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…
SECOND ACTION AGAINST A DIFFERENT DEFENDANT STRUCK OUT FOR ABUSE OF PROCESS: ALCOCK -v- PARK BUSINESS CENTRES LIMITED
Should a second action, issued because the first was struck out for some reason, be struck out? I am grateful to Charles Bagot of Hardwicke Chambers for sending me a copy of the transcript of a decision by District Judge…
IF YOU CAN'T PROVE YOU HAVE A PROPER RETAINER YOU WON'T GET PAID: SHIPPING IN FROM HULL
In Scott -v- Hull & East Yorkshire Hospitals NHS Trust [2014] Ew Misc B53(CC) the claimant failed to recover any costs against the defendant because he failed to prove that there was a valid CFA. THE FACTS A detailed assessment was…
WITNESS STATEMENTS AND WITNESS CREDIBILITY: GETTING BACK TO BASICS
If a litigant takes a matter to trial and the result rests, ultimately, on witness evidence, then those advising must (or at least should) have a clear and certain grasp of the factors governing witness credibility. This issue is almost…
THE MITCHELL CASE AND WITNESS EVIDENCE: CREDIBILITY, STRONG VIEWS AND RELIABILITY
The Mitchell case was at the forefront of attention a year ago when the Court of Appeal set out its (apparently widely misunderstood) views on relief from sanctions. It is even more in the headlines today. The case has been…
DEVELOPMENTS SINCE DENTON: ALL THE POSTS AND CASES IN ONE PLACE
We are now exactly one year on since Mitchell and 237 days since Denton. This is a good a time as any to review the Post Denton decisions on this blog. It is interesting that there were no reports in…
SUPREME COURT JUDGMENT: SIGNATURE OF DISCLOSURE LISTS, CASE MANAGEMENT AND COMPLIANCE
The Supreme Court judgment in HRH Prince Abdulaziz Bin Mishal bin Abdulaziz Al Saud (Appellant) v Apex GlobalManagement Ltd and another (Respondents) [2014] UKSC 64 contains some important observations in relation to disclosure and case management. BACKGROUND TO THE CASE This…
RELIEF FROM SANCTIONS REFUSED WHEN DEFENDANT WAS TACTICALLY PLAYING FOR TIME
In Talos Capital Ltd -v- JSC Investment Holding Ltd (QBC 21/11/14)* Flaux J refused an application for an extension of time to acknowledge service and challenge the jurisdiction in circumstances where the delay was held to be deliberate and tactical….
WHAT COSTS AWARD SHOULD BE MADE AFTER A SPLIT TRIAL? A HIGH COURT DECISION
In Merck KGaA -v- Merck Sharp & Dhome Corpe [2014] EWHC 3920 (Ch) Mr Justice Nugee considered what order should be made as to costs after a claimant had succeeded on a trial of a preliminary issue. The judge held…
NOMINAL DAMAGES AWARD LEADS TO NO COSTS AT TRIAL & 25% OF COSTS ON APPEAL
In Walker -v- the Commissioner of the Police of the Metropolis [2014] EWCA Civ 897 the Court of Appeal considered the appropriate costs award when a claimant succeeded on appeal but the appellate court held that he should only recover…
ONE YEAR LATE IN SERVING A WITNESS STATEMENT: RELIEF FROM SANCTIONS GRANTED – BUT ON TERMS
There is a report on Lawtel *of the case of Owners of Motor Vessel Coal Hunter -v- Owners of Motor Vessel Yusho Regulus (QBD Admiralty 20/11/2014, Teare J) where the court considered an application for permission to rely on a…
AN IMPORTANT CASE ON COSTS; "INTERESTED PARTY" COSTS; RELIEF FROM SANCTIONS AND SUMMARY ASSESSMENT
In Group M Uk Ltd -v- The Cabinet Office [2014] EWHC 3863 (TCC) Mr Justice Akenhead mad some important observations as to the liability to pay the costs of “interested parties”; the late serving of costs schedules; relief from sanctions…
CLAIMANT OBTAINED COSTS OF ACTION EVEN AFTER DISCONTINUANCE: WATCH THE WORDING OF CORRESPONDENCE
In Rokvic -v- Peacock [2014] EWHC 3729 (TC) the claimant obtained an order for costs against the defendant even though the claimant had discontinued the action. It is, if anything, a warning to be totally precise in wording when making offers and…
CLAIMANTS HAD COMPLIED WITH PEREMPTORY ORDER: CASE NOT STRUCK OUT
There is a brief report on Lawtel of the case of Sharma -v- Quality Redfern Solicitors (Ch D Judge Behrens 19/11/2014). The decision concerns the striking out of a claim for breach of an order and the judge finding, on…
STRESS AND THE LITIGATION PROCESS: HOW CAN LAWYERS MAKE MATTERS BETTER?
