PROVING THINGS 148: FUNDAMENTAL DISHONESTY PROVEN: NO NEED TO WAIT FOR ASSESSMENT OF DAMAGES
In Patel v Arriva Midlands Ltd & Anor [2019] EWHC 1216 (QB) HHJ Melissa Clarke (sitting as a High Court Judge) accepted the defendant’s argument that the claimant was fundamentally dishonest. The claim was struck out under Section 57 of…
DEFENDANT CAN ONLY RESPOND TO THE CASE AS PLEADED: COURT REJECTS CLAIMANTS’ ATTEMPTS TO INTRODUCE NEW ISSUES
There are two judgments on BAILLI this morning in the Glaxosmithkline case where the judge has resisted the claimants’ attempts to widen the scope of their case beyond the pleaded case and the issues set out in a Group Litigation…
JUDGE REFUSES TO RECUSE HIMSELF: DEFENDANT APPEALS: APPEAL DISMISSED: ANOTHER ROUND IN THE POST OFFICE SAGA: ATTEMPTS TO HOLD THE COURT “IN TERROREM” SHOULD BE EXPLAINED
I did not blog, immediately, after the judgment in Bates & Ors v Post Office Ltd (No 4) [2019] EWHC 871 (QB because I suspected (indeed it was inevitable, given its approach to this litigation) that the Post Office would…
CIVIL PROCEDURE BACK TO BASICS 42: WHY A DAY EARLY IS SO VERY DIFFERENT TO A DAY LATE: THE ROBERT CRITERIA
There is a world of different between a prospective and retrospective application to extend time, or comply with an order. Every litigator has to know about Robert -v- Momentum Services [2003] EWCA Civ 229. An application made in advance means that the…
CIVIL PROCEDURE BACK TO BASICS 42: NON-DISCLOSURE OF DOCUMENTS DURING THE COURSE OF PROCEEDINGS
This post arises out of a Twitter discussion. Someone was reporting that documents that had been disclosed during the course of ongoing litigation were being put copied onto social media. Is this allowed? THE RULES: NON-DISCLOSURE OF DOCUMENTS This is…
DEFENDANT’S PART 36 OFFER WAS VALID: COURT OF APPEAL UPHOLD OFFER THAT REFERRED TO UNPLEADED COUNTERCLAIM AND SOUGHT 8% INTEREST AFTER EXPIRY
In Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 the Court of Appeal upheld a finding that a defendant’s Part 36 offer was a valid one. The offer related to a counterclaim that had yet to be…
WITNESS STATEMENTS WHEN THE WITNESS CANNOT READ ENGLISH: NOT GROUNDS FOR STRIKING OUT, RELIEF FROM SANCTIONS MAY NOT BE REQUIRED
In Waraich & Anor v Ansari Solicitors (A firm) [2019] EWHC 1038 (Comm) HHJ Pearce (sitting as a High Court Judge) considered the issues that arose when a point arose at the beginning of a trial in relation to signature…
ALLOCATION TO LEVEL OF JUDGE : “FAME” DOESN’T MATTER – THE TIME IT WILL TAKE TO OBTAIN A HEARING DOES
In Schumacher v Clarke [2019] EWHC 1031 (Ch) Chief Master Marsh held that the time it would take to obtain a hearing date is a factor in relation to which judge the matter would be allocated to. The Master also…
CIVIL PROCEDURE BACK TO BASICS 39: A NOTICE TO ADMIT FACTS: THE RULES AND CASE LAW
In a discussion about the 20th anniversary of the Civil Procedure Rules on Twitter today someone asked if “Notices to Admit Facts” were still available, they had not seen one for a long time. The rules still permit parties to…
CIVIL PROCEDURE BACK TO BASICS 38: THE DEFENCE TO COUNTERCLAIM
The previous post was about the “reply”. The rules relating to a Defence to Counterclaim are different. Very importantly the timing of the defence to counterclaim is different. There is an obligation on a claimant to properly and fully plead…
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT’S LATE APPLICATION TO RE-CAST ITS CASE
In Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) Martin Griffiths QC, sitting as a High Court judge, disallowed a late application to amend. It is another example of an application being made shortly before trial,…
WITHOUT NOTICE APPLICATIONS: THE DUTY OF FULL AND FAIR DISCLOSURE – A CASE THAT ILLUSTRATES THE POINT
There is an interesting discussion of the duty to give full and fair disclosure in the judgment of HHJ Klein (sitting as a High Court judge) in Wild Brain Family International Ltd v Robson & Anor [2018] EWHC 3163 (Ch). …
REVIEW OF BLOCK LISTING: HELP PIBA WITH INFORMATION ON ITS “EFFECTIVENESS” (AND THE PROBLEMS CAUSED TO THOSE WHO ARE NOT REACHED)
