EXPERT EVIDENCE NOT NECESSARY: CASES ON EXPERTS THIS WEEK 1
In Daniel Alfredo Condori Vilca -v- Xstrate Limited [2016] EWHC 2757 (QB) Mr Justice Foskett refused an application to rely on an expert witness. The case was unusual, however the principles are universal. The questions were whether there was an…
THE PARTIES CANNOT CONTRACT OUT OF COSTS BUDGETING (& A LITTLE BIT ABOUT WITHOUT PREJUDICE CORRESPONDENCE)
An earlier post dealt with the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21. However an earlier ruling in the same case contains a consideration of whether the parties can agree to sidestep budgeting….
WITNESS CREDIBILITY, DELAY AND DENTON.
There is an interesting discussion of the credibility of witnesses in the judgment of Mr Registrar Briggs in Preston -v- Green (Liquidator of Cre8atsea Limited) [2016] EWHC 25222 (Ch). The Registrar also had to consider whether to exercise his discretion…
HIGH COURT OVERTURNS DECISION TO GRANT RELIEF FROM SANCTIONS: NON-COMPLIANCE CANNOT AMOUNT TO "GOOD REASON"
In Pittville Ltd -v- Hunters & Frankau Limited [2016] EWHC 2683 Mr Justice Snowden overturned the decision of a Deputy Master granting relief from sanctions. The judgment contains an important consideration of the question of “good reasons” for…
NO RELIEF FROM SANCTIONS WHEN COSTS BUDGET FILED LATE: THE DECISION IN DETAIL
We have looked, briefly, at the Court of Appeal decision in Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001. I am grateful to Aaron Vodden of Hempsons for sending me a copy of the transcript which…
PAYING THE CORRECT COURT FEE AND LIMITATION: HIGH COURT DECISION CONSIDERING THE RELEVANT PRINCIPLES
One decision that has led to interlocutory skirmishing and opportunistic applications is Lewis v Ward Hadaway [2016] 4 WLR 6, [2015] EWHC 3503 (Ch) and the consequences of failing to pay the correct court fee on issue. This has left many…
PROVING THINGS 34 : THERE IS NO PRIMER FOR SCUTTLERS: WHEN YOUR SHIP DOESN'T COME IN
We have looked at many different types of case during this series. However this is the first time we have looked at an Admiralty case and at case about the “scuttling” of a ship. The judgment of Mr Justice…
ADVOCACY THE JUDGE’S VIEW IX: WHAT YOU WEAR MATTERS
This is the ninth (and penultimate) post in this series. It is inspired by a search term on this blog today “Can a solicitor dress casually in county court”. This caused a lot of attention when I mentioned in on…
PROVING THINGS 33: CAUSATION AND THE BURDEN OF PROOF IN CLAIMS AGAINST SOLICITORS
We have looked before at the decision in The Connaught Income Fund, Series 1 -v- Hewetts Solicitors [2016] EWHC 2286 (Ch). The previous post was in connection with witness evidence. However the judgment on the burden of proof is significant in terms…
BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)
There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload. This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is…
RECOVERING LITIGATION FUNDING COSTS: A HIGH COURT CASE -BUT ABOUT ARBITRATION PROCEEDINGS
I am grateful to Professor Dominic Regan and Nicholas Bacon QC for sending me a copy of the decision in Essar Oilfields -v- Norscot [2016] EWHC 2361 (Comm).A decision of His Honour Judge Waksman QC sitting as a Judge of…
SOLICITOR'S AGENT HAS NO RIGHT OF AUDIENCE AT STAGE 3 HEARING: COUNTY COURT DECISION CONSIDERED
Who has a right of audience at a Stage 3 hearing? This issue has been considered in the county court and I am grateful to barrister Jonathan Dingle for sending me a copy of the decision of District Judge Peake…
INVALID SERVICE OF CLAIM ON SOLICITORS: ANOTHER CLAIM FORM INCORRECTLY SERVED
Problems with service of the claim form are a regular feature of this blog. I have written, many times, about the dangers of leaving service of the claim form until the last minute. I have also written, many times, about…
MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY
In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,…
FAILURE TO PROVIDE INFORMATION IN WITNESS STATEMENT LEADS TO APPLICATION BEING STRUCK OUT: HIGH COURT DECISION TODAY
Chief Master Marsh has had a busy day. This is the second decision today I am writing about. In Wave Lending Ltd -v- Batra and SFM Legal Services Ltd [2016] EWHC 2238 (Ch) he considered whether a witness statement complied…
COSTS BUDGETING AND LITIGANTS IN PERSON: BUDGETING THE COSTS OF ASSISTANCE AND COUNSEL
