THE PERILOUS STRATEGY OF SERVING EVIDENCE LATE: DENTON APPLIES: A RELEVANT FACTOR IN A SUMMARY JUDGMENT APPLICATION
The case of Crown House Technologies Ltd v Cardiff Commissioning Ltd & Anor [2018] EWHC 54 (TCC) highlights the dangers of waiting to serve evidence until the last moment. If it is served late then a party requires permission of the…
COURT ORDER ALLOWING PROSPECTIVE AND RETROSPECTIVE EXTENSIONS OF TIME: A BRIEF EXAMPLE
I am grateful to Dominic Regan for providing a precedent that allows the parties to extend time for compliance prospectively and retrospectively. THE ISSUE During a discussion on Twitter Dominic mentioned that some courts were habitually making orders that allowed…
DENTON APPLIED WHEN THE OTHER SIDE DOES NOT SHOW UP FOR TRIAL
In Foreman v Williams [2017] EWHC 3370 (QB) Peter Marquand (sitting as a High Court judge) considered the application of the Denton principles in an unusual context. The claimant required relief from sanctions because he was unable to serve documents on…
FUNDAMENTAL DISHONESTY ESTABLISHED ON APPEAL: WHEN A CLAIMANT DIGS A BIG HOLE FOR THEMSELVES THE COURT SHOULD NOT STRUGGLE TO EXTRACT THEM
In London Organising Committee of the Olympic And Paralympic Games (LOCOG) v Sinfield [2018] EWHC 51 (QB) Mr Justice Julian Knowles overturned a decision whereby a claimant was allowed damages. The claimant had been fundamentally dishonest in making a claim for…
WHEN THE PLEADINGS APPEAR TO HAVE BEEN PUT IN THE PAPER BIN AT TRIAL (SHADES OF THE OFFICE)
The judgment in Premier Paper Group Ltd v Buchanan McPherson Ltd [2018] EWCA Civ 15 contains some interesting observations about the way in which the parties departed from their pleadings. Although the claim succeeded this case how important it is that…
PROVING THINGS 83: WHEN A DEFENDANT DOES NOT GIVE EVIDENCE, ADVERSE INFERENCES CAN BE DRAWN: STAGED CRASH ESTABLISHED
In UK Insurance Ltd v Gentry [2018] EWHC 37 (QB) Mr Justice Teare considered what inferences can properly be drawn when a defendant, accused of dishonesty, does not give evidence. KEY POINTS The claimant brought a case in deceit – alleging…
THE DANGER OF ISSUING UNDER PART 8 AND THEN DOING VERY LITTLE: COURT UPHOLDS REFUSAL TO LIFT STAY: ACTION STRUCK OUT
I am grateful to barrister Richard Whitehall for sending me a copy of the decision of His Honour Judge Pearce in the case of Lyle -v- Allianz Insurance plc (Liverpool CC 21st December 2017). It is a case that illustrates…
THE PROBLEM IN OBTAINING AN ORDER YOU HAVEN’T ASKED FOR:AN APPLICATION UNDER CPR 3.4 WILL NOT BE TREATED AS AN APPLICATION UNDER PART 24
The judgment of Chief Master Marsh in Saeed & Anor v Ibrahim & Ors [2018] EWHC 3 (Ch) contains several important observations in relation to making applications. The Master refused to treat an application, ostensibly made under CPR 3.4, as an…
SEEKING AN EXTENSION OF TIME – WHEN YOU ARE 9 1/2 YEARS LATE: THE IMPORTANCE OF A SOLICITOR KEEPING A RECORD
Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 provides that a claim under the Act should normally be brought within six months of the date on which representation is taken out. An action brought at a…
COURT FEES AND STRIKING OUT: APPEAL AGAINST STRIKING OUT ALLOWED: CROSS -v- BLACK BULL – THE FULL JUDGMENT
I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) at the end of last year. The full judgment is now available and is attached here 072 – Cross v Black Bull – Judgment A SUMMARY The…
REVISING COSTS BUDGETS: “SIGNIFICANT DEVELOPMENTS”, INCURRED COSTS AND APPLICATIONS MADE DURING THE COURSE OF A TRIAL
In Sharp v Blank & Ors [2017] EWHC 3390 (Ch) Chief Master Marsh considered an application by the defendant to revise its costs budget. The judgment contains important observations about the practicalities involved in costs budgeting. There is also a detailed…
PREVIOUS FINDINGS OF FOREIGN LAW CAN BE BINDING: THE ACT, THE NOTICES AND A CASE
We have looked at the decision in Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2017] EWHC 3374 (Comm) Mr Justice Picken in the context of the Foreign Limitation Periods Act. There was a brief description of a little used…
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…
You must be logged in to post a comment.