INTERIM PAYMENTS, ACCOMMODATION AND THE “EELES” CRITERIA: HIGH COURT ORDERS AND INTERIM PAYMENT OF £500,000
In AL v Collingwood Insurance & Ors [2021] EWHC 1761 (QB) Mr Justice Robin Knowles allowed a claimant’s application for a further interim payment of £500,000 to secure accommodation for a brain injured child. The case contains an important discussion…
WHEN A PARTY WANTS TO CHANGE ITS EXPERT: PRE-ACTION REPORTS, “EXPERT SHOPPING” AND CANDOUR
In the judgment today in Rogerson (t/a Cottesmore Hotel, Golf and Country Club) v Eco Top Heat & Power Ltd [2021] EWHC 1807 (TCC) Mr Alexander Nissen QC (sitting as a Judge of the High Court) considered the circumstances in…
FAILURE TO SERVE THE CLAIM FORM PROPERLY WHEN YOU ONLY HAVE SEVEN DAYS TO DO SO: THIS MAY NOT BE GOOD LAW BUT IT IS THE LAW…
I have written many times about cases where claimants have come to grief in relation to service of the claim form. Another example can be found in the judgment of Mrs Justice O’Farrell. In R (on the application of The…
CASES IN THE ASBESTOS LIST ARE NOT SUBJECT TO COSTS BUDGETING: THERE ARE NO EXCEPTIONS…
In Smith v W Ford & Sons (Contractors) Ltd [2021] EWHC 1749 (QB) Master Davison refused a defendant’s application that costs budgeting take place in a case that was in the Asbestos list. “These listing arrangements cannot accommodate costs budgeting….
APPLYING TO SET ASIDE DEFAULT JUDGMENT: A DRAFT DEFENCE IS NOT MANDATORY, BUT ITS ABSENCE MAY WELL BE TELLING
In Alli-Balogun v On the Beach Ltd & Ors [2021] EWHC 1702 (QB) Mr Justice Jacobs considered the relevant criteria for a party seeking to set aside a default judgment on the merits. The defendant in this case did not…
THE COPYING OF TRIAL BUNDLES: WHO PAYS THE PRICE?
In the judgment today in Axnoller Events Ltd v Brake & Anor [2021] EWHC 1706 (Ch) HHJ Matthews (sitting as a High Court Judge) had to determine an issue in relation to who pays the costs of copying a trial…
NO NEED TO CALL CLAIMANT’S MEDICAL EXPERT IN A FAST TRACK TRIAL: MUST BE A GOOD REASON TO DEPART FROM THE NORMAL PROCEDURE
I am grateful to Claire Haley from Aegis Legal for sending me a copy of the judgement of HHJ Freedman in Taylor -v- TUI UK Limited (County Court at Newcastle 22nd January 2021). The judge overturned a decision that the…
ARGUING THAT A CONVICTION FOLLOWING A GUILTY PLEA WAS WRONG: GUIDANCE FROM THE COURT OF APPEAL
In Munir v Revenue And Customs [2021] EWCA Civ 799 the Court of Appeal considered the steps available to a litigant who wished to argue that a criminal conviction was erroneous. In particular a litigant most probably needs to waive…
APPLICATIONS BY EMAIL: JUDGES SHOULD BE ALERT AND THE PROCESS PROCEDURALLY FAIR: COURT OF APPEAL DECISION
There are some case where the parties attempt to litigate by correspondence, particularly correspondence with the court. Letters and emails proliferate, with no real structure. The rules of evidence, and the difference between “facts”, “arguments” and “submissions” are usually entirely…
DEFENDANTS’ APPLICATION TO RESILE FROM ADMISSIONS REFUSED: NO EVIDENCE THAT DEFENCE WAS NOT CAREFULLY CONSIDERED BY THE LEGAL ADVISERS WITH THE DEFENDANTS
The judgment of Chief Master Marsh in Financial Conduct Authority v Skinner & Ors [2019] EWHC 392 has only recently arrived on BAILLI. It is an example of the court refusing to allow a party to withdraw from admissions. The…
SEEKING PERMISSION TO APPEAL: THE COVID PROTOCOL MAKES NO DIFFERENCE TO THE TIME LIMITS: A POINT TO REMEMBER
In Claydon Yield-O-Meter Ltd v Mzuri Ltd & Ors [2021] EWHC 1322 (IPEC) HHJ Hacon rejected an argument that the Covid Protocol had any effect on the provisions for applying for permission to appeal. The proposed appellants should have applied…
THE SITUATION WHERE A PARTY SERVES ITS SCHEDULE OF COSTS LATE: CLAIMANT PERMITTED TO RECOVER COSTS, BUT THIS IS A POINT TO WATCH
In Tribe v Elborne Mitchell LLP (Costs) [2021] EWHC 1252 (Ch) Deputy Master Raeburn considered the appropriate approach when a party serves a schedule of costs late. Although the claimant was allowed to recover costs I report this case primarily…
