STRIKING OUT SPECIAL DAMAGES CLAIM BECAUSE OF ABSENCE OF EVIDENCE IN WITNESS STATEMENT: MORE DETAIL PROVIDED
I am grateful to Dave Toulson of Hill Dickinson for a more detailed explanation of the news that prompted the article on drafting witness statements and proving damages. The original tweet was that a claim for hire had been struck…
THE DANGERS OF NOT USING PRE-ACTION PROTOCOLS & THE PRACTICE DIRECTION TO THE FULL: A WORKING EXAMPLE OF PROBLEMS CAUSED BY PREMATURE ISSUE
The next in the series was going to be a review of the rules and principles relating to pre-action conduct. However Kerry Underwood has written a post that deals with this issue comprehensively and I have nothing to add. Here we look…
MAKE SURE YOUR WITNESS STATEMENT PROVES YOUR CASE
The genesis of this article is a tweet earlier today where a solicitor reported that a claim for the cost of hire and storage had been struck out because the witness statement was deficient. “C entire hire, storage & recovery…
SURVIVING MITCHELL 6: "YOU GOTTA HAVE A PLAN": BE READY FOR TRIAL THE DAY YOU ISSUE
The unforgiving nature of the Mitchell decision means that litigators have to be certain that they will be able to comply with any directions that the court orders. In effect this means that a claimant has to be ready for…
LODGING TRIAL BUNDLES ON TIME: THE COURT WILL NOT GIVE A RECEIPT
I received an e-mail today from Kerry Kirkbride of Active Legal Ltd in Birmingham. It follows an earlier post in relation to the need to lodge the trial bundle at time. I have permission from Kerry to re-print it in…
TWO NEW CASES WHERE RELIEF FROM SANCTIONS REFUSED: WEBB RESOLUTIONS AND LLOYD & SONS CONSIDERED IN DETAIL
There were two High Court cases on relief from sanctions considered today. Both were decisions of Mr Justice Turner Here we consider Webb Resolutions –v- E-Surv Limited [2014] EWHC 49 (QB)and M A Lloyd –v- PPC International Ltd [2014] EWHC…
TWO FURTHER DECISIONS REFUSING RELIEF FROM SANCTIONS: LINKS TO CASES
There are two further High Court decisions where relief from sanctions was refused. Webb Resolutions -v- E Surv [2014] EWHC 49 (QB) MA Lloyd & Sons -v- PPC International [2014] EWHC 41 (QB) These are links to the decisions. A full discussion…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 4: BE CAREFUL WHEN AGREEING VARIATIONS OF THE DIRECTIONS
One issue that has arisen consistently since the Mitchell decision in particular is whether the parties can agree to vary directions. The answer is far from simple. THE RULES The rules are always a good place to start. CPR 2.11…
HAVE YOU COMPLIED WITH AN ORDER FOR DISCLOSURE? THE APPROPRIATE TEST: AN OBJECT LESSON ON LITIGATION TACTICS IN A POST-MITCHELL WORLD
With relief from sanctions being notoriously hard to obtain the question of whether a party has complied with an order, particularly an unless order, is now of critical importance. In Dinsdale Moorland Services Ltd –v- Evans 2014] EWHC 2 (Ch)…
MITCHELL CONSIDERED BY THE COURT OF APPEAL FOR A THIRD TIME: ANOTHER TWIST IN THE THEVARAJAH TALE
In the case heard today of Thevarajah –v- Riordan [2014] EWCA Civ 15the Court of Appeal reiterated the rigorous nature of the Mitchell test. Here we look at that decision in detail and the trenchant observations made by the Court….
THE MITCHELL CRITERIA AND THE CHOICE OF JUDGE
The case of Mitchell featured in the decision of Mr Justice Turner in Biljani -v- Unum Ltd[2014] EWHC 27 (QB) . An application for the matter to be listed in front of a High Court judge was refused, part of the…
MITCHELL AND ABUSE OF PROCESS: ANOTHER EXAMPLE OF A CASE STRUCK OUT
Mitchell, in terms of the importance of case management, was mentioned in the High Court case of Vaughan –v-London Borough of Lewisham. The facts were unusual, but the reference to case management powers and the importance of the economy and…
DO YOU NEED TO APPLY FOR RELIEF FROM SANCTIONS OR AN EXTENSION OF TIME? ANOTHER KEY ISSUE PRACTITIONERS SHOULD BE CERTAIN ABOUT
There was an interesting debate on twitter on Friday evening about whether Mitchell was being cited too widely. It was reported that, in some cases district judges had rejected the argument that when parties were applying for extension of time…
SECOND ACTION STRUCK OUT AS AN ABUSE OF PROCESS: REPORT OF FIRST INSTANCE DECISION
Searches for “abuse of process and section action” formed more than half of the search terms that brought people to this blog earlier in the week. It is clear that this is going to be a major subject of litigation…
CAN THE COURT CUT DOWN THE NUMBER OF WITNESS STATEMENTS? MACLENNAN –v- MORGAN SINDALL CONSIDERED.
