COST BITES 143: JUDICIAL OBSERVATIONS ON THE COSTS OF FAMILY LITIGATION DISPUTES: KING LEAR IS A TRAGEDY AND ALL WILL NOT END WELL
There have been two cases recently where the courts have made comments about the costs of litigation in disputes between family members. Whilst the participants may each think themselves more sinned against than sinning, it is always prudent to consider…
COST BITES 142: COSTS ON AN UNSUCCESSFUL APPLICATION TO APPEAL IN A FAMILY CASE
I keep intending to write more about issues of costs in family cases. Not because I want to delve into the intricacies of family law, but because issues of costs have major ramifications for both the clients and practitioners. Even…
WITNESS STATEMENTS AND WITNESS EVIDENCE: WHEN LAWYERS CAN BE THEIR OWN WORSE ENEMIES: “THE ABSENCE OF SUCH EVIDENCE IS IN THE NATURE OF A DEAFENING SILENCE”
There are numerous, indeed hundreds, of posts on this blog that deal with the difficulties that can arise in relation to witness statements and witness evidence. Often it is a failure to address basic and fundamental points in relation to…
AN INTERESTING JUDGMENT ON LIMITATION: CHEQUES, PAYMENT AND DEMAND: SECOND DEMAND DOES NOT RE-OPEN THE LIMITATION PERIOD
In Agia v Skipton Building Society [2024] EW Misc 14 (CC) HHJ Malek considered a novel point relating to limitation. A limitation period cannot be “re-opened” by a customer making a demand on a bank many decades after a cheque…
COST BITES 138: IN THE ABSENCE OF A CHARGING CLAUSE THE SOLICITOR COULD NOT BE PAID FOR ACTING AS AN EXECUTOR (SEE ALSO “PROVING THINGS…)
In Brealey v Shepherd & Co Solicitors [2024] EWCA Civ 303 the Court of Appeal upheld a decision that a solicitor Executor could not charge for legal work done in the absence of a charging clause in a will. Although…
SUPREME COURT JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS
In Hassam & Anor v Rabot & Anor [2024] UKSC 11 the Supreme Court rejected the defendant’s appeal against the way in which damages are assessed. It upheld the the majority view of the Court of Appeal that the Civil…
COST BITES 137: WASTED COSTS ORDER WAS APPROPRIATE: APPEAL DISMISSED: SOME NOTES ON PROCEDURE
We are looking again (and not for the last time) at the judgment of Mr Justice Martin Spencer in Rainer Hughes Solicitors v Liverpool Victoria Insurance Company Ltd & Ors (Rev1) [2024] EWHC 585 (KB). The decision to make a wasted costs…
DEFENDANT FAILS TO GIVE FULL DISCLOSURE: PEREMPTORY ORDER MADE AND BREACHED: APPLICATION FOR RELIEF FROM SANCTIONS FAILED: APPEAL UNSUCCESSFUL
In Winchester Park Ltd v 1 Palace Gate Freehold Ltd [2024] EWHC 661 (Ch) Mr Justice Adam Johnson dismissed a defendant’s appeal on the issue of relief from sanctions. He held that the judge below was entitled to refuse to…
COST BITES 136: COSTS JUDGE WAS RIGHT NOT TO ALLOW COSTS OF LEADING COUNSEL: DECISION UPHELD ON APPEAL
In Coram v DR Dunthorn & Son Ltd [2024] EWHC 672 (KB) Mrs Justice Yip, sitting with Costs Judge Nagalingam, upheld a decision not to award the costs of leading counsel on assessment of costs. “That is not to say…
COST BITES 135: COSTS OF SOLICITOR ATTENDING REHABILITATION CASE MANAGEMENTS – MAY BE RECOVERABLE, BUT IT DEPENDS…
In Hadley -v- Przybylo [2024] EWCA Civ 250 the Court of Appeal considered the issue of whether a solicitor in a personal injury case could recover the cost of attending rehabilitation case meetings. It was decided that the costs are potentially recoverable….
