APPLICATION FOR RELIEF REFUSED AFTER LATE SERVICE OF WITNESS STATEMENTS
In SRI Lalithambika Foods Ltd, R (On the Application Of) v Secretary of State for the Home Department [2019] EWHC 761 (Admin) Charles Bourne QC, sitting as a High Court Judge, refused the claimant’s application to rely on witness statements…
WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?
This topic follows directly on from the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement…
WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL
The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered by the entire profession. Particularly those who draft statements, and those…
LIABILITY OF McKENZIE FRIEND: EXCLUSIVE NOTE OF JUDGMENT:
There was considerable discussion yesterday about the decision of HHJ Eady (sitting as a High Court judge) in Wright -v-Troy Lucas. My colleague Colm Nugent has been kind enough to send me a note of the judgment (where he appeared…
DEFAULT JUDGMENT SET ASIDE, RELIEF FROM SANCTIONS GRANTED: ACTION THEN STRUCK OUT: REMEMBERING THE BASIC OBLIGATION TO FILE A DEFENCE – ON TIME
In Workman v Deansgate 123 LLP [2019] EWHC 360 (QB) Mr Justice William Davis allowed an application to set aside a default judgment and relief from sanctions. The most surprising procedural aspect of this case is the defendant’s failure to file…
LIMITATION AND INHERITANCE ACT CLAIMS: SOMETHING TO WATCH CAREFULLY: AGREEING “LIMITATION AMNESTY” MAY NOT BE POSSIBLE
NB – THESE COMMENTS ON THE POWER TO AGREE AN AMNESTY WERE DOUBTED BY THE COURT OF APPEAL SEE THE POST HERE In Cowan v Foreman & Ors [2019] EWHC 349 (Fam) Mr Justice Mostyn set out some importance principles in…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
CIVIL PROCEDURE BACK TO BASICS 32: BEWARE YE, BEWARE YE, BEWARE YE THE HUMBLE WITNESS SUMMARY: IT COULD BITE BACK – WITH VENGEANCE
The earlier post on the judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited(Leicester County Court 21/01/2019) highlighted how dangerous it is for a party to serve a witness summary. Here we look at the rules relating to witness summaries, the…
CIVIL PROCEDURE: BACK TO BASICS 25: FATAL ACCIDENT ACT LIMITATION PERIODS AND CHILDREN
The law of limitation for Fatal Accidents Act claims for children is often misunderstood. Here we look at the limitation period in relation to fatal accident claims and children. There are two issues: the limitation period when any of…
LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and…
CIVIL PROCEDURE: BACK TO BASICS 24: THE BANKRUPT CLAIMANT (PERSONAL INJURY LITIGANTS IN PARTICULAR)
I am writing this primarily because of a conversation I had with a law graduate who thought the term “bankruptcy” was a generic term to cover anyone who was hard up. The very basic point about what bankruptcy is, and…
CLAIM FORM CASE IN THE COURT OF APPEAL: SERVICE OF CLAIM FORM BY UNAUTHORISED BODY DOES NOT RENDER SERVICE VOID (ALTHOUGH IT IS STILL NAUGHTY)
We have managed to get to the 15th day of the year without a service of the claim form case, to compensate for this there are two today. In Ndole Assets Ltd v Designer M&E Services UK Ltd [2018] EWCA Civ…
BEING A LITIGATOR: “WHAT I’D TELL A YOUNGER ME” 2: BRIE STEVENS-HOARE QC
In the second in this series I popped into chambers at Hardwicke and spoke to property and probate law litigator Brie Stevens-Hoare QC. A QC since 2013 Brie is also Deputy Adjudicator to HM Land Registry and sits as a fee-paid…
“MY SOLICITOR WROTE THAT STATEMENT”: A FAMILIAR TALE: HAVING A PLAN TO PROTECT YOURSELF
The previous post dealt with a case where the claimant’s witness statement was found to be “largely fictional”. This coincided with a number of posts on Twitter with various lawyers and judges (duly anonymous) commented on the situations in which…
BACK TO BASICS 14: SERVICE OF THE CLAIM FORM ON A SOLICITOR
In the case I wrote about yesterday, Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch), the very basic errors made by the claimant’s solicitor in relation to service of the claim form were held to amount to “misconduct” (albeit in…
BACK TO BASICS 19: COSTS BUDGETING WHEN CASE IS MORE THAN £25,000 BUT LESS THAN £50,000
There are special rules governing budgets in cases where the claimant claims more than £25,000 but less than £50,000. Firstly the budget has to be filed much earlier. Secondly the budget “must” only be the first page of Precedent H….