There is a very useful article in the Solicitors Journal on stress and litigation (to avoid hyperbole I will not use the word “brilliant” but it deserves it.) Hugh Koch analyse the sources of stress for litigants. This made me…
OFFER TO SETTLE HAS MAJOR IMPACT ON COSTS OF CASE: NO SUGARING OF THIS PILL
In Sugar Hut Group Ltd -v- AJ Insurance [2014] EWHC 3775 (Comm) Mr Justice Eder held that an offer of settlement had a major impact on costs even though it was not a valid Part 36 offer and the claimant…
EXTRAORDINARY CASE: THE SOLICITOR MADE LITIGATION UP: THE CONSEQUENCES FOR THE CLIENT
The opening paragraphs of the judgment set out an almost unbelievable set of facts in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm). The judgment considered the consequences for…
RIGHT TO INDEMNITY COSTS ARISES OUT OF CONTRACTUAL TERM
In Renewable Power & Light Ltd -v- McCarthy Tetrault [2014] EWHC 3848 (Ch) Mr Justice Morgan held that a defendant was entitled to indemnity costs when a claimant discontinued a claim half way through a trial. Indemnity costs were awarded…
LIMITATION: DELIBERATE CONCEALMENT BY THE DEFENDANT EXTENDS THE LIMITATION PERIOD
In IT Human Resources PLC -v- Land [2014] EWHC3812 (Ch) Mr Justice Morgan considered when the limitation period started when there had been concealment by a defendant. It is an important example of s.32 of the Limitation Act 1980 in…
ROUTE OF APPEAL FOR AN UNALLOCATED CASE: LIE -v- MOHILE
In Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal. THE ACTION This was a partnership…
APPLICATIONS TO SET ASIDE DEFAULT JUDGMENT & THE MITCHELL/DENTON PRINCIPLES: ANOTHER HIGH COURT CASE
There are now several cases that deal with how the “Mitchell/Denton” principles effect applications to have judgment set aside. In Robinson -v- Kensington & Chelsea Royal London Borough (Sir Michael Tugendhat 03/011.204 QB)* a default judgment was set aside on…
WANT TO KNOW ABOUT ONEROUS PART 18 QUESTIONS; DISCLOSURE, COSTS CAPPING & BUDGETS: JUST GOOGLE IT
In Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB) Mr Justice Edis considered some interesting issues of costs management and costs capping. The short judgment is important reading in relation to the scope of Part 18 questions…
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
"MADNESS" OVER COSTS AND USELESS TRIAL BUNDLES : VIEWS FROM ANOTHER JURISDICTION
Civil practitioners may benefit from reading the observations of Mostyn J in J -v- J [2014] EWHC 3654 (Fam). It suggests that family lawyers may soon be subject to much more rigorous costs budgeting. There are also important observations about…
SOLICITOR'S BILL OF COSTS STRUCK OUT BECAUSE CLAIM WAS EXAGGERATED AND (IN PART) FALSE
In Alpha Rocks Solicitors -v- Alade [2014] EWHC 3606 (Ch) Kevin Prosser Q.C., sitting as a judge of the High Court, struck out part of the solicitor’s bill as an abuse of process. The case makes instructive reading. It involved…
WITNESS CREDIBILITY; DOCUMENTS; RECOLLECTION AND PLAYING AWAY FROM HOME WHEN THERE ARE MILLIONS AT STAKE
Earlier posts have looked at the issue of witness credibility in the context of civil trials. Here we look at the issue of witness evidence in the context of a multi million pound dispute between corporations. The judgment, given earlier…
"IN TIME" APPLICATION FOR EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM REFUSED: A DANGER AREA TO WATCH
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was…