“SO OPENS ANOTHER CHAPTER IN THE CONTINUING WAR AGAINST OF FORENSIC ATTRITION BETWEEN MOTOR INSURERS AND CREDIT HIRE COMPANIES”: HIGH COURT JUDGE UPHOLD DECISION TO MAKE A NON-PARTY COSTS ORDER AGAINST CAR HIRE COMPANY
I am grateful to barrister Stephen Bailey for drawing my attention to the judgment of Mr Justice Turner in Kindertons Ltd v Murtagh & Anor [2024] EWHC 471 (KB). The judge upheld the decision to make a non-party costs order…
AN APPELLANT CANNOT RE-OPEN THE GROUNDS UPON WHICH IT HAS BEEN GIVEN PERMISSION TO APPEAL: COURT OF APPEAL DECISION
In Williams v Williams & Ors [2023] EWCA Civ 1465 the Court of Appeal considered the issue of whether an appellant could seek to re-open grounds of appeal. The criteria was held to be very restricted and the appellant not…
COURT OF APPEAL – NOT THE CORRECT DESTINATION FOR AN APPEAL RELATING TO THE SENTENCE PASSED ON A JUDGMENT DEBTOR
In Roberts v Jones [2024] EWCA Civ 118 the Court of Appeal held that it was not the correct court to hear an appeal relating to an appeal by a judgment creditor in relation to a sentence passed on a…
CLAIMANT’S APPEAL ALLOWED BECAUSE THE JUDGE FOUND FOR THE DEFENDANT ON A BASIS THAT WAS NOT PLEADED
I am grateful to barrister Tom Morris for giving me details of the judgment of Mr Justice Fancourt in Jacobs v Chalcot Crescent (Management) Company Ltd [2024] EWHC 259 (Ch). It is an important case about statements of case. The…
“TELL ME MORE, TELL ME MORE”: COURT OF APPEAL SENDS OUT CLEAR MESSAGE OF THE DANGERS OF SEEKING “CLARIFICATION” OF A JUDGMENT: IT MIGHT NOT GET YOU VERY FAR…
In YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 the Court of Appeal issued a clear warning about the misuse of the practice of “seeking clarification” from the judge following a judgment. The decision is aimed specifically at…
WHAT HAPPENS WHEN THE JUDGMENT WAS NOT RECORDED? APPEAL PROCEEDS BY WAY OF A REHEARING
There are interesting issues considered in the judgment of Mr Recorder Adrian Jack in AS v AB [2024] EWFC 24. A party was appealing. The recording (and backup recording) failed to record the judge’s judgment and there was no agreed…
DENTON WATCH 3: DENTON IN THE FAMILY COURTS
In TRC v NS [2024] EWHC 80 (Fam) Mrs Justice Lieven considered the issues relating to relief from sanction in the context of an appeal in the Family Court. She held that Denton principles applied. “… the stricter…
“RULE 1 FOR ANY JUDGE DEALING WITH A CASE” :SETTING ASIDE AN ORDER AFTER ONLY ONE PARTY HAS BEEN HEARD: SUPREME COURT OBSERVATIONS AND CASES IN THE CIVIL COURTS
There are some interesting issues raised in the Supreme Court judgment in Potanina v Potanin [2024] UKSC 3. The opening lines of the judgment, however, reiterate an important principle in relation to the need for a rehearing after a party…
DENTON WATCH 2: COURT REFUSES LATE APPLICATION FOR PERMISSION TO APPEAL
In Tameside Caravans and Storage Ltd v Viavecto Ltd [2024] EWHC 95 (KB) Mr Justice Constable refused the defendant’s request for permission to appeal out of time. The fact that the defendant was a litigant in person at the time…
SEEKING PERMISSION TO RELY ON AN EXPERT DOES NOT GIVE RISE TO AN APPLICATION FOR RELIEF FROM SANCTIONS: IMPORTANT JUDGMENT BY THE COURT OF APPEAL
In Yesss (A) Electrical Ltd -v- Warren [2024] EWCA Civ 14 the Court of Appeal considered the law relating to when an application for relief from sanctions comes into play. The judgment gives clear guidance about the question of when…
COST BITES 131: TIME LIMIT FOR ASSESSMENT EXTENDED WHEN BENEFICIARY CHALLENGES COSTS: COURT OF APPEAL DECISION TODAY
I am grateful to barrister Alicia Tew for sending me a copy of the Court of Appeal decision today in Kenig v Thomson Snell & Passmore Llp [2023] EWHC 181 (SCCO). The Court considered the question of whether the costs judge…
EXPERTS NOT QUALIFIED TO COMMENT ON THE MATTERS THEY DID: ADMINISTRATIVE COURT DECISION
