“PREPARED IN A WAY THAT MAKES ME ASHAMED OF MY PROFESSION”: ENSURING WITNESS STATEMENTS ARE ACCURATE IS AN IMPORTANT TASK – IF YOU WANT TO KEEP YOUR JOB…
There are nearly 800 posts on this blog that deal with issues relating to witness statements. The importance of ensuring that a statement is accurate is seen in the judgment of the Solicitors Disciplinary Tribunal in SRA -v- Gilfillan, available…
SERVING THE COURT FORM (AFTER) THE LAST MINUTE: COURTING DISASTER LEADING TO A WASTED COSTS ORDER BEING MADE
The judgment of Master Cook in Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy [2020] EWHC 2229 (QB) provides an object lesson on the dangers of not serving the claim form well within the four month period. The judgment…
GET YOUR COSTS SCHEDULES TO COURT: OR ELSE (YOU WON’T GET PAID): MAKE YOUR BED AND THEN LIE IN IT
The judgment of Mr Justice Mostyn in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin)has a number of elements that are of interest to costs lawyers, and litigators generally. I am going to…
NEARLY LEGAL: JOHNNY DEPP: WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: “EVERY LITIGATION SOLICITOR IN THE COUNTRY SIGHS HEAVILY IN WEARY FAMILIARITY…”
A Tweet this evening, followed by a number of comments, causes me to repeat my advice on the necessity of the lawyer protecting themselves when drafting a witness statement on behalf of a client or witness. NEARLY LEGAL…
CLAIM AGAINST SOLICITORS WAS STATUTE BARRED: THAT SIX YEAR LIMITATION PERIOD MAY NOT ALWAYS START WHEN YOU THINK
It is surprising how many of the reported cases relating to mis-service of the claim form are professional negligence cases. It appears to be a common practice to run a case up to the end of the limitation period and,…
WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES
Last week I gave an in-house talk to a London firm of solicitors.* One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …
WOULD YOU BELIEVE IT? ANOTHER CASE WHEN CLAIM FORM WRONGLY SERVED : CLAIMANT “SERVED” ON SOLICITORS WHO DID NOT HAVE INSTRUCTIONS TO ACCEPT SERVICE
In the judgment in Gallagher v Hallows Associates [2020] EW Misc 7 (CC) HHJ Jarman QC found that a defendant had been wrongly served when it was sent to solicitors who did not state they had instructions to accept service. This…
WHEN YOU MUST AND WHEN YOU CAN’T SERVE PROCEEDINGS ON THE CLIENT’S SOLICITOR (ESSENTIAL KNOWLEDGE)
The judgment yesterday in Piepenbrock v Associated Newspapers Ltd & Ors [2020] EWHC 1708 gives rise to that familiar issue of when a party can, and cannot, serve on the defendant’s solicitor. No apologies are made for repeating the rules here. …
THE SEVEN YEAR ITCH: CIVIL LITIGATION BRIEFS’ 7th (OR 29th?) BIRTHDAY: FACTS, FIGURES AND HOW IT ALL BEGAN
This week sees the seventh anniversary of Civil Litigation Brief as a blog. That, it appears, is relatively young as a blog, the housing law blog Nearly Legal recently celebrated its 14th anniversary and is well into its truculent teenage…
WHEN THE SKY FALLS IN: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 6th AUGUST 2020
I have been writing on this blog for some time now that lawyers should be taught that mistakes happen. We should aim to avoid them but if errors are made they are often rectifiable if dealt with correctly and quickly. …
THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Two years on this is a good time to recap on…
COVID REPEATS 47: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Here I am repeating a post that was originally “crowd sourced” from Twitter. It is a post on “what to do if things go wrong”. Here is the advice specifically on what the best course of action is when…
