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…
SURVIVING MITCHELL 13: READ KERRY'S RULES OF SURVIVAL
At the end of the previous post on Surviving Mitchell I wrote that there were important issues of law firm management which needed to be addressed and that, perhaps, Kerry Underwood would be better placed than me to address them….
SURVIVING MITCHELL 12: READ LEGAL ORANGE AND LITIGATION FUTURES TODAY
The links section of this blog points readers to many and various useful posts and articles on procedure. Today, however there are two that need singling out as part of the “Surviving Mitchell” strategy. LEGAL ORANGE Reading Mitchell-Proofing your claim…
SURVIVING MITCHELL 11: BE PROMPT: BE VERY PROMPT
Two recent cases have emphasised the importance of a prompt response to procedural issues. Anything other than “promptness” courts danger with the courts. The duty to act “promptly” does not just apply to making applications for relief from sanctions. A…
TEN LIMITATION MYTHS THAT EVERY PERSONAL INJURY LAWYER SHOULD KNOW
I am giving a webinar for CLT on the 4th March. Booking details can be found here “Limitation and PI Claims: 10 Myths that Every Practitioner Should Know” This webinar identifies and debunks 10 of the most common myths and…
DELAYING SERVICE OF THE CLAIM FORM: “DICING WITH PROCEDURAL DEATH”: ANOTHER EXAMPLE OF A CLAIMANT BUILDING PROBLEMS FOR ITSELF
There are real dangers in leaving service of the claim form until the last moment. The Lincolnshire case considered here exemplifies the problems. . The judge pulled no punches in relation to the risks being run by those who…
FREEZING ORDERS AND THE DUTIES OWED ON EX PARTE APPLICATIONS: NUCLEAR WEAPONS THAT CAN BLOW UP IN YOUR FACE
COOKE -v- VENULUM PROPERTY INVESTMENTS LTD [2013] EWHC 4288 Freezing orders are part of the “nuclear weapons” of civil litigation. As such they should be approached with extreme care. This case illustrates the dangers involved when a party seeks a…
SURVIVING MITCHELL 10: AGREEMENTS TO EXTEND TIME YET AGAIN: NEW STANDARD DIRECTIONS
The problems surrounding agreements to extend time remain a constant headache for litigators ever since the decision in Lloyd stated that it was not open to the parties to agree to extend time by consent. Here we look at the…
THE DANGERS OF SERVING BY E-MAIL: A WORKING EXAMPLE
A recent post looked at potential problems with serving documents by e-mail. That this is a very real issue is shown by a report of a decision sent to me by counsel. The full details of the case are withheld. …
SENDING DOCUMENTS TO THE COURT BY E-MAIL: THE PRACTICE DIRECTION AND POTENTIAL PROBLEM AREAS
An earlier post about the problems of serving documents by e-mail led to a flurry of comments on twitter about similar issues in relation to filing documents at court . I am awaiting some reports of cases where the lodging…
THE REMAINING PROBLEM OF HISTORICAL AGREEMENTS TO EXTEND TIME: USEFUL GUIDANCE FROM PREVIOUS AUTHORITIES ON CIVIL PROCEDURE
ANDREW WILKEY –V- BRITISH BROADCASTING CORPORATION [2002] EWCA Civ 1561 Wilkey was a case in which the Court of Appeal considered the practical impact of the decision in Godwin v Swindon Borough Council [2002] 1 WLR 997 and Anderton v…
DILATORY CONDUCT BY DEFENDANT CAUSES IT TO BE REFUSED PERMISSION TO RELY ON EXPERTS
There is an important decision of Master Cook in the case of Chambers -v-Buckingham Healthcare NHS Trust available at dropbox The case highlights the fact that defendants too can fall foul of the problems caused by Mitchell. I will prepare…
ARE YOU SERVING DOCUMENTS BY E-MAIL? IS IT SAFE? ARE YOU SURE? A CASE STUDY IN PROBLEMS THAT CAN OCCUR
The Civil Procedure Rules allow service of documents by e-mail. However I was involved in a case today which demonstrated that relying on e-mail service can be problematic and led to the sender requiring relief from sanctions. THE RULES CPR…
SURVIVING MITCHELL 9: AGREEMENTS TO EXTEND TIME AGAIN! LLOYD & ITS PRACTICAL CONSEQUENCES
There is now a lot of evidence of parties taking “opportunistic” points in relation to procedure. That is pointing to historic breaches, often months before a hearing/application, and arguing that these breaches mean that the case/defence should be struck out…
