A CLEVER PLOY: HIRE EXPENSIVE LAWYERS AND THEN ARGUE COSTS ARE DISPROPORTIONAL
The decision of Mr Justice Foskett in Vilca -v- Xtrata Limited [2016] EWHC 389 (QB) is interesting for a number of reasons, in particular relating to disclosure and case management. Here I want to look at the judge’s consideration of arguments…
CONTESTED APPLICATION TO TRANSFER TO THE FINANCIAL LIST
In Property Alliance Group Limited -v- Royal Bank of Scotland PLC [2016] ~EWHC 207 (Ch) Sir Terence Atherton considered a contested application to transfer proceedings into the Financial List. There is a useful explanation as to the scope of the…
PROBATE FEES,COSTS AND FATAL ACCIDENTS: SIX KEY POINTS
There has been major controversy recently about the proposed increase in probate fees. In particular there was some concern, expressed on twitter, that claimants could not afford to issue proceedings. There are a number of points that need to be…
A SPLIT TRIAL ON A PRELIMINARY ISSUE: ANOTHER CAUTIONARY TALE
A post earlier this month looked at the dangers of a court ordering a trial on a preliminary issue on a point of law. Similar concerns were raised by Mr Justice Edwards-Stuart in Water Lilly Co Ltd -v- Clin [2016] EWHC…
THE IMPACT OF PROCEDURE UPON SUBSTANTIVE LAW: KNAUER -v- MOJ
I have written elsewhere about the impact of the Supreme Court decision in Knauer v Ministry of Justice [2016] UKSC 9. It is interesting to look at one short part of the judgment to reflect how changes to procedure can have…
LEGALLY STREETWISE: WHAT YOU DON’T LEARN IN LAW SCHOOL
Initially it was a surprise to discover that law students were being told to read this blog (I am not sure I need that kind of pressure). Apparently prospective pupils and trainees are advised to read it to answer interview…
COURT CLOSURES, POOR DECISION MAKING AND BEECHING: AN EVISCERATING ANALOGY
I have already written about how court closures will undermine the fabric of the civil justice system. Justice will be imposed on communities from afar, rather than being an integral part of the local community. However I thought it important…
HEARING AN APPLICATION FOR PRE-ACTION DISCLOSURE AFTER PROCEEDINGS ARE ISSUED: FURTHER DEVELOPMENTS
An earlier post considered the question whether an application for pre-action disclosure can properly be made after proceedings were issued. This issue was considered again by HHJ Moloney QC (sitting as a judge of the High Court) in Anglia Research…
LORD CHANCELLOR GETS A BONUS: THE POWERFUL RESULTS OF A CLAIMANT'S PART 36 OFFER
There are many interesting issues in the judgment of Mr Justice Holgate in The Lord Chancellor -v- Charles Ete & Co [2016] EWHC 275 (QB) which may be interesting to examine at a later date. However one significant point was…
MONEY JUDGMENT SHOULD NOT HAVE BEEN GIVEN AFTER BREACH OF PEREMPTORY ORDER
In Rubin -v- Parsons [2016] EWHC 237 (Ch) Mr Justice Peter Smith considered the effect of breach of peremptory order in a case where the applicants were claiming much more complex relief. It shows that a much more calibrated approach…
PROVING THINGS 9: THE ROLE OF EXPERTS
Here I want to pick up on a few observations of Mr Justice Snowden in Grant -v-Ralls [2016] EWHC 243 (Ch) a case we looked at yesterday. That is the role of the experts. It is dangerous to defer the “proving”…
PROVING THINGS 7: IF YOU DON'T PROVE A LOSS YOU DON'T GET AN ORDER: DIRECTORS DON'T HAVE TO CONTRIBUTE
This occasional series on the need to prove matters by evidence has covered a wide range of cases. Today we consider company law and insolvency. In Grant -v-Ralls [2016] EWHC 243 (Ch) Mr Justice Snowden rejected a claim by liquidators…
LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN'T END WELL FOR THE DEFAULTING PARTY