One little noticed part of the Jackson reforms was the introduction of a new to CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now…
ISSUING PROCEEDINGS A SECOND TIME: NOT AN ABUSE OF PROCESS: HALL –v- MINISTRY OF DEFENCE EXAMINED
Can a claimant issue again if an action is struck because of a failure to comply with the rules and? This is likely to become a question of considerable interest given the number of cases that are failing because of…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 3: IF YOU CANNOT COMPLY WITH A RULE OR PRACTICE DIRECTION THEN MAKE AN APPLICATION BEFORE IT IS BREACHED
The Mitchell case makes it clear that applications for relief from sanctions made after breach will be granted sparingly. Here we consider the merits of making an application in advance of the date of breach. WHAT THE COURT OF APPEAL…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 2: ASSUME EVERY ORDER OF THE COURT IS A PEREMPTORY ORDER.
Some of the cases on sanctions reported this week have been highly disturbing; with cases being struck out on the morning of the trial because the bundles were not lodged three days earlier. As a result the only safe assumption…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE : 1 KNOW WHAT HAPPENED IN MITCHELL AND HOW IT COULD HAVE BEEN AVOIDED
The decision in Mitchell is already having a major impact on day to day litigation. This is the first of a series of posts which looks at the Mitchell decision and deals with the practical steps that practitioner’s must take…
PRE-ACTION DISCLOSURE: THE APPROPRIATE TEST CONSIDERED BY THE COURT OF APPEAL
In Smith –v- Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585 the Court of Appeal stress that applications for pre-action disclosure should not become “mini trials” and set out the appropriate test for the courts to consider….
BIFFA WASTE SERVICES: RELIEF FROM SANCTIONS: FULL TRANSCRIPT NOW AVAILABLE
Biffa Waste Services Ltd –v- Ali Dinler [2013] is a case where the judge, on appeal, overturned an earlier order granting relief from sanctions. The full transcript is now available and is notable for its detailed consideration of the principles…
DO YOU HAVE TO FILE FORM H IN PART 8 PROCEEDINGS? SOMETHING YOU SHOULD BE SURE ABOUT
All litigators know (or should know) the central importance of Form H in civil procedure. If you don’t file the form in time then you don’t get paid. A colleague today asked me whether it was necessary to file a…
“AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED.”
It may be thought that commentary on issues of procedural default is in abeyance until the Mitchell decision from the Court of Appeal. However, as recent posts have shown, cases are still coming through thick and fast. When a judge…
PROPORTIONALITY AND COSTS: IT APPLIES TO BIG CASES AS WELL
The short judgment of Mr Justice Males in the case of Vitol Bahrain –v- Nasdec General Trading LLC makes it clear that the issue of proportionality in costs impacts upon cases of every size, even the most major multi-million dollar…
INTERESTING FIRST INSTANCE DECISION ON STRIKING OUT SPECIAL DAMAGES BECAUSE OF DILATORY CONDUCT BY THE CLAIMANT
The 9sjs website has an interesting report of a decision in the Bow County Court where the judge struck out a claim for £220,000 on the grounds that the claimant had not complied with directions. See the report at http://www.9sjs.com/assets/Uploads/ozbay.pdf It…
WHAT CAN YOU DO IF THE PROPOSED DEFENDANT IS DEAD AND THERE IS NO GRANT OF PROBATE OR ADMINISTRATION?
A recent post looked at the problems of issuing proceedings before letters of administration are taken out. Here we consider the problems when a proposed defendant has died and there are no executors or administrators. THE PROBLEM Probate is not…
THE IMPORTANCE OF DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES
The Civil Procedure Rules set out rigorous requirements for the structure and layout of witness statements. The editors of the White Book note (at 32.4.5 of the latest supplement that) “Unfortunately, rules, practice directions and guidance as to the contents…
