AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
I WANT AN ADJOURNMENT BECAUSE I’M ILL: AN APPLICATION NOT GUARANTEED BE SUCCESSFUL
The issue of adjournments because of ill-health is one of the most common search terms that leads to this blog. (I am not certain whether to be surprised at this or not). For those searching today the relevant principles are…
PROVING THINGS 75: PROVING CAUSATION ON AN UNDERTAKING TO PAY DAMAGES: THE INJUNCTION THAT COST THE APPLICANT TENS OF MILLIONS OF DOLLARS: ROUND 2
We have looked before at the decision in Fiona Trust & Holding Corporation -v- Yuri Privalov & others [2016]. An applicant for a freezing order was found to have obtained the order wrongly. Consequently they were ordered to pay damages that stretched…
A DUMPER TRUCK IS COVERED BY THE MIB AGREEMENT: STATUTORY CONSTRUCTION AND DIRECTIVES
In Lewington v The Motor Insurance Bureau [2017] EWHC 2848 (Comm) Mr Justice Bryan considered whether a stolen dumper truck being driven on a public road was covered by the MIB agreement. There was a clear, and unequivocal finding that it…
SOME FEEDBACK – WHEN DEFENCE TURNS TO COUNTERCLAIM
Feedback from readers is rare. I received a letter today which the author has given be permission to reproduce. Just a quick note of thanks. I’m an LIP, having been involved in litigation as defendant for the last 3…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
LIMITATION, THE CARE ACT, COUNTY COURT JURISDICTION AND DIFFICULT TRANSITIONAL PROVISIONS.
In Nottinghamshire County Council v Belton, The Estate of & Anor [2017] EW Misc 26 (CC) His Honour Judge Godsmark QC considered an issue of jurisdiction and limitation in a claim being brought by a local authority to recover fees paid…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 3: SKELETON ARGUMENTS, PREPARATION AND PRESENTATION: AN ABSOLUTE GOLDMINE
This blog has many posts that record cases where judges have been critical of the contents (and usually length) of skeleton arguments. A remedy for most of these issues has been available since 2004. Gray’s Inn prepared a paper “Skeleton…
SORRY SILKS: IMPORTANT AS YOU ARE THE CASE IS NOT BEING HELD UP FOR YOU: THE TAIL IS NOT GOING TO WAG THE DOG
The judgment of Mr Justice Fraser in Bates & Ors v Post Office Ltd [2017] EWHC 2844 (QB) contains some telling observations about case management, listing and the need to comply with the overriding objective. “Fitting hearings around [counsel’s] availability has…
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
PROVING THINGS 72: THE BARRISTER’S LAMENT: BUNDLES WHEN THE CLAIMANT DOES THE DEFENDANT’S JOB FOR THEM
Much has been written on this blog about the preparation of bundles. Some bundles are prepared on the basis that every single disclosed document should be included. In doing so many claimants are causing harm to their own case. Disclosed…
COURT OF APPEAL OVERTURNS SECTION 33 ORDER IN CLINICAL NEGLIGENCE CASE
In The Pennine Acute Hospitals NHS Trust v De Meza [2017] EWCA Civ 1711 the Court of Appeal overturned an order under Section 33 of the Limitation Act 1980. The trial judge found in favour of the claimant. This was held…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
THE THINGS YOU FIND OUT HALF WAY THROUGH A TRIAL… A CASE VERY MUCH TO POINT
The case of Jollah, R (On the Application Of) v Secretary of State for the Home Department (No. 2) [2017] EWHC 2821 (Admin) makes fascinating reading. It is an object lesson in the need to ask searching questions when representing a…
LEAVING ISSUE UNTIL THE LAST MOMENT – ALWAYS DANGEROUS : PARTICULARLY WHEN A CLAIMANT IS ON NOTICE OF POTENTIAL PROBLEMS
In Hall v Environment Agency [2017] EWHC 1309 (TCC) His Honour Judge Havelock-Allan QC pointed out the dangers of leaving issue until the last moment, particularly in cases where there were likely to be procedural issues relating to jurisdiction. THE CASE…
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
DEFENDANT IN CASE WITH PROTECTED PARTY ENTITLED TO RESILE FROM “COMPROMISE”: REQUIREMENT FOR COURT APPROVAL NOT A BREACH OF ECHR RIGHTS
In Revill v Damiani [2017] EWHC 2630 (QB) Mr Justice Dingemans held that the rule that required a protected party to obtain a court order to approve a proposed settlement remained good law. It did not breach the claimant’s human rights….
