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 &…
JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED
In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without…
COSTS NORMALLY FOLLOW THE EVENT: SUCCESSFUL DEFENDANT ENTITLED TO 100% OF ITS COSTS
We looked at the decision in Oldcorn -v- Southern Water Services Ltd [2017] EWHC in an earlier post. A second judgment on the case on the issue of costs is reported at [2017] EWHC 460 (TCC). . The successful defendant was…
COURT OF APPEAL: REFUSAL TO ENGAGE WITH AN OPEN OFFER OF SETTLEMENT IS AN ABUSE OF PROCESS
In Balk -v- Otkrite International Investment [2017] EWCA the Court of Appeal was highly critical of a litigant’s failure to respond to an open offer of settlement of appeal. The failure to engage with an open offer of settlement amounted…
WHAT A DIFFERENCE A DAY MAKES: ACTION BROUGHT IN TIME: COURT’S EARLIER REFUSAL TO EXTEND DISCRETION TO EXTEND TIME OVERTURNED
The judgment of the Court of Appeal in Otuo -v- Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136 shows the importance of calculating time periods for limitation. It shows what a difference a day makes KEY POINTS…
COSTS AGAINST NON-PARTIES: “FOR THE BENEFIT OF MR…. BAILEY”
In Sony/ATV Music -v- WMPC Music (In liquidation) & Bailey [2017]EWHC389 (Ch) Mr Justice Arnold made an award against a non-party. The judgment reviews the relevant law in detail. “It is therefore necessary to consider what difference it would have…
MICROSOFT, SERVICE AND FULL AND FRANK DISCLOSURE: HIGH COURT JUDGE SAYS “NO”
One feature of this blog for this year has been the duty owed by litigants making without notice applications. Another example of the problems caused can be seen in the judgment on Mr Justice Marcus Smith in Microsoft Mobile OY…
AN ORDER UNDER THE ARBITRATION ACT IS NOT AN ORDER UNDER CPR 3.1(7)
The judgment of Popplewell J in H -v- L [2017] EWHC 137 (Comm) relates to an application to remove an arbitrator. Most of the judgment considers the principles relating to the independence of arbitrators. The judge also considered points…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
RELIEF FROM SANCTIONS REFUSED(AFTER THE TRIAL)
In the judgment today in Schenk -v- Cook [2017] EWHC 144 (QB) Mr Justice Green upheld an order refusing relief from sanctions. However the appeal was heard in unusual circumstances. The judge considered the application for relief from sanctions striking…
ADMISSIBILITY OF PREVIOUS JUDGMENT AS EVIDENCE OF FOREIGN LAW
In Joint Stock Company -v- Wood [2017] EWHC 150 (Ch) Mr Justice Warren considered whether a decision by judge in relation to foreign law was admissible as evidence. KEY POINTS A previous judgment where the judge considered and made findings…
FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN
There are going to be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post…
ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE
In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias. This judgment emphasises the fact that the test is one of the fair minded and informed observer and not…
THE DUTY OF FULL DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: ANOTHER EXAMPLE OF PROBLEMS OCCURRING
The New Year’s resolution for litigators that I recommended this year came (apparently) as a surprise to many: “Think very carefully before, during and after, making an ex parte application of any kind.” The judgment of Mrs Justice Andrews DBE…
EXPERT EVIDENCE NOT NECESSARY ON AN QUESTION OF CONSTRUCTION: SNEAKING EXPERT EVIDENCE INTO WITNESS STATEMENTS: EVIDENCE IS STRUCK OUT
We have seen several examples of litigants attempting to give “expert” evidence in their witness statements. This practice was considered by Master Matthews in Change Red Limited -v- Barclays Bank PLC [2016] EWHC 3489 (Ch). The Master was considering whether…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
COMMITTAL APPLICATIONS, PENAL NOTICES AND GOING TO PRISON