The decision today of Chief Master Marsh in Campbell -v- Campbell [2016] EWHC 2237 (Ch) deals with some important issues in relation to costs budgeting, the costs of litigants in person, instructing counsel and the nature of costs budgeting generally. “……
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 2: THE STRESS OF LITIGATION: GUIDANCE AND LINKS
The earlier post on looking at litigation from the litigant’s viewpoint led to some interesting comments, on the blog itself; on LinkedIn and on twitter. It was particularly interesting to hear from lawyers who had been involved in litigation…
YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT
The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history. However I…
IF THE DEFENCE IS FILED LATE THE CLAIMANT IS STILL ENTITLED TO DEFAULT JUDGMENT: TWO POINTS TO WATCH
NB THIS DECISION HAS SINCE BEEN OVERTURNED BY A CHANGE IN THE RULES, SEE THE POST HERE. The decision of Deputy Master Pickering in Billington -v- Davies [2016] EWHC 1919 (Ch) illustrates two important principles that are often overlooked. A…
PROPORTIONATE COSTS IN A FAMILY CASE: £33,813 REDUCED TO £3,737.50
In K -v- K [2016] EWHC 2002 (Fam) Mr Justice Macdonald reduced the costs of a successful party to an appeal in a family case. “The stringent test of proportionality in relation to costs incurred applies with equal force in…
OBTAIN AN INJUNCTION: PAY TENS OF MILLIONS IN COMPENSATION: ANOTHER WARNING LESSON
This blog has looked several times at the dangers of obtaining injunctions. A particular danger is the undertaking in damages that has to be given when obtaining an injunction to freeze assets. The judgment of Mr Justice Males in Fiona…
STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE
There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…
THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED
The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change. There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court. Coincidentally…
ANOTHER ROUND IN THE CFA ASSIGNMENT BATTLE: CFA CAN BE ASSIGNED
In Azim -v- Tradwise Insurance Services Limited [2016] EWHC B20 (Costs) Master Leonard found that a conditional fee agreement could properly be assigned. KEY POINTS An assignment of a CFA between solicitors was valid. The validity of an assignment did…
PAYING THE CORRECT COURT FEE: ACTION STAYED: SANITY IS BREAKING OUT
There are several interesting issues arising out of the judgment of Master Clark in Lifestyles Equities C.V. -v- Sportsdirect.Com Retail Limited [2016] EWHC 2092. In particular the fact that the decision in Richard Lewis & Others -v- Ward Hadaway [2015]…
TOO LATE AND TOO LONG: OCEANS APART BUT TWO JUDGES HAVE THE SAME VIEW ON LAWYERS' LATE & LENGTHY SUBMISSIONS
Some parts of the legal profession do not have a reputation for concision. It is interesting to see similar observations coming from two judges, in two very different jurisdictions, on the same day. “Sly lawyers take advantage of this institutional…
BILLING YOUR OWN CLIENT: FIVE IMPORTANT LESSONS FROM THE HIGH COURT
There are number of important lessons to be drawn from the judgment yesterday of Master Gordon-Saker in Rahimian -v- Allan Janes LLP [2016] EWHC B18 (Costs). THE CASE The claimant sought an order that the defendant firm of solicitors deliver…
DELAY AND SETTING ASIDE DEFAULT JUDGMENT: BALD ASSERTIONS IN AN EXPERT'S REPORT
The result in Gahir -v- Bansal [2016] EWHC 2041 (QB) (Sir David Eady) is perhaps surprising given the strength of the judge’s observations as to the defendant’s conduct. Despite major unjustified delay an application to set aside a default judgment…
ATTRITIONAL WARFARE; UNMERITORIOUS POINTS AND UNFOUNDED ALLEGATIONS OF BAD FAITH: SO MUCH (AND MORE) IN ONE JUDGMENT
The judgment today of Mr Justice Edis in Hayden -v- Maidstone & Tunbridge Wells NHS Trust makes for uncomfortable reading on the issue of the general attitude of the lawyers towards the conduct of the litigation. In addition to…
"SECOND" ACTION FOR CLINICAL NEGLIGENCE NOT STRUCK OUT AS AN ABUSE OF PROCESS
In the judgment today in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) Mr Justice Edis refused the defendant’s application to strike out the claim or for summary judgment on the grounds that the claimant had settled an…
PAYING THE "CORRECT" COURT FEE AND AMENDMENT: AN IMPORTANT CASE REVIEWING THE PRINCIPLES
This blog has looked several times* at the cases and principles that have followed the decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch). Applications around allegations of failure to pay the correct court fee have become a new battleground…
IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY
A post last month highlighted a case where a defendant obtained judgment in default on a counterclaim. The judge refused to set aside the judgment and, in effect, the claimant’s entire claim failed. There is a clear and obvious need…
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
YOU CAN BE A TOUGH NEGOTIATOR- YOU CAN ALSO FALL FLAT ON YOUR FACE: HIGH COURT CASE EXAMINED
The law of privilege prevents a close study of the negotiation process in most cases. That is why everyone involved in litigation could benefit from reading the judgment today of Mrs Justice Slade in FPH Law -v- Brown [2016] EWHC…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID? WHEN THE CFAS DID NOT COVER THE COSTS: BAD NEWS FOR SOLICITORS AND COUNSEL
The judgment today of Mr Justice Warby in Radford -v- Frade [2016] EWHC 1600 (QB) contains an important warning in relation to the construction of CFAs both for solicitors and counsel. KEY POINTS A solicitor entered into a CFA with…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
PROVING THINGS 23: SERVING IMPORTANT EVIDENCE LATE
It is surprising how many posts there are on this blog which deal with the late service of witness evidence. This is an issue that occurs across the whole spectrum of civil procedure. The question arose again in the judgment…
ADVOCACY – THE JUDGE’S VIEW IV: "AVOID BULLSHIT, SMOKE AND MIRRORS" (OH AND BEWARE OF "WELL PADDED VANITY")
In the fourth in this series we are returning to Australia and looking at the guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember…
SERVICE OF PROCEEDINGS AND MISSING DOCUMENTS: WHY IT IS DANGEROUS FOR A DEFENDANT TO ATTEMPT TO STAND ON ITS RIGHTS
When proceedings are served and key documents are missing it is tempting for a defendant to attempt to stand on its rights and not reply at all to the claim. However the case of Rushworth -v- Harvey [2016] EWHC 1386…
BUNDLES EXHIBITS AND PAGINATION: AVOIDING COSTLY MISTAKES
I have given up being surprised that the post on trial bundles and Sedley’s Law is the most read post on this blog. Day after day, month after month, it draws a regular readership. However, in practical terms, it is…
EXTENSION OF THE CLAIM FORM: A RARE SUCCESS FOR A CLAIMANT (BUT IT HAS GOT A LOT TO DO WITH CONDUCT)
Most cases relating to extensions of time for service for the claim form end badly for the claimant. The decision of Mr Justice Roth in The Khan Partnership LLP -v- Infinity Distribution Limited [2016] EWHC 1390 (Ch) is an exception….
CLAIMANT ALLOWED TO RELY ON WITNESS EVIDENCE SERVED DURING TRIAL
Yesterday I looked at a case where a defendant was refused permission to rely upon a witness statement served late,96 although it was served before trial. Today we look at a case where a claimant was given permission to rely…
DEFENDANT REFUSED PERMISSION TO ADDUCE FURTHER EVIDENCE: LATE EVIDENCE IS ALWAYS A PROBLEM
I am grateful to barrister Michelle Fanneran for sending me a copy of the decision of His Honour Judge Cotter QC in the case of Moore -v- Plymouth Hospitals Trust (11th May 2016). This involves consideration of relief from…
STRIKING OUT A PLEADING WHEN IT DOES NOT COMPLY WITH THE RULES
In Jones -v- Longley [2016] EWHC 1309 (Ch) Master Matthews considered the criteria for striking out a pleading, in this case a counterclaim. There are important observations on the needs for pleadings to comply with the rules; on the fact…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
EXPERT SHOPPING: CHANGING EXPERTS AND DISCLOSURE OF REPORTS
Suspicions are often aroused when an party wants to change expert mid-way through a case. There is, usually, a requirement that before a court grants permission to instruct a new expert the previous report has to be disclosed. The case…
STATEMENTS OF CASE & THE STATEMENT OF TRUTH: CAN A PARTY ARGUE TWO DIFFERENT THINGS?
There are some interesting observations by Mr Justice Leggatt in ED&F Sugar ltd -v- T&L Sugar Ltd [2016] EWHC 272 (Comm). KEY POINTS A statement of truth which supported particulars of claim was a statement of fact. An assertion in…
WITNESS STATEMENTS CANNOT REPLACE PLEADINGS &"CUT AND PASTE" WITNESS STATEMENTS ARE UNLIKELY TO IMPRESS
In Chong -v- Alexander [2015] EWHC 735 (CH) Richard Spearman Q.C. (sitting as a Deputy Judge) had to consider several issues relating to statements of case and witness evidence. “…the typographical error (“At” instead of “As”), is replicated in a…
You must be logged in to post a comment.