REVIEW OF CIVIL PROCEDURE IN 2020 III : SOME FACTS AND FIGURES: POPULAR BLOG POSTS, VISITOR NUMBERS AND SEARCH TERMS
Needless to say this has been an unusual year for litigators. It is always interesting to review what have been the most popular posts on this blog and look at some facts and figures. Can we tell anything about the…
JOINT LIABILITY OF DEFENDANTS TO PAY COSTS: TRYING TO MAKE A SIMPLE THING MORE COMPLICATED: THE IMPORTANCE OF OBTAINING AFTER THE EVENT INSURANCE FOR EVERY PARTY TO AN ACTION
The judgment of HHJ Keyser QC in Arag Plc v Jones & Anor [2020] EWHC 3484 (Comm) is, on the face of it, a technical issue about the right of an insurer to claim a contribution. The key issue here,…
COSTS LAWYERS BEWARE: COURT REFUSES TO SET ASIDE DEFAULT COSTS CERTIFICATE: “AVOIDABLE DELAY” IS NOT LOOKED AT KINDLY
In Masten v London Britannia Hotel Ltd [2020] EWHC B31 (Costs) Mr Leonard refused to set aside a default costs certificate. This serves as a salutary warning of the importance of time limits. Further the Master observed that if a…
MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION
In IC v RC [2020] EWHC 2997 (Fam) Mrs Justice Knowles had to consider the Denton criteria and the slip rule. It also serves as an important warning to anyone undertaking the task of drafting a court order. “I…
SERVICE OF UNSEALED AMENDED CLAIM FORMS DID NOT CONSTITUTE GOOD SERVICE: ALL OF THE CLAIMANTS’ ATTEMPT TO REMEDY THE SITUATION COME TO GRIEF: THE CLAIMANTS’ CARDS WERE MARKED
In November I wrote that there had been a lull in reported cases relating to service of the claim form. As predicted that lull did not last long. In Ideal Shopping Direct Ltd & Ors v Visa Europe Ltd &…
A SERIES OF WEBINARS ON “STAYING SAFE” IN PERSONAL INJURY PRACTICE: BRIGHTEN UP YOUR NEW YEAR
To help 2021 run smoothly for litigators I am presenting a series of webinars in February and March on the theme of “staying safe” in the running of personal injury cases. The webinars look at key areas of practice and…
INSOLVENCY AND THE PERSONAL INJURY LAWYER: WEBINAR 29th JANUARY 2021
There have been several features on this blog about the problems that insolvency causes to personal injury litigants. Both in terms of the claimant being bankrupt and also the difficulties in pursuing insolvent defendants. These issues are looked at in…
IF YOU WANT RELIEF FROM SANCTIONS – PUT THE DEFAULT RIGHT AT ONCE, AND CERTAINLY WELL BEFORE ANY APPLICATION FOR RELIEF: DEFENDANT FAILS ON APPEAL WHEN WITNESS EVIDENCE SERVED LATE
In the many posts I have written about seeking relief from sanctions one matter that has been stressed is the overwhelming importance of rectifying the breach immediately. The dangers of not doing so are exemplified in the judgment of Mr…
DEALING WITH DIFFICULT OPPONENTS: USEFUL LINKS AND HINTS: “NEVER LOWER YOURSELF, HOWEVER TEMPTING”
There was a recent Twitter discussion about the most appropriate means of dealing with “difficult” (meaning most rude) opponents. This led me to look at the guidance that is available for dealing with these issues in the legal profession. Here…
SERVICE OF THE CLAIM FORM: WHERE, AND WHY DO THINGS GO WRONG? THE LULL BEFORE THE STORM?
