LETTERS OF EXPLANATION NOT GOOD ENOUGH: SOLICITOR SHOULD HAVE EXPLAINED MATTERS TO THE CLIENT: COURT OF APPEAL UPHOLD DECISION ON SOLICITOR'S NEGLIGENCE
In Procter -v- Raleys Solicitors [2015] EWCA Civ 400 the Court of Appeal upheld a decision at first instance that a failure to give an oral explanation to a client was negligent. The solicitors could not simply rely on standard…
PAYMENTS ON ACCOUNT OF COSTS DO NOT BREACH BREACH INDEMNITY PRINCIPLE AND SHOULD BE A "REASONABLE SUM"
In XYZ -v- Transform Medical Group (CS) Limited [2015] EWHC 1151 (QB) Mrs Justice Thirlwall DBE considered several issues in relation to payments on account of costs. THE CASE The action is a group action in which nearly 1000 women…
FAILURE TO GIVE ADEQUATE REPLIES TO PART 18 QUESTIONS LEADS TO ACTION BEING STRUCK OUT: RELIEF FROM SANCTIONS REFUSED
In his judgment today in Griffith -v- Gourgey [2015] EWHC 1080 (Ch) Mr Justice Simon addressed the issue of whether an action stands struck out if a party gives inadequate replies to Part 18 questions after a peremptory order has…
ANOTHER LATE WITNESS STATEMENT: RELIEF FROM SANCTIONS REFUSED
There is a brief report on Lawtel of the decision of Judge Robinson in Buswell -v- Symes (QBD 20/04/2015) this involves another case where a witness statement was served late and permission to rely upon that statement was refused. *…
JUDGE SHOULD NOT HAVE MADE COSTS ORDER WHICH WIPED OUT CLAIMANT'S DAMAGES: COURT OF APPEAL DECISION TODAY
In Begum -v- Birmingham City Council [2015] EWCA Civ 386 the Court of Appeal allowed an appeal by a claimant where the decision on costs at first instance effectively deprived her of damages. THE CASE The issue is succinctly summarised…
WITNESS STATEMENTS AND AVOIDING JAIL: ARE YOU PROTECTING YOUR CLIENTS AND PROTECTING YOURSELF?
In the recent case of Hughmans -v- Dunhill [2015] EWHC 716 (Ch) an interesting point arose about the drafting of a witness statement when a (former) client alleged that it had largely been drafted by her (former) solicitor. The assertion…
DECISION REGULARISING SERVICE OF UNSEALED CLAIM FORM NOT SET ASIDE EVEN THOUGH UNAUTHORISED BODY HAD SERVED THE CLAIM FORM
In Heron Bros Ltd -v- Central Bedfordshire Council (No 2) [2015] EWHC 1009 (TCC) Mr Justice Edwards-Stuart declined an application to vary his original order that service of an unsealed claim form, served under the Public Service Regulations, was an…
THE "URGENT NEED FOR COMMERCIAL PRACTITIONERS TO BRING A SENSE OF PROPORTION" TO LITIGATION: EVIDENCE NEEDED IN WHEN ARGUING SECURITY FOR COSTS "STIFLES" AN ACTION.
In Kazakhstan Kagazy Plc -v- Baglan Zhunus [2015] EWHC 996 Mr Justice Walker had strong words to say, and constructive guidance to give, in relation to some aspects of commercial litigation. The case further serves as a reminder of the…
FOREIGN JUDGMENTS, EXTENSIONS OF TIME AND RELIEF FROM SANCTIONS
In Christofi -v- National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB) Mrs Justice Andrews DBE considered whether the court had power to extend time in relation to an application to set aside registration of a foreign judgment. She…
WITNESS STATEMENTS, EXHIBITS AND NOT MAKING AN EXHIBITION OF YOURSELF: THE OFTEN IGNORED RULES ABOUT EXHIBITS TO WITNESS STATEMENTS
Your life will not be complete unless you have read a post about exhibits to witness statements. The “exhibiting” of documents is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to…
PLEADING, PARTICULARITY, SUMMARY JUDGMENT AND STRIKING OUT: WAIT UNTIL AFTER DISCLOSURE
In Dellal -v- Dellal [2015] EWHC 907 (Fam) Mr Justice Mostyn made some important observations about the need for particularity in pleading THE CASE The claimant was bringing an action under the Inheritance (Provision for Family and Dependants) Act 1975…
THE AMENDED PRE-ACTION PROTOCOLS ARE OUT: THE LINK
The revised Pre-Action Protocols are now available (3 days after they came into force). THE LINK The Protocols are available on the Justice website and available here. There are 119 pages. THE AMENDMENTS Amendments are made to 8 of the Protocols….
