CLAIMANTS COME TO GRIEF OVER SERVICE OF UNSEALED CLAIM FORM: COURT OF APPEAL HOLD THAT CPR 3.10 APPLIES TO DEFENDANT’S MISCARACTERISED APPLICATION
It is rarely possible to get to the end of a month without some kind of discussion on this blog about service of the claim form. This month is no exception. In Pitalia & Anor v NHS England [2023] EWCA…
CLAIMANT’S CONVENTION CLAIM DISMISSED FOLLOWING ATTEMPT TO AMEND AFTER THE EXPIRY OF THE LIMITATION PERIOD
I am grateful to Barrister Katherine Howells for sending me a copy of the judgment in Hallett -v- TUI Airways Limited, a copy of which is available here Approved Judgment Hallett v TUI Airways Limited. The case deals with the…
COST BITES 90: CLAIMANTS LIABLE TO PAY 5% OF DEFENDANT’S COSTS: HUMAN RIGHTS, PERSONAL INJURIES AND “MIXED CLAIMS”
In ABC & Ors v Derbyshire County Council & Ors, Re Costs [2023] EWHC 1337 (KB) Mrs Justice Hill considered the liability of the claimants to pay costs in a “mixed claim” which was, primarily, a personal injury claim. She…
DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF
The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement). However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…
COST BITES 88: JUDGE REFUSES DEFENDANT’S APPLICATION FOR NON-PARTY DISCLOSURE AGAINST AN AGENCY SEEKING A BREAKDOWN OF FEES
I am grateful to Ryan O’Mara of Scott Rees & Co for sending me a copy of the judgment of District Judge Jenkinson in Sephton -v- Anchor Hanover Group (County Court at Liverpool, 20th April 2023 – a copy of which…
PROVING THINGS 227: IF YOU ARE GOING TO ALLEGE THAT LAWYERS WERE NEGLIGENT IN NOT CALLING EVIDENCE THEN YOU REALLY SHOULD REALLY HAVE THAT EVIDENCE TO HAND
The decision in Murithi & Ors v AVH Legal LLP (t/a Tandem Law) & Ors [2023] EWHC 1245 (KB) has in some ways a profound irony. A case alleging negligence by lawyers for failing to call evidence itself failed because…
COST BITES 87: ISSUES RELATING TO EXCEEDING THE BUDGET LEFT TO THE COSTS JUDGE
In BES Commercial Electricity Ltd & Ors v Cheshire West And Chester Council [2022] EWHC 3333 (KB) Mr Justice Freedman declined an invitation to give any indication in relation to the defendant’s application to depart from its budget. The matter…
THE JUDGE WAS WRONG TO STRIKE OUT A PROPERLY PLEADED CLAIM IN A PERSONAL INJURY CASE: JUDGE’S SHOULD BE ASTUTE TO DEAL WITH APPLICATIONS TO STRIKE OUT WHICH ARE, IN REALITY, APPLICATIONS FOR SUMMARY JUDGMENT
The judgment of Mr Justice Choudhury in Kasongo v CRBE Ltd & Anor [2023] EWCA Civ 557 demonstrates the danger when a defendant makes an application to strike out a statement of case. The judge allowed an appeal where a…
COST BITES 83: DEFENDANT SERVING BUDGET LATE SCRAPES HOME IN A “BORDERLINE” CASE
In K/S Mountain Invest v Ducat Maritime Ltd [2023] EWHC 939 (Comm) HHJ Keyser KC (sitting as a High Court Judge) granted the defendant relief from sanctions following the late filing of its costs budget. The defendant was, perhaps, fortunate….
