TIME FOR CHALLENGING SOLICITOR’S BILL HAD NOT PASSED: CLAIMANT’S APPEAL ALLOWED AND ASSESSMENT TO PROCEED
NB THIS DECISION WAS OVERTURNED ON APPEAL TO THE COURT OF APPEAL SEE Menzies v Oakwood Solicitors Ltd [2023] EWCA Civ 844 In Menzies v Oakwood Solicitors Ltd [2022] EWHC 3199 (KB) Mr Justice Bourne allowed an appeal on the…
APPLICATIONS TO AMEND PLEADINGS SHOULD NORMALLY BE SUPPORTED BY A DRAFT AND WITNESS EVIDENCE AS TO THE MERITS: A RIGHT ROYAL ISSUE
In Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria de Borbon y Borbon (Rev1) [2022] EWCA Civ 1595 the Court of Appeal set out the importance of having a draft pleading to hand when seeking permission to amend a statement…
CLAIMANT SHOULD HAVE BEEN GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE ON DEPUTYSHIP AND COURT OF PROTECTION COSTS: SUCCESSFUL APPEAL TO THE HIGH COURT
I am grateful to Daniel Slade from Express Solicitors for sending me a copy of the decision of Mr Justice Soole in AAA -v- BBB [2022] EWHC 3103 (KB). It is a case where the claimant was successful in appealing…
PROVING THINGS 243: ITS WITNESSES THAT COUNT IN FINDING PRIMARY FACTS, NOT EXPERTS
The Court of Appeal judgment today in Taylor & Anor v Raspin [2022] EWCA Civ 1613 emphasises the difficulty in appealing findings of fact. The Court also took a little time to point out the limited role of experts in…
EXPERTS: A PARTY CANNOT INSIST THAT A SINGLE JOINTLY INSTRUCTED EXPERT BE MALE: COURT OF APPEAL DECISION
In N (A Child), Re (Instruction of Expert) [2022] EWCA Civ 1588 the Court of Appeal rejected an argument that a single joint expert should have been male. The judgment emphasises the point that a party wishing to argue for…
PROBLEMS WITH EXPERTS- THE ISSUES ARE UNIVERSAL: AN EXAMPLE FROM THE IRISH COURTS: WEBINAR ON EXPERTS 14th DECEMBER 2022
When in September I planned the webinar Expert Evidence in the Courts in 2022 there had been a dozen or so cases relating to experts in litigation. Since then there have been half a dozen more. There is an example…
THE COURT CANNOT COMPEL A PARTY TO CALL A WITNESS: “PARTY AUTONOMY IS PARAMOUNT”
In QX v Secretary of State for the Home Department [2022] EWCA Civ 1541 (22 November 2022) the Court of Appeal held that the courts have no power to compel a party to call a witness. “The starting proposition must…
EVIDENCE OF STATISTICS FROM DEFENDANTS’ SOLICITORS RELATING TO CLAIMS NOT EXCLUDED: HIGH COURT DECISION
The judgment of Mr Justice Freedman in Kerseviciene v Quadri & Anor [2022] EWHC 2951 (KB) is of considerable interest to anyone involved in litigation, particular personal injury litigation. The judge upheld a finding that a witness statement from the…
NOTICE OF APPEAL FILED IN TIME WHEN IT WAS ELECTRONICALLY FILED AFTER 4.30 pm: COURT OF APPEAL DECISION
In Microsoft Ireland Operations Ltd & Ors v JJH Enterprises Ltd (Re Electronic Filing of Appellant’s Notice) [2022] EWCA Civ 1509 the Court of Appeal upheld a finding that an appellant’s notice filed electronically after 4.30pm on the last date…
THE “OLD” CONDITIONAL FEE SCHEME WAS IN BREACH OF ARTICLE 6:UNINSURED DEFENDANTS NOT SENT TO COVENTRY
Amidst the bustle of recent cases about costs the European Court of Human Rights decision in Coventry v. the United Kingdom – 6016/16 may well be overlooked. The Court found that the “old” system of conditional fee litigation, whereby a defendant was…
ANALYSIS OF BELSNER 5: WANT TO SEE THE FINAL COURT OF APPEAL ORDER?
