COSTS AGAINST NON-PARTIES: NOTHING LOST IN TRANSLATION: THE CAPITA CASE CONSIDERED
The decision today of Sir James Munby In the Matter of Capita Translation and Interpreting Limited [2015] EWFC 5 reiterates the principles of costs against third parties. The judgment contains a detailed review of the law relating to cost liability…
CHILDREN CASES AND THE RECOVERY OF A SUCCESS FEE: CHANGES COMING INTO FORCE ON APRIL 6th
Amidst all the changes to Part 36 it is easy to miss the fact that changes in relation to children cases on the 6th April 2015. In essence this provides a mechanism for the court to consider the deduction of…
THE COURT OF APPEAL CAN RE-OPEN A DECISION TO REFUSE PERMISSION TO APPEAL WHEN IT IS ALLEGED THE JUDGMENT WAS OBTAINED BY FRAUD
In Bishop -v- Chhokar [2015] EWCA Civ 24 the Court of Appeal decided that it had jurisdiction to re-open an order refusing permission to appeal when it was alleged that a judgment was obtained by fraud. THE CASE The respondent…
THE MITCHELL CASE AND COSTS: IN THE NEWS AGAIN
My apologies for relying on a non-legal source. However the BBC reports that Mr Mitchell has been ordered to pay both sets of costs in the defamation action. THE CASE BBC News reports a decision of Mr Justice Mitting that…
LATE SERVICE OF WITNESS STATEMENTS AND RELIEF FROM SANCTIONS IN THE HIGH COURT
In Devon & Cornwall Autistic Community Trust -v- Cornwall Council [2015] EWHC 129 (QB) the claimant’s application for the adjournment of the trial date was refused. However the claimant was given permission to serve witness statements late. Mr Justice Green…
MORE ON ADVERSE INFERENCES FROM ABSENT WITNESSES: A CLINICAL NEGLIGENCE CASE
In Webb -v- Liverpool Women’s NHS Foundation Trust [2015] EWHC 133 (QB) HH Judge Saffman (sitting as a judge of the High Court) considered the implications of an important witness not called by the defendant in a clinical negligence case….
SUMMARY JUDGMENT: CONDITIONAL LEAVE TO DEFEND NOT A RUNNER-UP PRIZE: A BARRIER TO THE FLOODGATES ARGUMENT?
In Global Flood Defence Systems Ltd -v- Van Den Noort Innovations BV [2015] EWHC 153 (IPEC) HH Judge Hacon made it clear that a court would only make an order giving conditional leave to defend in limited circumstances. THE CASE…
THE DUTY OF FULL AND FRANK DISCLOSURE: A CASE IN POINT
In PCV -v- The Y Regional Government of X [2014] EWHC 68 (Comm) Mr Justice Hamblen set out, in clear terms, the rigorous nature of the duty to give full and frank disclosure to the court when making a without…
PRELIMINARY APPLICATIONS: DEPARTING FROM COST BUDGETS AND FAILURE TO SERVE COST SCHEDULES: A HIGH COURT DECISION
In Simpson -v- MGN Limited [2015] EWHC 126 (QB) Mr Justice Warby considered several contentions in relation to costs budgeting; non-service of costs schedules and proportionality. This is, again, a case that serves as an object lesson as to the…
THE DANGERS OF A PART 36 OFFER: CLAIMANT PAYS THREE TIMES MORE IN COSTS THAN HE RECEIVED IN DAMAGES
The dangers of a claimant rejecting a Part 36 offer are clearly demonstrated in the case of UWUG Ltd & Haiss -v- Ball [2015] EWHC 74 (IPEC). The claimant received damages of £2,859.20 but was ordered to pay the defendant…
COSTS AT THE END OF THE CASE: THE JUDGE CAN MAKE OBSERVATIONS ABOUT MATTERS OUTSIDE THE COSTS BUDGET
The judgment of H.H. Judge Simon Brown Q.C in Excelerate Technology Ltd -v- Cumberbatch [2015] EWHC B1 Mercantile contains some interesting observations at the end. This illustrates the need for trial counsel to be aware of both the costs budget…
THE RIHANNA CASE AND OPINION EVIDENCE IN WITNESS STATEMENTS: BEEN THERE, DONE THAT GOT THE TEE SHIRT
We should, perhaps, get used to celebrities dominating the law reports. After court fees are increased they will be the only people who will be able to afford litigation in any event. The case of Robyn Rihanna Fenty -v- Arcadia…
GET BUNDLES AND SKELETON ARGUMENTS TO COURT – OR ELSE: CHIEF CONSTABLE COPS IT
There is a brief report on Lawtel today of the case of Marsh -v- Ministry of Justice (QB Phillips J 20/01/2015)*. It provides an object lesson on the need for all parties (and non-parties) to lodge – or re-lodge -…
GORDON RAMSAY CASE AND WITNESS EVIDENCE: ABSENCE OF KEY WITNESSES DOES NOT LEAD TO TURNING UP OF THE HEAT
The case of Gordon Ramsay -v- Gary Love [2015] EWHC 65 (Ch) has had much attention in the media, primarily because of the identity of the claimant. However the judge made important observations as to the inferences that can be…