COVID REPEATS 39: THE DANGERS OF OBTAINING ONE-SIDED WITNESS STATEMENTS: A PROBLEM THAT CANNOT BE GARAGED
This week we are looking at past posts and cases on witness statements and witness evidence. This is an area with no shortage of cases to choose from. I have made the point, many times, that witness statements are basically…
WHY YOU NEED TO KNOW THE RULES AND GUIDANCE IN RELATION TO SURVEILLANCE EVIDENCE: A WEBINAR
In the judgment discussed earlier today in Tully v Exterion Media (UK) Ltd & Anor [2020] EWHC 1119 (QB), Master McCloud, made some important observations in relation to how the courts deal with surveillance evidence. As a result of that…
LATE WITNESS STATEMENT: RELIEF FROM SANCTIONS NOT GRANTED: A WARNING AGAINST COMPLACENCY
Anyone who has had the pleasure of hearing Professor Dominic Regan lecture will know that he gives a constant warning that the Denton principles have not gone away. In relation to the late service of budgets in particular, but in…
SERVICE OF THE CLAIM FORM: WHAT CAN POSSIBLY GO WRONG? TEN SIMPLE POINTS TO MAKE LIFE EASIER & TO CAP OFF THE BANK HOLIDAY WEEKEND
Service of the claim form remain a major cause of problems. Here we re-cap (not for the first time) on the basic causes of many of the problems, with links through to the many posts on this subject. This post…
COVID REPEATS 27: AVOIDING A SERIOUS TRAP: WHEN (AND WHEN NOT TO) SERVE THE CLAIM FORM ON A SOLICITOR: (YOU REALLY HAVE TO KNOW THIS)
The post yesterday on service of the claim form has caused a slight change of plan for this series. Today we are going to look again at the rules relating to service of the claim form on a solicitor. We have…
WHEN A DEFENDANT FILED A COSTS BUDGET LATE: RELIEF FROM SANCTIONS REFUSED: “THE DEFAULTING PARTY HAS ONLY ITSELF OR ITS LEGAL REPRESENTATIVE TO BLAME”
The judgment of HHJ Simon Barker QC in Heathfield International LLC v Axiom Stone (London) Ltd [2020] EWHC 1075 (Ch) is another example of a party coming to grief because of the failure to file a costs budget timeously. That…
COVID REPEATS 12: THINGS LAWYERS DO TO ANNOY JUDGES: “EVERY PIECE OF PAPER THAT LEAVES YOUR OFFICE IS AN ADVERTISEMENT FOR YOU AND YOUR LAW FIRM”
Here we are looking again at the advice given by the Canadian judge Mr Justice Joseph W. Quinn A Judge’s View: Things Lawyers Do to Annoy Judges; Things They Do to Impress Judges“.* This whole talk is worth reading, for…
COVID REPEATS 8: “NEVER WRITE ANYTHING DOWN THAT YOU WOULDN’T WANT READ OUT IN OPEN COURT”
I am repeating this because it is important. One rule that every lawyer should learn is that if you write, type, email or text anything you live with the risk that it could end up being read out in court….
COVID REPEATS 7: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL V: WEAR SUNSCREEN & HAVE A PLAN
Here I am repeating advice given by a former chairman of the Bar in Kuala Lumpur. Many of the challenges and difficulties that (at some time) you may think are specific to you, are in fact universal issues that lawyers…
COVID REPEATS 6: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL 4: OWNING AND FIXING YOUR MISTAKES
Here we are re-visiting a post based on at an article by Elizabeth Collura in Lawyerist.com – Recognisizing, Owning and Fixing Your Mistakes. This is short but to the point. Mistakes happen, they are rarely disastrous. It is a failure to address…
COVID REPEATS 5: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL 3: SURVIVE AND THRIVE
Here I am repeating really good, well thought out guidance from the Young Lawyers Group of the Law Society of South Wales. Quite honestly this is the type of guidance that every lawyer starting their career should be given. There…
MORE ON THE NEW STATEMENT OF TRUTH: CAN YOU CHANGE THE WORDING?
