ADJOURNING A HEARING BECAUSE OF A SICK NOTE: COURT OF APPEAL DECISION: MEDICAL EVIDENCE HAS TO ESTABLISH UNFITNESS TO ATTEND HEARING
There have been a number of cases recently relating to applications of hearings on health grounds, in particular the adequacy of the evidence. The relevant principles were reviewed by the Court of Appeal today in General Medical Council v Hayat [2018]…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
NON-SERVICE OF THE CLAIM FORM: MORE CLAIMANTS DICING WITH PROCEDURAL DEATH (AND LOSING): JUDGE REFUSES TO PUSH THE ENVELOPE
I am grateful to David Turner QC for sending me a copy of the judgment in HHJ Klein (sitting as a High Court judge) in Capital Alternatives Sales and Marketing Ltd v Nabas & Ors [2018] EWHC 3345 (Comm). This is…
CLAIMANT CANNOT ENTER JUDGMENT AFTER ACKNOWLEDGEMENT OF SERVICE IS FILED LATE: DENTON PRINCIPLES APPLIED TO GRANT DEFENDANT EXTENSION OF TIME TO DISPUTE THE JURISDICTION
The judgment in Cunico Resources NV & Ors v Daskalakis & Anor [2018] EWHC 3382 (Comm) addresses several procedural issues. Firstly the much debated question of whether a claimant can obtain judgment when the defendant has acknowledged service late. Mr Justice…
“THIS IS AN ARCHETYPAL CASE WHERE IT WOULD NOT BE APPROPRIATE TO GRANT RELIEF FROM SANCTIONS”: ANOTHER LATE COSTS BUDGET CASE
The judgment OF Mr Justice Bryan in BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor [2018] EWHC 3380 (Comm) provides, as the judge noted, an archetypal example of the way not to go about cost budgeting, coupled with…
BACK TO BASICS 18: WHEN IS A GOOD TIME TO APPLY TO EXTEND THE CLAIM FORM? NEVER, JUST NEVER
An enquiry today related to service of the claim form. What was the best way to get at extension of time. My answer was short. Applying to extend claim forms is a form of (basically reckless) gambling. Defendants can always…
BEING A LITIGATOR: “WHAT I’D TELL A YOUNGER ME” (1): HILARY WETHERELL
Litigation is, ultimately, about people. This blog looks a lot at rules, statutes and the evidence of witnesses. It has also looked at the litigant’s experience of being involved in the civil courts. However (and whisper this quietly) litigators are…
EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS
There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts. There are a number of central…
SERVICE OF THE CLAIM FORM: WHERE THINGS CAN GO WRONG FOR THE DEFENDANT: RELIEF FROM SANCTIONS REFUSED
There are numerous cases reported on this blog where issues relating to service of the claim form have gone wrong for claimants. However, as we have recently seen, a failure to respond accurately and timeously to claim form issues can…
ANOTHER CASE OF SERVICE OF THE CLAIM FORM GOING AWRY: GO ON – DICE WITH PROCEDURAL DEATH: WHAT COULD POSSIBLY GO WRONG?