SERVICE OF THE CLAIM FORM: E-MAILING A COPY IS NOT GOOD SERVICE (AND WON'T BE EXCUSED)
Service of the claim form raises its head for the second time in two days. In Dunbar Assets Plc -v- BCP Premier Limited [2014] EWHC 10 (Ch) Mr John Baldwin QC (sitting as a Deputy Judge) overturned an order that…
SIX MONTH PERIOD FOR SERVICE, EVEN IF "FOREIGN" DEFENDANT ACTUALLY SERVED WITHIN THE JURISDICTION
Another interesting twist to the law of service of proceedings can be found in the Court of Appeal decision in Ashley -v- Tesco Stores (15/01/2015)*. The Court of Appeal found that there was a six month period for service of…
LATE SERVICE OF WITNESS STATEMENTS: ORAL APPLICATION TO EXTEND TIME GRANTED – BUT ON STRICT TERMS
In Rai -v- Jaskaran Singh Bholowasia Pardes Weekly (UK) Ltd [2014] EWHC 4501 (QB) Mrs Justice Simler granted what was effectively an oral application for relief from sanctions. THE CASE The claimant brought an action for defamation. There was an…
COSTS REDUCED FROM £201,000 TO £96,465 ON SUMMARY ASSESSMENT: A WORKING EXAMPLE OF PROPORTIONALITY IN PRACTICE
It is always useful to look at the way in which courts are carrying out summary assessments. Another interesting example of the pragmatic approach adopted can be found in the judgment of Mr Justice Akenhead in Savoye -v- Spicers Ltd…
£3,500 DAMAGES: A 10 DAY TRIAL: 3 DAYS IN THE COURT OF APPEAL: £500,000 IN COSTS: BLEAK HOUSE IN THE COURT OF APPEAL
In Gilks -v- Hodgson [2015] EWCA Civ 5 the Court of Appeal had strong words to say about the costs of a boundary dispute. The observations should be read by anyone tempted to litigate about these issues. THE CASE The…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -V- WEBINVEST IN THE COURT OF APPEAL
The case of Avonwick -v- Webinvest has been looked at before on this blog. Mr Justice David Richards held that letters asking for time to pay a debt were not covered by privilege just because they were headed “without prejudice”….
RECEIVERS, EXTENSIONS OF TIME AND RIGOROUS COSTS BUDGETING TO ENSURE PROPORTIONALITY
The Denton principles were considered by Mr Registrar Jones in Justice Capital Ltd -v- Murphy [2014] All ER (D) 187 (Dec). There were important issues in relation to proportionality and costs. Of particular interest is the rigorous case management and…
RELIEF FROM SANCTIONS AND THE LATE SERVICE OF WITNESS STATEMENTS (AGAIN)
The issue of serving witness statements late, with relief from sanctions being required, was considered by Mr Justice Warby in Hamdani -v- Khafaf & others [2015] EWHC 38 (QB). It contains some timely warnings. THE CASE The claimants were bringing…
JUDGE – CAN YOU CHANGE YOUR MIND PLEASE? THE CIRCUMSTANCES IN WHICH A JUDGE CAN REVIEW THEIR OWN DECISION
In Altus Group (UK) Limited -v- Baker Tilly [2015] EWHC 12 (Ch) HH Judge Keyser QC reviewed the circumstances in which a judge can change their mind after sending out a draft judgment. THE CASE The claimant brought an action…
SERVICE OF THE CLAIM FORM: WHAT CAN POSSIBLY GO WRONG? TEN SIMPLE POINTS TO MAKE LIFE EASIER
Service of the claim form remain a major cause of problems. Here we re-cap on the basic causes of many of the problems, with links through to the many posts on this subject. 1. NOT SERVING THE CLAIM FORM IN…
CASE MANAGEMENT, DIRECTIONS AND ATTENDANCE OF THE PARTIES: A WARNING SHOT FROM THE COMMERCIAL COURT
In Richardson -v- Glencore UK Ltd [2014] EWHC 3990 (Comm) Mr Justice Walker had strong words to say about any apparent casualness by the parties in preparing for, and attending, the Case Management Conference. The judgment was intended to be…
THE NEW PART 36: PART 10: PULLING IT ALL TOGETHER: 18 KEY POINTS
This post provides a summary of the changes to Part 36 and then considers the practical implications of the new rules, including the implications for on-going litigation. There are links to the relevant posts on the issue and a summary…
RELIEF FROM SANCTIONS: BUNDLES; EXPERT EVIDENCE AND LITIGANTS IN PERSON
The case of Nata Lee Ltd -v- Abid [2014] EWCA Civ 1652 has already attracted attention following the observations the Court of Appeal make about relief from sanctions and litigants in person. However there are several important observations about procedure…
PROPORTIONALITY & SURVIVAL FOR LITIGATORS: PART 2: A WHOLE NEW APPROACH?