FAILURE TO PAY CORRECT COURT FEE WHEN LODGING PROCEEDINGS AT COURT MEANS ACTION BITES THE DUST: CPR 3.9 AND 3.10 CANNOT HELP
In Peterson & Anor v Howard De Walden Estates Ltd [2023] EWHC 929 (KB) the unfortunate claimant failed to fail the correct fee. The court declined to issue proceedings. Consequently the claim was out of time Mr Justice Eyre held…
ANOTHER CLAIM FORM CASE TO BRIGHTEN UP YOUR DAY: SERVICE AT THE LAST KNOWN ADDRESS: CLAIMANT SUCCESSFUL IN HIS ARGUMENTS ABOUT KNOWLEDGE
There are a number of issues relating to service of the claim form in the judgment of Peter MacDonald Eggers KC (sitting as a High Court Judge) in Boettcher v (Xio (UK) LLP & Ors [2023] EWHC 801 (Comm). Here…
COST BITES 79: JUDGE AWARDS GUIDELINE RATES EVEN IN HEAVY COMMERCIAL CASE
In Manek & Ors v 360 One WAM Ltd & Ors (Re Consequentials) [2023] EWHC 985 (Comm) Simon Rainey KC (sitting as a Judge of the High Court) declined to award rates that were higher than the Guideline Rates in…
SECTION 33 APPLICATION ALLOWED IN ACTION ISSUED 4 YEARS AFTER LIMITATION EXPIRED
In Tyers v Aegis Defence Services (BVI) Ltd & Ors [2023] EWHC 896 (KB) Mr Justice Martin Spencer allowed an application under Section 33 of the Limitation Act 1980 in a case where the proceedings were issued 7 years after…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 25th APRIL 2023
This blog spends a lot of time looking at cases where things have gone wrong, for one reason and another. This webinar on the 25th April 2023 looks at the main problem areas in litigation and the practical steps that…
COST BITES 74: CLAIMANTS HAVE TO PAY THE COSTS OF DISCONTINUED APPLICATION FOR A GROUP LITIGATION ORDER: COUNTING THE COPPERS
In Beck & Ors v Police Federation of England and Wales (Re Costs) [2023] EWHC 685 (KB) Senior Master Fontaine held that the claimants should pay the costs of an – abandoned – application for a Group Litigation Order. “I…
ANOTHER CLAIM FORM CASE – BUT WITH A DIFFERENCE: ACTION STRUCK OUT BECAUSE CLAIM FORM CONTAINED NO FACTS AT ALL
In Free Leisure Ltd (t/a “Cirque Le Soir”) v Peidl And Company Ltd & Anor [2023] EWHC 792 (Comm) Charles Hollander KC, sitting as a High Court judge considered the appropriate course when the “facts” section of the claim form…
PARTS OF THE EXPERT’S REPORT SHOULD HAVE BEEN A RED FLAG TO LAWYERS: JUDGE CONSIDERS WHETHER THE PARTIES HAD INSTRUCTED THE CORRECT EXPERT
In M v F & Anor [2022] EWFC 186 Recorder Reed set out the importance of an expert knowing, and complying with, the rules relating to the presentation of expert evidence. The judgment also emphasises the importance of the lawyers…
COURT GRANTS PERMISSION TO CLAIMANTS TO CHANGE EXPERTS: BUT WITH CONDITIONS
The principles relating to the court granting permission to a party to change expert were considered in detail by Mrs Justice O’Farrell in Avantage (Cheshire) Ltd & Ors v GB Building Solutions Ltd & Ors [2023] EWHC 802 (TCC). The…
INSURER FAILED IN PRE-ACTION DISCLOSURE APPLICATION: BUT… IF THE RIGHT PARTY HAD BROUGHT THE APPLICATION IT WOULD HAVE BEEN GRANTED
The judgment of Mr Justice Baker in Holt v Allianz Insurance Plc [2023] EWHC 790 (KB) is another round in a long running battle between car hire companies and insurers. Whilst the insurer may have lost this round it is…
PROVING THINGS 252: THE SOLICITORS WERE NEGLIGENT BUT THERE WAS NO LOSS: CLAIM DISMISSED
Many a salutary lesson can be learnt from the judgment of Mrs Justice Bacon in Cutlers Holdings Ltd & Anor v Shepherd And Wedderburn LLP [2023] EWHC 720 (Ch). It was a case about negligence in the conduct of litigation….
MAKE UNJUSTIFIED ALLEGATIONS IN A LETTER OF CLAIM AT YOUR PERIL – YOU CAN PAY THE COSTS: ON AN INDEMNITY BASIS
The judgment of Deputy Master Nurse in Stubbins Marketing Ltd & Ors v Rayner Essex LLP & Anor [2023] EWHC 515 (Ch) contains an important lesson for anyone drafting a letter of claim. The judge ordered that the claimants pay…
AGREEING EXTENSIONS OF TIME FOR SERVICE: THE ESSENTIAL POINT THAT THEY MUST BE IN WRITING
An interesting issue about “agreements” is referred to in the judgment of Mr Justice Kerr in Clarion Housing Association Ltd v Crest Nicholson Operations Ltd [2023] EWHC 620 (TCC). I will be looking at the case in more detail later. …
A LITIGANT CAN “APPEAR” AT A SMALL CLAIMS TRACK HEARING BY THEIR LEGAL REPRESENTATIVE: COURT OF APPEAL DECISION
In Owen v Black Horse Ltd [2023] EWCA Civ 325 the Court of Appeal allowed the claimant’s appeal. The claim had been struck out at the start of a Small Claims Track hearing on the grounds that attendance by the…
THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY
It is quite possible that both parties in an action could be in default. One party could be granted relief from sanctions for that default and the other refused. This is precisely what happened in Shill Properties Ltd v Bunch…
PROVING THINGS 250: FAILING TO PROVE IMPECUNIOSITY: A BARE ASSERTION IS NOT ADEQUATE
The judgment of Lord Justice Underhill (refusing permission to appeal) in Credico Marketing Ltd & Anor v Lambert & Anor [2023] EWCA Civ 262 relates a party who failed to adduce sufficient evidence to show impecuniosity. “No evidence of Mr…
COURT REFUSES CLAIMANT’S APPLICATION TO EXCLUDE DEFENDANT’S EXPERT EVIDENCE: A TRIAL JUDGE CAN HANDLE EXPERT WITNESSES AT EVERY POINT OF THE SPECTRUM
In Fawcett & Ors v TUI UK Ltd [2023] EWHC 400 (KB) Mr Dexter Dias KC (setting as a Deputy High Court Judge) refused the claimant’s application to exclude the defendant’s expert evidence. The matters to which the claimant objected…
FIXED COSTS STILL APPLIED AFTER AN ADJOURNMENT AND TWO ABORTED TRIALS: COVID WAS AN EXCEPTIONAL TIME BUT DID NOT GIVE RISE TO EXCEPTIONAL CIRCUMSTANCES
I am grateful to barrister James Miller for sending me a copy of the judgment of District Judge Lindsey Moan in the case of Osuzuwa -v- Madeira, a copy of which is available here Osuzuwa v Madeira. The judge…
A COURT CANNOT IMPOSE CONDITIONS ONCE IT HAS GIVEN UNCONDITIONAL PERMISSION TO APPEAL: THE DEADWEIGHT OF THE FINALITY PRINCIPLE PREVAILS
In National Iranian Oil Company v Crescent Petroleum Company International Limited & Anor [2023] EWHC 300 (Comm) Mr Justice Butcher refused an application for permission to appeal to be subject to a condition of payment into court. The court had…
APPLICATION FOR NON-PARTY COSTS ORDER DISMISSED: THIS TIGER HAD NO TEETH…
There have been a number of cases relating to non-party costs orders. The claimant’s application for such an order failed in Paper Mache Tiger Ltd v Lee Mathews Workroom PTY Ltd [2023] EWHC 338 (Comm). John Kimbell KC, sitting as…
NO ORDER FOR COSTS WHEN AN APPLICATION HAD BEEN ADJOURNED DUE TO AN INAPPROPRIATE TIME ESTIMATE
In Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd [2023] EWHC 294 (Ch) HHJ Hodge KC, sitting as a High Court Judge, decided that the costs of an application that was adjourned due to an inappropriate time estimate should not…
RELIEF FROM SANCTIONS REFUSED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: RECOURSE TO HUMAN RIGHTS ARGUMENTS WERE TO NO AVAIL
In Bank of Scotland Plc v Hoskins [2023] EWHC 306 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused an application for relief from sanctions following late service of witness evidence. The Defendant’s attempt to invoke Human Rights…
COST BITES 59: COSTS AGAINST THE CLAIMANT EVEN THOUGH THE DEFENDANTS’ APPLICATION WAS UNSUCCESSFUL: HOWEVER THE JUDGE FELT TOTALLY UNABLE TO RELY ON A COSTS SCHEDULE
Another example of costs not following the event can be seen in the judgment of Mrs Justice Smith in The Financial Conduct Authority v Papadimitrakopoulos & Anor [2022] EWHC 3048 (Ch). The judgment also raises other issues in relation to…
DEFENDANT’S APPLICATION FOR AN ORDER THAT CLAIMANT REDRAW BILL OF COSTS DISMISSED: EXPERIENCE OF FEE EARNERS IS A MATTER FOR THE DETAILED ASSESSMENT PROCESS
An interesting point was considered by Costs Judge Nangalingam in Brierley v Otuo & Ors [2023] EWHC 275 (SCCO). The defendant paying party argued that a bill of costs should be redrawn. One of the grounds for the application was…
COST BITES 56: IF YOU DISCONTINUE AGAINST A DEFENDANT YOU HAVE TO PAY THE COSTS
In Lendlease Construction (Europe) Ltd v AECOM Ltd & Anor [2022] EWHC 2855 (TCC) Mrs Justice Joanna Smith held that a claimant that was discontinuing against one of the defendants in an action should pay the costs. There was no…
CLAIMANT SOUGHT TO AMEND NAME OF THE DEFENDANT: CLAIM STRUCK OUT: ANOTHER PERIL OF TRAVEL LITIGATION
I am grateful to barrister Katherine Howells for sending me a copy of the decision of Deputy District Judge Causton in Gregory -v- TUI Airways Ltd, a copy of that decision is available here Approved Judgment Gregory v TUI. …
DEFENDANT REFUSED PERMISSION TO WITHDRAW FROM ADMISSIONS: PRE-INQUEST ADMISSIONS FATAL TO DEFENDANT’S CASE
I am grateful to barrister Jo Moore for drawing my attention to the judgment of Master Sullivan in Somoye v North West Anglia NHS Foundation Trust [2023] EWHC 191 (KB). This is a case where the Master refused the defendant’s…