CAPACITY TO LITIGATE : LITIGATION FRIEND CAN PROPERLY CONTINUE WITH ACTION WHERE CLAIMANT WAS WITHOUT CAPACITY AT BEGINNING OF CASE
I was speaking at the MASS conference yesterday about capacity and litigation. It is always the way of things that an interesting point on an issue comes up the day after a presentation. An issue on capacity to litigate arose…
LATE ACCEPTANCE OF PART 36 OFFER DID NOT TAKE THE HEART OUT OF THE USUAL RULES AS TO COSTS: PART 36.13 CONSIDERED IN DETAIL: CLAIMANT SURVIVES A HEATED ATTACK
I am grateful to Thomas Riis-Bristow from Irwin Mitchell solicitors for sending me a copy of the judgment of District Judge Truman in Knibbs -v-Heart of England NHS Foundation Trust (23/6/2017). It is an interesting (and important) consideration of…
PERMISSION TO APPEAL – TWO YEARS OUT OF TIME – SET ASIDE: COURT WAS “MISLED BY SERIOUS MISREPRESENTATIONS AND NON DISCLOSURES”
In Kovarska v Otkritie International Investment Management Ltd & Ors [2017] EWCA Civ 1485 the Court of Appeal set aside an extension of time for appealing. The order had been granted without a hearing. It was held that the Court…
“BREATHTAKINGLY RUDE” LETTERS INDICATED AN INTENT TO ABUSE THE PROCESS: DEFENDANT’S CONDUCT IN FAILING TO PAY FOR PITCH CROSSED THE LINE
In Bernard Sport Surfaces Ltd v Astrosoccer4u Ltd [2017] EWHC 2425 (TCC) Mr Justice Coulson had strong words to say about correspondence and conduct which, he held, were simply attempts to avoid a debt that was lawfully due. “… all of…
CONDUCT AND LITIGATION: THE SEPARATION OF POWERS AND THE RULE OF LAW: A SECRETARY OF STATE DOES “NOT REQUIRE KINDERGARTEN-TYPE ELABORATION”
The headnote in R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC) appears relatively benign, Mr Justice McCloskey deciding that the upper…
BEHAVIOUR IN THE COURTROOM – IT GOES FURTHER THAN YOU THINK: SOME CASES AND SOME GUIDANCE
The vast majority of studies on behaviour in the courtroom concentrate on the interaction between the judge, the advocates and the witnesses. However the courtroom is a big place. Twice in recent weeks we have seen judges refer to the…
NOT PROCEEDING WITH LITIGATION FOR ONE YEAR IS NOT AN ABUSE OF PROCESS: THE ACTION WAS NOT BEING “WAREHOUSED”: BUT STILL A POINT TO WATCH
In Grenda Investments Ltd v Barton [2017] EWHC 2371 (Comm)Mr Justice Picken considered (and rejected) an argument that the claimant’s failure to proceed with litigation for a year amounted to an abuse of process. Although the application failed this case does…
THIS IS A LOT OF MATERIAL FOLKS: ALL THIS INDUSTRY MAY NOT BE TO POINT: SEEING THE WOOD FOR THE TREES
In Miley v Friends Life Ltd [2017] EWHC 2415 (QB) Mr Justice Turner made some observations in relation to the volume of documentation and the subsequent judgment. It is important, he said, for a judge to keep sight of the wood…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
THE INHERENT JURISDICTION OF THE COURT: FAMILY COURT HAS ALL THE POWERS OF THE HIGH COURT
In a short judgment today in CH v WH [2017] EWHC 2379 (Fam) Mr Justice Mostyn made pointed observations in relation to the innate jurisdiction of the High Court. “The Family Court has all the powers of the High Court.” THE…
NON-COMPLIANCE WITH PEREMPTORY ORDERS: THE FULL JUDGMENT IN POWELL -v- WATFORD BOROUGH COUNCIL
I have written before about the judgment of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB). The full transcript has now become available. It deals with an important point about the need to follow the…
ORDER FOR PAYMENT ON ACCOUNT DOES NOT NEED TO BE MADE AT THE HEARING ITSELF