The previous post on Belsner indicated that a final order had been made by the Court of Appeal. That order can be seen here BelsnerSEALED ORDER (1) and the text is reproduced below. The interesting aspect of the order is,…
ANALYSIS OF BELSNER 4: FAIR COSTS AND LEGAL FICTION : PLUS A USEFUL WEBINAR
The latest development in Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387 is that the unsuccessful claimant has been ordered to pay £130,000 on account of costs and repay £25,000 that was previously paid to her. However, here I…
PROVING THINGS 242: A SOLICITOR’S SHORTHAND NOTE OF WHAT HAPPENED IN THE MAGISTRATES’ COURT IS NOT GOING TO CARRY ANY WEIGHT AT ALL
The judgment of Mr Justice Garnham in Correia v Williams [2022] EWHC 2824 (KB), was looked at yesterday on this blog. The judgment also contains an interesting approach to civil evidence at trial. The claimant’s solicitor prepared a witness statement annexing her…
APPEAL COURT UPHOLDS TRIAL JUDGE’S DECISION TO REFUSE TO ADMIT WITNESS STATEMENT OF FOREIGN LANGUAGE SPEAKER THAT HAD NOT BEEN DRAFTED IN ACCORDANCE WITH THE RULES
I am grateful to barrister Jake Rowley for drawing my attention to the judgment of Mr Justice Garnham in Correia v Williams [2022] EWHC 2824 (KB). Mr Justice Garnham refused an appeal when a judge had held that a witness…
COURT UPHOLDS TRIAL JUDGE’S DECISION NOT TO ALLOW A WITNESS TO GIVE “SUPPLEMENTARY EVIDENCE”: THE WITNESS STATEMENT IS USUALLY THE START AND FINISH OF EVIDENCE IN CHIEF
The judgment of Mrs Justice Heather Williams in Lydford v Skinner [2021] EWHC 3783 (QB) could well appear in the “Proving Things” series. A claimant’s action for damages for personal injury failed because he failed to establish that an occupier was…
I’M PICKING UP BAD CITATIONS: USE LAW REPORTS – DON’T SURF THE NET
There is a short postscript to the judgment of Paul Bowen KC (sitting as a Deputy High Court Judge) in YR, R (On the Application Of) v London Borough of Lambeth [2022] EWHC 2813 (Admin), which is of general importance….
ANALYSIS OF BELSNER 3: THE COMMENTARY: A DOZEN POSTS TO THINK ABOUT
There is no shortage of commentary on the Belsner case. I have rounded up a dozen posts here. Unusually those representing both sides (and the intervenor) have given some commentary. I have set out the links below. TWO…
COST BITES 28: APPEALING AGAINST AN ORDER FOR COSTS: THE MAJOR HURDLE INVOLVED AND THE RELEVANCE OF A NON-PART 36 OFFER TO SETTLE
In TMO Renewables Ltd v Yeo & Ors [2022] EWCA Civ 1409 the Court of Appeal dismissed an appeal against an order for costs. The case is a reminder of the difficulty in appealing a decision as to costs. Further…
ANALYSIS OF BELSNER 2: WELL THIS IS ALL A BIT BONKERS REALLY (2): “THE DISTINCTION BETWEEN CONTENTIOUS AND NON-CONTENTIOUS COSTS IS OUTDATED AND ILLOGICAL”
Continuing with the analysis of the judgment in Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387 we now look at the decision in relation to whether these were contentious or non-contentious costs. “the distinction between contentious and non-contentious…
ANALYSIS OF BELSNER 1: WELL – THIS IS ALL A BIT BONKERS REALLY
The first point that has to be made about the decision in Belsner v CAM Legal Services Ltd [2022] EWCA Civ 1387 relates to economics. The argument that took four days in the Court of Appeal was over a small…
COST BITES 27: WHAT DOES “PROCEEDINGS” MEAN: COURT OF APPEAL ALLOWS APPEAL IN RELATION TO QOCS AND A MIXED CLAIM
In Achille v Lawn Tennis Association Services Ltd [2022] EWCA Civ 1407 the Court of Appeal considered the meaning of the word “proceedings” in the costs of a claimant bringing a “mixed claim” for damages. It held that it was…
SECOND COURT OF APPEAL DECISION ON COSTS TODAY: A WARNING SHOT FIRED AFTER BELSNER
Fast on the heels of the judgment in Belsner today was the Court of Appeal decision in Karatysz v SGI Legal LLP [2022] EWCA Civ 1388, where a clear warning shot was fired in relation to the practice of seeking…
COURT OF APPEAL ALLOWS APPEAL IN BELSNER -V- CAM: DECISION CAN BE FOUND HERE
The Court of Appeal have allowed the appeal in Belsner -v- Cam Legal Services. The judgment [2022] EWCA Civ 1387 can be found here. I will conduct a detailed analysis of the decision in the near future. Here are the…
PROVING THINGS 240: CLAIMANT FAILS TO PROVE CAUSE OF AN ACCIDENT: PERMISSION TO APPEAL REFUSED
There are many edicts warning against reliance upon judgments that concern permission to appeal. However the judgment of Mr Justice Fordham in Harrison v TUI UK Ltd [2022] EWHC 2557 (KB) is of interest in the “Proving Things” series and…
UNSUCCESSFUL APPEAL: DEFENDANT REFUSED RELIEF FROM SANCTIONS
Appealing a decision concerning relief from sanctions is always an uphill struggle. This can be seen in the judgment of Mr Justice Zacaroli in Smith v Lloyd [2022] EWHC 2414 (Ch). This was an unsuccessful appeal against a decision to…
ADVOCATES SHOULD NOT SEND UNHERALDED SUBMISSIONS AFTER A HEARING: COURT OF APPEAL MESSAGE IN A POSTSCRIPT (NOW WITH A FURTHER CASE I HAD NOT THOUGHT OF EARLIER…)
There is a postscript to the judgment of Lady Justice Elisabeth Laing in the case of MH (Eritrea), R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1296 discouraging the sending of unsolicited…
WHEN, AND WHETHER, PERMISSION TO APPEAL IS REQUIRED IN AN APPEAL AGAINST A DECISION TO COMMIT TO PRISON
In Business Mortgage Finance 4 PLC & Ors v Hussain [2022] EWCA Civ 126 the Court of Appeal considered the scope of matters that fall within the rule that permission to appeal is not required in relation to committal hearings….