RESPONDENT SIX MONTHS LATE IN SERVING WITNESS STATEMENT: RELIEF FROM SANCTIONS GRANTED
In Davidson & Ors v Looney (Re Kieran Looney & Co Ltd) [2023] EWHC 197 (Ch) Deputy ICC Judge Kyriakides granted a respondent relief from sanctions when a witness statement was served six months late. THE CASE The applicant liquidators…
DELAY BY THE CLAIMANT WAS NOT “WAREHOUSING” AND DID NOT LEAD TO A STRIKE OUT: A PARTY ALLEGING DELAY WAS ABUSE MUST ACT PROMPTLY
There are several significant aspects to the judgment of Mr Justice Eyre in Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure (Structures) Ltd & Anor [2023] EWHC 166 (TCC). Firstly the distinction between proceedings issued for the…
MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
I am grateful to Express Solicitors for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown. The Portal cannot be used…
COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
The judgment of Mr Justice Murray in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…
COMMENTING ON A DRAFT JUDGMENT – WHEN THE JUDGE HAS ASKED YOU TO: THE CIRCULATION OF A DRAFT JUDGMENT IS NOT THE END OF THE BEGINNING OF THE LITIGATION BUT THE BEGINNING OF THE END
There have been several cases over the years where judges have commented on the practice of parties attempting to rewrite draft judgments. In Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd & Ors [2022] EWHC 3275 (TCC)…
COST BITES 46: NON PARTY COSTS ORDER MADE AGAINST DIRECTOR OF INSOLVENT COMPANY
In Asprey Capital Ltd v Rediresi Ltd & Anor (Re Non-Party Costs Order) [2023] EWHC 28 (Comm) Patricia Robertson KC (sitting as a Deputy High Court Judge) made a non-party costs order against a director of the defendant company. THE…
FIRST POST ON PART 36 IN 2023: IT WAS NOT UNJUST FOR THE DEFENDANTS TO BEAR THE NORMAL CONSEQUENCES OF FAILING TO BEAT CLAIMANTS’ PART 36 OFFER
In Von Westenholz & Ors v Gregson & Anor [2022] EWHC 3374 (Ch) Robin Vox, sitting as a Deputy High Court Judge, found that it was not unjust for the defendants to face the normal consequences of failing to beat…
2022 IN REVIEW (IV): CASE OF THE YEAR: PART 36 OFFERS AND MISTAKES
Choosing a case of the year is never easy. There are many significant judgments throughout a year all of which have an impact on civil procedure. However this year I am returning to a decision in January. The decision of…
WHEN THE DEFENDANTS FAILED TO BEAT THE CLAIMANTS’ PART 36 OFFER, BUT MONEY IS NOT DUE IMMEDIATELY: WHAT ARE THE CONSEQUENCES?
We are looking again at the judgment of Mr Justice Hildyard in Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch). Having determined that a valid and effective Part 36 offer had been made by…
PART 36 APPLIED TO COMPLEX OFFER: PART 36 WAS ENGAGED AND THE NORMAL CONSEQUENCES FOLLOWED
In Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch) Mr Justice Hildyard considered whether Part 36 applied to a complex offer made by the applicants. This post looks at the judgment relating to…
AN ACTION ISSUED ON BEHALF OF AN ESTATE BY SOMEONE WITHOUT AUTHORITY AT THE TIME OF ISSUE IS “A DEAD THING INTO WHICH NO LIFE COULD BE INFUSED”
One search term that regularly leads people to this site is “can I issue on behalf of an estate when I don’t have letters of administration”. There are variations on this, but the central theme is always the same. The…
COST BITES 40: NO ONE GETS THE COSTS OF AN AMENDMENT (WHICH WERE FAR TOO HIGH ANYWAY)
In Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2022] CAT 52 the Competition Appeal Tribunal considered the principles relating to the costs of amendments to statements of case after a contested hearing. On the facts of this case…
IF YOU DON’T COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS YOUR CASE CAN (AND THIS CASE DID) GO DOWN THE DRAIN
In Brendon International Ltd v Water Plus Ltd & Anor [2022] EWHC 3321 (Ch)HHJ Cadwallader (sitting as a High Court Judge) found that numerous elements of the defendant’s witness statements were defective and non-compliant with the rules. The case is…
DEFENDANT’S APPLICATION TO VACATE TRIAL DATE, AND FOR A FOUR YEAR STAY, REFUSED: JUSTICE IS ACHIEVED BY THE TRIAL DATE BEING MET
In Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) Mr Justice Ritchie refused the defendant’s application for an adjournment of a trial date. The defendant argued that medical uncertainty meant that it was…
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