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,…
GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the third of the series looking at the case more closely we…
APPEAL AGAINST REFUSAL TO ALLOW LATE WITNESS STATEMENTS AT TRIAL: CLAIMANT’S APPEAL DISMISSED
There are a surprising number of cases and appeals in relation to late service of witness evidence. In Byrne -v- Mullan [2017] EWHC 1387 (Ch) the claimant made an application to adduce new witness evidence which was heard on the…
SETTING ASIDE DISCONTINUANCE AND DISAPPLYING QOCS: A HIGH COURT DECISION
In Shaw -v- Medtronic [2017] EWHC 1397 (QB) Mr Justice Lavender considered issues relating to the setting aside of notices of discontinuance and disapplying QOCS. He declined to set aside a notice of discontinuance or give permission to enforce costs…
“THE DOG ATE MY COURTWORK”: REASONS, EXCUSES AND EXPLANATIONS IN APPLICATIONS FOR RELIEF FROM SANCTIONS
One thing that the the Denton decision did, without doubt*, was to put an end to the “mandatory” requirement for a “good reason” to explain a breach when applying for relief from sanctions. However it is always incumbent upon…
SKELETON ARGUMENTS TOO LONG & AMOUNT OF DOCUMENTS “ABSURD”: A JUSTIFIABLE JUDICIAL COMPLAINT
In ICAP Management Services Limited -v- Berry [2017] EWHC 1321 (QB) Mr Justice Garnham added his voice to those judges who have protested about the length of skeleton arguments and written submissions and the burden of unnecessary documents. “It is…
NO PLAYING OF THE ADVANTAGE RULE IN CIVIL LITIGATION: LATE WITNESS STATEMENTS LEAD TO CLAIMANT’S CASE BEING SENT OFF: GOOD TRY BUT NO TRIAL
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner uses the English language to its full effect when ruling that a claimant who served a witness statement late should not have been granted relief from sanctions. The case…
STOP USING PROCEDURE TO BULLY VULNERABLE PEOPLE: HM REVENUE & CUSTOMS TOLD TO READ DENTON PROPERLY
I have no intention of taking this blog into areas of taxation and customs and excise. However the judgment of the First-tier Tribunal (Tax) in E -v- The Commissioners for Her Majesty’s Revenue & Customs [2017] UKFTT 348 (TCC) contains…
A NUMBER OF CHALLENGES TO THE ENFORCEABILITY OF A DAMAGES BASED AGREEMENT: MASTER MAKES ORDER FOR A SPLIT TRIAL
In Lexlaw Ltd -v- Zuberi [2017] EWHC 1350 (Ch) Master Clark considered challenges to the validity of a damages based agreement between solicitor and client. It was decided that the question of the enforceability of the agreement should be tried…
SETTING JUDGMENT ASIDE AFTER REDBOURN: 10 KEY POINTS FOR DEFENDANTS (CLAIMANTS MUST READ TOO)
The judgment in Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) highlights the fact that there is a new age for a party seeking to set judgment aside. Not only does the party have to satisfy the requirements of…
DEFERMENT OF PAYMENT OF COSTS NOT PERMITTED: RELIEF FROM SANCTIONS REFUSED: 7 DAYS LATE WAS “SERIOUS AND SIGNIFICANT”
In The Queen on the application of Bhandal -v- HM Revenue and Customs [2016] EWHC 3387 (Admin) Mr Justice Holroyde dismissed an application deferment of an order to pay costs and an application for relief from sanctions in making the…
LITIGANT MAY HAVE LODGED APPEAL NOTICE ON TIME WHEN THE COURT CLOSED EARLY: CLAIMANT GRANTED PERMISSION TO APPEAL
In Croke -v-Secretary of State for Communities and Local Government [2017] EWCA Civ 423 Lord Justice Hickinbottom found that it is arguable that that a litigant in person had complied with the strict six week time limit for appeals because…
DEFENDANT’S ADMISSION IS BINDING: BUT PERMISSION TO WITHDRAW ADMISSION GRANTED: HIGH COURT DECISION
In Blake -v- Croasdale [2017] EWHC 1336 (QB) His Honour Judge Purle QC (sitting as a Judge of the High Court) decided that an admission made by insurers was a binding admission. However he granted permission to resile from that…
WISEMAN -V- MARSTON: COURT FEES CASE: TRANSCRIPT NOW AVAILABLE
The transcript of the judgment in the Wiseman -v- Marston case is now available. I have included it as an attachment to the previous posts on the case. The links are also available here. THE JUDGMENT AND COURT OF APPEAL…
AGREEING EXTENSIONS OF TIME: REFUSAL TO AGREE CONTRARY TO THE OVERRIDING OBJECTIVE HAS CONSEQUENCES IN COSTS
When should a party agree an extension of time? In Emmanuel -v- The Commissioners for Her Majesty’s Revenue and Customs [2017] EWHC 1253 (Ch) Her Honour Judge Karen Walden Smith made some telling observations . “… in my judgment the…
SETTING ASIDE JUDGMENT, DELAY AND DENTON: “PROMPTNESS” CONSIDERED: DELAY MUST BE EXPLAINED
In Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) Mr Justice Coulson refused to set aside a default judgment. The case contains some important discussion on how the Denton principles apply to applications to set aside judgment. “……
LATE SERVICE OF APPLICATIONS, INACCURATE TIME ESTIMATES AND THE PRESUMPTIONS THE JUDGE SHOULD DRAW
In Capita PLC -v- Darch [2017] EWHC 1248 (Ch) Richard Spearman QC highlighted some of the procedural issues that can arise when applications are served late and with insufficient time estimates. A failure to serve promptly did not, ultimately,…
AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce [2017] EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended…
