THE JUDGE SAID BUT THE WAY THAT THEY SAID IT: DISCUSSIONS FROM DOWN UNDER
The Supreme Court of South Australia made some interesting observations about the interaction between the bench and the bar in Stone -v- Moore [2015] SASC 46 (24th March 2015). In particular what does the appellate court do when a complaint…
DOES THE COURT OF APPEAL NEED TO "SHOW ITS WORKINGS"? ALL KICKING OFF IN THE COURT OF PROTECTION
An interesting point of procedure arose in the decision of Mr Justice Mostyn in Rochdale Metropolitan Council -v- KW [2015] EWCOP 13. Is a Court of Appeal decision valid when it is allowed by consent and there is no reasoned…
STATUTORY APPEALS: "EXCEPTIONAL CIRCUMSTANCES" AND APPEALING OUT OF TIME: WITH IMPORTANT POINTS ON THE REMISSION OF COURT FEES
In The Nursing and Midwifery Council -v- Daniels [2015] EWCA Civ 225 the Court of Appeal emphasised the need for exceptional circumstances to exist when a party is seeking an extension of time to a statutory time period for appealing….
ASSESSING THE EVIDENCE ON A SUMMARY JUDGMENT APPLICATION: CRITICAL EXAMINATION OF THE RAW MATERIAL IS NECESSARY
In Calland -v- Financial Conduct Authority [2015] EWCA Civ 192 the Court of Appeal set out important principles to be considered when the court is considering an application for summary judgment. THE CASE The claimant brought an action under the…
INTEREST ON COSTS; PAYMENTS ON ACCOUNT OF COSTS & INDEMNITY COSTS AGAINST FUNDERS: EXCALIBUR IN THE REPORTS AGAIN
We have looked at the Excalibur case before in the context of an order for indemnity costs against funders. Further decisions in relation to costs were made by Christopher Clarke L.J. in Excalibur Ventures LLC -v- Texas Keystone INC [2015]…
IF YOU WANT A STAY PENDING APPEAL MAKE FULL AND TOTAL DISCLOSURE
In Goldsmith -v- O’Brien [2015] EWHC 510 (Ch) Judge Purle QC refused an application for a stay pending appeal. The case is an important reminder of the burden on a party seeking a stay pending appeal. THE CASE The claimant…
WHEN BUNDLES & SANCTIONS COLLIDE: DAVIS -v- RAJA: FAILURE TO FILE APPEAL BUNDLE LEADS TO APPEAL BEING STRUCK OUT
In Davis Solicitors LLP -v- Raja [2015] EWHC 519 (QB) Mr Justice Supperstone refused the claimant relief from sanctions following a failure to comply with directions on appeal in relation to the filing of a bundle. There are important practical…
MITIGATING THE IMPACT OF THE COURT FEE INCREASE 2: FEE REMISSION – EVERY LITIGATOR HAS TO KNOW THIS NOW
This is the second in the series of posts on mitigating the impact of the court fee increase. Not for the first time Kerry Underwood has got to this point already. I am not going to repeat anything Kerry says…
THE LADD -v- MARSHALL TEST: WHAT IS MEANT BY "REASONABLE DILIGENCE": A TALE OF COMPUTERS IN COURT
An appeal court will only consider new evidence on very limited grounds. The test in Ladd -v- Marshall [1954] 1 WLR 1489 is that the applicant can show that the evidence could not with reasonable diligence have been obtained for…
NO RE-ALLOCATION AT THE COURT OF APPEAL STAGE JUST TO GET COSTS: CONLON -v- ROYAL SUN INSURANCE PLC
In Conlon -v- Royal Sun Insurance plc [2015] EWCA Civ 92 the Court of Appeal refused to re-allocate a costs at the appeal stage when the application was made solely for the purpose of attempting to recover costs. THE ISSUES…
INADEQUATE WITNESS STATEMENTS LEAD TO CASE BEING STRUCK OUT AT TRIAL
We have looked at the case of Devon & Cornwall Autistic Community Trust -v- Cornwall Council before. In the first report Mr Justice Green refused an application to adjourn a trial date but gave permission to serve witness evidence late….