When lecturing at the Zenith Chambers personal injury course this Thursday I only offered one prediction for civil procedure: “I’ll be here next year talking about claim form cases reported over the previous 12 months where things have gone wrong.” …
THE DANGERS OF PLEADING DISHONESTY: PART OF REPLY TO DEFENCE STRUCK OUT
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2018] EWHC 1376 (Ch) Master Shuman provides an succinct summary of the principles relating to pleading dishonesty. Part of a Reply that alleged dishonesty was struck out. THE CASE The claimant…
THE COURT CAN (AND IN THIS CASE SHOULD) ORDER ADDITIONAL SECURITY FOR COSTS
I am grateful to solicitor Shimon Goldwater for sending me a copy of the judgment of Mrs Justice Moulder in Mayr -v- CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3093 (Comm). It relates to the principles to be applied when…
APPLYING FOR RELIEF FROM SANCTIONS: 14 KEY POINTS TO HELP EASE THE STRAIN
There was a nice tweet earlier today from pupil barrister Miranda Grell explaining she had just appeared in her first relief from sanctions application and had found this blog useful. This reminded me that it may be a good time…
STRESS, LAWYERS & LITIGATORS: PRACTICAL LINKS AND PRACTICAL STEPS
The blog post yesterday on Litigation in a tough world let to more responses that I could possibly have mentioned. It has led to a lot of comment and support on Twitter, from solicitors, from the Bar and from many…
YOU CANNOT ARGUE A “NEW” CASE AT THE APPEAL STAGE: “RACING” DRIVERS NOT INVOLVED IN A CRIMINAL JOINT ENTERPRISE: FATAL ACCIDENT ACT DAMAGES AWARDED
In Wallett & Ors v Vickers [2018] EWHC 3088 (QB) Mr Justice Males overturned a decision in favour of the defendant and awarded damages to the estate of a deceased driver. The important procedural issue is that the defendant were not…
THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points of…
DOES A COUNTERCLAIMING DEFENDANT HAVE THE BENEFIT OF QOCS? NOT IN THIS COURT: THERE ARE NOW TWO (CONFLICTING) JUDGMENTS ON THIS ISSUE
I am grateful to Barrister Kevin Latham for sending me details of the decision of HHJ Venn in Waring -v- McDonell [2018] EW Misc B11 (CC). A link to the full decision is also available at the foot of Kevin’s…
101st CPR UPDATE: WELCOME TO THE VIDEO LINK WORLD
The 101st update to the Civil Procedure Rules apply from 8th and 30th November 2018. The main development is a procedure whereby applications to set aside default judgment may be heard by video link. SETTING ASIDE DEFAULT JUDGMENTS: HEARD BY…
SIX YEARS ON: YOU SHOULD KNOW THE CASE YOU WANT TO PLEAD: CLAIMANT’S ACTION STRUCK OUT BECAUSE OF INABILITY TO PARTICULARISE CASE
The judgment of HHJ Platts in Wrightson -v- Flor Projects Limited [2018] EWHC 3036 (QB) provides, amongst other things, an important warning on the need to plead and particularise a case properly. The case shows that when a claimant has…
AN APPLICATION TO SET ASIDE A WITHOUT NOTICE ORDER IS NOT SUBJECT TO “TIBBLES” CRITERIA: SOMETIMES DENTON DOES NOT APPLY – OR SHOULD NOT BE APPLIED
There is a short passage in the judgment of Mr Justice Pepperall in Berhad v Frazer-Nash Research Ltd & Anor [2018] EWHC 2970 (QB) in relation to late service of evidence before an interlocutory hearing. The judge held that the Denton…
ADVISING YOUR CLIENT ON LITIGATION RISKS 5: IF YOU DON’T PAY COSTS BEFORE ISSUE IT COULD BE VERY EXPENSIVE AFTERWARDS
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the High Court decision in Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). It is one of those cases that illustrate…
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
“PUT BLUNTLY THESE ARGUMENTS ARE MISCONCEIVED”: ADMINISTRATIVE COURT IN A VERY ROBUST MOOD OVER COSTS
In Kay, R (On the Application Of) v Scan-Thors (UK) Ltd & Anor (Costs) [2018] EWHC 2842 (Admin) the Divisional Court dealt robustly with arguments made by an interested party attempting to resist an order for costs. “Put bluntly, these submissions…
BREXIT AND…. ACCURATE TIME ESTIMATES FOR COURT HEARINGS: THE COURT IS NOT A RUBBER STAMP
The judgment in AIG Europe Ltd & Anor, Re [2018] EWHC 2818 (Ch) has already been the subject of some consternation, starting as it does with the words ” This case concerns the reorganisation of a major insurance company to prepare…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