Every so often the MOJ has periods of “block listing” events at the Royal Court of Justice. Essentially many Fast Track cases are listed and many dozens of litigants turn up in the hope of having their cases heard. This…
WHAT’S IN THE BAG? ADVICE ON WHAT TO TAKE TO COURT: HANDKERCHIEFS, PENS AND … TUNNOCKS
As part of the series where contributions are invited from Twitter I asked what advice on what advocates should take to court with them. What essentials should be in the bag? Not all the contributions should be taken too seriously,…
ANOTHER CLAIM FORM CASE: SERVICE AT “LAST KNOWN ADDRESS” FAILS: SERVICE BASED ON COMPANIES ACT SUCCEEDS
Cases on the last known address for service seem to come along like buses – a few at at time. The issue was considered by Mr Richard Salter QC (setting as a Deputy Judge of the High Court) in Idemia…
LIMITS ON THE DUTY OF COUNSEL TO ADVISE ON COSTS AND FUNDING: ALSO PARTICULARS OF CLAIM – IF YOU CAN’T PLEAD A CASE PROPERLY ITS PROBABLY INDICATIVE OF A POOR CASE
The judgment in Andrews & Ors v Messer Beg Ltd [2019] EWHC 911 (Ch) contains an interesting discussion on a barrister’s duty to advise on the funding of litigation. The Part 20 claimant, having had the particulars of claim struck out, …
PRELIMINARY ISSUES, WITNESS CREDIBILITY AND SUMMARY JUDGMENT: WHEN THE DEFENDANTS’ CHICKENS COME HOME TO ROOST…
The judgment of Mr Justice Lane in Antuzis & Ors v DJ Houghton Catching Services Ltd & Ors [2019] EWHC 843 (QB) is interesting for many reasons. It concerns a claim for damages for exploited labour. It confirms that directors…
WITNESS BUNDLES: TAKE THEM AWAY AT THE END OF THE TRIAL – OR ELSE
This has been a week dominated by bundles. To end the week the Bar Council has sent out a joint notice from HMCTS on removal of court bundles. This provides a major incentive to ensure that bundles are, in fact,…
RELIEF FROM SANCTIONS GRANTED WHERE MONEY PAID 17 HOURS LATE:”A SENSE OF PERSPECTIVE IS NECESSARY”
In Khandanpour v Chambers [2019] EWCA Civ 570 the Court of Appeal allowed an appeal in relation to a refusal to give relief from sanctions. A delay in payment of 17 hours of part of the moneys ordered by the…
DO NOT WRITE TO THE COURT WITHOUT COPYING IN THE OTHER SIDE: NOW ITS IN THE RULES – AND THERE ARE SANCTIONS FOR NON-COMPLIANCE
This blog has looked several times at judicial warnings against one party writing to the court without copying in the other party. Those warnings have now been inserted into the Rules. The Civil Procedure (Amendment) Rules 2019 introduce a new…
NOT COMPLYING WITH DIRECTIONS OR REPLYING TO CORRESPONDENCE – AND THEN BLAMING THE OTHER SIDE: IT DOES YOU NO CREDIT
There are several matters of general interest in the judgment of Mrs Justice Pepperall in Essex County Council v UBB Waste (Essex) Ltd [2019] EWHC 819 (TCC) (02 April 2019). Here we look at the dangers of simply failing to…
SERVICE, THE CLAIM FORM AND DENTON: THE COURT WOULD NOT TAKE THE HUMP WHEN DOCUMENTS WERE NOT SERVED: NEITHER SERIOUS OR SIGNIFICANT
In Ablynx NV & Anor v Vhsquared Ltd & Ors [2019] EWHC 792 (Pat) HHJ Hacon brushed aside the defendant’s objections in relation to service of the claim form. THE CASE The action was in relation to patents from an…
YOU SPEND A FORTUNE ON EXPERT WITNESSES AND THEN FIND OUT THAT THEY ARE NOT ADMISSIBLE OR THEIR EVIDENCE ISN’T “EXPERT” AT ALL
There are parts of the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Devon Commercial Property Ltd v Barnett & Anor [2019] EWHC 700 (Ch) that merit close consideration by anyone involved in litigation that (they…
“LAST KNOWN ADDRESS” : CLAIMANT HAD TAKEN REASONABLE STEPS : EXTENSION OF TIME TO SERVE CLAIM FORM UPHELD
In Colley V Shuker & Ors [2019] EWHC 781 (QB) Mrs Justice O’Farell upheld an order extending time for service of the claim form. The judgment considers, but does not decide, whether the claimant had taken reasonable steps to establish…
RELIEF FROM SANCTIONS, LATE SERVICE OF NOTICE TO APPEAL AND THE LITIGANT IN PERSON