It has been just over four weeks since the previous post on issues relating to service of the claim form. I thought I would take advantage of this lull to remind people potential issues relating to service of the claim…
WORKING FROM HOME IN A LONELY WINTER (5):LITIGATION DEADLINES – AVOIDING THE PAIN BY SHARING THE PAIN
The fact that we are in lockdown does not make litigation deadlines go away. Litigation may be more problematic, however there is now nothing in the rules that recognises the difficulties that litigators face. One way of dealing with this…
TOP 10 HALLOWEEN WORRIES FOR LAWYERS: TIME LIMITS, TRIAL BUNDLES AND WAKING UP IN THE MIDDLE OF THE NIGHT…
Today is a special day and I thought I’d start by looking at what scares lawyers most? This was discussed in 2017, there was another useful post on scary stuff in 2018. I have made a selection from the 2017…
LIFE IN LAW ISN’T ALWAYS GLAMOROUS: A CLIENT CAN BLAME THEIR LAWYER (OR FORMER LAWYER) FOR THEIR WITNESS STATEMENT
A classic example of a client seeking to blame their lawyer for the contents of a witness statement can be seen in the judgment in Simpson v Payne, reported in the PI Brief Update Law Journal. THE CASE The claimant…
10 TIPS ON WHAT TO DO WHEN THINGS GO WRONG: “FESS UP”, “SEEK HELP”, “THEY SKY WON’T FALL IN”
Here I have selected 10 pieces of advice from Twitter on what to do when things go wrong. These are not the “top 10” tips because, frankly, every one of the pieces of advice given in the original post are…
THE DANGERS OF LAWYERS WORKING WHILST TRAVELLING: TOP TEN TIPS (& A BONUS) TO KEEP YOU ON THE RAILS
Todays top 10 tips follows on from yesterday. In the previous post PJ Kirby recorded how he was able to draft a letter that included: “We acknowledge receipt of your letter which was expected as Mr X was discussing the…
TOP TEN (SHORT) PIECES OF ADVICE FOR LAWYERS ABOUT CORRESPONDENCE: AVOID ADVERBS (BASICALLY), OH AND DISCUSSING YOUR CASE LOUDLY ON A TRAIN…
Continuing with the series on guidance for new entrants to the profession (and a useful reminder for the rest of us). This is ten pieces of advice from the lawyers of Twitter after I wrote a piece on the lack…
LAWYERS, MISTAKES AND EMAIL: PUSH THOSE BUTTONS AT YOUR OWN (AND SOMETIMES YOUR CLIENT’S) PERIL
There are some issues in legal practice that reoccur with surprising frequency. Yesterday a lawyer on Twitter recounted how that had accidentally been copied into an email chain that they were, most definitely, not meant to see. It is a…
A FURTHER TEN PIECES OF ADVICE FOR THE YOUNG, AND NOT SO YOUNG, LAWYER: AVOIDING THAT “SPECIAL RING IN HELL”
Continuing with the review of those series on this site which collate the guidance that judges have given to lawyers. In series three we looked at everything from going to hell; brevity (the absence of which leads you rapidly towards…
TEN KEY PIECES OF ADVICE STRAIGHT FROM THE JUDICIARY FOR THE NEWLY MINTED LAWYER (WHICH MAY ALSO HELP THE REST OF US)
Following on from the post yesterday aimed at those about to start their training contracts or pupillage this would seem to be a good time to remind people of the number of series there are on this site about advocacy. …
WHAT THEY DIDN’T TEACH YOU AT LAW SCHOOL: 10 KEY POSTS FOR THOSE JUST STARTING OFF (AND THE REST OF US TO BE HONEST)
The transition from learning to practice is not an easy one. It is even more difficult for litigators starting their careers now – with training contracts and pupillage being delayed because of COVID problems. Even if training has started much…
THE PERILS OF THE LAWYER SIGNING THE STATEMENT OF TRUTH: A NECESSARY REPEAT
The previous post about the judgment in North of England Coachworks Ltd v Khan [2020] EWHC 2596 (QB) gives me an opportunity to repeat earlier advice pm the blog in relation to the lawyer signing the statement of truth. In the…
STRESS: HOMEWORKING, SOCIAL ISOLATION AND FISH FILES: A RECAP OF PREVIOUS POSTS THAT MAY BE ABLE TO HELP
There has been some discussion on Twitter recently about stress at work and the problems caused when mistakes are made (particularly when they are your own fault). Added to this we have the difficulties of home working, the lack of…
CIVIL PROCEDURE BACK TO BASICS 84: HOW NOT TO MAKE A PART 36 OFFER THAT IS NOT VALID:
You may not care to believe it but the title of this post is deliberate, there is a double negative and a lack of clarity. This reflects the ambiguities and uncertainties in many of the attempts at Part 36 offers…
“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…
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