I have had questions, from several sources, about whether it is possible to amend the “new form” of the statement of truth when a document is not being signed by a party to litigation. PRACTICE DIRECTION 22. The new…
THE OTHER IMPORTANT RULE CHANGE TODAY IN RELATION TO WITNESS STATEMENTS: AND, HONESTLY, THIS COULDN’T HAVE COME AT A BETTER TIME
Along with changes to the statement of truth the rule changes effective from today now impose a further obligation in relation to witness statements. I have written about this before (but much has happened since). THE NEW RULES From…
KEEPING YOUR LAW FIRM GOING DURING THE CORONAVIRUS CRISIS (1) MANAGING REMOTE WORKING
This series is looking at guides and links to help law firms stay in business during the coronavirus crisis. I am looking at guidance from around the world. Here we look at guides to manage remote working. GUIDANCE FOR LAW…
THE NEW PRACTICE DIRECTION 2: “THE COURT WILL TAKE INTO ACCOUNT THE IMPACT OF THE CORONAVIRUS PANDEMIC”
Looking at paragraph 4 of the Practice Direction today it, in effect, enshrines commonsense. However there are still steps lawyers should take to protect their clients (and their own) position. “In so far as compatible with the proper administration of…
LAW SOCIETY ADVICE ON CORONAVIRUS: WORKING FROM HOME POLICY: “YOU WILL BE AT RISK OF FACING A STRONG LEGAL CLAIM”
The Law Society has a specific advice page on Coronavirus available here. There have been comments this morning about some firms insisting staff attend work. It is worthwhile reading the Law Society advice. “If you refuse to allow…
REMOTE WORKING AND LITIGATOR 2: THE STATEMENT OF TRUTH
There are likely to be very few, if any, “face to face” meetings with clients in the near future. How do we cope with the statement of truth (I will deal with the specific issue of witness statements and the…
WORKING REMOTELY: USEFUL GUIDANCE
I have, ironically, been planning to write on remote working for some time. The post was going to be in the “well being” series and, among other things, deal with issues like social isolation when working from home. Now, of…
GUIDANCE ON CORONAVIRUS FOR ADVOCATES FROM THE BAR COUNCIL (AND THE NEED FOR A CLEAR STATEMENT FROM THE BAR STANDARDS BOARD)
The Bar Council website has useful guidance on dealing with Coronavirus, this is in a section on its website here. GUIDANCE GIVEN ON THE 16th MARCH 2020 This guidance is available from a link on the page, also here….
RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS: (A REPOST)
This is post that was originally written in May 2014. It followeda talk I gave in Leeds “How to get sued, Make a Loss and be Miserable”. It led to the sharing of ideas between the 40 litigators who attended. …
THE IMPORTANCE OF THE STATEMENT OF TRUTH (2): WHY LAWYERS SHOULD THINK (MORE THAN TWICE) BEFORE SIGNING IT
Given the imminent changes to the statement of truth this is a good time to consider the problems that can occur when a lawyer signs a statement of truth on behalf of their client. There are some cases that make…
WITNESS STATEMENTS, WITNESS EVIDENCE AND SELF-PROTECTION FOR THE LAWYER
Every few years I repeat advice given in relation to the need for “self-protection” when drafting witness statements. This is often caused by something I have seen in practice, questions I am asked, or a transcript of a case. The…
STAYING SANE AS A LITIGATOR 9: SHARING THE “PAIN”
Most of the burden of complying with time periods and court orders lies with the solicitor. However a solicitor’s life can be made easier by making sure that all those concerned with the litigation process know of the deadlines involved…
GDPR AND THE CIVIL LITIGATOR (1) : USEFUL LINKS FOR LITIGATORS
The post earlier this week that highlighted the fact that an applicant had spent £40,000 unsuccessfully trying to obtain documents that would have been freely available under GDPR has led me to contemplate a series of articles on litigators and…
ADEQUATE TIME ESTIMATES: WAS THIRTY MINUTES LONG ENOUGH?