TRYING TO SNEAK EXPERT EVIDENCE INTO A WITNESS STATEMENT: PEOPLE MIGHT NOTICE: DEFENDANT’S ATTEMPT TO EXHIBIT EXPERTS STRUCK OUT
There have been numerous cases in which parties have attempted to give expert evidence in witness statements. Another example can be seen in the decision in New Media Distribution Company Sezc Ltd v Kagalovsky [2018] EWHC 2742 (Ch). An attempt to…
NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited [2018] EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert…
AGGRESSIVE LITIGATION IS COUNTER-PRODUCTIVE: JUDGE REFUSES DEFENDANT’S APPLICATION TO STRIKE OUT WITNESS STATEMENTS (WITH A COMMENT, OR TWO, AMONG THE WAY)
I am grateful to barrister Adam Heppinstall for sending me a copy of the judgment of Mr Justice Fraser today in Bates -v- The Post Office [2018] EWHC 2968 (QB). This is a forceful judgment and what the judge had…
A HARSH REMINDER: IF YOU DON’T TURN UP FOR TRIAL THEN THE TEST FOR SETTING JUDGMENT ASIDE IS VERY TOUGH: BE PROMPT, BE VERY PROMPT
In Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch) Mr Justice Henry Carr refused to set aside a judgment obtained after the defendant failed to attend trial. There was a major mistake on the part of the court, however the…
SUCCESSFUL PRE-ACTION DISCLOSURE APPLICATION BY DEFENDANTS: CLAIMANTS HAD TO GIVE INFORMATION AS TO IMPECUNIOSITY
In EUI Ltd v Charles & Ors [2018] EW Misc B7 (CC) HHJ Robert Harrison made an order that claimants give pre-action disclosure of documents relevant to the issue of impecuniosity. The practical consequences of this decision could be enormous. Given…
SOLICITORS AND EXPERT WITNESSES CAN GO TO JAIL: WITNESS STATEMENTS AND THE VASTLY CHANGED MEDICAL REPORT
In Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) Mr Justice Garnham found a solicitor and a doctor in contempt of court. The solicitor was imprisoned for 12 months, the doctor given a six month sentence,…
WHEN WITNESSES DO NOT ATTEND TRIAL 1: WITNESS EVIDENCE NOT ALLOWED: A BROKEN FINGER IS NOT A GOOD EXCUSE NOT TO ATTEND COURT
This is the first of two posts today in relation to witnesses not attending to be cross-examined. In EC Medica Group UK Ltd & Ors v Dearnley-Davison & Ors [2018] EWHC 1952 (Ch) Kelyn Bacon QC (sitting as a Deputy High…
WHEN YOU SETTLE THE APPLICATION BUT LEAVE IT TO THE JUDGE TO DETERMINE THE ISSUE OF COSTS: THE APPROPRIATE APPROACH
In Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd & Ors [2018] EWHC 2549 (Ch) Mr Justice Henry Carr had to consider the appropriate order to make when the parties had agreed the terms of an application but could not…
SOLICITORS CANNOT BE COMPELLED TO HAND OVER FILES: HIGH COURT DECISION
In Hanley v J C & A Solicitors [2018] EWHC 2592 (QB) Mr Justice Soole decided that the court did not have inherent power to compel solicitors to hand over copies of documents to their former clients. THE CASE Three claimants…
ORDER FOR PAYMENT ON ACCOUNT OF COSTS CAN BE MADE LATE
In Culliford & Anor v Thorpe [2018] EWHC 2532 (Ch) HH Paul Matthews (sitting as a High Court judge) held that it was possible for the court to make an order for an interim payment of costs after the date on…
PROVING THINGS 128: CLAIMANT’S EVIDENCE NOT FULL, CLEAR, FRANK OR UNEQUIVOCAL IN RESPONSE TO APPLICATION FOR SECURITY FOR COSTS
In Danilina v Chernukhin & Ors [2018] EWHC 2503 (Comm) Mr Justice Teare was critical of the quality of the evidence that the respondent adduced in response to an application for security for costs. THE CASE The defendants sought an…
COST LAWYERS – SHOW THEM SOME RESPECT: OBSERVATIONS FROM THE HIGH COURT
There is a footnote to the judgment of Master Leonard yesterday in Allen v Brethertons LLP [2018] EWHC B15 (Costs) that is worth reading for anyone involved in costs litigation. “Ms Moore, when acting as a Costs Lawyer with a right…
RELIEF FROM SANCTIONS REQUIRED WHEN RESPONDENT’S NOTICE SERVED LATE: DENTON CONSIDERED
In Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB) Mr Justice Dingemans considered the issue of relief from sanctions when a Respondent’s Notice was served late. It is a useful reminder of the importance of serving a respondent’s notice and…