The judgment of Master Matthews in Ashman v Thomas [2016] EWHC 1810 (Ch) has only recently arrived on BAILLI. It contains several important practice points in relation to payments on account of costs. THE CASE After the trial of a preliminary…
ANOTHER MONTH, ANOTHER DECISION ON NON-SERVICE OF THE CLAIM FORM: THE RESULT OF A “NEGLIGENT OR INCOMPETENT ERROR”
In Higgins & Ors v ERC Accountants & Business Advisers Ltd [2017] EWHC 2190 (Ch) His Honour Judge Pelling (sitting as a High Court judge) considered a number of issues relating to service of the claim form. It is another example…
PROVISIONAL DAMAGES NOT AWARDED FOR RISK OF DETERIORATION IN PSYCHOLOGICAL CONDITION
In XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) Sir Robert Nelson considered the question of whether provisional damages should be awarded in relation to a possible deterioration in a claimant’s psychological condition. The fact that the deterioration was…
ANOTHER CLAIM FORM CASE: PUTTING IN THE POST ON REQUISITE DATE IS GOOD SERVICE: NO SAFE HARBOUR FOR DEFENDANTS ON THIS ISSUE
Master McCloud has already made observations about the ” dry and unlovely crop of procedural service issues” that are regularly coming before the Masters. Another issue was considered in Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270. “… the correct…
SERVICE OF PROCEEDINGS WITHOUT PERMISSION: THE COURT HAS POWER TO RECTIFY THE POSITION RETROSPECTIVELY
Can the court rectify the situation when a claimant, who requires permission to continue proceedings, has issued and served without such permission? That was the question considered by His Honour Judge Davis-White QC in Wilton UK Ltd v Shuttleworth & Ors…
SOMETIMES YOU DON’T HAVE TO SIGN STATEMENTS OF CASE WITH A STATEMENT OF TRUTH: HIGH COURT DECISION ON AMENDING PARTICULARS OF CLAIM
The case of Kimathi v Foreign and Commonwealth Office [2017] EWHC 2145 (QB) promises to be a legal epic. As I understand it the trial is not even half way through. It was opened in April 2017. It is unlikely…
COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: A RECAP AND REVIEW OF THE EARLIER CASE MENTIONED
I am writing, again, about the the judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB). The point the case makes about the correct route of appeal has been commented on, however I had not anticipated…
DESTINATION OF APPEALS FROM A DISTRICT JUDGE ALLOCATED A CIRCUIT JUDGE’S WORK: IMPORTANT WORDS ON COMMUNICATING WITH THE COURT
The judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB) is of considerable importance in relation to the correct route for appeals. It was held that the correct route of appeal from a district…
THE SERVICE OF PROCEEDINGS WAS PHOTOGRAPHED AND FILMED : AND THIS TURNED OUT TO BE IMPORTANT
In Yukos Finance BV & Ors v Lynch & Ors [2017] EWHC 1812 (Comm) the claimants were so concerned about the defendant’s attempt to evade service that they arranged for the process to be photographed and filmed. As it turns out…
TEN MINUTES IS A LONG TIME IN LITIGATION: SOLICITOR AND OWN-CLIENT ASSESSMENT OF COSTS CONSIDERS BILLING PRACTICES IN DETAIL
I am grateful to Shimon Goldwater for sending me a copy of the judgment of Master Rowley in Breyer Group Pie -v- Prospect Law Limited (A copy of which is attached Costscase). There are significant observations made in relation to…
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
WHY LIFE IS NOW DANGEROUS FOR DEFENDANTS (ESPECIALLY THOSE WHO DON’T FILE A DEFENCE ON TIME)