It is no accident that there is nearly a month between the first post in this series and the second. Nor is it surprising that very little (if anything) has been written on “proportional” litigation. This is a difficult subject….
THE NEW PART 36: PART 5: WAS THE OFFER A "GENUINE ATTEMPT" TO SETTLE PROCEEDINGS?
One addition to the rule is a further factor for the court to take into account when considering whether or not the usual costs, and other consequences, of Part 36 should apply. THE NEW CPR 36.17: COSTS CONSEQUENCES FOLLOWING JUDGMENT…
CIVIL CASE OF THE YEAR: AA -v- LBS: DAVID -v- GOLIATH?
There were only a few comments when I asked, on twitter, for recommendations for the civil case of the year. I have overlooked the obvious candidate (Denton)and gone for a case that can, and should, reinvigorate belief in the civil…
ADMISSION UNDER THE PROTOCOL AND PORTAL MAY NOT BE BINDING IN SUBSEQUENT PROCEEDINGS
Is an admission made by an insurer under the Portal binding on the parties in a future action? In September last year we looked at the case of Ullah -v- Jon where a district judge held that an admission was…
THE ADVOCATE AS WITNESS: PROCEDURE WHEN A REPRESENTATIVE HAS TO GIVE EVIDENCE
Previous posts have dealt with the problem of defining the line between submissions and evidence – with the dangers that an advocate could be “giving evidence”. However there are circumstances in which an advocate may have to give evidence as…
CIVIL LITIGATION: REVIEW OF 2014: PROLIXITY, SANCTIONS, CREATIVE WRITING AND MUCH MORE
It is coming to that time of the year where everyone does an annual review. We civil litigators cannot be left out. Here is an annual review for the past 12 months. If people want to make additional suggestions in…
E-DISCLOSURE & BREACH OF ORDERS: CASE STRUCK OUT: NO QUESTION: AND NO QUARTER GIVEN
In Smailes -v-McNally [2014] EWCA Civ 1296 the Court of Appeal made it clear that breach of a peremptory order in relation to disclosure will lead to grave consequences for the defaulting litigant. THE CASE This case was looked at…
THE DENTON PRINCIPLES AND SEEKING TO AVOID PAYING MONEY DUE UNDER COURT ORDERS
The application of the Denton principles was considered by Mr Justice Peter Smith in Mulugeta Guadie Mangiste -v- Endownment Fund for the Rehabilitation of Tigray [2014] EWHC 4196 (Ch) when reviewing an argument that the claimant should not pay an order for…
GUIDES FOR LITIGANTS IN PERSON, CLIENTS AND ALL THOSE INVOLVED IN THE LITIGATION PROCESS
The Court of Appeal today indicated that “more help” was needed for litigants in person. Here we look at the guidance that exists. LORD JUSTICE MOORE-BICK OBSERVED TODAY: In R (Dinjan Hysaj) v Secretary of State for the Home Department…
EXTENSIONS OF TIME TO APPEAL: MITCHELL AND DENTON PRINCIPLES APPLY
In a combined decision in three cases heard today* [2014] EWCA Civ 1633 the Court of Appeal set out important guidance in relation to applications to appeal out of time. Practitioners must be aware of the time limit for appeals,…
"THE LEAST MANAGEABLE CASE I HAVE EVER TRIED TO MANAGE": CASE MANAGEMENT UPHELD BY THE COURT OF APPEAL
This was the description given by His Honour Judge Mackie QC when he was considering, and refusing, an application by the defendant to strike the action out. The decisions he made were upheld by the Court of Appeal In Walsham…
LIMITATION, PROFESSIONAL NEGLIGENCE AND SUMMARY JUDGMENT: AN IMPORTANT LESSON
The case of Seton House Group -v- Mercer Ltd [2014] EWHC 4234 (Ch) shows the importance of being certain of a limitation period and issuing well before that date. In this case, however, the limitation period had passed well before the…
