"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…
SOLICITORS RETAINER WAS UNLAWFUL & NO COSTS PAYABLE: COURT OF APPEAL DECISION CONSIDERED
In the judgment given today Rees -v- Gateley Wareing [2014] EWCA Civ 1351 the Court of Appeal held that a retainer between the solicitor and client was unlawful, overturning the first instance decision on the matter. Consequently the solicitors could…
COSTS ASSESSED AT NIL WHEN SOLICITOR FAILED TO MAKE PROPER INVESTIGATIONS INTO CLIENT'S FUNDING
The case of McDaniel & Co -v- Clark (QBD Hickinbottom J 15/10/14) contains a clear warning that solicitors must make proper enquiries about funding at a very early stage. (This post is based on the Lawtel note of the judgment…
COSTS CAPPING IN THE COURT OF APPEAL: ANOTHER EXAMPLE OF COSTS CAPPING BEING REFUSED
We have looked before at issues relating to costs capping in the Court of Appeal. I am grateful to Claire Darwin of Matrix Chambers for bringing my attention to the case of Black -v- Arriva North East Ltd [2014] EWCA…
FINDINGS OF FACT AND CREDIBILITY: THE COURT OF APPEAL WILL RARELY INTERFERE
The decision of the Court of Appeal today in Exsus Travel Ltd -v- James Turner [2014] EWCA Civ 1331 reinforces the points made in earlier posts about the reluctance of the Court of Appeal to interfere with findings of fact…
THE ROLE OF THE APPELLATE COURT IN CONSIDERING FINDINGS OF FACT
In Clydesdale Bank -v- Duffy [2014] EWCA Civ 1260 the Court of Appeal set out a clear statement of the limited role of the appeal court in considering appeals in relation to findings of fact by the trial judge. THE…
SETTING ASIDE JUDGMENT, MITCHELL AND DENTON: THE COURT OF APPEAL'S VIEW
The question of how far the “Mitchell/Denton” principles apply to applications by defendants to set aside judgments was considered by the Court of Appeal in Regione Piemonte -v- Dexia Credop SpA [2014] EWCA Civ 1298. It can be seen that these principles…
DRAFTING A SKELETON OR WANT TO SERVE AN ADDITIONAL SKELETON ARGUMENT? THEN YOU HAD BETTER READ THIS
We have looked before at judicial complaints about the length and extent of skeleton arguments. Similar grievances can be seen in the judgment of the Court of Appeal earlier this week in Tchenguiz -v- Director of the Serious Fraud Office…
A JUDGE SHOULD RARELY RECUSE THEMSELVES: COURT OF APPEAL DECISION IN OTKRITIE CONSIDERED
In Otkritie International Investment -v- Mr George Urumov [2014] EWCA Civ 1315 decided today the Court of Appeal reviewed the circumstances in which a judge should recuse themselves for bias. It is clear that this cannot be done lightly. In…
WRITTEN SUBMISSIONS: STATEMENTS OF ISSUES; PLEADING AND PROOF
The decision of Mr Justice Walker in Burrows -v- Northumbrian Walker Ltd [2014] EWHC 3305(QB) considers the need for clarity in written submission and for the issues the judge is asked to determine to be clearly defined. It also considers…
PRE-ACTION DISCLOSURE WAS JUSTIFIED AND REASONABLE: COURT OF APPEAL DECISION
In the judgment today in Jet Airways (India) Ltd -v- Barloworld Handling Ltd [2014] EWCA Civ 1311 the Court of Appeal reiterated the criteria for pre-action disclosure. The Court upheld a decision ordering pre-action disclosure and were extremely firm in…
DENTON APPLIES TO APPLICATIONS TO SET ASIDE DEFAULT JUDGMENTS: HOCKLEY -v- NORTH EAST LINCOLNSHIRE CONSIDERED
The issue of whether the “Mitchell/Denton/CPR 3.9” criteria apply to applications by a defendant to set aside a default judgment has been discussed several times on this blog. In Hockley -v- North Lincolnshire & Goole NHS Trust (19th September 2014)…
RELIEF FROM SANCTIONS GRANTED: RESPONDENT'S "OPPORTUNISTIC" BEHAVIOUR CONDEMNED
In Long -v- Value Properties [2014] EWHC 2981 (Ch) Mr Justice Barling roundly condemned the defendants for taking opportunistic points in litigation. The judge overturned a decision by the Master refusing relief from sanctions. THE FACTS This was an application…
CALDERBANK OFFER HAD NO EFFECT ON OUTCOME IN RELATION TO COSTS:
Some parties make “Calderbank” offers in place of Part 36 offers. The effect of a Calderbank offer and whether it should affect an order for costs was considered by the Court of Appeal today in Coward -v- Phaesetos [2014] EWCA…
MORE ON CHILD CLAIMANTS AND THE RECOVERY OF SUCCESS FEES: AN EXTREMELY HELPFUL NOTE FROM THE CLAIMANT'S SOLICITORS
The post yesterday on children and success fees got a lot of attention. I am grateful to Daniel Higgins head of costs at Gavin Edmonson Solicitors Ltd who was involved in that appeal. His note (reproduced with his permission below)…
COSTS CAPPING IN THE COURT OF APPEAL: DON'T BANK ON THE TIDE BEING IN YOUR FAVOUR
In Tidal Energy -v- Bank of Scotland Plc Arden L.J. considered, and rejected, an application for costs capping in relation to a forthcoming Court of Appeal hearing. The Court was keen to discourage satellite litigation in the Court of Appeal….
