PROVING THINGS 209: SOLICITORS NEGLIGENCE ACTION DISMISSED BECAUSE THERE WAS NO LOSS: THE CLAIMED JEWEL WAS BIGGER THAN THE SOCKET
In Kingsley Napley LLP v Harris & Anor [2021] EWHC 901 (QB) Margaret Obi, sitting as a high court judge dismissed a claim for professional negligence on the basis that there had not been any loss. There are important lessons…
COURT GRANTS RELIEF FROM SANCTIONS: “IT IS UNFAIR… TO BE CRITICAL OF A PARTY FOR FAILING TO MEET A DEADLINE THAT WAS ALREADY UNLIKELY TO BE ANYWAY, WHATEVER STEPS HAD BEEN TAKEN TO COMPLY WITH IT”
For the second time today I am reporting on a successful application for relief from sanctions. In Melars Group Ltd v East-West Logistics LLP [2021] EWHC 874 (Ch) Mr Justice Adam Johnson granted an appellant relief from sanctions following a…
THE DANGERS OF LEAVING SERVICE OF EVIDENCE UNTIL THE LAST MINUTE: DEFENDANT MISCALCULATED TIME WITNESS STATEMENTS DUE – REQUIRED RELIEF FROM SANCTIONS
In Soriano v Forensic News LLC & Ors [2021] EWHC 873 (QB) Mr Justice Johnson granted relief from sanctions to a defendant who served witness evidence late. However the defendant’s failures were serious and significant and the defendant had no…
LIABILITY UNDER SOLICITOR’S RETAINER COULD NOT BE ASSIGNED: DEFENDANT OBTAINS SUMMARY JUDGMENT IN ALLEGED NEGLIGENCE ACTION
In Burleigh House (PTC) Ltd v Irwin Mitchell LLP [2021] EWHC 834 (QB) Deputy Master Hill QC allowed a defendant’s application for summary judgment. The defendant solicitor’s terms and conditions contained a prohibition against the assignment. The current claimant was…
APPLICATIONS TO VARY A COSTS BUDGET: SIGNIFICANT DEVELOPMENTS, PROMPTNESS AND CPR 3.15A: A JUDGMENT THAT EVERY CIVIL LITIGATOR HAS TO READ
In Persimmon Homes Ltd & Anor v Osborne Clark LLP & Anor [2021] EWHC 831 (Ch) Master Kaye provides a “cut out and keep” guide for anyone involved in attempting to vary a costs budget. There are important points made…
TIME ESTIMATES FOR APPLICATIONS: THE PROBLEMS, THE CASE LAW AND SOME GUIDANCE
The post earlier this morning on the warnings given in Finvest Holdings Sarl -v- Lovering [2021] 3WLUK 579 inrelation to inaccurate time estimates has led to some responses on Twitter. Practitioners have highlighted the difficulties, a judge expressed their concern that…
INACCURATE TIME ESTIMATES CAN LEAD TO COSTS PENALTIES: A REMINDER
There is another aspect of the judgment in Finvest Holdings Sarl -v- Lovering [2021] 3WLUK 579 HHJ Pelling (sitting as a High Court Judge) that merits examination. The judgment emphasised the need for accurate time estimates. THE CASE The judge…
HIGH COURT GRANTS RELIEF FROM SANCTIONS FOLLOWING BREACH OF PEREMPTORY ORDER: IMPACT OF COVID CONSIDERED
In Finvest Holdings Sarl -v- Lovering [2021] 3WLUK 579 HHJ Pelling (sitting as a High Court Judge) granted a claimant relief from sanctions when the claimant failed to comply with a peremptory order. There is a detailed discussion of the…
A SPLIT TRIAL IS NOT ALWAYS A GOOD IDEA: ORDERS MADE WITH THE BEST OF INTENTIONS CAN PROVE TO BE A COSTLY EXERCISE
In Mather v Ministry of Defence [2021] EWHC 811 (QB) Mr Justice Freedman refused the claimant’s application for a split trial. “The law reports are littered with cases where a preliminary issue seemed a good cost-saving exercise, but where…
BARRISTER SUES FOR FEES: COURT STRIKES OUT SOLICITOR’S DEFENCE: BARRISTER OWES NO DUTY OF CARE TO SOLICITOR
In McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd [2021] EWHC 525 (Comm) HHK Worster (sitting as a High Court Judge) granted an application to strike out the defence and counterclaim and for summary judgment. The claimant was a barrister suing…
DEFENDANT REQUIRES RELIEF FROM SANCTIONS WHEN THERE WAS £92 MILLION AT STAKE: DENTON CONSIDERED AND APPLIED
When I wrote earlier about the decision in Various Claimants v G4S Plc [2021] EWHC 524 (Ch) I noted that it required more than one post. Here we look at the judge’s decision in relation to relief from sanctions. Relief was…
JUDGE STRIKES OUT CLAIMS OF CLAIMANTS JOINED INTO ACTION AFTER CLAIM FORM WAS ISSUED: WHEN AMENDED PLEADINGS START TO RESEMBLE A RAINBOW
The case of Various Claimants v G4S Plc [2021] EWHC 524 (Ch)is one that bristles with procedural issues. Here we look at one issue – the judge striking out the claimants that were added after issue of the claim form…
WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING
The judgment of Mr Justice Francis in Brack v Brack [2020] EWHC 2142 (Fam) is an example of a case where the judge has the opportunity to see a draft statement and a final statement. The judge struck out an…
THE FOREIGN LIMITATION PERIOD: ENVIRONMENTAL DAMAGE, PUBLIC POLICY – AND A BASIC ERROR ABOUT THE DATE: CLAIMANT HAS TO FALL BACK ON “UNDUE HARDSHIP” ARGUMENT
The Court of Appeal decision in Begum v Maran (UK) Ltd [2021] EWCA Civ 326 contains some interesting observations on the law of tort and duty of care. However the claimant in this case faces another fundamental challenge. There is…
JUDGE REFUSES TO VARY THE TERMS OF ORIGINAL ORDER: DEFENDANT’S APPLICATION FOR RECONSIDERATION DID NOT FLY
In Walton Family Estates Ltd & Ors v GID Services Ltd & Ors [2021] EWHC 464 (Comm) Andrew Hochhauser QC, sitting as a judge of the High Court, refused a defendant’s application to reconsider the terms of an earlier order. …
CASE MANAGEMENT ORDERS ARE NOT WRITTEN IN STONE: COURT SHOULD NOT BE “STUCK IN THE RAILS”: MASTER COULD VARY ORDER OF PREVIOUS MASTER
In Oyston & Anor v Rubin & Anor [2021] EWHC 448 (Ch) Mr Justice Miles considered arguments in relation to whether a Master was entitled to vary a previous order made by a different Master. The judge emphasised that case…
SETTING ASIDE A DEFAULT JUDGMENT: DELAY, FAILING TO KNOW THE CORRECT PROCEDURE AND ABSENCE OF MERITS: LORD CHANCELLOR WINS THE DAY…
The judgment of Master Thornett in The Lord Chancellor (as Successor to the Legal Services Comission) v Halberstadt-Twum (t/a Cleveland Solicitors) & Anor [2021] EWHC 413 contains some object lessons for anyone involved in an application to set aside default…
SNAILS, BOXES, RATES, OFFICES AND CIVIL PROCEDURE: A DRAFT JUDGMENT IS NOT AN INVITATION TO CRITIQUE IT
The judgment of Mr Justice Fordham in Isle Investments Ltd v Leeds City Council (Rev 1) [2021] EWHC 345 (Admin) contains a reminder of the point that a draft judgment is not an opportunity to re-open or critique the substance…
ADJOURNMENT OF A TRIAL IS A “LAST RESORT” (AND WILL RARELY OCCUR BECAUSE OF INABILITY OF SPECIFIC COUNSEL TO ATTEND)
The judgment of Mr Justice Fordham in Naylor v University Hospitals of Leicester NHS Trust [2021] EWHC 340 (QB) shows the difficulty of obtaining an adjournment of a trial date. The judge rejected an application on the grounds of…