In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late. KEY POINTS The…
THIS IS A SORRY TALE OF WOE:SPECULATIVE SKELETON ARGUMENTS ARE OF NO ASSISTANCE
In Lokhova -v- Tymula [2016] EWHC 225(QB) Mr Justice Dingemans set out a sorry tale of procedural issues in relation to applications in a defamation action. There are important observations in relation to co-operation; service of witness evidence and the…
PROVING THINGS 5: WITNESS STATEMENTS AND FAILING ON CAUSATION
The judgment of the Court of Appeal in Abdel-Khalek -v- Qazi Ali [2016] EWCA Civ 80 demonstrates both the difficulties of compounding lay and “expert” evidence and how a case can fail on causation. KEY POINTS The burden was on…
ORDERING A SPLIT TRIAL ON PRELIMINARY ISSUES: A CAUTIONARY TALE
In Larkfleet -v- Allison Homes Eastern Limited [2016] EWHC 195 (TCC) Mr Justice Fraser made some important observations about the need for total clarity when a court orders the trial of a preliminary issue of law. ‘Preliminary points of law…
IN LITIGATION, AS IN LIFE, THINGS WILL GO WRONG: HAVING A STRATEGY IN PLACE
There has been a lot of publicity recently about lawyers who have been struck off for, effectively, making things up to cover up mistakes. In the most recent case a time limit was missed for the First Tier Tribunal and…
THE MEANING OF THE WORD "CLAIM": A PSYCHOLOGICAL PHENOMENON
In Global Flood Defence Systems -v- Johan Den Noort Beheer BV [2016] EWHC 189 (IPEC) His Honour Judge Hacon was considering an issue very specific to the Intellecutal Property Enterprise Court. However the observations are interesting and may be of…
NOT A RACING CERTAINTY BUT INDEMNITY COSTS FOLLOW CLAIMANT'S PART 36 OFFER
In Jockey Club Racehorse Ltd -v- Willmott Dixon Construction Limited [2016] EWHC 167 (TCC) Mr Justice Edwards-Stuart held that a claimant’s Part 36 offer to settle for 95% was a relevant offer and had costs consequences for the defendant. KEY…
A FURTHER GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 2: BE CAREFUL ABOUT THE ADDRESS FOR SERVICE
Now that the gyms are emptying out again this is a good time to provide one of the periodical reminders about the civil litigator’s new year’s resolutions. Just concentrating upon the address for service. RESOLUTION 2 KNOW THE ADDRESS AND…
WHAT IS A TRIAL? AND WHY DOES IT MATTER?
In Pickard -v- Roberts [2016] EWHC 187 (Ch) Mr John Baldwin QC (Sitting as a Deputy Judge of the Chancery Division) had to consider whether a hearing was a “trial” and whether this had any impact upon the decision to…
FAILURES IN DISCLOSURE AND WITNESS EVIDENCE YET SUCCESSFUL ON APPEAL
The decision of the Court of Appeal in Sobrany -v- UAB Transtira [2016] EWCA Civ 28 gives rise to a few interesting procedural points. It is worth remarking, however, that many of the difficulties arose because of failures by the…
SERVICE OF PROCEEDINGS WHEN THEY ARE PUT IN THE BIN: A HIGH COURT DECISION
In Morby -v- Gate Gourmet Luxembourg IV SARL [2016] EWHC 74 (Ch) Edward Murray (sitting as a Deputy Judge of the Chancery Division) considered an issue relating to personal service. “If facts are in dispute, absent special situations, it would…
EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: A RISKY BUSINESS
In Medhi Kohsravi -v- British American Tobacco PLC [2016] EWHC 123 (QB)Sir David Eady stated that he would have set aside an order extending time for service of the claim form. It is a timely warning that obtaining an extension…
LATE AMENDMENT ALLOWED: TRIAL DATE MOVED: A CLINICAL NEGLIGENCE CASE
In G -v- Kings College Hospital NHS Foundation Trust Appeal [2016] EWHC 104 (QB) Mrs Justice May granted the claimant permission to amend the Particulars of Claim even though this meant moving a 7 day trial listed in early April…