Another example of expert evidence going awry can be seen in the judgment of Mr Justice Ritchie in Balachandra v The General Dental Council [2024] EWHC 18 . The experts in question were giving evidence in relation to matters that…
THIRD CLAIM FORM CASE OF THE YEAR: FAILURE TO SERVE A SEALED CLAIM FORM, SERVING BY EMAIL WITHOUT THE DEFENDANTS’ CONSENT: IT ENDS UP BADLY FOR THE CLAIMANT
I am grateful to barrister Alicia Tew for sending me a copy of the judgment of HHJ Karen Walden-Smith in Harper -v- Bamber & Lewis (Cambridge County Court – copy of which is available here judgment in Bamber v Harper ). …
DAMAGES FOR PSYCHIATRIC INJURY AFTER SEEING A DEATH : SOME IMPORTANT POINTS CLARIFIED BY THE SUPREME COURT
The judgment of the Supreme Court in Paul & Anor v Royal Wolverhampton NHS Trust [2024] UKSC 1 will be the subject of detailed scrutiny by practitioners and academics for years to come. It is an action where the claimants…
MR BATES AND THE POST OFFICE 3: THE POST OFFICE’S APPLICATION THAT THE JUDGE RECUSE THEMSELVES BECAUSE HE WAS “BIASED” AGAINST THEM
The Post Office was so convinced of the righteousness of its case that it determined that any findings against it must be due to judicial bias. Having lost some applications before the trial judge it attempted to have the judge…
A CLAIMANT, ALLEGING FRAUD, IS NOT ENTITLED TO DELIBERATELY BREACH A COURT ORDER AND THE RULES OF COURT: HIGH COURT JUDGMENT GIVES LITIGATORS MUCH TO THINK ABOUT
Those who draft pleadings, particularly those alleging fraud and misconduct, have much to learn from the judgment of Mr Justice Johnson in AXA Insurance UK PLC v Kryeziu & Ors [2023] EWHC 3233 (KB). The fact that a party is…
COST BITES 129: WHY EVERYONE HAS TO UNDERSTAND THE INDEMNITY PRINCIPLE IN COSTS
In The Commissioner of Police of the Metropolis v Idreess Malik [2023] EWHC 3213 (Admin) the Administrative Court sets out a key reminder of the central importance of the indemnity principle in relation to the recovery of legal costs. The…
“SPEAKING NOTES” RARELY WELCOME BY THE COURTS: THE “SPECIAL CIRCLE OF HELL” RESERVED FOR SOME ADVOCATES…
There is an observation made in the final paragraph of the Privy Council judgment in Chang v The Hospital Administrator & Ors (Trinidad and Tobago) [2023] UKPC 44 that relates to “speaking notes”. They were, it seems, not altogether welcome. …
WHEN A SKELETON ARGUMENT TRIES TO INTRODUCE EXPERT EVIDENCE: AN APPROACH DEPRECATED BY THE COURT
We have seen many examples of witness statements trying to give expert evidence on this blog. There have been posts about occasional attempts to deal with lacunas in evidence by introducing that evidence in written submissions. In Re C (‘parental…
A KNOTTY PROBLEM: CAN THE COURT STAY PROCEEDINGS AND ORDER THE PARTIES TO ENGAGE IN ADR? YES IT CAN … BUT…
In Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 the Court of Appeal considered the question of whether the courts can stay an action to, effectively, compel the parties to engage in ADR. It was held that…
GRIFFITHS -v- TUI: SUPREME COURT FINDS FOR THE CLAIMANT: THE TRIAL WAS UNFAIR: POINTS SHOULD HAVE BEEN PUT TO THE EXPERT
In a judgment today TUI UK Ltd v Griffiths [2023] UKSC 48 the Supreme Court overturned the decision of the majority of the Court of Appeal. It is an important decision on procedural fairness. In particular the duty of a…
COST BITES 124 : EARLY VIEW AS TO VALUE OF A PERSONAL INJURY CASE WAS NOT UNREASONABLE: DEFENDANT’S APPEAL DISMISSED
I am grateful to solicitor John McQuater for sending me a copy of the judgment of HHJ Sadiq in Drury -v- Yorkshire Aggregates Limited (a decision made in January this year, but the transcript has only just become available). It…
RELIEF FROM SANCTIONS REFUSED WHEN THE COSTS BUDGET WAS SERVED LATE: BUDGETING AT TRIAL IS A FAIRLY HOPELESS TASK
There is much to learn from the decision of Mr Justice Ritchie in Tan v Idlbi & Anor [2023] EWHC 2840 (KB). The claimant was unsuccessful in an application for relief from sanctions following late service of the costs budget….