COSTS OF EXPERTS AND GOING OUTSIDE THE COSTS BUDGET: THE HIGH COURT REFUSES TO EXTEND BUDGETED ITEMS AFTER A TRIAL
In Parish -v- The Danwood Group Ltd [2015] EWHC 940(QB) HH Judge Behrens (sitting as a judge of the High Court) considered various issues relating to the costs budget at the end of a trial. THE CASE The claimants were…
FATAL ACCIDENT AND FATAL PLEADINGS: THE NEED TO PLEAD AND PROVE FOREIGN LAW
On the face of it the case of Bianco -v- Bennett [2015] EWHC 626 (QB) is simply a case about fatal accidents. I was going to discuss it solely on the Fatal Accident Blog. On close reading, however, it reveals…
WHEN YOU GET BACK TO WORK ON TUESDAY THERE ARE NEW CHANGES TO THE PRE ACTION PROTOCOLS IN FORCE: AND YOU MAY STRUGGLE TO FIND THEM
If new rules are important you would think that great time and effort would be spent in making sure that practitioners had plenty of advance notice and they were readily available for study and consideration before they came into force….
THE LAST WORKING DAYS OF THE "OLD" PART 36: LINKS TO POSTS & ARTICLES ON THE NEW RULES
The new Part 36 comes into force on the 6th April. Here are links to posts and guidance in relation to the new rules on this blog and then links to many other commentators. POSTS ON THE NEW PART 36…
HAYWARD MAY HAVE BEEN WAYWARD BUT THERE WAS NO LOOKING BACKWARD: SETTLED CLAIM NOT RE-OPENED
In Hayward -v- Zurich Insurance Company PLC [2015] EWCA Civ 327 today the Court of Appeal overturned a decision that a claimant should repay a large part of a personal injury award from an earlier settled action. This decision makes…
SIGNING DISCLOSURE STATEMENTS? REMEMBER YOU CAN GO TO PRISON: OTKRITIE CONSIDERED
In Oktritie International -v- Gersamia and Jemai [2014] EWHC 821 (Comm) a respondent to the action was sentenced to 20 months imprisonment. Part of that committal was relating to forgery. However important observations were made about the disclosure statement. THE…
TROUBLESOME BUNDLES YET AGAIN: MR JUSTICE EDER SPEAKS OUT ON WASTEFUL BUNDLES IN THE COMMERCIAL COURT
The question of bundles was raised by Mr Justice Eder in Taberna Europe -v- Selskabet [2015] EWHC 871 (Comm). This is hardly a new complaint and appears across the board in all jurisdictions. (There are now 16 posts on this…
ADJOURNMENT GRANTED WHEN MEDICAL EXPERT "UNABLE" TO ATTEND: BETTER EVIDENCE NEEDED IN FUTURE
In D -v- the Secretary of State for Health [2015] EWHC 867(QB) Mr Justice Foskett granted the claimant when an important expert was unable to attend for somewhat unusual reasons. The judgment was designed to set out clear guidance for…
WHY YOUR WITNESS STATEMENTS SHOULD BE MADE IN CHELSEA: MAKING FIRST HAND STATEMENTS AVOIDS PENALTIES
The post earlier this week in relation to the need for full disclosure on without notice injunctions also highlighted the need for first hand evidence. There are real dangers when a solicitor signs a witness statement. That principle was highlighted…
SOMETHING FOR THE WEEKEND: THE SOLICITOR WHO TOOK ON SALFORD OVER COURT FEES AND WON
I may make a habit of blogging cheerful(ish) stuff on a Friday*. This weeks its hats of to Dominic Cooper of IE Legal Solicitors who was sent me details of his run in, and success, with Salford. THE DISPUTE Like…
COSTS NOT RECOVERED WHEN DEFENDANT NOT NAMED IN CFA: SENIOR COSTS OFFICE DECISION
The GWS website has a link to a decision of a decision of Deputy Master Friston made in the Senior Court Costs Office in Hailey -v- Assurance Mutuelle Des Motards (CCD 1405291). It relates to the question whether costs can…
ITS NOT WHAT THE JUDGE SAID BUT THE WAY THAT THEY SAID IT: DISCUSSIONS FROM DOWN UNDER
The Supreme Court of South Australia made some interesting observations about the interaction between the bench and the bar in Stone -v- Moore [2015] SASC 46 (24th March 2015). In particular what does the appellate court do when a complaint…
LITIGATE IN HASTE AND YOU WON'T NECESSARILY BE ALLOWED TO AMEND AT LEISURE: SU-LING -v- GOLMAN SACHS INTERNATIONAL