RELIEF FROM SANCTIONS, "MATERIALITY" & CONSIDERING THE MERITS IN A DEFAULT JUDGMENT: APPEAL AGAINST REFUSAL OF RELIEF ALLOWED
In Joshi & Welch Limited -v- Tay Foods [2015] EWHC 3905 (QB) Mr Justice Green allowed an appeal where the judge a first instance refused to grant relief from sanctions. Much centred on the definition of the word “material”. The…
RELIEF FROM SANCTIONS APPLICATIONS: 10 POINTS TO IMPROVE THE ODDS
It is now just over 18 months since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. It is clear that default remains a problem and an issue within the civil courts. Further it…
PERMISSION NOT GRANTED TO CALL EMPLOYMENT EXPERTS: THE RELEVANT PRINCIPLES CONSIDERED
In Various Claimants -v- Sir Robert McAlpine [2016] EWHC 45 (QB) Mr Justice Supperstone and Master Leslie considered the rules and case law in relation to the need to call expert witnesses in detail. KEY POINTS The claimants were refused…
RELIEF FROM SANCTIONS REFUSED: NO PERMISSION TO SERVE RESPONDENT'S NOTICE LATE
In Pipe -v- Spicerhaart Estate Agents Ltd [2016] EWHC 61 QB Mr Justice Sweeney refused permission to serve a Respondent’s notice late. “Against the background that this is a small claims case, the conduct of the Respondent in relation to…
DECISION NOT TO ADMIT LATE WITNESS EVIDENCE UPHELD BY THE COURT OF APPEAL
There is a brief report on Lawtel of the decision in Judges Sykes Frixous -v- Bhabra (CA 14/010/2016).* This provides another example of a party (unsuccessfully) trying to serve witness evidence late in the day. There are numerous posts on…
NO RELIEF FROM SANCTIONS AFTER BREACH OF A PEREMPTORY ORDER: HIGH COURT DECISION CONSIDERED
In Sinclair -V- Dorsey & Whitney (Europe) LLP [2015] EWHC 3888 (Comm) Mr Justice refused an application from relief from sanctions. (I am grateful to Michael Wilson & Partners Ltd for sending me a copy of the transcript). “The starting point is…
A POTENTIAL BENEFICIARY CANNOT BRING AN ACTION ON BEHALF OF AN ESTATE
The facts in Haastrup -v- Okorie [2016] EWHC 12 (Ch) are somewhat complex. However they do bring home some important matters in relation to the need to have capacity to bring proceedings on behalf of an estate. The judgment of…
SERVICE BY EMAIL IS GOOD SERVICE: FAMILY COURT DECISION
Issues of electronic service are still relatively novel. Some interesting issues were addressed by Mostyn J in Maughan -v- Wilmot [2015] EWHC 29 (Fam). This is a family case where important observations are made in relation to service by email…
APPLICATIONS FOR PRE-ACTION DISCLOSURE MUST BE MADE PRE-ACTION (NOT A GREAT SURPRISE THIS)
In Personal Management Solutions Ltd -v- Gee 7 Group Wealth Limited [2015] EWHC 3859(Ch) Mr Justice Morgan decided that applications for pre-action disclosure must be made pre-disclosure. The court did not have jurisdiction to make such an application once proceedings…
FIXED COSTS, PART 36 AND THE PROTOCOL: A DIFFERENT OUTCOME
NB this decision was upheld by the Court of Appeal. Broadhurst -v- Tan [2016] EWCA Civ 94. The post earlier today on fixed costs after Part 36 offers led Benjamin Williams QC to, kindly, send me a decision of Smith -v-…
LATE SERVICE OF THE CLAIM FORM, EXTENSIONS OF TIME AND RESTORATION TO THE REGISTER: IT DOESN'T END WELL
The decision in Hyfield Estates Ltd -v- Eggar [2015] EWHC 3773 (QB) (His Honour Judge Peter Hughes QC sitting as a Judge of the High Court) provides another example of the dangers of late service of the claim form “It…
CIVIL COURTS STRUCTURE REVIEW: LINKS
The Civil Courts Structure Review has potentially profound changes to the structure of the civil courts. Here are links to the key documents The report itself is available here The Welcoming Statement is available here The press summary can be…