The judgment of Mr Justice Coulson in ADVA Optical Networking Limited -v- Optron Holding Limited [2017] EWHC 1813 (TCC) highlights what a dangerous world this can be for defendants. A defendant who is late filing a defence, and where judgment has not been…
INTERLOCUTORY APPEALS AND THE TIME FACTOR: DENTON, WITNESS STATEMENTS AND AMENDMENT: A HEARING WHEN SEVEN TIMES MORE TIME WAS NEEDED
The judgment of Mrs Justice May DBE in Myall -v- Ministry of Defence [2017] EWHC 1752 (QB) emphasises the point that many interlocutory appeals come about not so much because of judicial error but because of the lack of time…
COSTS BUDGET ONE DAY LATE: RELIEF FROM SANCTIONS REFUSED: DON’T MAKE MOUNTAINS OUT OF MOLEHILLS BUT PUT THINGS RIGHT – QUICKLY
There are only two realistic options in relation to a relief from sanctions application: (i) do it properly and promptly; (ii) don’t do it all. The dangers of a hasty application are illustrated in the judgment in Lakhani -v- Mahmud…
FAILURE TO RESPOND TO PART 18 REQUESTS PROPERLY LEADS TO STRIKE OUT: NO SECOND BITE OF THE CHERRY IN RELATION TO RELIEF FROM SANCTIONS
There are relatively few reported cases about Part 18 questions. The decision of the Court of Appeal today in Griffith -v- Gourgey [2017] EWCA Civ 926 shows the dangers of failing to respond fully and properly. “This shows the necessity…
APPEAL STRUCK OUT FOR PROCEDURAL FAILURES: THE IMPORTANCE OF KEEPING THE COURT INFORMED: THE DENTON CRITERIA CONSIDERED
In R (on the application of Kaur) -v- The Secretary of State for the Home Department[2017] EWCA Civ 821 Lord Justice Hickinbottom upheld a decision to strike out an appeal because of procedural failures. The case highlights the importance of…
“LATE” SERVICE OF WITNESS STATEMENTS WHEN THERE IS NEW EVIDENCE: SOME ISSUES CONSIDERED
The third reason litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch) is the brief discussion in relation to the service of witness evidence outside deadline allowed by…
EXPERTS NOT WELLCOME HERE (NOT YET ANYWAY): PARTIES NEED TO ESTABLISH NEED FOR EXPERT EVIDENCE
In Glaxo Wellcome Uk Limited -v- Sandoz Limited [2017] EWHC 1524 (Ch) Chief Master Marsh refused the defendants’ application to rely on three expert witnesses. The judgment contains interesting observations on the nature of the information that needs to be…
TOO MANY DOCUMENTS SPOIL THE CASE: APPLICATIONS SHOULD BE CONDUCTED PROPORTIONALLY
In Alsaifi -v- Amunwa [2017] EWHC 1443 QB Mr Justice Warby reminded parties of the need for bundles and documents to be relevant and proportional. “I make these points to emphasise the importance of parties to litigation of this kind…
NOT ALL WITNESS STATEMENTS SHOULD BE MADE PUBLIC AHEAD OF A TRIAL: THE TIMES HAS TO WAIT
In Blue -v- Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm) Mr Justice Leggatt considered whether a witness statement should be disclosed to the public when it had been referred to at a pre-trial hearing. The application was…
ACTION WAS STATUTE BARRED AND AN ABUSE OF PROCESS: THE COURT WILL NOT SIMPLY REFEREE WHATEVER GAME A CLAIMANT WANTS TO PLAY
In Schweppe -v- Closier [2017] EWHC 1486 (TCC) Mr Justice Coulson struck out an action on the grounds it was statute barred and represented an abuse of process. The judgment is worth reading because it reviews the principles relating to…
WITNESS SUMMONS AGAINST SOLICITOR NOT SET ASIDE: BUT BE THERE AT 2.00 pm (AND BRING YOUR FILES)
In Morris -v- Hatch [2017] EWHC 1448 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) refused to set aside a witness summons issued against a solicitor. “… it is the civic duty of each of us,…
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