CASE STRUCK OUT AFTER JUDGMENT BECAUSE REPEATED FAILURES TO COMPLY AMOUNTED TO AN ABUSE OF PROCESS
In Zaman -v- Paradise UK Ltd (QBD) 11/12/2014* Judge Seymour QC upheld a decision of the Master to strike out a personal injury action on the grounds of abuse of process where liability had been admitted. This is an important…
SETTING ASIDE A DEFAULT JUDGMENT AFTER AN ORDER IS STILL SUBJECT TO CPR 13: JUDGMENT SET ASIDE WHEN NO GOOD REASON FOR DEFENDANT'S DELAY
In QRS -v- Beach & Kordowski [2014] EWHC 2189 (QB) Mr Justice Warby considered the relevant criteria for setting aside a default judgment when the court makes an order/declaration? There is a detailed discussion of the relevant law and the appropriate…
SUMMARY ASSESSMENT OF COSTS: AN IMPORTANT EXAMPLE
This blog has looked at examples of the summary assessment of costs before. These do not give rise to any great principles or points of law. Summary assessments are rarely (if ever) reported. Virtually every litigator is going to be…
CLAIMANT BEATS OWN PART 36 OFFER AND RECEIVES AN ADDITIONAL £75,000 IN DAMAGES
The advantages to a claimant in making a prompt, and realistic, Part 36 offer are shown in the judgment of Sir David Eady in Downing -v- Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB). THE KEY POINT…
COSTS OF £7 MILLION: PART 36 BITES HARD ON CLAIMANTS WHO CLEARED A FIRST HURDLE BUT FELL AT THE SECOND
If anyone ever needed a lesson on the risks of litigation they should read the judgment of Mr Justice Eder in Ted Baker plc -v- Axa Insurances UK Plc [2014] EWHC 4178 (Comm). THE CASE There had been a preliminary…
BACK TO BASICS WITH PLEADINGS: PROPORTIONATE LITIGATION AND BREVITY ESSENTIAL ON APPEALS
“Pleadings are intended to help the Court and the parties. In recent years practitioners have, on occasion, lost sight of that aim. Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never…
DENTON, MITCHELL AND ADMINISTRATIVE LAW: PUBLIC INTEREST IS A "HIGHLY SIGNIFICANT FACTOR"
The Denton and Mitchell criteria were considered, in passing, in R (RA-Nigeria) -v- Secretary of State for the Home Department [2014] EWHC 4073(Admin). Where Andrew Thomas QC, sitting as a Deputy High Court Judge, considered an application that the Defendant…
POST-MITCHELL PRE-DENTON DECISION TO GRANT RELIEF FROM SANCTIONS OVERTURNED ON APPEAL
In British Gas Trading -v- Oak Cash & Carry [2014] EWHC 4058 (QB) Mrs Justice McGowan DBE overturned a decision granting a defendant relief from sanctions. What is particularly interesting is that the original decision was made post-Mitchell but prior…
COSTS, PROPORTIONALITY AND GETTING THE BUNDLES RIGHT: TAKE EVERYTHING OUT OF COURT NOW AND COME BACK TOMORROW
An earlier post reported on the observations of Mostyn J in J-v-J in relation to costs, proportionality and bundles. If you take the indignation and sense of outrage expressed in J-v-J about costs, preparation and bundles, and then quadruple it,…
MAKING AN "APPORTIONED" COSTS ORDER: A CLAIMANT WHO RECOVERS LESS THAN THEY ARE ASKING IS NOT A "LOSER"
It is more common for a judge to “apportion” costs at the end of a trial to reflect the merits of the case and the “success” of each party. In Trant -v- Stokes (o3/12/2014 CA)* the Court of Appeal overturned…
ADDITIONAL PARTIES CANNOT BE ADDED IF THERE IS NO CONNECTION TO CURRENT ACTION: THE ABC OF XYZ
In the latest decision in the XYZ case [2014] EWHC 4056 (QB) Mrs Justice Thirlwall DBE rejected an application that the insurers of the defendants be joined into the action. There was no real connection between the issues in the…