In London Borough of Hamlets v Al Ahmed [2019] EWHC 749 (QB) Mr Justice Dove set aside an order granting an appellant an extension of time for appealing. The fact that the appellant was a litigant in person was not a…
A WITNESS STATEMENT IS NOT A PLACE TO VENT YOUR SPLEEN: “DEPLORABLE PERSONAL ATTACKS” COULD HAVE AN EFFECT ON COSTS
There is a short closing remark in Mr Justice Mostyn’s judgment in Rothschild v Charmaine De Souza [2018] EWHC 1855 (Fam) that shows the danger of including personal attacks in witness statements. It is comforting to see how often this type…
“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”
In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action. There are two particular aspects of the judgment of general interest. Firstly…
TOO MANY DOCUMENTS, TOO MANY AUTHORITIES: A REMINDER OF AN OLD FASHIONED REMEDY: BEWARE YE, BEWARE YE
When commenting on a recent case about committal in the Court of Appeal Professor Dominic Regan made the point that the first part of the hearing had been marked by judicial comments about the size of the bundles and number…
SOMETHING FOR THE WEEKEND: THE THIRD POST THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
I am returning, again, to the consequences of the Court of Appeal judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, “the deliberate or reckless making of a false statement in a document verified by a statement of…
SETTING ASIDE AN ORDER WHEN THE DEFENDANT DID NOT APPEAR: THE RULES SHOULD BE FOLLOWED
There are several unusual aspects about the decision of Salix Homes v Mantato [2019] EWCA Civ 445, not least it is an appeal directly from a Deputy District Judge to the Court of Appeal. In addition to the point of law…
LATE APPLICATION TO AMEND DEFENCE AND WITHDRAW ADMISSION REFUSED: EVE OF TRIAL APPLICATIONS USUALLY CAUSE PROBLEMS
There is a second reason to look at the judgment today by Mr Justice Arnold in Freshasia Foods Ltd v Lu [2019] EWHC 638 (Ch). There was a decision in the judgment on a late application to amend and withdraw from an admission. …
INTERIM PAYMENTS ON ACCOUNT OF COSTS IN HIGH VALUE CASES: THE IMPORTANCE OF CASHFLOW RECOGNISED IN SHEFFIELD
I am grateful to Jim Gladman from Switalskis, solicitors for sending me a copy of the approved judgment of HHJ Robinson in I -v- Hull & East Yorkshire NHS Trust (25th February 2019). A copy of that judgment is available…
PERMISSION TO AMEND PLEADINGS TO PLEAD NEW CASE AFTER EXPIRY OF LIMITATION PERIOD REFUSED: COURT OF APPEAL DECISION: STICK TO THE PLEADINGS
In Samba Financial Group v Byers & Anor [2019] EWCA Civ 416 the Court of Appeal overturned an order allowing the claimant permission to amend its case. In essence the Court of Appeal decided that where a court was considering an…
CASE MANAGEMENT, “RELEVANCE” AND ATTEMPTS TO HOLD THE COURT “IN TERROREM”: MORE ON THE POST OFFICE CASE (SOME EXTRAORDINARY ISSUES HERE)
I am returning to the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) because parts of the judgment set out arguments and conduct of litigation that is, to say the least, unusual. This part…
WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: A “CUT OUT AND KEEP” GUIDE: A JUDGMENT ON INTEREST OF INTEREST
The judgment of Mr Justice Bryan in Assetco Plc v Grant Thornton UK LLP [2019] EWHC 592 (Comm) provides a helpful review of the principles and authorities relating to the approach to be adopted when a claimant beats their own Part…
“THE CLAIMANTS MUST RUE THE DAY THEY REJECTED THE DEFENDANT’S OFFER”: CLAIMANT TO PAY STANDARD COSTS AFTER REJECTING VERY EARLY PART 36 OFFER
The costs judgment in Burgess & Anor v Lejonvarn [2019] EWHC 369 (TCC) is probably a judgment that should be shown to all litigants. The claimant rejected an offer of £25,000 and failed to beat that offer at trial. The defendant’s…
WHEN ENFORCEMENT PROCEEDINGS GO WRONG: IF YOU CAN’T OPERATE BY THE RULES THEY MAY TAKE YOUR LICENCE AWAY…
The enforcement of judgments is an aspect of civil procedure that rarely makes the law reports. In Rooftops South West Ltd & Ors v Ash Interiors (UK) Ltd & Ors [2018] EWHC 2799 (QB) Master Davison was highly critical of the…