UNSUCCESSFUL APPEAL AGAINST GRANT OF RELIEF FROM SANCTIONS: HOME GROUP LIMITED -v- MATREJEK
There may be a few appeals pending where a party is arguing that relief from sanctions should be granted on the grounds of the Denton criteria which “modified” the Mitchell test. The unusual aspect of the decision in Home Group…
WHOLLY SUCCESSFUL DEFENDANT RECOVERS ONLY TWO-THIRDS OF COSTS BECAUSE OF FAILURE TO ENGAGE IN ADR
In Christian -v- The Commission of Police for the Metropolis [2015] EWHC 371 (QB) Mr Justice Turner considered the costs applications of a failure to a defendant to engage in mediation. THE CASE The claimant was unsuccessful in an action…
WHO SAYS THAT YOU'LL WIN NOTHING WITH KIDS? THE WITNESS EVIDENCE IN WOODLAND -v- MAXWELL CONSIDERED
The case of Woodland -v- Maxwell [2015] EWHC 273 (QB) is almost a procedural epic. It has involved one trip to the Court of Appeal to allow a withdrawal of admissions and a further trip to the Supreme Court on…
LITIGANTS IN PERSON INCREASE USE OF RESOURCES NOT SAVE THEM: COURT OF APPEAL DECISION
In Linder -v- Rawlins [2015] EWCA Civ 61 the Court of Appeal dismissed the appeal of a litigant in person appealing in relation to certain aspects of disclosure in a divorce petition. What is particularly telling is that part of…
EVANS -v- WOLVERHAMPTON: PART 36: SERVICE OF NOTICE TO APPEAL AND RELIEF FROM SANCTIONS: IN THE REPORTS AGAIN
The case of Evans -v- The Royal Wolverhampton Hospital Trust [2014] EWHC 3185 (QB) has been examined before in this blog. It was the case where the defendant made an ex parte application for permission to withdraw a Part 36…
COSTS AGAINST NON-PARTIES: NOTHING LOST IN TRANSLATION: THE CAPITA CASE CONSIDERED
The decision today of Sir James Munby In the Matter of Capita Translation and Interpreting Limited [2015] EWFC 5 reiterates the principles of costs against third parties. The judgment contains a detailed review of the law relating to cost liability…
THE COURT OF APPEAL CAN RE-OPEN A DECISION TO REFUSE PERMISSION TO APPEAL WHEN IT IS ALLEGED THE JUDGMENT WAS OBTAINED BY FRAUD
In Bishop -v- Chhokar [2015] EWCA Civ 24 the Court of Appeal decided that it had jurisdiction to re-open an order refusing permission to appeal when it was alleged that a judgment was obtained by fraud. THE CASE The respondent…
APPEALING COSTS BUDGETS: THE RELEVANT CRITERIA CONSIDERED AND APPLIED
The decision of H H Judge Freedman in Havenga -v- Gateshead NHS Foundation Trust [2014] EWHC B25(QB) demonstrates how difficult it is for a party to appeal a costs budget. THE CASE The claimant was bringing a claim for hemiplegic…
SERVICE OF THE CLAIM FORM: E-MAILING A COPY IS NOT GOOD SERVICE (AND WON'T BE EXCUSED)
Service of the claim form raises its head for the second time in two days. In Dunbar Assets Plc -v- BCP Premier Limited [2014] EWHC 10 (Ch) Mr John Baldwin QC (sitting as a Deputy Judge) overturned an order that…
SIX MONTH PERIOD FOR SERVICE, EVEN IF "FOREIGN" DEFENDANT ACTUALLY SERVED WITHIN THE JURISDICTION
Another interesting twist to the law of service of proceedings can be found in the Court of Appeal decision in Ashley -v- Tesco Stores (15/01/2015)*. The Court of Appeal found that there was a six month period for service of…
£3,500 DAMAGES: A 10 DAY TRIAL: 3 DAYS IN THE COURT OF APPEAL: £500,000 IN COSTS: BLEAK HOUSE IN THE COURT OF APPEAL
In Gilks -v- Hodgson [2015] EWCA Civ 5 the Court of Appeal had strong words to say about the costs of a boundary dispute. The observations should be read by anyone tempted to litigate about these issues. THE CASE The…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -V- WEBINVEST IN THE COURT OF APPEAL
The case of Avonwick -v- Webinvest has been looked at before on this blog. Mr Justice David Richards held that letters asking for time to pay a debt were not covered by privilege just because they were headed “without prejudice”….
