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….
ISSUING CONTRIBUTION PROCEEDINGS WITHIN THE LIMITATION PERIOD: COURT OF APPEAL DECISION TODAY
A party has two years to bring a claim for a contribution under the Civil Liability (Contribution) Act 1978. In The Chief Constable of Hampshire Constabulary -v- Southampton City Council [2014] EWCA Civ 1541 the Court of Appeal found that…
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…
STRESS, LITIGATION AND LITIGATORS: USEFUL LINKS TO AVOID AND DEAL WITH PROBLEMS
The post earlier this week on the solicitor who went to great lengths to make up litigation led to the most visitors to this blog in one day. It also led to wide coverage on twitter. What was noticeable was…
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…
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…
THE TRANSITIONAL PROVISIONS OF QOCS: A DANGER AREA
I have seen a few problems recently with the transitional provisions of QOCS. In essence if the claimant has entered into a conditional fee agreement at any time in the past then they cannot have the benefit of QOCS. A…
"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…
RELIEF FROM SANCTIONS REFUSED: DENTON MADE NO DIFFERENCE
In Blemain Finance Ltd -v- Mukhtar & Osman (28/10/14)* Globe J upheld a decision of the first instance judge refusing relief from sanctions. THE FACTS The claimant sought possession of the defendants’ home following a failure to pay. There was…
CASE NOT STRUCK OUT BECAUSE OF A FAILURE TO FILE TRIAL BUNDLE & PAY COURT FEES
One of the most read posts on this blog was, in the middle of the Mitchell Madness period, when a judge struck out an action because the trial bundle had been lodged late. This issue was considered by Hickinbottom J…
LIMITATION & THE DATE OF KNOWLEDGE CONSIDERED IN THE CONTEXT OF HEARING LOSS
In Platt -v- BRB Residuary Ltd [2014] EWCA Civ 1401 the Court of Appeal considered issues relating to the date of knowledge in the context of a claim for hearing loss. THE LAW The relevant sections of the 1980 Act…
THE DUTIES OWED TO THE COURT ON A WITHOUT NOTICE APPLICATION: A VERY HIGH STANDARD
In Standard Bank -v- Just Oil LLC [2014] EWHC 2687 (Comm) the Hon Mr Justice Walker considered the duties owed when a party makes an without notice application to the court. Strong words are said. THE FACTS The claimant had…
NON-PARTY COSTS ORDERS: ALL THE LAW IN ONE USEFUL PLACE
Making an application for a non-party costs order can be a controversial step in the proceedings. The, principles, law and practice are thoroughly reviewed by Mr Justice Akenhead in Weatherford Global Products Ltd -v- Hydropath Holdings Ltd [2014] EWHC 3243…
MATTERS LEADING UP TO THE MAKING OF A WITNESS STATEMENT MAY NOT NECESSARILY HAVE JUDICIAL PROCEEDINGS IMMUNITY: COULD YOU BE CROSS-EXAMINED ON THE WAY YOU TOOK A WITNESS STATEMENT?
Statements made in the course of proceedings are usually subject to judicial proceedings immunity. The scope and extent of this immunity was considered in detail by the Court of Appeal in Singh -v- Governing Body of Moorlands Primary School [2013]…
A WORKING EXAMPLE OF THE DANGERS OF NOT TAKING A FULL WITNESS STATEMENT: DISASTER CAN STRIKE
The decision of Judge Keyser Q.C. In Kellie & Kellie -v- Wheatley & Lloyd Architects Ltd [2014] EWHC 2866(TCC) gives a working example of the dangers of not taking a full witness statement and exploring issues of importance with a…
LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…
DENTON, RELIEF FROM SANCTIONS AND THE "LITIGATOR'S DILEMMA": LIFE IS NOW DANGEROUS FOR RESPONDENTS
I have written before about the “litigator’s dilemma” in relation to whether a point should be taken in relation to a breach, or an application for relief of sanctions opposed. The Denton decision makes this issue far more difficult for…
FIRST ANNIVERSARY OF CIVIL LITIGATION BRIEF (OR CONFESSIONS OF A RELUCTANT BLOGGER)
Today marks the first anniversary of the setting up of this blog, tomorrow marks the anniversary of the first post. It gives an opportunity to recap (and reminisce). CIVIL PROCEDURE IN JUNE 2013 When the blog started civil procedure was…
COSTS DRAFTSMAN SIGNING COSTS BUDGET DOES NOT RENDER IT A NULLITY: HIGH COURT DECISION TODAY CONSIDERED
There may be no end to the Mitchell points being taken. In a case earlier today, Americhem Europe Ltd -v- Rakem Ltd [2014] EWHC 1881 (TCC) e Mr Justice Stuart-Smith considered an argument that the costs budget signed by a…
PAY COURT FEES ON TIME AND DON'T RELY ON COURT STAFF FOR LEGAL ADVICE: ANOTHER REPORTED CASE WHERE RELIEF FROM SANCTIONS REFUSED:
The case of Decadent Vapours Ltd -v- Bevan et al (Judge Jarman Q.C. Cardiff District Registry, 18th February 2014) was reported on Lawtel this morning. It provides another warning of the dangers involved in not complying with court orders on…
CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS
The impartiality, or otherwise, of expert witness witnesses is in the news today. This would seem an appropriate time to look at the cross-examination of expert witnesses, particularly in the context of civil litigation. THE ROLE OF THE EXPERT IN…
AVOIDING UNDER SETTLEMENT 1: CLAIMS FOR LOSS OF EARNINGS (1)
The curious thing about writing about avoiding under settlement is that there is very little material on the subject, particularly in the U.K. There are now plenty of websites which offer to sue your previous lawyer if you are not…
WHO IS WATCHING YOUR BACK? A CHECKLIST ON "DEFENSIVE LITIGATION"
The previous post looked at the “fish file” checklist prepared by groups in a recent session I conducted in at one of Kerry Underwood’s courses. A second checklist was also prepared by the groups and this related to “defensive litigation”….
OTHER ESSENTIAL CHECKLISTS: DEALING WITH THOSE "FISH FILES"
Earlier posts looked at the essential checklists prepared by delegates at the “how to get sued” conference. Missing from those checklists was any discussion of one real problem for practitioners that can often lead to problems – the “fish file”….
PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE
I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings. However Jon Williams pointed out that the case has an…
73rd AMENDMENT TO THE CIVIL PROCEDURE RULES COMES INTO FORCE TODAY: FINAL TRIO OF LINKS
Monmouthshire Law Society’s twitter account announced Happy 73rd update to CPR day this morning. Here are three crucial links so you can join in the celebrations. CELEBRATORY LINKS A general summary and the rules themselves are here Guidance as to…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
AVOIDING UNDERSETTLEMENT: THE FINAL "ESSENTIAL CHECKLIST" & A USEFUL LINK
The final list in the “essential checklist” series is on “avoiding undersettlement”. The day the course was held the Law Society Gazette had published Rachel Rothwell’s piece on Why Cannibalism is coming to PI. One delegate noted that he had…
PRE-ACTION CONDUCT: ESSENTIAL CHECKLISTS AND USEFUL LINKS
This is the 5th in the series of “Essential Checklists”. The group “Prequel” (the clue is in the name I guess) set out what they thought were essential elements in Pre-action procedure. PREQUEL’S CHECKLIST PRE-ACTION STEPS, PROTOCOL AND LETTERS BEFORE…
LATE SERVICE OF THE CLAIM FORM, RETROSPECTIVE EXTENSIONS AND OTHER CAUSES OF SLEEPLESS NIGHTS: A CASE TO POINT.
The recent case of Kaki –v- National Private Air Transport & National Air Service Ltd (QBD (Comm) 23/5/2014 raises some interesting issues in relation to the retrospective validation of service of a claim form when that claim form was served…
SURVIVING MITCHELL 20: THE GREAT BIG OVERALL CHECKLIST
I suspect that this series could go on indefinitely. It is drawn to a close with a round up of the key points. KEY POINTS 1. Know what happened in Mitchell and how it could have been avoided. 2. Assume…
SURVIVING MITCHELL 19: PRACTICE "DEFENSIVE LITIGATION" OR DON'T PRACTICE AT ALL
This is the 19th (and penultimate) in this series on “surviving Mitchell”. What the Mitchell case makes clear is that there is now precious little room for error in civil procedure. We have to develop systems of “defensive litigation”. That…
WITNESS STATEMENTS: NOT ONE BUT TWO "ESSENTIAL CHECKLISTS"
Earlier posts have documented how these checklists were made. The prequel to the essential checklist sets out matters that practitioners have to watch. Here I set out the checklist prepared by the group “Stating the Obvious”. It is no…
WITNESS STATEMENTS: THE PREQUEL TO THE "ESSENTIAL CHECKLIST"
As part of the “Essential Checklist” series a group considered the issues relating to witness statements. Prior to the checklist it is worth reviewing some of the essential issues relating to the service and preparation of witness statements. THE ISSUES…
LIMITATION: THE ESSENTIAL CHECKLIST: BACK TO THE FUTURE AT WORK
This is the second “essential checklist” compiled at a recent course held by Zenith Chambers. In this workshop practitioners (primarily solicitors), of all levels and type of experience, were asked to produce checklists for the “danger” areas of practice….