In the judgment today in Quah Su-Ling -v- Goldman Sachs International [2015] EWHC Mrs Justice Carr DBE refused a claimant permission to amend her particulars of claim at a late stage. The judgment contains a succinct review of the law…
FOOTBALL, SEX, INJUNCTIONS AND MATERIAL NON-DISCLOSURE: BE CAREFUL NOT TO GET ON THE JUDGE'S OFFSIDE
In YXB -v- TNO Mr Justice Warby set out the importance of full and frank disclosure on parties making an application for an ex-parte injunction. It also reiterates the importance of claimants giving direct evidence whenever possible and the dangers…
SOLICITOR FOUND TO HAVE DELIBERATELY MISLED THE COURT: BOREH -v- DJIBOUTI
In Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) Mr Justice Flaux made a clear and unequivocal finding that a solicitor had deliberately misled the court. This led to the setting aside of the injunction that the clients had…
IS SERVICE OF AN UNSEALED CLAIM FORM GOOD SERVICE? NOW THAT'S A QUESTION
In Heron Bros Ltd -v- Central Bedfordshire Council [2015] EWHC 604 (TCC) Mr Justice Edwards-Stuart considered the question of whether service of an unsealed claim form is good service. In most cases the answer is probably “no”. However the judge…
PLEADINGS SHOULD CONTAIN FACTS NOT ARGUMENT OR RHETORIC
There have been a surprising number of occasions recently where judges have had to draw attention to the basic principles of pleadings. Pleading are for facts, nor argument or “rhetoric”. Another example can be seen in the judgment of Sir…
STATUTORY APPEALS: "EXCEPTIONAL CIRCUMSTANCES" AND APPEALING OUT OF TIME: WITH IMPORTANT POINTS ON THE REMISSION OF COURT FEES
In The Nursing and Midwifery Council -v- Daniels [2015] EWCA Civ 225 the Court of Appeal emphasised the need for exceptional circumstances to exist when a party is seeking an extension of time to a statutory time period for appealing….
WHAT A DIFFERENCE A DAY MAKES: APPLYING AHEAD OF TIME AVOIDS DENTON PRINCIPLES
In Peak Hotels & Resorts Ltd -v- Tarek Investments* (Ch D 12/03/15) Hildyard J made an order extending time for providing security for costs. The case highlights (a) the importance of applying before the date for compliance has expired and…
LATE SERVICE OF THE CLAIM FORM: EXTENSION REFUSED: REMINDER TO SERVE PROMPTLY AND PROPERLY
The case of Bellcrown Associates Ltd -v- Royal Bank of Scotland (QBC) 17/03/2015 is reported on Lawtel today*. It provides another example of the dangers of not serving a claim form properly. THE CASE The claimant was bringing an action…
ASSESSING THE EVIDENCE ON A SUMMARY JUDGMENT APPLICATION: CRITICAL EXAMINATION OF THE RAW MATERIAL IS NECESSARY
In Calland -v- Financial Conduct Authority [2015] EWCA Civ 192 the Court of Appeal set out important principles to be considered when the court is considering an application for summary judgment. THE CASE The claimant brought an action under the…
PLEADINGS, EVIDENCE & PUTTING THE CLAIMANT TO PROOF: AHMED -v- LALIK & THE CO-OP
In Ahmed -v- Lalik & Co-operative Insurance Society Limited [2015] EWCA 651 (QB) Mr Justice Cranston considered some important issues in relation to pleading, evidence and procedure in a case where a defendant insurer has suspicions about the nature of…
INTEREST ON COSTS; PAYMENTS ON ACCOUNT OF COSTS & INDEMNITY COSTS AGAINST FUNDERS: EXCALIBUR IN THE REPORTS AGAIN
We have looked at the Excalibur case before in the context of an order for indemnity costs against funders. Further decisions in relation to costs were made by Christopher Clarke L.J. in Excalibur Ventures LLC -v- Texas Keystone INC [2015]…
IT IS NOT THAT EASY TO WITHDRAW AN ADMISSION: McWILLIAM -v- NORTON FINANCE
In McWilliam -v- Norton Finance [2015] EWCA Civ 186 the Court of Appeal made some important observations in relation to admissions and the withdrawal of admissions. THE CASE The claimant was suing the defendant for secret commissions. The defendant argued…
MITIGATING THE IMPACT OF THE COURT FEE INCREASE 3: ONLY CLAIM WHAT ITS WORTH AND WHAT YOU ARE GOING TO GET