THE JUDGE WAS RIGHT TO REFUSE TO ALLOW A “NEW POINT” TO BE TAKEN ON APPEAL: DON’T FORGET PLEADINGS ARE STILL IMPORTANT…
In Azhar v All Money Matters t/a TFC Home Loans [2023] EWCA Civ 1341 the Court of Appeal rejected a defendant’s argument that it should have been permitted to raise a “new” point on appeal. The matter upon which the…
COST BITES 120: QOCS AND HIRE CHARGES: DECISION THAT CLAIMANT SHOULD PAY COSTS OUTSIDE QOCS OVERTURNED ON APPEAL
In Amjad v UK Insurance Ltd [2023] EWHC 2832 (KB) Mr Justice Ritchie overturned a decision that the QOCS cap should be lifted in relation to a claimant who had failed to beat the defendant’s Part 36 offer and who…
COST BITES 116: YOU CAN’T AVOID PAYING THE COSTS OF AN APPLICATION AND APPEAL JUST BECAUSE THEY WEREN’T IN THE COSTS BUDGET…
We have seen some “interesting” submissions in relation to costs on this blog. However one of the most novel is the point taken by the Third Party in South Tees Development Corporation & Anor v PD Teesport Ltd & Anor…
“RELIEF FROM SANCTIONS” NOT REQUIRED: COURT OF APPEAL CONSIDER WHEN CPR 3.9 CRITERIA APPLY: ITS NOT ALWAYS PLANE SAILING…
In Lufthansa Technik AG v Panasonic Avionics Corporation & Ors [2023] EWCA Civ 1273 the Court of Appeal addressed the difficult issue of when a breach led to a need to apply from relief from sanctions. It found that, on…
PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE’S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG
The Court of Appeal judgment today in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a rare example of the Court of Appeal overturning a judge’s findings on the facts. It is also an example of the importance…
A SECOND ACTION ON A DIFFERENT ISSUE TO THE FIRST SHOULD NOT HAVE BEEN STRUCK OUT: COURT OF APPEAL NOT TOO KEEN ON “SHADOW BOXING” IN CIVIL LITIGATION
In Orji & Anor v Nagra & Anor [2023] EWCA Civ 1289 the Court of Appeal overturned a decision that an action should be struck out as an abuse of process. The Court rejected the defendant’s contention that the action…
DECISION TO DISMISS CLAIM BECAUSE OF ABSENCE OF EXPERT EVIDENCE UPHELD ON APPEAL:
We are looking at the second part of the decision in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB). The post yesterday looked at the decision in Doyle. Here we look at the judgment in Rowe, the other case…
LITIGATORS: IF YOU DON’T PAY YOUR EXPERTS AND THEY ARE NOT COMING TO TRIAL, DON’T BE SURPRISED IF YOUR ACTION FAILS
The judgment of Mr Justice Freedman in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court. The expert made it clear that he was not…
COST BITES 107: A NON-PARTY COSTS ORDER SHOULD NOT BE MADE AGAINST A SOLICITOR REPRESENTING A CLAIM ON A CFA BASIS: SEEKING A FINANCIAL BENEFIT DID NOT MEAN THEY WERE ACTING OUTSIDE THEIR ROLE AS SOLICITOR
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the decision of Mr Justice Freedman in The Scout Association -v- Bolt Burdon Kemp [2023] EWHC 2575 (KB). On appeal Freedman J upheld the…