LIMITATION: ESSENTIAL POINTS BEFORE THE "ESSENTIAL CHECKLIST"
We have already had the essential checklist on service. We are now moving on to the essential checklist for limitation. Before the Mitchell case it was usually limitation that was a major problem for litigators, particularly personal injury practitioners. It…
SERVICE OF PROCEEDINGS: ADDING TO THE "ESSENTIAL CHECKLIST"
One advantage of twitter is that it is instantaneous. Tweeters today commented on the new practice at Salford of only sending one copy of the sealed claim form back for solicitor service. This is something that can usefully be added…
“A DISMAL CATALOGUE OF CONFUSION AND ERROR”: SERVICE OF THE CLAIM FORM, COURT ERRORS AND OTHER MISHAPS
An article in the Law Society Gazette this week reported a denial by the Ministry of Justice that the civil court system had been affected by austerity. Perhaps the MOJ should read the decision in Stoute -v- LT Operations Ltd…
SERVICE OF PROCEEDINGS: THE "ESSENTIAL CHECKLIST"
In earlier posts I have described how groups of litigators got together earlier this week to draft essential “safety” checklists for key elements of civil procedure. Here we have the checklist for service of proceedings. THE TEAM This checklist was…
SERVICE OF THE CLAIM FORM: THE TIME FOR SERVICE AND THE ADDRESS FOR SERVICE: ESSENTIAL POINTS BEFORE THE ESSENTIAL CHECKLIST
In an earlier post I described the work done on a recent course when delegates developed checklists designed to avoid problems in key areas of civil procedure. I was planning to put the checklists up individually. However in social media…
AGREEMENTS TO EXTEND TIME: THE NEW RULES IN FULL
It required a statutory instrument to reinstate the ability to extend time that the Jackson Report never intended to take away. THE NEW RULES The Civil Procedure (Amendment No 5) Rules 2014 come into force on the 5th June 2014….
SURVIVING MITCHELL 18: RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
There is a growing trend of “cannibalism” in the legal profession. Advertisements on my local radio station this morning were asking “do you want to sue your lawyer”? What is the legal profession doing to protect itself? The answer is…
THE CRITERIA TO BE APPLIED WHEN A PARTY MAKES AN APPLICATION AHEAD OF THE DATE OF THE BREACH: THE ROBERT CRITERIA CONSIDERED
In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) it was made clear that Mitchell principles did not apply in cases where an application was made prior to the date of breach. The principles in Robert -v- Momentum Services [2003] EWCA…
A BUDGET SERVED A DAY LATE IS A “TRIVIAL” ERROR: WAIN –v- GLOUCESTERSHIRE COUNTY COUNCIL [2014] EWHC 1274 (TCC) CONSIDERED
It was made clear in Mitchell that the courts should not concern themselves with “trivial” breaches, however what was meant by “trivial” was never defined. In Wain –v- Gloucestershire County Council Judge Grant, sitting as a judge of the High…
WHEN IS AN APPLICATION "MADE"? A MATTER THAT COULD BE OF SOME IMPORTANCE
The case of In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards. An application made after the…
SURVIVING MITCHELL 17: MAKE ANY APPLICATION BEFORE DEFAULT AND OBTAIN REALISTIC DIRECTIONS
It is no coincidence that Rule 17 is identical to Rule 3. In fact I could easily, and without apology, repeat this principle as rules 10 – 20. If you cannot comply with a court order, direction or rule then…
SURVIVING MITCHELL 16: DEALING WITH "FISH FILES": OVERCOMING PROCRASTINATION
A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe. Ripe, that is, for problems to…
SURVIVING MITCHELL 15: SHARE 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…
SURVIVING MITCHELL 14: LITIGATORS MUST KNOW ABOUT CREDIBILITY
I am picking up on a point in Kerry Underwood’s article on Rules of Survival. In that article he emphasised the need for a client to “pass a test” of being able to be “Mitchell compliant” before the client is…
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