DENTON DECISIONS – AN INVALUABLE RESOURCE: RELIEF FROM SANCTIONS – A THEMATIC GUIDE UPDATED
I have written before about the invaluable resource provided by The Denton Resource. This has now been updated and is available following the link here. Congratulations to barrister Rachel Segal who took on this painstaking task. The Resource is a…
SECOND ACTION NOT STRUCK OUT AS AN ABUSE OF PROCESS: CLAIM IN DECEIT CAN CONTINUE AFTER CLAIM IN NEGLIGENCE FAILED: THE CLAIMANT NEED NOT HAVE GAMBLED ON FRAUD CLAIM FIRST TIME AROUND
In Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025 the Court of Appeal overturned a ruling that an action in deceit was an abuse of process. The claimant’s action in negligence failed because there was…
WHY SOLICITORS’ ATTENDANCE NOTES CAN BE IMPORTANT: CONSTRUING A CONSENT ORDER: DICTIONARIES AND REASONABLENESS
In Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB) Master Thornett had to construe the terms of a consent order. It is a case that emphasises the importance of attendance notes. …
BACK TO BASICS 15: CHALLENGING THE AUTHENTICITY OF DOCUMENTS: A PRIMER
In the 10th post in this series I looked at the importance of serving a notice of non-admittance of the authenticity of documents promptly. Here we look at the basics of the rule. Put bluntly if you do not serve…
DENTON PRINCIPLES MEANS THAT APPEAL BITES THE DUST: CONFUSION AND BEING “LOST IN THE FOREST” ARE NOT GOOD GROUNDS FOR AN EXTENSION OF TIME
The Denton principles are considered in detail in the judgment of Edward Murray (sitting as a High Court Judge) in Sabesan v London Borough of Waltham Forest [2018] EWHC 2373 (Admin). The judgment confirms that the Denton principles are applicable to…
ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE
A recent decision by the Bar Standards Board held that a barrister had not acted with reasonable competence when he failed to inform his client in relation to the risks of bringing a private prosecution. This decision highlights the need…
THE FACT THAT A DEFENDANT CANNOT PAY A JUDGMENT DOES NOT MAKE THE ACTION AN ABUSE OF PROCESS: CLAIMANT GRANTED SUMMARY JUDGMENT
In Caribonum Pension Trustee Ltd & Anor v Pelikan Hardcopy Production AG [2018] EWHC 2321 (Ch) Master Clark rejected an argument that the fact that a defendant was never going to be able to pay a judgment meant that the action…
APPLYING FOR AN EXTENSION OF TIME FOR FILING A DEFENCE – AFTER THE DEFENCE IS DUE: DENTON PRINCIPLES APPLIED: FULL TRANSCRIPT NOW AVAILABLE
The judgment of Deputy Master Pickering in Billington v Davies & Anor [2016] EWHC 1919 (Ch) has only recently appeared on BAILLI. It raises an interesting issue of how the courts should approach the question of a late application to extend…
PROVING THINGS 125: THE IMPORTANCE OF KEEPING YOUR OWN EXPERT IN THE LOOP: ALSO THE IMPORTANCE OF READING AN EXPERT’S NOTES
In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert gave a lengthy judgment in a high value personal injury case. One interesting aspect of that case is the problems caused by the defendant’s expert evidence on care. An additional…
SETTING ASIDE AN ORDER ON COURT’S OWN INITIATIVE: A REDETERMINATION OF THE MATTER AND NOT SUBJECT TO TIBBLES PRINCIPLES
There is a short passage in the judgment today of Master Clark in Massimo Osti SRL v Global Design And Innovation Ltd & Anor [2018] EWHC 2263 (Ch) that provides an important reminder of the relevant principles that apply when a…
PROVING THINGS 124: “PUT BLUNTLY: THAT EVIDENCE IS WHOLLY INADEQUATE”: DEFENDANT’S EVIDENCE ON AN INJUNCTION APPLICATION
In Jahangiri v St. George’s University Hospitals NHS Foundation Trust [2018] EWHC 2278 (QB) Mr Justice Nicklin observed that witness evidence put forward by the defendant was far from adequate. “The Court is best assisted when the evidence of someone who…
THE “CONDUCT OF LITIGATION” CONSIDERED: WHEN NON-AUTHORISED PERSONS ATTEMPT TO ELBOW IN ON LITIGATION
We are looking for the third (and final) time at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). The judge considered the meaning of “conduct of litigation” as defined by the Legal Services Act…
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