BACK TO BASICS 18: WHEN IS A GOOD TIME TO APPLY TO EXTEND THE CLAIM FORM? NEVER, JUST NEVER
An enquiry today related to service of the claim form. What was the best way to get at extension of time. My answer was short. Applying to extend claim forms is a form of (basically reckless) gambling. Defendants can always…
BACK TO BASICS 17: WHEN SHOULD A COST BUDGET BE FILED: WHERE THINGS GO WRONG
This may appear very basic. However I have seen both sides falling foul of this very recently. In particular the fact that the budget has to be filed with the directions questionnaire when the claim is limited to £50,000. THE…
BEING A LITIGATOR: “WHAT I’D TELL A YOUNGER ME” (1): HILARY WETHERELL
Litigation is, ultimately, about people. This blog looks a lot at rules, statutes and the evidence of witnesses. It has also looked at the litigant’s experience of being involved in the civil courts. However (and whisper this quietly) litigators are…
LATE SERVICE OF THE PARTICULARS OF CLAIM AND ACCOMPANYING DOCUMENTATION: IT MAY STILL BE DANGEROUS – AND HERE’S WHY
We have looked twice already at the judgment in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB). One of the key findings in that case was that the claimant, who had served the particulars of claim, medical…
ANOTHER CASE OF SERVICE OF THE CLAIM FORM GOING AWRY: GO ON – DICE WITH PROCEDURAL DEATH: WHAT COULD POSSIBLY GO WRONG?
When lecturing at the Zenith Chambers personal injury course this Thursday I only offered one prediction for civil procedure: “I’ll be here next year talking about claim form cases reported over the previous 12 months where things have gone wrong.” …
APPLYING FOR RELIEF FROM SANCTIONS: 14 KEY POINTS TO HELP EASE THE STRAIN
There was a nice tweet earlier today from pupil barrister Miranda Grell explaining she had just appeared in her first relief from sanctions application and had found this blog useful. This reminded me that it may be a good time…
LITIGATION IS A TOUGH WORLD: IF YOU MAKE MISTAKES: GET HELP – PLEASE
The decision of the Administrative Court in Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin) has already received wide publication. The Court overturned a decision of the Solicitors Disciplinary Tribunal not to strike off solicitors who had been dishonest. It…
STRESS, LITIGATORS AND LITIGATION: A RECAP
For World Mental Health Day I am re-posting posts on this blog that deal with stress, for litigators and those involved in the litigation process. Part of my work, dealing with relief from sanctions and limitation, means I come across…
AVOIDING PROCEDURAL PITFALLS – AND PUTTING THEM RIGHT: WEBINAR 6th DECEMBER 2018: HELPING LITIGATORS SLEEP SOUNDLY AT NIGHT…
On the 6th December I am presenting a webinar “Avoiding Procedural Pitfalls and Putting Them Right”. The aim is to look at the key problem areas of civil procedure, how to avoid problems and how to rectify problems if things…
AVOIDING PROBLEMS WITH LIMITATION AND THE EFFECTIVE USE SECTION 33 (WEBINAR): 7th NOVEMBER 2018
On the 7th November 2018 I am presenting a webinar for APIL on issues in relation to limitation in personal injury case. It looks at the most common causes of difficulty with limitation periods, avoiding problems with limitation and then…
ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE
A recent decision by the Bar Standards Board held that a barrister had not acted with reasonable competence when he failed to inform his client in relation to the risks of bringing a private prosecution. This decision highlights the need…
DEALING WITH PROCRASTINATION: A POST I HAVE FINALLY GOT AROUND TO…
Every litigator, indeed every living being, has problems with procrastination. In civil litigation this can lead to major problems and is, if truth be known, responsible for a large number of procedural issues. Here we look at practical solutions to…
CIVIL PROCEDURE BACK TO BASICS 13: WHAT IS MEANT BY WITNESS “CREDIBILITY”? WHY THIS IS OFTEN CENTRAL TO A LITIGATOR’S WORK
Many civil cases turn on witness credibility, yet very little training and education is given to lawyers about assessing credibility. Every litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings…
CIVIL PROCEDURE: BACK TO BASICS 11: THE DIFFERENCE BETWEEN THE “DATE OF ISSUE FOR LIMITATION” PURPOSES AND THE “DATE OF ISSUE” FOR THE PURPOSES OF SERVICE
There were a number of search terms which led people to this blog today that related to the date of service and date of issue. The confusion is, perhaps, easy to understand The relevant date for limitation purposes is the date…
THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: WOODWARD DECISION ON SERVICE OF THE CLAIM FORM OVERTURNED ON APPEAL: LEAVING SERVICE LATE IS SIMPLY COURTING DISASTER
There is a brief report on Lawtel this morning showing that the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) has been overturned on appeal. It highlights the dangers of leaving service of the claim form…
SOLICITOR AND CLIENT COSTS: A PRACTICAL GUIDE – BOOK REVIEW: BUY IT AND READ IT: £30 WORTH SPENDING
Disputes about costs between lawyers and their (former) clients can be “challenging”. Indeed they can be vitriolic and expensive. The lawyer thinking “We’ve done the work” – the client thinking “how much” and “I got nothing out of it, why…
AGGRESSIVE INTER-SOLICITOR CORRESPONDENCE: PISTOLS AT DAWN & THE DANGERS OF TALKING ON TRAINS: LESSONS FROM TWITTER
Earlier this week I tweeted a link to earlier posts on this blog “aggressive correspondence”. The responses on Twitter make for interesting (and entertaining) reading. The legal Twitterati provide quite a few lessons here – from the art of brevity…
WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: “SHEER INCOMPETENCE” DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION
CPR 17.(4) is always one of the most “challenging” sections of the Limitation Act in practice. Amending the name of a party after the expiry of the limitation period is not always easy. The judgment in Best Friends Group & Anor…
“PERSUASION”: APPLICATIONS & EVIDENCE: ATTEND A COURSE AND SUPPORT CHILDREN’S LITERACY: 18th APRIL 2018 – LINCOLN’S INN
On the 18th April 2018 I am involved in a talk at Hardwicke, in Lincoln’s Inn. With a number of my colleagues we are talking on “Persuasion” Applications and Evidence for Defendants and Insurers”. All proceeds go directly to a…
THE ADDRESS FOR SERVICE OF THE CLAIM FORM: HAVE YOU GOT A SYSTEM? LITIGATING OR WINGING IT?