This is the third in the series on mitigating the effect of court fees. The new fees regime makes clear the need for as much accuracy as possible in assessing what the likely award is going to be. An additional…
RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: ANOTHER EXAMPLE
In Sloutsker -v- Romanova [2015] EWHC 545 (QB) Warby J granted the claimant relief from sanctions after it failed to serve witness statements in time. THE CASE The claimants brought an action for libel. The defendant applied for orders setting…
THERE ARE NOW UNEXPLODED GRENADES IN YOUR FILING CABINET: SERVE PROCEEDINGS PROMPTLY AND PROPERLY
One problem with the flurry of issuing proceedings last week is that there will now be numerous actions that have been issued which are not fully ready and where service will be delayed. Remember that un-served proceedings means that there…
IF YOU WANT A STAY PENDING APPEAL MAKE FULL AND TOTAL DISCLOSURE
In Goldsmith -v- O’Brien [2015] EWHC 510 (Ch) Judge Purle QC refused an application for a stay pending appeal. The case is an important reminder of the burden on a party seeking a stay pending appeal. THE CASE The claimant…
THE DEBATE ON COURT FEES IN THE HOUSE OF LORDS: WELL WORTH READING
Every litigator should read the debate on court fees that was held in the House of Lords. There are some trenchant criticisms of the MO(i)J which was responded to by “cant”. I have highlighted passages of interest but this is…
WHEN BUNDLES & SANCTIONS COLLIDE: DAVIS -v- RAJA: FAILURE TO FILE APPEAL BUNDLE LEADS TO APPEAL BEING STRUCK OUT
In Davis Solicitors LLP -v- Raja [2015] EWHC 519 (QB) Mr Justice Supperstone refused the claimant relief from sanctions following a failure to comply with directions on appeal in relation to the filing of a bundle. There are important practical…
MITIGATING THE IMPACT OF THE COURT FEE INCREASE 2: FEE REMISSION – EVERY LITIGATOR HAS TO KNOW THIS NOW
This is the second in the series of posts on mitigating the impact of the court fee increase. Not for the first time Kerry Underwood has got to this point already. I am not going to repeat anything Kerry says…
PETITION ABOUT THE INCREASE IN COURT FEES
There is a petition to the Ministry of Justice which can be signed on-line. WHY SIGN THE PETITION? Regular readers of this blog will know the importance. This is summarised in the petition document itself “WHY IS THIS PETITION IMPORTANT?…
FIVE MORE IMPORTANT POINTS FOR THOSE ISSUING IN HASTE
Friday is ( or may be) effectively the last day you can issue under the old fee regime. This is going to be a busy day for many litigators. Here are five points in an attempt to ensure that no…
FOUR IMPORTANT POINTS FOR THOSE HASTILY ISSUING PROCEEDINGS THIS WEEK
Twitter and other sources have been full of stories of solicitors issuing numerous proceedings to avoid the (wholly ridiculous) price hike next week. There are a few things that should be borne in mind by all those who have issued…
MITIGATING THE IMPACT OF THE COURT FEES INCREASE 1: LIMITATION STANDSTILL AGREEMENTS
The general view of the court fee increases is well known. The increases are based on inadequate research and will have a major detrimental effect on the economy as well as the interests of justice. Since the increases are likely…
COURT FEES: IMPORTANT DEVELOPMENTS: IMPLEMENTATION DATE THE 9th MARCH
The Law Society Gazette reports that the implementation date for the revised Court Fees is likely to be the 9th March. It is interesting to look at recent developments and responses. OTHER DEVELOPMENTS Compare and contrast “Justice minister Shailesh Vara…
MORE ON INDEMNITY COSTS AND THE SUMMARY ASSESSMENT OF COSTS AT TRIAL: INTERCITY TELECOMS -v- SOLANKI
NOTE THAT THIS JUDGMENT HAS BEEN OVERTURNED BY THE COURT OF APPEAL, SEE THE POST HERE In Intercity Telecom -v- Solanki [2015] Judge Simon Brown QC awarded indemnity costs and assessed costs at the end of a trial. It is…
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