FIXED COSTS AND CLAIMANT'S PART 36 OFFERS
This case must be read with the Court of decision in Broadhurst -v- Tan [2016] EWCA Civ 94. This effectively overrides this decision. Fixed costs do not apply when indemnity costs are ordered. There is a report, helpfully put online by…
LIMITATION, PAIN AND ANGUISH: A GENTLE REMINDER ABOUT NEW YEAR'S RESOLUTIONS (1)
Most New Year’s resolutions last 24 days. In an effort to keep litigators on board for the whole of the year in relation to the Resolutions for Litigators for 2016 I am doing a series of short reminders about the…
NEW EVIDENCE ALLOWED AFTER HEARING: A HIGH COURT DECISION
In Swift Advances PLc -v- Ahmed [2015] EWHC 3265 (Ch) Mr Justice Norris permitted new evidence to be adduced after evidence and submissions had been completed. “..it may be expected that courts will allow fresh evidence when to refuse it…
THE DANGERS OF NOT PAYING THE CORRECT COURT FEE: CASES BARRED BY LIMITATION BECAUSE WRONG COURT FEE WAS PAID
In Richard Lewis & Others -v- Ward Hadaway [2015] EWHC 3503 (Ch) Mr John Male QC summary judgment was given for the defendants on the grounds that a deliberate decision to pay an incorrect court fee on issue meant…
WITNESSES: PERSONAL ATTENDANCE, VIDEO LINKS AND DEPOSITIONS
In another decision in the Kimathi -v- Foreign and Commonwealth Office [2015] EWHC 3684 (QB) case Mr Justice Stewart considered the question of whether witnesses should attend court, use video link or whether depositions should be taken. “the general rule…
RELIEF FROM SANCTIONS, FRAUD AND THE CHANGING SITUATION
I must preface this post with the warning that it is not possible to cite decisions relating to permission to appeal. However the decision in Bawden -v- WM Morrison Supermarkets PLC [2015] EWCA Civ 957 is interesting in itself. The…
USING WITNESS STATEMENTS PREPARED IN ANOTHER ACTION: WHEN IS A "HEARING HELD IN PUBLIC"
CPR 32.12 prevents witness statements served in an action being used for any other purpose. However there is an exception when a statement is “put in evidence at a hearing held in public”. This issue was considered in Kimathi -v- Foreign…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS
We civil litigators cannot be left out of the, apparently universal, need for an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing. Here we look at poetry, carpet bombing and disappearing…
THE GAME MUST BE WORTH THE CANDLE: ACTION STOPPED IN ITS TRACKS BECAUSE THE CLAIMANT HAD NOTHING TO GAIN
In IG Index Ltd -v- Cloete [2015] EWHC 3698 (QB) HHJ Richard Parkes QC (sitting as a judge of the High Court) struck out an action on the grounds that the claimant had nothing to gain. KEY POINTS The court…
STRIKING OUT FOR LACK OF JURISDICTION (OR HADRIAN'S WALL IS THERE FOR A PURPOSE YOU KNOW)
The Court of Appeal decision in Cook -v- Virgin Media Limited [2015] EWCA Civ 1287 is one that needs to be read very carefully. It is one of those cases that could lead to a whole new branch of satellite…
WAITING FOR LEGAL AID IS NOT A GOOD REASON FOR DELAY: COURT OF APPEAL DECISION
In R (Kigen) -v- Secretary of State for the Home Department [2015] EWCA Civ 1286 the Court of Appeal stated that delay caused by waiting for the Legal Aid Agency may no longer be accepted as a good reason for…
WHEN THE COURT FAILS TO SERVE: AN IRREGULAR JUDGMENT MUST BE SET ASIDE
In Tanir -v- Tanir [2015] EWHC 3363 (QB) Mr Justice Garnham found that the court had failed to serve the claim form and, consequently, a judgment had to be set aside. The court had no discretion to act otherwise. “The…
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