“TOPSY TURVY STATUTORY CONSTRUCTION”: THE CORONAVIRUS ACT DOES NOT ALLOW THE BROADCASTING OF THE COURTS
In Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care [2021] EWHC 346 (Admin) Mr Justice Chamberlain rejected an argument that the Coronavirus Act implicitly gave the courts power…
YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM
About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …
PROCEDURE, SUMMARY JUDGMENT, “SURMISE AND MICAWBERISM” AND… THE ROYAL FAMILY
A blog about civil procedure doesn’t get to write about the Royal Family much. However the judgment of Mr Justice Warby in HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) strays into our territory. There…
FAILED ATTEMPT TO OBTAIN COSTS FROM A JOINT EXPERT: A LOT TO LEARN HERE
In Walker -v- TUI UK Limited (Manchester County Court 14th January 2021)* District Judge Obodai considered an application by the defendant to join a jointly instructed expert into the action as a party for the purpose of obtaining costs against…
THE CORRECT COURT FEE WHEN ADDITIONAL PARTIES ARE JOINED INTO AN ACTION: NOT £55 BUT £10,000 (OH, AND YOU CAN’T RELY ON WHAT THE COURT TOLD YOU…)
There are not many cases where a judge is asked to determine what the appropriate court fee should be. However this is precisely what occurred in the judgment of HHJ Pearce in Walayat & Ors v Berkeley Solicitors Ltd [2021]…
JUDGE REFUSES PERMISSION TO A DEFENDANT TO RELY ON A WITNESS STATEMENT SERVED LATE: THE APPLICATION DID NOT FLY…
In Manchester Airport PLC & Anor v Radisson Hotel Manchester Ltd & Anor [2020] EWHC 3739 (Ch) HHJ Halliwell refused a defendant’s application to serve witness evidence late. “There cannot be any reasonable justification for adjourning the trial to give the…
INEFFECTIVE REDACTION IN DISCLOSED DOCUMENTS: A WARNING TO ALL LITIGATORS (AND LOCAL AUTHORITIES…)
Sometimes documents can be redacted. The judgment of Mr Justice Pepperall in London Borough of Lambeth v AM (Judgment No. 2) [2021] EWHC 186 (QB) shows that great care must be taken in “redacted” documents provided electronically. THE CASE The…
TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING
A real and profound warning about the dangers of issuing against someone without capacity is given in the judgment of HHJ Hodge QC sitting as a judge of the High Court in Kumar v Hellard [2021] EWHC 181 (Ch). …
SOLICITORS SUING FOR THEIR COSTS AND SUMMARY JUDGMENT: THE AMOUNT OF DETAIL NEEDED IN THE BILL
In Devonshires Solicitors LLP v Elbishlawi & Anor [2021] EWHC 173 (Comm) Mr Justice Butcher considered the position when a solicitor was suing for their costs and the bill was challenged. Summary judgment was allowed for some of the bills, other,…
COSTS NOT REDUCED BECAUSE OF THE WAY A DEFENDANT CONDUCTED ITS CASE: THE PRAGMATIC PRUNING OF A CASE SHOULD NOT BE DETERRED
We are returning again (and not for the last time) to the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). This time we are looking at the claimants’ argument…
SOLICITOR DID NOT HAVE GOOD GROUNDS TO TERMINATE THE RETAINER UNDER A CFA: CLAIM FOR £16,200 IN COSTS FAILS
I am returning to the judgment of Master Haworth in Murray & Anor v Richard Slade and Company Ltd [2021] EWHC B3 (Costs). This time looking at the decision in relation to termination of a conditional fee agreement. The Master held…