There are two lessons in the judgment of Mr Justice Cranston in Bunge S.A -v- Huaya Maritime Corporation [2017] EWHC 90 (Comm): (i) if you are applying for committal you should include a penal notice in the application; (ii) if…
IF YOU DECIDE NOT TO TURN UP FOR COURT DON’T EXPECT MUCH SYMPATHY: COUNCIL TOLD TO GET ON ITS BIKE
The judgment of the Court of Appeal in Camden Borough Council -v- Humphreys [2017] EWCA Civ 24 illustrates the danger of a party deciding not to attend a hearing. THE CASE A recipient of a parking ticket, Mr Humphreys, had…
A FUNDAMENTAL CHANGE OF APPROACH NEEDED ON APPLICATIONS IN RELATION TO JURISDICTION: TOO MANY DOCUMENTS, TOO MUCH TIME
In his judgment in His Royal Highnss Emere Godwin Bebe Okpabi -v- Shell Petroleum Development Company of Nigeria Ltd [2017] EWHC 89 (TCC) Mr Justice Fraser observed that applications in relation to jurisdiction needed a different approach from practitioners. “This…
RESTORING A COMPANY TO THE REGISTER, LIMITATION AND PROVING A CAUSAL LINK: COURT OF APPEAL JUDGMENT TODAY
Litigators are sometimes called upon the restore limited companies to the register and make a limitation direction. The decision of the Court of Appeal today in Pickering -v- Davy [2016] EWCA Civ 30 gives rise to additional problems. It emphasises…
ADVERSE DECISION IN ARBITRATION PROCEEDINGS DID NOT RENDER AN ACTION AN ABUSE OF PROCESS: COURT OF APPEAL REVERSED STRIKING OUT DECISION
In Michael Wilson & Partners -v- Sinclair [2017] EWCA Civ 3 the Court of Appeal overturned a decision to strike out the claimant’s case. The fact that there had been earlier arbitration proceedings did not, in this case, render a second…
COURT FEES AND STRIKING OUT: ANOTHER CASE
There is a brief report on Browne Jacobson Insurance Law about a case that struck out because of a failure to pay the correct fees. THE REPORT The report is brief and does not give the date of the judgment…
LITIGATORS: WHAT DO YOU DO WHEN THINGS GO WRONG? 10 KEY POINTS
There has been an unusual amount of sympathy today on Twitter for the report of a newly qualified solicitor who was struck off. The solicitor “had ‘messed up’ on a handful of the 170 cases he was handling and did…
DELAY AND NON-COMPLIANCE: ACTION STRUCK OUT: A "GAME CHANGER"
The judgment of Master Matthew in Phelps -v- Button [2016] EWHC 3185 (Ch) emphasises the dangers of delay and non compliance. “…I will observe that the Court ethos has changed enormously since the days of Lord Denning and the two…
CIVIL CASE OF THE YEAR 2016: THE CASE THAT ENCAPSULATES CIVIL EVIDENCE: HOW THE COURT DECIDES
There were many important cases on procedure and costs in 2016. Choosing a case of importance to litigators was not an easy task. However I kept coming back to the judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
PAYING THE CORRECT COURT FEE, AMENDMENT & STRIKING OUT: ANOTHER DECISION
There have been a number of cases in relation to the consequences for a claimant when the correct court fee has not been paid upon issue. This issue was considered by His Honour Judge Robinson this week in an appeal…
WITNESS STATEMENTS, STATEMENTS OF TRUTH AND CONTEMPT OF COURT
The judgment of Mrs Justice Slade in Aviva Insurance -v- Randive [2016] EWHC 3152 (QB) involves no findings of fact. However it does demonstrate the dangers inherent in being involved in the drafting of witness statements and replies to Part…
ADVOCACY: THE JUDGE’S VIEW X: 10 KEY POINTS FROM AROUND THE WORLD
This is the last in the series of Advocacy the Judge’s view. We have looked at advice given by judges from around the world. Here I select a key point from each. 1. ADVICE FROM CANADA – MANNERS MATTER It…
UNDUE HARDSHIP AND THE FOREIGN LIMITATION PERIODS ACT
The Foreign Limitation Periods Act 1984 is one of those matters that litigators must always have at the forefront of their mind when dealing with any matter that has a foreign connection. The stringent nature of the Act is made…
SECOND APPLICATION FOR SECURITY FOR COSTS WAS NOT AN ABUSE OF PROCESS (THIS TIME)