DEFAULT JUDGMENT FOR SOLICITORS’ COSTS: COURT REFUSES TO SET ASIDE JUDGMENT: DEFENDANT FAILS ON BOTH THE DENTON CRITERIA AND THE MERITS
In Carpmaels & Ransford Llp & Anor v Regen Lab SA [2021] EWHC 845 (Comm) Mr Justice Waksman refused the defendant’s application to have judgment in default set aside. The claimants were solicitors bringing proceedings for their costs. The judge…
DEFAULT COSTS CERTIFICATE NOT SET ASIDE: SERVICE BY EMAIL WAS WRONG, BUT RECTIFIABLE: RELIEF FROM SANCTIONS REFUSED
Cases on Default Costs Certificates appear to be like London Buses – they come along in twos. Here we have the second case in two days. In Serbian Orthodox Church – Serbian Patriarchy v Kesar & Co [2021] EWHC 1205…
DEFENDANTS FAIL TO HAVE DEFAULT COSTS CERTIFICATE OF US$3 MILLION SET ASIDE: DRAFT POINTS OF DISPUTE NOT AVAILABLE AT THE APPLICATION
In National Bank of Kazakhstan & Anor v The Bank of New York Mellon SA/NV, London Branch & Ors [2021] EWHC B7 (Costs) Costs Judge Rowley refused an application by the defendants to set aside a default costs certificate. This…
APPLICANT FAILS TO SATISFY COURT THAT LITIGANT LACKED CAPACITY: HIGH COURT DECISION
In Greetham v Greetham [2021] EWHC 998 (QB) Mr Justice Soole rejected an application in relation the appointment of a litigation friend. The applicant failed to prove that the litigant lacked capacity. Further the court did not accept that the…
WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS
In Dixon v Santander Asset Finance Plc & Anor [2021] EWHC 1044 (Ch) HHJ Saffman (sitting as a High Court Judge) granted the defendant summary judgment on the basis that the claim against it was clearly statute barred. The judge…
RULES OF STATUTORY CONSTRUCTION: PARLIAMENT CANNOT LEGISLATE IN HASTE AND REPENT AT LEISURE
It is interesting to look at a short extract from the judgment of the Administrative Court in Hertfordshire County Council & Ors v Secretary of State for Housing, Communities And Local Government [2021] EWHC 1093 (Admin). Parliament cannot legislate in…
SERVICE OF THE CLAIM FORM: SCOTTISH LAW: LIMITATION AND EXTENSIONS OF TIME: A LESSON HERE FOR US ALL
In Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) Mrs Justice Stacey considered a case where a claimant inadvertently fell foul of Scottish limitation law. In Scottish cases proceedings need to be served within the three year period, it…
“IN VIEW OF THE LAMENTABLE WAY IN WHICH BOTH THESE APPLICATIONS HAVE BEEN PREPARED, I DISALLOW ALL COSTS OF TODAY”: JUDGE CRITICAL OF SKELETON ARGUMENTS AND WITNESS STATEMENTS
In Ahmed & Anor v Ahmed [2021] EWHC 1021 (Ch) Mr David Halpern QC (sitting as a Deputy High Court Judge) had much to say in relation to manner in which an application was brought before the court. The skeleton…
COSTS OUTSIDE THE COSTS BUDGET WHEN A PARTY IS LIMITED TO COURT FEES: STRIKING OUT, RELIEF FROM SANCTIONS, ADMINSTRATIVE ERRORS BY THE COURT, ABORTIVE COURT HEARINGS: ALL PROCEDURAL LIFE IS HERE…
The decision of Mr Justice Marcus Smith in Pasricha v Pasricha [2021] EWHC 1017 (Ch) contains a consideration of the circumstances in which a court can order costs to be paid to a party when their budget has been limited…
ANOTHER ACTIONS FAILS BECAUSE OF LATE SERVICE OF THE CLAIM FORM: NEITHER CPR 3.9 OR 3.10 CAN DIG THE CLAIMANT OUT OF THIS HOLE
Small fortunes could be made by betting that there will be a regular supply of cases on late service of the claim form on this blog (although you would get poor odds). “Dicing with procedural death” appears to be regular…
A SWORN STATEMENT IN RELATION TO DISCLOSURE IS NOT CONCLUSIVE
In Berkeley Square Holdings Ltd & Ors v Lancer Property Asset Management Ltd & Ors [2021] EWHC 849 (Ch) Mr Robin Vos (sitting as a judge of the Chancery Division) held that a sworn statement as to disclosure is not…
THE PARTIES CANNOT AGREE TO CONTRACT OUT OF COURT ORDERS: A LESSON FROM THE FAMILY COURT
Although the judgment of Mr Justice Mostyn in AS v CS (Private FDR) [2021] EWFC 34 relates to family proceedings the principle set out may well be of more general application. The fact that the parties have agreed to a…
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…
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