FIRST SERVICE CASE OF THE YEAR: SERVING PROCEEDINGS IS NOT ALWAYS A WALK ON THE BEACH
In Alli-Balogun & On The Beach Ltd & Ors [2021] EWHC 83 (QB) Mr Justice Bourne considered an issue relating to mis-service of proceedings. He held that service on a foreign company on another company, in the same group, with…
THE DANGER OF CLAIMANT’S PART 36 OFFERS: THE DEFENDANT CAN WAIT ONE DAY AND THEN PUT COSTS AT LARGE
In Pallett v MGN Ltd [2021] EWHC 76 (Ch) Mr Justice Mann considered a major anomaly in the rules relating to claimant’s Part 36 offers. This shows that any claimant making a Part 36 offer must remember that a defendant…
ANOTHER WITNESS STATEMENT THAT STRAYED INTO INADMISSIBLE ARGUMENTS, PROTRACTED COMMENTARY AND EXPERT EVIDENCE
There have been a number of recent cases regarding the appropriate drafting of witness statements, in particular attempts to put much inadmissible material into statements. This can be seen in the judgment of HH Russen QC in Philipp v Barclays…
CLAIMANTS SUED THE WRONG (NON-EXISTENT) DEFENDANT – AND THE LIMITATION PERIOD HAD EXPIRED: DON’T START BREAKING THE CROCKERY JUST YET
In The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor [2021] EWHC 17 (TCC) District Judge Baldwin considered an application to substitute a defendant after the primary limitation period had expired. The judge, if anything,…
COVID DOESN’T STOP THE COURTS GOING ON: BUT GREAT CARE IS NEEDED
In Bilta (UK) Ltd & Ors v SVS Securities Plc & Ors [2021] EWHC 36 (Ch) Mr Justice Marcus Smith examined in detail the principles relating to court hearings during COVID. There is an examination of the steps that need…
COURT REFUSES CLAIMANT PERMISSION TO WITHDRAW FROM ADMISSIONS: “THE WHOLE POINT OF THINGS BEING ADMITTED IS THAT PARTIES CAN MOVE ON AND NOT BE BOTHERED WITH INVESTIGATING SUCH MATTERS”
In Advinia Care Homes Ltd v (1) BUPA Care Homes Investments (Holdings) Ltd & Ors [2020] EWHC 1563 (Ch) Mr Michael Green QC (sitting as a High Court judge) refused a claimant’s application to withdraw from an admission. “The whole…
A CLAIMANT’S ADDRESS SHOULD BE ON THE CLAIM FORM: BUT A FAILURE DOES NOT LEAD TO A GRANT OF SECURITY FOR COSTS
The judgment of Master Kaye in Beriwala v Woodstone Properties (Birmingham) Ltd & Anor [2021] EWHC 6 (Ch) provides a reminder that the inclusion of the claimant’s address on the claim form is a mandatory requirement [unless an application is…
IT IS UNLAWFUL TO TAKE PHOTOGRAPHS OF A TRIAL CONDUCTED REMOTELY
In SLF Associates Inc v (1) HSBC (UK) Bank Plc & Ors [2021] EWHC 5 (Ch) Master Kaye pointed out that taking photographs of participants in a remote court was unlawful. THE CASE The Master was giving judgment in a…
SERVICE OF DEFENCE BY EMAIL NOT GOOD SERVICE: RELIEF FROM SANCTIONS REQUIRED TO SET ASIDE JUDGMENT (AND GRANTED)
The judgment of Mr Justice Calver in Ipsum Capital Ltd v Lyall & Ors [2020] EWHC 3508 (Comm) shows the dangers of serving documents by email. The judge held that service of a defence by email was not good service…
JOINT LIABILITY OF DEFENDANTS TO PAY COSTS: TRYING TO MAKE A SIMPLE THING MORE COMPLICATED: THE IMPORTANCE OF OBTAINING AFTER THE EVENT INSURANCE FOR EVERY PARTY TO AN ACTION
The judgment of HHJ Keyser QC in Arag Plc v Jones & Anor [2020] EWHC 3484 (Comm) is, on the face of it, a technical issue about the right of an insurer to claim a contribution. The key issue here,…