THE NEW PART 36: PART 10: PULLING IT ALL TOGETHER: 18 KEY POINTS
This post provides a summary of the changes to Part 36 and then considers the practical implications of the new rules, including the implications for on-going litigation. There are links to the relevant posts on the issue and a summary…
RELIEF FROM SANCTIONS: BUNDLES; EXPERT EVIDENCE AND LITIGANTS IN PERSON
The case of Nata Lee Ltd -v- Abid [2014] EWCA Civ 1652 has already attracted attention following the observations the Court of Appeal make about relief from sanctions and litigants in person. However there are several important observations about procedure…
CIVIL LITIGATION: REVIEW OF 2014: PROLIXITY, SANCTIONS, CREATIVE WRITING AND MUCH MORE
It is coming to that time of the year where everyone does an annual review. We civil litigators cannot be left out. Here is an annual review for the past 12 months. If people want to make additional suggestions in…
E-DISCLOSURE & BREACH OF ORDERS: CASE STRUCK OUT: NO QUESTION: AND NO QUARTER GIVEN
In Smailes -v-McNally [2014] EWCA Civ 1296 the Court of Appeal made it clear that breach of a peremptory order in relation to disclosure will lead to grave consequences for the defaulting litigant. THE CASE This case was looked at…
EXTENSIONS OF TIME TO APPEAL: MITCHELL AND DENTON PRINCIPLES APPLY
In a combined decision in three cases heard today* [2014] EWCA Civ 1633 the Court of Appeal set out important guidance in relation to applications to appeal out of time. Practitioners must be aware of the time limit for appeals,…
"THE LEAST MANAGEABLE CASE I HAVE EVER TRIED TO MANAGE": CASE MANAGEMENT UPHELD BY THE COURT OF APPEAL
This was the description given by His Honour Judge Mackie QC when he was considering, and refusing, an application by the defendant to strike the action out. The decisions he made were upheld by the Court of Appeal In Walsham…
LIMITATION, PROFESSIONAL NEGLIGENCE AND SUMMARY JUDGMENT: AN IMPORTANT LESSON
The case of Seton House Group -v- Mercer Ltd [2014] EWHC 4234 (Ch) shows the importance of being certain of a limitation period and issuing well before that date. In this case, however, the limitation period had passed well before the…
CASE STRUCK OUT AFTER JUDGMENT BECAUSE REPEATED FAILURES TO COMPLY AMOUNTED TO AN ABUSE OF PROCESS
In Zaman -v- Paradise UK Ltd (QBD) 11/12/2014* Judge Seymour QC upheld a decision of the Master to strike out a personal injury action on the grounds of abuse of process where liability had been admitted. This is an important…
BACK TO BASICS WITH PLEADINGS: PROPORTIONATE LITIGATION AND BREVITY ESSENTIAL ON APPEALS
“Pleadings are intended to help the Court and the parties. In recent years practitioners have, on occasion, lost sight of that aim. Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never…
POST-MITCHELL PRE-DENTON DECISION TO GRANT RELIEF FROM SANCTIONS OVERTURNED ON APPEAL
In British Gas Trading -v- Oak Cash & Carry [2014] EWHC 4058 (QB) Mrs Justice McGowan DBE overturned a decision granting a defendant relief from sanctions. What is particularly interesting is that the original decision was made post-Mitchell but prior…
SUPREME COURT JUDGMENT: SIGNATURE OF DISCLOSURE LISTS, CASE MANAGEMENT AND COMPLIANCE
The Supreme Court judgment in HRH Prince Abdulaziz Bin Mishal bin Abdulaziz Al Saud (Appellant) v Apex GlobalManagement Ltd and another (Respondents) [2014] UKSC 64 contains some important observations in relation to disclosure and case management. BACKGROUND TO THE CASE This…