COST BITES 19: JUDGE EXERCISES DISCRETION TO ALLOW CLAIMANT QOCS PROTECTION IN A “MIXED” CLAIM
In Wokingham Borough Council v Arshad [2022] EWHC 2419 (KB) Mr Justice Bourne considered whether QOCS protection should be applied to a claimant who had brought a claim for personal injury damages, in addition to other claims. The judge held…
TRANSFERRING A CASE FROM THE PROTOCOL TO PART 7: THE APPROPRIATE TEST CONSIDERED
I am grateful to Jamie Carpenter KC for sending me a copy of the judgment in The London Borough of Islington -v- Borous [2022] EWCA Civ 1242, a The case was looked at yesterday. Here I want to consider the…
COURT OF APPEAL DECISION ON THE ROAD TRAFFIC PROTOCOL: INSURERS SHOULD KNOW THE RULES, AND CAN’T COMPLAIN WHEN THEY ARE APPLIED
In The London Borough of Islington -v- Borous [2022] EWCA Civ 1242 the Court of Appeal rejected two appeals from defendants in relation to car hire/replacement charges where damages were considered within the Road Traffic Protocol. The judgment contains a detailed…
THE COURT OF APPEAL, STRIKING OUT AND PLEADING THE CASE PROPERLY: PARTICULARS OF CLAIM SHOULD HELP NOT HINDER
There has already been much publicity surrounding the Court of Appeal decision in HXA v Surrey County Council [2022] EWCA Civ 1196. The Court of Appeal overturned decisions where actions were struck out, holding that the issues in question should…
A CLIENT DOES NOT OWE A “DUTY OF GOOD FAITH” TO A SOLICITOR ACTING UNDER A CONDITIONAL FEE AGREEMENT
In Candey Ltd v Bosheh & Anor [2022] EWCA Civ 1103 Lord Justice Coulson rejected an argument that a client, who has entered into a conditional fee agreement with a solicitor, owed a duty of good faith to that solicitor. …
A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON
In Nambiar v Solitair Ltd [2022] EWCA Civ 1135 the Court of Appeal held that an appeal against a committal order should be struck out as an abuse of process. Prior to sentencing the appellant had issued an earlier, identical,…
“KAFKAESQUE” PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A “TANGLE” AND A “MUDDLE”
In Anwer v Central Bridging Loans Ltd [2022] EWCA Civ 201 the Court of Appeal resolved procedural issues which it described as a “muddle” and “kafkaesque”. The issue was a simple one of whether a litigant was entitled to transcripts…
PERSUADING THE JUDGE TO CHANGE THEIR MIND AFTER JUDGMENT CAN BE AN EXPENSIVE STEP: COURT OF APPEAL DECISION
We have looked, many times, at issues relating to procedure after the handing down of a draft judgment. The Court of Appeal judgment in George v Cannell & Anor [2022] EWCA Civ 1067 highlights one of the difficulties that arise. …
THERE IS NO OBLIGATION ON A CLAIMANT TO FILE A REPLY: THE BURDEN OF PROOF REMAINS WITH THE DEFENDANT
In Pistachios In the Park Ltd & Anor v Sharn Panesar Ltd [2022] EWHC 2088 (QB) Mr Justice Freedman pointed out that the appellant’s argument in relation to pleading and burden of proof ran contrary to the rules. There is…
CLAIMANT FAILS TO GET AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: IN A CASE WHERE THE COURT HAD LOST THE FILE AND NOT SENT OUT A SEALED CLAIM FORM WITHIN THE FOUR MONTH PERIOD
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL. SEE THE BLOG POST ABOUT THE APPEAL DECISION HERE. The judgment of Robin Vos (sitting as a Deputy Judge of the High Court) in Walton v Pickerings Solicitors & Anor…
COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL
In Turner & Ors v Thomas & Anor (Costs) [2022] EWHC 1944 (Ch) Mr Justice Zacaroli considered the appropriate principles to be applied as to costs when a defendant was not a party to an appeal made by a co-defendant….