SOLICITORS CAN’T RECOVER COSTS UNDER AN UNENFORCEABLE CFA: WHAT IS MORE THE CLIENTS CAN RECOVER SUMS BACK
In Diag Human SE & Anor v Volterra Fietta (Re Assessment Under Part III Solicitors Act 1974) [2023] EWCA Civ 1107 the Court of Appeal upheld earlier judgments that solicitors, acting under a conditional fee agreement that claimed more than…
COST BITES 106: BARRISTERS BEWARE: COUNSEL ON DIRECT ACCESS NOT ENTITLED TO RECOVER COSTS FROM THEIR (FORMER) CLIENT: AN UNFAIR TERM MEANT THEY WERE ENTITLED TO NOTHING
The judgment of Mr Justice Turner in Glaser & Anor v Atay [2023] EWHC 2539 (KB) is one that needs to be looked at by every barrister involved in direct access work, and their clerks. The judge found that a…
THE CIVIL COURTS ARE “NOT THE WILD WEST”: ATTEMPTS TO INTRODUCE NEW ARGUMENTS ON APPEAL REJECTED: SKELETON ARGUMENT SHOULD HAVE DEALT WITH POINTS THE DEFENDANT NOW WANTED TO ARGUE
We are returning to the judgment of Mr Justice Julian Knowles in Morgan-Rowe v Woodgate [2023] EWHC 2375 (KB). This looks at the judge’s view of attempting to run an argument that was not made at trial (indeed, in part, admitted…
PROVING THINGS 232: CAR FIRES AND EXPERT EVIDENCE: WHY EXPERTS SHOULD MIND THEIR LANGUAGE: A MOVE FROM “MUST” TO “MORE THAN PROBABLE” REPRESENTS A SIGNIFICANT CHANGE
The judgment of Mr Justice Freedman in Nash v Volskwagen Financial Services (UK) Ltd [2023] EWHC 2326 (KB) contains important observations in relation to the law and evidence relating to causation. However I want to look at the judge’s consideration…
COSTS AND FUNDING: LITIGATION FUNDERS CAN PROPERLY BE INTERVENORS IN FAMILY PROCEEDINGS
In Simon v Simon & Anor [2023] EWCA Civ 1048 the Court of Appeal considered the function of a litigation funder in matrimonial proceedings. The role is an important one and those providing funding are entitled to some measure of…
A TARGETED FORM OF ILLEGALITY AS A DEFENCE TO DAMAGES: CAR DRIVER WHO HAD NO MOT FOR DAMAGED CAR COULD NOT RECOVER COSTS OF HIRE OF ALTERNATIVE VEHICLE
In Ali v HSF Logistics Polska SP ZOO [2023] EWHC 2159 (KB) Mr Justice Martin Spencer considered the question of whether there was a “targeted” defence of illegality to a claim for damages which was not as all embracing as…
BACK TO BASICS 98: COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: IT IS DANGEROUS TO ASSUME THAT THESE ARE “ADMINISTRATIVE” MATTERS
I am grateful to barrister Justin Bates for drawing my attention to the final paragraphs of the judgment of Mr Justice Fordham in Debenham-Schon v Anchor Hanover Group [2021] EWHC 3023 (QB). It concerns the duty of a litigant to…
TRIAL JUDGE’S FINDING OF FUNDAMENTAL DISHONESTY OVERTURNED: BECAUSE THE DISHONESTY WAS NOT “FUNDAMENTAL”
In Denzil v Mohammed & Anor [2023] EWHC 2077 (KB) Mr Justice Freedman overturned a finding by a trial judge that a claimant had been fundamentally dishonest. The finding that a minor head injury which was not part of the…
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