One other aspect of the judgment HHJ Lethem in Ivanoy -v- Lubble (Central London County Court 17th January 2020) relates to time estimates. It highlights the importance of giving appropriate time estimates, reviewing the estimate if the matter becomes complex and the…
APPLICATIONS FOR RELIEF FROM SANCTIONS: 10 KEY POINTS
We are now nearly six years on from the Denton decision and the principles are familiar to most litigators. However applications for relief from sanctions are still a regular occurrence. Success is never guaranteed. Here I want to look again at…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: WELL BEING: LOOKING AFTER OURSELVES SO WE CAN LOOK AFTER OTHERS
This year has seen a large number of posts on avoiding stress and dealing with the difficulties that lawyers can have in litigation. MARCH: FIND MUGGLES AND DISCONNECT FROM YOUR WORK: “LAWYERS JUST NEED TO HAVE FUN” March had…
HIGH COURT ALLOWS RELIEF FROM SANCTIONS APPEAL FAILING A FAILURE TO PAY THE TRIAL FEE ON TIME
In Badejo v Cranston [2019] EWHC 3343 (Ch) Mr Justice Fancourt overturned the decision of a Circuit Judge and granted relief from sanctions to a claimant who had failed to pay the trial fee in time. One issue related to…
2O19 AND CIVIL PROCEDURE THE YEAR IN REVIEW (5): WITH A LITTLE HELP FROM MY FRIENDS – CONTRIBUTIONS FROM TWITTER
This year has seen a number of posts where contributions have been drawn from Twitter threads, with people accepting invitations to write on particular points. The advice is usually practical and sometimes profound. This is an appropriate time to remind…
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (3): SANCTIONS AND RELIEF FROM SANCTIONS (OR NOT…)
Another certainty about writing about civil procedure is that every year will bring a batch of applications relating to sanctions and relief from sanctions. This year has been no different. We start off (from the end of last year) with…
CIVIL PROCEDURE BACK TO BASICS 73: THE AUTOMATIC STAY
CPR 15,11(2) provides for an automatic stay if nothing happens in an action for six months after service. This is a rule that can be overlooked. THE RULE CPR rule 15.11. Sub-paragraph (1) of that rule provides that: “Where…
SERVICE OF THE PARTICULARS OF CLAIM AND THE “TRAP FOR THE UNWARY CLAIMANT”: THE TRAP OPERATED AND RELIEF FROM SANCTIONS NOT GRANTED
The judgment of Chief Master Marsh today in Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) is a prime example of difficulties being caused because of a mistake in relation to the rules relating to service. It…
STAYING SANE AS A LITIGATOR 6: WORKLOAD: THE IDEAL CASELOAD OR “BURY EVERYBODY” – WHICH IS MORE PROFITABLE?
This is unlikely to be the last post on this topic. Workload is likely to be the main source of stress for most litigators. The very basic issue of what is an appropriate caseload for litigators is often complained about…
STAYING SANE AS A LITIGATOR 5: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…
No matter how hard you try, on occasions, things will go wrong in litigation. Do you have a plan? Here we examine the need to have a plan to cover default and other issues in litigation. We then look in…
“IF COURT PROCEEDINGS ARE SERVED ON A SOLICITOR WITHOUT AUTHORITY – IS THAT GOOD SERVICE?”: A QUESTION WITH AN EASY ANSWER
“If court proceedings are served on a solicitor without authority is that good service” was a search that led to this blog yesterday. This is a question with a very easy answer. This blog has looked at this issue several…
PROSPECTIVE APPLICATIONS FOR EXTENSIONS OF TIME (CONSTITUTIONAL LAWYERS DO NOT GET EXCITED)
Today seems a good day to consider prospective applications for extensions of time. These are going to figure in every litigators career at some point. A knowledge of the relevant law is essential. A prospective application of time is dealt…
STAYING SANE AS A LITIGATOR 4: : A HALLOWEEN SPECIAL: KNOWING THE EVERYONE HAS LITIGATION NIGHTMARES
Litigation gives rise to its own pressures. Every litigator with any degree of experience will have horror stories. I thought it worthwhile repeating the advice given by the lawyers of Twitter for Halloween a few years back. You will see…
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