LIMITATION AMNESTIES: AN INTERESTING CASE
There is an interesting case comment on the DACbeachcroft website in relation to limitation amnesties. Andrews v South Tees Hospitals NHS Foundation Trust The comment is by Joe Walton. It reports a case where a claimant sought an extension of…
2018: A NEW YEAR RESOLUTION FOR LITIGATORS: DON’T LEAVE MATTERS TO CHANCE – LEARN TO PROVE DAMAGES
For nearly two years this blog has documented issues (and often failures) when parties fail to prove things. In a surprising number of cases the failures are very basic. Proving things is the basic job of the litigator. However we…
UNDERPAYMENT OF COURT FEES AND STRIKING OUT: CLAIMANT SUCCESSFUL ON APPEAL:
Exactly a year ago today His Honour Judge Robinson gave judgment in a case relating to under-payment the Court fees , see Wiseman -v- Martson. Judge Robinson gave judgment this morning in a case that covered similar ground. He allowed an…
CIVIL LITIGATION AND THE MARTIAL ARTS: McGANN -v- BISPING: ROUND 1: DISPUTING THE AUTHENTICITY OF DOCUMENTS WITHOUT SERVICE OF A NOTICE UNDER CPR 32.19
The judgment today in McGann v Bisping [2017] EWHC 2951 (Comm) involves multiple issues in relation to civil evidence, procedure and witness credibility. Here I want to look at just one issue – the failure to serve a notice under CPR…
INTERIM PAYMENTS: CHANGE IN THE DISCOUNT RATE AND EELES: THE ISSUES ADDRESSED HEAD ON: INTERIM PAYMENT OF £2.4 MILLION GRANTED
The problems caused to personal injury claimants by the change in the discount rate were addressed directly by His Honour Judge Curran (sitting as a High Court Judge) in Porter v Barts Health NHS Trust [2017] EWHC 3205 (QB). The court…
LAST REMINDER OF NEW YEAR’S RESOLUTION FOR 2017: WITHOUT NOTICE APPLICATIONS ARE SO, SO, DANGEROUS: THE DUTY OF FULL DISCLOSURE EXTENDS TO WEAKNESSES IN YOUR OWN CASE
The one New Year’s Resolution I recommended to litigators for 2017 was to be very, very, wary of without notice applications. As we get near to the end of the year this advice is borne out by the judgment of…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
WRITING TO THE COURT ON A UNILATERAL BASIS: COURT OF APPEAL SAYS DON’T DO IT
Several passages in the judgment in Zuma’s Choice Pet Products Ltd & Anor v Azumi Ltd & Ors [2017] EWCA Civ 2133 emphasise a point made earlier this year. A litigant should not write to the court on a unilateral basis….
DENTON PRINCIPLES LEAD TO APPLICATION FOR WASTED COSTS BEING STRUCK OUT: THE CONTINUANCE OF THE APPLICATION WAS DISPROPORTIONATE
The Denton principles were applied by the Administrative Court in Haigh v Westminster Magistrates Court & Or [2017] EWHC 3197 (Admin) when striking out an application for wasted costs. “It must not be forgotten that these are satellite proceedings, adjectival to…
ACCESS TO DOCUMENTS DEPLOYED IN COURT: A DETAILED CONSIDERATION
The judgment of Master McCloud in Dring v Cape Distribution Ltd & Anor (Constitution – access to courts – open justice) [2017] EWHC 3154 (QB) considers the issue of whether the public should have access to documents disclosed during the course…
SECOND ACTION NOT AN ABUSE OF PROCESS: COURT RESOURCES DOES NOT “TRUMP THE OVERRIDING NEED TO DO JUSTICE”
In Davies v Carillion Energy Services Ltd & Anor [2017] EWHC 3206 (QB) Mr Justice Morris upheld a finding that a second claim brought by the claimant was not an abuse of process. “…even post-Jackson, ultimately, the importance of the efficient…
NEW EXPERT EVIDENCE “BEYOND” THE 11th HOUR NOT ALLOWED: DENTON APPLIED IN THE TCC
In DPM Property Services Ltd v Emerson Crane Hire Ltd [2017] EWHC 3092 (TCC) Mr Justice Coulson overturned a decision giving a counterclaiming defendant permission to rely upon an expert report on quantum shortly before trial. The case is an example…
PROVING THINGS 79: SOME THINGS JUST CAN’T BE A COINCIDENCE: A CAR CRASH OF A CASE
We have already looked today at the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors[2017] EWHC 3088 (QB). However that judgment also contains a close and careful analysis of witness evidence. “I start by asking myself this question:…
SIGNING THE STATEMENT OF TRUTH IN PRE-ACTION DOCUMENTS: WILL THE SOLICITOR GO TO JAIL OR NOT?
There has already been some discussion in the Gazette about the judgment in Liverpool Victoria Insurance Company Ltd v Yavuz & Ors [2017] EWHC 3088 (QB). In particular the observations in relation to signature of documents by the legal representative. This…
RELIEF FROM SANCTIONS NOT NEEDED: A DECISION “POUR ENCOURAGER LES AUTRES”: A SOLICITOR CAN RELY ON A LETTER FROM THE COURT
In his judgment today in Freeborn & Anor v Marcal (t/a Dan Marcal Architects) [2017] EWHC 3046 (TCC) Mr Justice Coulson had some telling observations on whether a party needed relief from sanctions and whether relief should be granted. He held…
LEGAL AWARDS: HOW TO COME SECOND: A PRACTITIONER’S GUIDE: 10 KEY POINTS
If you play the mandolin then, by law, you have to learn a tune known as ’O sole mio. This is a tune made famous, to a certain generation, as “Just one Cornetto”. It was even a hit for Elvis Presley,…
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…
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