COSTS LAWYERS BEWARE: COURT REFUSES TO SET ASIDE DEFAULT COSTS CERTIFICATE: “AVOIDABLE DELAY” IS NOT LOOKED AT KINDLY
In Masten v London Britannia Hotel Ltd [2020] EWHC B31 (Costs) Mr Leonard refused to set aside a default costs certificate. This serves as a salutary warning of the importance of time limits. Further the Master observed that if a…
DIVIDING FACTS FROM COMMENTS AND SUBMISSIONS: WHY IT MATTERS AND HOW IT CAN HELP YOUR CASE
The judgment is Scottow -v- Crown Prosecution Service [2020] EWHC 3421 (Admin) is of interest for many reasons. This, however, is a blog about procedure. It is worthwhile looking at the comments that the Divisional Court made about the way…
THE COURT FINDS IT DOES NOT HAVE JURISDICTION TO ORDER A TRANSFER FROM PART 8 TO PART 7
This is a note about a hearing I was involved in today (16th December 2020). A decision by Deputy Master Yoxall. For various reasons I cannot name the parties, however I have my Instructing Solicitors’ permission to set out the…
MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION
In IC v RC [2020] EWHC 2997 (Fam) Mrs Justice Knowles had to consider the Denton criteria and the slip rule. It also serves as an important warning to anyone undertaking the task of drafting a court order. “I…
SERVICE OF UNSEALED AMENDED CLAIM FORMS DID NOT CONSTITUTE GOOD SERVICE: ALL OF THE CLAIMANTS’ ATTEMPT TO REMEDY THE SITUATION COME TO GRIEF: THE CLAIMANTS’ CARDS WERE MARKED
In November I wrote that there had been a lull in reported cases relating to service of the claim form. As predicted that lull did not last long. In Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd &…
INSURER WAS ENTITLED TO AVOID EMPLOYER’S LIABILITY POLICY: A RESULT THAT IS “DEFECTIVE AND UNFAIR”
The judgment of Master Davison in Komives v Hick Lane Bedding Ltd & Anor [2020] EWHC 3288 (QB) highlights an area of law which, as the Master stated, is “defective an unfair”- an insurer was entitled to avoid an employer’s…
SUMMARY ASSESSMENT OF COSTS: WHAT TO DO IF YOU ARE PRESSED FOR TIME
I am looking again at the judgment of HHJ Hodge QC in Cohen v Fine & Ors [2020] EWHC 3278 (Ch) a because, in concentrating on the issues relating to hourly rates, the other important part of the judgment may…
EXPERT EVIDENCE NOT ADMITTED: IT WAS NOT NECESSARY AND TOO COSTLY
It must be disheartening for parties who get to trial to find that the judge does not think that the “experts” they have instructed (at great cost) are not regarded by the courts as experts at all. This is exactly…
CLAIMANT REFUSED PERMISSION TO RELY ON NEW WITNESS STATEMENT SERVED PART-WAY THROUGH A TRIAL: LATE WITNESSES COULD NOT BE ALLOWED TO PLUG GAPS
In PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 3250 (Comm) Mrs Justice Moulder refused the claimant’s application for permission to rely on new evidence which was served in the middle of a trial. Not only is this a consideration…
A PANDEMIC DOESN’T STOP YOU TICKING A BOX: DEFENDANT’S APPLICATION FOR ADJOURNMENT OF DEFAULT JUDGMENT APPLICATION REFUSED
In Glenn v Kline [2020] EWHC 3182 (QB) Mr Justice Nicklin refused the defendant’s application for an adjournment of an application for judgement in default of acknowledgement of service. The reasons provided by the defendant, including COVID, did not provide…
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