THE IMPORTANT DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION TO SERVE A CLAIM FORM: “CLEAR WATER” BETWEEN THE TWO TESTS: COURT OF APPEAL OVERTURNS ORDER SETTING ASIDE A PROSPECTIVE APPLICATION FOR SERVICE
In ST v BAI (SA) Trading As Brittany Ferries [2022] EWCA Civ 1037 the Court of Appeal overturned a decision, itself made on appeal, where a prospective application to extend time for service of the claim form was set aside….
THE FIRST TIME YOU MAKE A CLAIM FOR DAMAGES – SHOULD NOT BE IN THE DRAFT ORDER AFTER THE COURT OF APPEAL HEARING
There is an interesting short judgment of the Court of Appeal in BG & Anor, R (On the Application Of) v Suffolk County Council (Consequentials) [2022] EWCA Civ 1053 relating to an attempt by the successful party to put an…
COST BITES 10: COURT OF APPEAL UNHAPPY AT £730,000 BILL FOR ONE DAY APPEAL: HOURLY RATES ABOVE GUIDELINES HAVE TO BE JUSTIFIED, COUNSEL’S FEES MUST BE REASONABLE AND PROPORTIONATE
In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061 the Court of Appeal were concerned about the level of costs being claimed in a one day appeal. The…
COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A “SCORE DRAW” AND EACH SIDE GETS NO COSTS
In United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor [2022] EWCA Civ 1026 the Court of Appeal upheld a decision that there be no order for costs between the parties in judicial…
CLAIMANT FOUND TO BE FUNDAMENTALLY DISHONEST WHEN GIVING EVIDENCE ABOUT A BICYCLE
My attention has recently been drawn to the judgment of HHJ Ralton in Darnley -v- Cornish 2021 WL 04760420. The judge, on appeal, overturned a finding that a claimant, who had misled the court as to ownership of a bicycle…
COURT OF APPEAL REJECTS INGENIOUS ARGUMENT THAT PERMISSION GROUNDS SHOULD BE RE-OPENED – AFTER THE APPEAL
I have written more about applications for permission to appeal in the past few weeks than in the previous nine years. The Court of Appeal judgment in Ingenious Games LLP & Ors v Commissioners for Her Majesty’s Revenue and Customs…
APPLICATION FOR PERMISSION TO APPEAL WAS MADE OUT OF TIME: THE TRIAL JUDGE HAD NO JURISDICTION TO HEAR THE APPLICATION
There is another aspect of the judgment in Omya UK Ltd v Andrews Excavations Ltd & Anor [2022] EWHC 1882 (TCC) that is worth considering. The unsuccessful defendants applied for permission to appeal to the trial judge at the hearing…
A DEFENDANT WHO DOES NOT ATTEND TRIAL CANNOT SIMPLY TURN THE CLOCK BACK: COURT OF APPEAL REFUSES APPLICATION UNDER CPR 39.3
In Mabrouk v Murray [2022] EWCA Civ 960 the Court of Appeal refused the defendant’s application for permission to appeal in a case where the defendant failed to attend the trial. The Court of Appeal dismissed the application under CPR…
COURT OF APPEAL OVERTURNS DECISION TO STRIKE OUT “UNMANAGEABLE” COURT PROCEEDINGS
In Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 the Court of Appeal overturned a decision to strike out a claim. The Court doubted whether an action could ever be described…
RESPONDENTS TO AN APPLICATION FOR PERMISSION TO APPEAL: YOU SHOULD HAVE SIMPLY WRITTEN A LETTER AND SAVED YOURSELVES £67,000
In over three decades of writing about civil procedure I cannot recall any cases about costs following a permission to appeal hearing. There are now two cases this week. In Kerseviciene v Quadri & Anor (Costs) [2022] EWHC 1757 (QB)…
FIXED COSTS OUSTED WHEN THE PARTIES AGREE COSTS ARE TO BE THE SUBJECT OF A DETAILED ASSESSMENT: COURT OF APPEAL DECISION TODAY
In the judgment today in Doyle -v- M&D Foundations & Building Services Limited [2022] EWCA CIV 927 the Court of Appeal found that it was possible for parties to contract out of the fixed costs provisions of the protocols. THE…
DAMAGES BASED AGREEMENTS DO NOT EXTEND TO DEFENDANTS: “HEADS I WIN TAILS YOU LOSE” ARRANGEMENTS DO NOT FIND FAVOUR WITH THE COURT OF APPEAL
In Candey Ltd v Tonstate Group Ltd & Ors [2022] EWCA Civ 936 the Court of Appeal held that a Damages Based Agreement cannot be used between a solicitor and a defendant who did not have a counterclaim. For a…
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