COSTS IN THE SUPREME COURT: NEGLIGENT SOLICITORS ORDERED TO PAY COSTS OF BOTH SIDES
What costs order should the Supreme Court make when an appellant succeeds in establishing that wills are valid despite the fact that they have been improperly executed because of negligence on the part of a solicitor? A pragmatic view was…
CAN YOU GET AN ORDER FOR QOCS TO APPLY ON AN APPEAL? CPR 59.2A CONSIDERED BY THE COURT OF APPEAL
In JE -v- Secretary of State for the Home Department [2014] EWCA Civ 192 the Court of Appeal considered whether a QUOCs type order could be made in the Court of Appeal. The Court also emphasised the importance of prompt…
TAKING EVIDENCE; WITNESS STATEMENTS AND NOT MISLEADING THE COURT: BRETT -v- THE SRA CONSIDERED
The question of the duties owed by a lawyer to not mislead the court was at the forefront of the decision yesterday in Brett -v- The Solicitors Regulatory Authority [2014] EWHC 2974 (Admin). This case has obvious and very wide…
E-BUNDLES COMING TO THE SUPREME COURT AND PRIVY COUNCIL VERY, VERY SOON
The Supreme Court has issued guidance on the use of electronic bundles which will be mandatory for a trial period. Parties given permission to appeal in the Supreme Court and Privy Council after the 1st October 2014 will be expected…
CIVIL EVIDENCE AND WITNESS STATEMENTS – HERE’S THE CATCH: THE JUDGE CAN ACCEPT SOME OF THE EVIDENCE SOME OF THE TIME
There have been several posts on this blog in relation to witness evidence and witness credibility. One important point to note is that a judge is entitled to find that a witness is correct on some matters and not on…
APPEALS: STAY OF EXECUTION AND CONDITIONS IMPOSED BY APPELLATE COURT: THE RELEVANT PRINCIPLES
The fact that an appeal is made, or permission to appeal is granted, does not automatically grant a stay of execution. The appellant has to apply for a stay and the court can grant conditions. The law and principles governing…
FAILURE TO SERVE NOTICE OF AMENDED CFA DETAILS IS NOT A SERIOUS OR SIGNIFICANT BREACH: HIGH COURT DECISION CONSIDERED IN DETAIL
The High Court decision in Ultimate Products Ltd -v- Wooley [2014] EWHC 2706 (Ch) provides further guidance as to what the courts are likely to consider “serious or significant” breaches. The High Court judge upheld the decision of the Master…
THE MITCHELL CASE RUMBLES ON: MORE PROCEDURAL ISSUES: SPLIT TRIAL ORDERED
I feel almost duty bound to continue to report on the Mitchell case, even if now has limited relevance to the question of sanctions. The latest case management decision offers an interesting decision on whether there should be a split…
DENTON PRINCIPLES AND EXTENDING TIME FOR APPEALING: COURT OF APPEAL OBSERVATIONS
The issue of whether the “Denton” principles applied to applications for permission to appeal out of time were considered briefly by the Court of Appeal in Hart -v- Burbridge [2014] EWCA Civ 992 THE ISSUES The appellants appealed out of…
LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…
WHAT CAN THE DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 2: A CLINICAL NEGLIGENCE CASE
We have looked before at the question of what a defendant can argue in relation to damages after a judgment has been entered. A case reported today examines this issue in relation to judgment in a clinical negligence action. SYMES -V-…
DENTON: THE DISSENTING JUDGMENT OF JACKSON L.J. CONSIDERED
In the hundreds of articles, blogs and commentaries on the decision in Denton the “dissenting” judgment is barely mentioned or considered. Whilst all three members of the court were in agreement that each of the appeals should be allowed there…
WHAT IS MEANT BY "SERIOUS AND SIGNIFICANT"? THE COURT CONCENTRATES MUCH MORE UPON THE EFFECT OF THE BREACH RATHER THAN THE BREACH ITSELF
In Denton -v- White; [2014] EWCA Civ 906. the Court of Appeal eschewed the use of the word “trivial” where a court is considering an application for relief from sanctions. Instead the Court stated that the focus should be on whether…
BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…
MORE ABOUT APPEALING MITCHELL DECISIONS OUT OF TIME: RELEVANT CASE LAW
A post yesterday considered the possibility of appealing, out of time, the unjust orders that may have been made following Mitchell and the subsequent “clarification” in Denton. There is some law on this topic, ironically it is a result of…
"HISTORIC" SANCTIONS DECISIONS: ARE YOU GOING TO APPLY TO APPEAL OUT OF TIME
In Denton -v- White [2014] EWCA Civ 906. the Court of Appeal stated that we think that the judgment in Mitchell has been misunderstood and is being misapplied by some courts. It is clear that it needs to be clarified and amplified in…
USELESS BUNDLES; LENGTHY SKELETONS AND JUDICIAL IRE: THE COURT OF APPEAL RUES INABILITY TO IMPOSE "OLD FASHIONED" SANCTIONS
This is not the first time CLB has commented on judicial complaints about over-long skeletons and poorly thought out bundles. These points are made again by the Court of Appeal in Caldero Trading -v- Leibson [2014] EWCA Civ 935. The…
You must be logged in to post a comment.