A CLAIMANT CAN SUE AN UNNAMED DRIVER (AND THE INSURER HAS TO PAY): COURT OF APPEAL DECISION TODAY
NB THIS DECISION WAS OVERTURNED BY THE SUPREME COURT IN Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 t In Cameron -v- Hussain [2017] EWCA Civ 366 the Court of Appeal (by a majority) considered the question whether a claimant…
APPEALS, TIME, SERVICE, VENUE: A REAL PROCEDURAL HOTCHPOTCH – EVEN BEFORE THE MAIN ISSUE IS CONSIDERED
The judgment of Mr Justice Jay in Enniful -v- Motor Insurers Bureau [2017] EWHC 1086 (QB) is a procedural hotchpotch. It relates to service, delay, dates of compliance, venue for appeals and relief from sanctions. All of this occurred before…
TALES FROM THE APIL CONFERENCE I: TO AVOID “AGREEMENT” OF COSTS BUDGETS BY DEFAULT READ DIRECTIONS FOR THE CCMC WITH CONSIDERABLE CARE
I am doing a series of posts on matters arising from the APIL annual conference. I am not aiming to cover all the issues and matters raised. People can (and should) read the Presidents speech . Given the nature of…
PARTICULARS OF CLAIM MUST BE IN A FORM THAT THE DEFENDANT CAN RESPOND TO: PLEADINGS STRUCK OUT ALTHOUGH THE CLAIM WAS NOT
In Kaplan -v- Super PCS LLP [2017] EWHC 1165 (Ch) Mrs Justice Rose struck out the particulars of claim because it was impossible for the defendants to respond to it. It is an object lesson that, even in a complex…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT? NOTHING
What is the position of a defendant whose action has been struck out? This was the question considered by Mr Justice Soole in Michael -v- Phillips [2017] EWHC 1984 (QB). The short answer is the defendant cannot dispute any aspect…
AN UNUSUAL APPLICATION FOR RELEASE OF AUDIO RECORDING OF JUDGMENT: NOT NECESSARY AND NOT ALLOWED
What does a litigant do if a written judgment varies from the oral judgment given in court? This issue was considered by HHJ Matthews (sitting as a High Court judge) in Bath -v- Escott [2017] EWHC 1101 (Ch). The judgment…
DUTY OF FULL AND FRANK DISCLOSURE: APPLIES TO APPLICATIONS MADE ON SHORT NOTICE
The “new year resolution” I recommended for litigators this year was to be very careful when making without notice applications. A failure to make full and frank disclosure has proven to be financially and professionally disastrous for some litigants (and…
WHEN IS AN EXPERT NEEDED? NOT HERE
CPR 35. imposes a duty on the court to restrict expert evidence “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”. This has led to some interesting case law. The most recent discussion is…
MEDIATION AND LITIGATION: A REVIEW OF KEY CASES: IGNORE THEM AT YOUR PERIL
It is sometimes difficult to keep track of the cases that refer to mediation. Given that ADR can play a central role in the litigation process this is an appropriate time to review the key cases, particularly in the light…
DUTY TO DRAW ADVERSE AUTHORITIES TO THE ATTENTION OF THE COURT: HOW FAR DOES IT GO?
The duty to draw the court’s attention to authorities that do not support your case is an important one. In Weir -v- Hildson [2017] EWHC 983 (Ch) Mr Justice Nugee discusses the extent of this duty. THE CASE The applicant…
COSTS AGAINST NON-PARTIES: COSTS ORDER NOT MADE AGAINST DIRECTOR
When is it appropriate to make an order against a director personally? This issue was considered in Housemaker Services Ltd -v- Cole [2017] EWHC 924 (Ch) by HHJ Paul Mattews (sitting as a High Court Judge). The judge declined to…
WHEN THE ASSETS DISAPPEAR FROM A JUDGEMENT DEBTOR: POTENTIAL CAUSES OF ACTION EXPLORED
The first rule of Law School is (or should be) “don’t sue anyone who doesn’t have the cash to pay”. The most meritorious case coupled with the most astute legal team is going to get blood out of a stone….
APPLICATIONS TO AMEND APPEAL NOTICE AND PARTICULARS AT A LATE STAGE NOT ALLOWED BY THE COURT OF APPEAL
I am grateful to Jill Greenfield from Field Fisher for sending me a copy of the Court of Appeal transcript in Howe -v- Motor Insurers Bureau (CA 8th February 2017). This is a judgment refusing permission to amend and for…
KNOW (AND FOLLOW) THE RULES – OR ELSE: DPP COPS IT.
There is some irony in the decision of Mr Justice Fraser in R (RA) -v- The Director of Public Prosecutions [2017] EWHC 714 (Admin). The claimant, a litigant in person, complied with the rules. The defendant, a specialised government department…
PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT”
There is an interesting discussion of the purpose of pleadings and expert evidence in the judgment of HH Parkes QC in PP -v- The Home Office [2017] EWHC 663 (QB). The fact that an expert report is referred to in…
ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS
In Dove -v- London Borough of Havering [2017] EWCA Civ 156 the Court of Appeal considered a number of procedural issues prior to giving judgment on the substantive point. The defendants argued that they should have been granted an adjournment of…
WITHDRAWAL OF PART 36 OFFER BY EMAIL: CPR 3.10 SAVES THE CLAIMANT
The change in the discount rate meant that many claimants withdraw Part 36 offers they had made. This has led to the question – is an email withdrawing an offer sufficient. I am grateful to Dominic Graham from Holmes &…
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