TIMING OF APPLICATIONS FOR ANONYMITY: CLAIMANTS SHOULD ACT WELL BEFORE TRIAL
In Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) Mr Justice Martin Spencer refused the claimant’s application for anonymity. He made important observations about when such an application should normally be made. THE TIMING OF APPLICATIONS After refusing…
ALLEGED “MISCONDUCT” DURING ASSESSMENT PROCESS DID NOT LEAD TO COSTS BEING DISALLOWED OR REDUCED: ATE PREMIUM WAS REASONABLE
In Murray v Oxford University Hospitals NHS Trust [2019] EWHC 539 (QB) Mr Justice Stewart rejected an argument that mistakes made by a claimant during the assessment of costs process should have led to costs being disallowed or reduced. The…
PROVING THINGS 144: THAT TEMPTATION TO PUT MATTERS IN THE SKELETON THAT AREN’T ESTABLISHED BY THE EVIDENCE: ALSO – THE POWER OF LISTS
We have looked before at attempts to use a skeleton argument to introduce evidence (often made in desperation to be fair). An example of this can be seen in a short passage in the judgment in Schettini v Silvestri & Ors…
“THE DEFENDANTS DID NOT TAKE THE DIRECTIONS SERIOUSLY ENOUGH”: ANOTHER RELIEF FROM SANCTIONS CASE
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 1) [2019] EWHC 341 (QB) Mr Justice Warby granted the defendant relief from sanctions. However the observations made in relation to the conduct of litigation are…
“OUTSIDE THE REALMS OF FICTION”, NOT NECESSARILY A PRUDENT WAY TO CONDUCT LITIGATION: WITNESS STATEMENTS, WITNESS SUMMARIES AND RELIEF FROM SANCTIONS:
In Otuo v The Watch Tower Bible And Tract Society of Britain (Relief from Sanctions 2) [2019] EWHC 346 (QB) Mr Justice Warby granted limited relief from sanctions to a litigant in person who had served “witness summaries” rather than witness…
PROVING THINGS 143: THE COURTS DON’T REALLY APPRECIATE EVIDENCE COMING FROM THE NEWS RATHER THAN THE PARTIES: (SHIPS, I SEE NO SHIPS)
In The Channel Tunnel Group Ltd & Anor (t/a “Eurotunnel”) v Secretary of State for Transport [2019] EWHC 419 (TCC) Mr Justice Fraser expressed concern that witness statements served by the Secretary of State in a civil action were almost immediately…
DEFAULT JUDGMENT SET ASIDE, RELIEF FROM SANCTIONS GRANTED: ACTION THEN STRUCK OUT: REMEMBERING THE BASIC OBLIGATION TO FILE A DEFENCE – ON TIME
In Workman v Deansgate 123 LLP [2019] EWHC 360 (QB) Mr Justice William Davis allowed an application to set aside a default judgment and relief from sanctions. The most surprising procedural aspect of this case is the defendant’s failure to file…
LIMITATION AND INHERITANCE ACT CLAIMS: SOMETHING TO WATCH CAREFULLY: AGREEING “LIMITATION AMNESTY” MAY NOT BE POSSIBLE
NB – THESE COMMENTS ON THE POWER TO AGREE AN AMNESTY WERE DOUBTED BY THE COURT OF APPEAL SEE THE POST HERE In Cowan v Foreman & Ors [2019] EWHC 349 (Fam) Mr Justice Mostyn set out some importance principles in…
IF YOU ARE AT TRIAL AND HAVEN’T PAID THE TRIAL FEE: STRIKE OUT IS AUTOMATIC: A FORMAL APPLICATION FOR RELIEF FROM SANCTIONS NEEDS TO BE MADE
In Hyslop -v- 38/41 CHG Residents Company Limited [2018] EWHC 3893 (QB) Mr Justice Freedman considered a case in which the fact that a claimant had not paid the trial fee only came to light at the trial itself. …
STRIKING OUT AND SUMMARY JUDGMENT: ANOTHER CASE TO “CUT OUT AND KEEP”: ALS0 – THE EVIDENCE STOPS ONCE THE APPLICATION HAS BEEN HEARD
Some judgments extrapolate and summarise legal principles so succinctly that they can be regarded as “cut out and keep” guides to an area of law or practice. The judgment of Master Shuman in Capita Pension Trustees Ltd & Anor v Sedgwick…
PERMISSION TO AMEND GIVEN TO PLEAD COSTS PAID IN PREVIOUS ACTION AS DAMAGES: GAMBLING ON GETTING A SECOND CHANCE
In Playboy Club London Ltd v Banca Nazionale Del Lavora SPA [2019] EWHC 303 (Comm) the High Court granted the claimant permission to amend to include, as a claim for damages, the costs of a previous action. “I have come to…
KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS
In Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in…
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