SURVIVAL AFTER MITCHELL: 30 POINT PLAN: WEBINAR AVAILABLE ON DEMAND
The CLT Webinar I did last week on 30 points of avoiding problems after Mitchell is now available on demand from CLT. Not only is this an economic way to get you training done it is a whole lot cheaper than…
SERVICE OF THE CLAIM FORM: ANOTHER EXAMPLE OF A CLAIMANT COMING TO GRIEF
Prior to the Mitchell decision the easiest way for a claimant to come to grief on a procedural issue was to make a mistake with service of the claim form. The decision Murrills –v- Berlanda [2014] EWCA Civ 6 shows…
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…
PUTTING THE POWER TO AGREE TO EXTEND TIME IN THE COURT ORDER: A SHORT NOTE
The question of whether the parties can agree to extend time for compliance with a court order is an open one at the moment. See the discussion in the earlier posts on this issue. There was a short tweet earlier…
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…
SURVIVING MITCHELL 5: CAN YOU EVEN AGREE EXTENSIONS OF TIME?
The earlier post on extensions of time gained a lot of attention and numerous issues were raised at twitter. This is such a fast moving area that a case, reported yesterday, deals with some of the issues raised. I wanted…
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 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…
MITCHELL AND INDEMNITY INSURERS: A WORRYING TIME
One obvious concern about the Mitchell fallout is the position of Indemnity insurers. This is reflected in a piece by Hill Dickinson. The observations need to be noted. HILL DICKINSON’S POST There is a succinct summary of the decisions in…
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…
CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POST
Links to posts and articles on all aspects of civil procedure. Linking does not indicate approval or agreement but that all discussion on these issues is useful. RECENT POSTS AND ARTICLES 23rd June 2019 Herbert Smith Freehills Litigation Notes…
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…
WEBINAR ON "SURVIVING MITCHELL":29th JANUARY 2014
I am broadcasting a Webinar for CLT on “Surviving Mitchell” on the 29th January 2014 at 13.00. The link for subscribing can be found at http://www.clt.co.uk/webinar.aspx?crseidcode=1695882 “This webinar which is presented by Gordon Exall, will explain exactly what went wrong for…
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…
CAN A STRUCK OUT CLAIMANT ISSUE AGAIN? EXERCISE OF THE SECTION 33 DISCRETION AFTER A FIRST ACTION HAS BEEN DISMISSED.
One of the “open” questions following the Mitchell decision is whether a claimant refused relief from sanctions can issue again. That is an open question (which will be considered at another time). Here we look at the court’s approach to…
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…
THE AFTERMATH FROM MITCHELL: THIS IS GETTING REALLY, REALLY, SERIOUS
I have been in discussions today with one barrister who estimates that, in his own practice alone, he has already represented claimants where a total of £1 million pounds of damages have been lost as a result of a decision…
THE MITCHELL CRITERIA FOR RELIEF FROM SANCTIONS: A DETAILED EXAMINATION
There has been much comment about the effect of the Court of Appeal decision in Mitchell on litigation and litigators. Here we look, in considerable detail, at the guidance given in relation to relief from sanctions and associated case law….
MITCHELL: THE COMMENTARY CONTINUES
The commentary on the fallout of the Mitchell decision continues apace. One of the most interesting comments, however, comes from Sir Henry Brooke, former Lord Justice who tweets at @HenryBrooke1. Here we look at those observations and other links to…
MITCHELL: 20 KEY POINTS OF JUDGMENT
The Court of Appeal gave judgment in Mitchell -v- News Group Newspapers [2013] EWCA Civ 1537 today. The case has been much covered. The Claimant’s application for relief from sanctions was refused. The key points of general importance are: 1….
AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT
Procter -v- Raleys Previous posts in this series have concentrated upon limitation issues. This post looks at the recent decision of Judge Gosnell in Procter –v- Raleys (Leeds County Court 6/11/2013). In particular what it demonstrates about the need to…
WITNESS STATEMENTS & COMPLYING WITH THE RULES 2: THE GROUNDS FOR THE WITNESSES’ KNOWLEDGE OR BELIEF
The previous post at http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/ discussed a case where the problems about the witnesses giving information as to source of belief and hearsay evidence. The problems were avoi… Enjoying this post? Become a Civil Litigation Brief member to read…
THE DANGERS OF GETTING THE COURT FEES WRONG: IF THE FEES ARE NOT RIGHT – YOU HAVEN'T ISSUED
If proceedings are being issued at the last moment then it is imperative that the correct fee is lodged at court. A failure to send the correct fee will mean that proceedings are not properly issued. This post looks at…
TEN MYTHS ABOUT LIMITATION THAT EVERY PERSONAL INJURY LITIGATOR SHOULD KNOW.
There are a surprising number of “myths” that prevail in personal injury litigation. In particular in relation to limitation. Here, as part of the “avoiding negligence” series we look at 10 of these myths. Myth 1: In a breach of…
ACCIDENTS ABROAD AND THE FOREIGN LIMITATION PERIODS ACT: AVOIDING NEGLIGENCE CLAIMS 5
It is easy to assume that every jurisdiction has a limitation period of three years. However when an accident happens abroad the Foreign Limitation Periods Act 1984 provides that the relevant limitation period is the period that prevails in…
TROUBLE AT SEA: LIMITATION PERIODS AND WATER TRAVEL: AVOIDING NEGLIGENCE 4
We continue the examination of limitation periods that are not necessarily three years. Accidents that happen at sea, or on water generally, can be subject to different limitation periods and, normally, a two year limitation period applies. TWO YEAR PERIODS…
DO YOU NEED LETTERS OF ADMINISTRATION TO ISSUE ON BEHALF OF AN ESTATE?
A recent e-mail enquiry has led to my considering the issue of the right to issue proceedings on behalf of the estate of someone who died intestate. The solicitor wanted to bring an action for personal injury on behalf of…
AVIATION AND LIMITATION: 10 QUESTIONS EVERY PERSONAL INJURY LITIGATOR SHOULD ASK
A tweet on the 8th October 2013 read: “PI Claim struck out because Montreal Convention pleaded instead of Warsaw Convention.” (The case in question is reported in detail by Jasmine Murphy on the Hardwicke Chambers website.) This reiterates the points…
THE DANGERS OF WITHOUT NOTICE APPLICATIONS: THE WHOLE TRUTH IS THE ONLY OPTION
Since the advent of CPR 3.3 and CPR 23.8 and 9 there appears to have been a growth in the number of applications made without notice. Two recent cases highlight the very onerous duty on a party making such an…
APPLYING TO SET ASIDE WITHOUT NOTICE ORDERS: BE QUICK: BE VERY QUICK
This post looks at the power the courts have to make costs orders when making an order of its own motion or without notice to one party. A party attempting to challenge or vary such an order must act promptly….
LITIGATION AFTER JACKSON: A 10 POINT SURVIVAL GUIDE
There has been a tremendous change in policy in relation to case management after 1st April 2013. This has already led to major difficulties for some litigators. This post is the first (of what may be many) survival guides for…
FAILURE TO COMPLY WITH CPR: CAN BITE DEFENDANTS TOO!
This post looks at the decision in Dass –v- Dass where the defendant was refused permission to rely upon medical experts because they had not been served in accordance with court directions. Many of the recent cases in relation to…
LITIGATORS:WANT TO WORK FOR NOTHING? THEN DON'T FILE YOUR COSTS BUDGET ON TIME
This post deals with the extremely draconian penalty imposed on a litigant who fails to file a costs budget on time. THE RULES CPR 3.13 and 14 deals with the duty to exchange costs budgeting. Filing and exchanging…
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