In Holyoake -v- Candy [2016] EWHC 3065 (Ch) Mr Justice Nugee decided that a second application for security for costs was not an abuse of process. The judgment reviews the law relating to second applications and abuse in detail. It…
INTERPRETERS CANNOT (AND WOULD NOT) BE COMPELLED TO ATTEND TRIAL FOR CROSS-EXAMINATION
The case of Kimathi -v- The Foreign & Commonwealth Office [2016] EWHC 3004 (QB) has already featured several times on this blog. Here we look at the judgment made last week relating to the defendant’s application that interpreters attend trial…
CIVIL PROCEDURE: THE BEHRENS' EFFECT
His Honour Judge Behrens, the resident Chancery judge in Leeds, retires tomorrow. This led me to consider the contribution he has made to civil procedure. JOHN BEHRENS AT THE BAR I could begin by telling of the meticulous neatness of…
THE DEAD CAN'T SUE: AN IMPORTANT REMINDER
In Kimathi & Ors -v- The Foreign & Commonwealth Office [2016] EWHC 3005 (QB) Mr Justice Stewart reviewed the principles in relation to bringing an action on behalf of a deceased party. It is an important reminder of some very…
LATE AMENDMENT OF PARTICULARS OF CLAIM NOT PERMITTED: HIGH COURT DECISION TODAY
In a judgment today in Henderson -v- Dorset Healthcare University Foundation NHS Trust [2016] EWHC 3032 (QB) Mr Justice Warby refused a claimant’s application to amend the Particulars of Claim. The judgment covers a number of points. In particular it…
MINISTRY OF DEFENCE REFUSED EXTENSION OF TIME TO COMPLY WITH PEREMPTORY ORDER: ORDERS ARE ORDERS
In Eaglesham -v- Ministry of Defence [2016] EWHC 3011 (QB) Mrs Justice Andrews DBE refused the defendant’s application for an extension of time for compliance with an unless order. The Defence was struck out. “A party who faces genuine difficulties…
THIRD PARTY FUNDING: YOU WANT THE PROFITS YOU TAKE THE RISKS: EXCALIBUR IN THE COURT OF APPEAL
In Excalibur Ventures LLC -v- Texas Keystone LLC [2016] EWCA Civ 1144 the Court of Appeal confirmed that commercial funders are liable to indemnify on the indemnity costs basis. “I can see no principled basis upon which the funder can…
THE DANGER OF NOT REPLYING TO CORRESPONDENCE: COSTS AWARDED AGAINST DEFENDANTS (& THE NEED FOR CO-OPERATION WHEN INSTRUCTING EXPERTS)
The judgement of Chief Master Marsh in UPL Europe Limited -v- Agchemaccess Chemicals Limted [2016] EWHC 2898 (Ch) provides an object lesson in the dangers of failing to reply to correspondence. The judgment also contains important observations about need for…
WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED
There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence….
SERVING WITNESS STATEMENTS LATE: THERE IS NO CLEARWAY BACK
In Clearway Drainage Systems Ltd -v- Miles Smith Ltd (08/11/2016) the Court of Appeal upheld a decision not to grant the claimant relief from sanctions when witness statements were served late. Here we look at the first instance decision in…
HOURLY RATES, SUCCESS FEES, RELIEF FROM SANCTIONS – ALL IN ONE CASE
There is a great deal of material covered in the judgment of Master Gordon-Saker in Various Claimants -v- MGN Limited [2016] EWHC B29 (Costs). THE CASE The court was determining various preliminary issues in relation to costs in the “phone…
ANOTHER EXAMPLE OF THE DIFFICULTY IN REVISING A BUDGET: AN ACUTE CHANGE OF CASE IS REQUIRED
I am grateful to Michael Davidson from Acumension who has sent me a copy of the judgment of District Judge Hovington in the case of Warner -v- The Pennine Acute Hospital NHS Trust (Manchester County Court 23rd September 2016) (available…
"SECOND HAND" SIGNATURES WILL NOT DO -"PRE-SIGNING" THE STATEMENT OF TRUTH? – NOT A GOOD IDEA
This blog has covered the importance of the statement of truth on many occasions. However the issues revealed in the Solicitors Disciplinary hearing in SRA -v- Jackson reveals a remarkably insouciant approach to the statement of truth. THE CASE The…
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