MORE ON SKELETON ARGUMENTS: DO THEM PROPERLY OR YOU DON'T GET PAID (THE TRIQUEL)
For the third time in the past few months Jackson L.J. has spoken out against over-lengthy skeleton arguments. The costs of preparing those skeletons have been disallowed on each occasion. This is what happened in Inplayer Ltd -v- Thorogood [2014]…
NOMINAL DAMAGES AWARD LEADS TO NO COSTS AT TRIAL & 25% OF COSTS ON APPEAL
In Walker -v- the Commissioner of the Police of the Metropolis [2014] EWCA Civ 897 the Court of Appeal considered the appropriate costs award when a claimant succeeded on appeal but the appellate court held that he should only recover…
CLAIMANTS HAD COMPLIED WITH PEREMPTORY ORDER: CASE NOT STRUCK OUT
There is a brief report on Lawtel of the case of Sharma -v- Quality Redfern Solicitors (Ch D Judge Behrens 19/11/2014). The decision concerns the striking out of a claim for breach of an order and the judge finding, on…
MORE ABOUT QOCS: CAN THEY APPLY ON APPEAL IF THE CLAIMANT HAD A PRE-APRIL 2013 CFA?
An earlier post on the risks posed by the transitional provisions of QOCS led to several comments. One of those comments was the question whether you can get QOCS protection on appeal if the original CFA did not cover appeals….
ROUTE OF APPEAL FOR AN UNALLOCATED CASE: LIE -v- MOHILE
In Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal. THE ACTION This was a partnership…
APPEALING ON THE FACTS AND WITNESS CREDIBILITY: THE DEMEANOUR OF THE WITNESS
Earlier posts have considered issues relating to witness statements and witness credibility. In particular the difficulties of appealing findings of fact. A helpful summary of the principles relating to appealing when a judge has made a finding in relation to…
"IN TIME" APPLICATION FOR EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM REFUSED: A DANGER AREA TO WATCH
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was…
RELIEF FROM SANCTIONS REFUSED: DENTON MADE NO DIFFERENCE
In Blemain Finance Ltd -v- Mukhtar & Osman (28/10/14)* Globe J upheld a decision of the first instance judge refusing relief from sanctions. THE FACTS The claimant sought possession of the defendants’ home following a failure to pay. There was…
CASE NOT STRUCK OUT BECAUSE OF A FAILURE TO FILE TRIAL BUNDLE & PAY COURT FEES
One of the most read posts on this blog was, in the middle of the Mitchell Madness period, when a judge struck out an action because the trial bundle had been lodged late. This issue was considered by Hickinbottom J…
LIMITATION & THE DATE OF KNOWLEDGE CONSIDERED IN THE CONTEXT OF HEARING LOSS
In Platt -v- BRB Residuary Ltd [2014] EWCA Civ 1401 the Court of Appeal considered issues relating to the date of knowledge in the context of a claim for hearing loss. THE LAW The relevant sections of the 1980 Act…
EXTENSIONS OF TIME: RESPONDENT'S NOTICES AND THE "MITCHELL" PRINCIPLES & THE "SERIOUSNESS AND SIGNIFICANCE OF THE BREACH"
The question of the general applicability, and the application, of “Mitchell” principles was considered today by the Court of Appeal in Altomart Ltd -v- Salford Estates (No 2) Limited [2014] EWHC 1408. The court considered the principles to be applied…
SHOULD THE ASSESSMENT OF COSTS BE IN PUBLIC OR IN PRIVATE? WHEN IS LEGAL PROFESSIONAL PRIVILEGE WAIVED?
In Eurasian Natural Resources Ltd -v- Dechert LLP [2014] EWHC 3389 Mr Justice Roth addressed the issue of whether an assessment of solicitor and own client costs should be in private or in public. The judgment also considers important issues…
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