Do you know the address for service of all your cases? Are you sure? Looking at the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) brings out the point as to how insouciant litigators can be…
THE LIMITATION PERIOD IS JUST ABOUT TO EXPIRE AND YOU ARE NOT READY: FIVE KEY POINTS FOR WHEN YOU DICE WITH PROCEDURAL DEATH
No matter how hard litigators try (and how many warnings are given) it appears inevitable that, sooner or later, you are going to have a case where the limitation period is about to expire but you are not ready. The…
LITIGATORS – MISSED A DEADLINE? DON’T DIG BIGGER HOLES FOR YOURSELF: DIG YOURSELF OUT (WITH A LITTLE HELP FROM YOUR FRIENDS)
The decision in Wingate & Anor v The Solicitors Regulation Authority [2018] EWCA Civ 366 may well be Jackson L.J’s last judgment (certainly as a full time judge). It concerned the conduct of solicitors. I want to look at one aspect…
THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
This blog has covered numerous cases relating to Section 33 of the Limitation Act 1980. It is worthwhile considering what causes a lawyer to miss a basic three year limitation period. In In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the…
12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW
Today is all about service of the claim form. Following on from the Supreme Court decision in Barton -v- Wright Hassall LLP [2018] UKSC 12 this morning this is a good time to update your knowledge about basic points of procedure. TWELVE…
PART 36: THE UNCERTAIN PROGNOSIS AND THE CLAIMANT’S CONUNDRUM: FIVE POINTS TO THINK ABOUT
The earlier post on the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ) gives rise to a conundrum that claimants (and sometimes defendants) have to address. How do you advise a client when a Part 36…
THE ADVANTAGES OF GETTING WITNESS EVIDENCE EARLY – AND GETTING IT RIGHT: REDUCING THE RISKS OF LITIGATION
It is worthwhile repeating, and thinking about one part of the judgment of Master Leonard Douglas v Ministry of Justice & Anor [2018] EWHC B2 (Costs). “… the cost of preparing witness evidence will normally be recoverable as part of the cost…
THE COSTS OF MEDIATION AND THE COSTS BUDGET: AVOIDING A POSSIBLE TRAP
I am grateful to Alan Mendham for writing to point out a possible trap in relation to costs budgeting and mediation. Alan points out that disputes can arise as to whether mediation is included in the phase for settlement…
2018: A NEW YEAR RESOLUTION FOR LITIGATORS: DON’T LEAVE MATTERS TO CHANCE – LEARN TO PROVE DAMAGES
For nearly two years this blog has documented issues (and often failures) when parties fail to prove things. In a surprising number of cases the failures are very basic. Proving things is the basic job of the litigator. However we…
LAST REMINDER OF NEW YEAR’S RESOLUTION FOR 2017: WITHOUT NOTICE APPLICATIONS ARE SO, SO, DANGEROUS: THE DUTY OF FULL DISCLOSURE EXTENDS TO WEAKNESSES IN YOUR OWN CASE
The one New Year’s Resolution I recommended to litigators for 2017 was to be very, very, wary of without notice applications. As we get near to the end of the year this advice is borne out by the judgment of…
WHY DIDN’T YOU TELL ME THAT BEFORE WE WENT INTO COURT? THINGS LAWYERS LEARN HALF WAY THROUGH A TRIAL
The post earlier today on a case where key facts came to light on the third day of a trial led me to ask lawyers if they had similar experiences. That sudden, and unexpected, “surprise” bit of evidence which no-one…
PRACTISING “DEFENSIVE LITIGATION” : ESSENTIAL CHECKLISTS GATHERED TOGETHER
What many (if not most) of the posts on this blog make clear is that there is now precious little room for error in civil procedure. To operate effectively, and profitably, we have to develop systems of “defensive litigation”. That…
PROVING THINGS 69: SOLICITORS EVIDENCE OF (THEIR OWN) LOSS “WHOLLY INADEQUATE”: IMPORTANT POINTS ABOUT DELAY TOO
This blog often reports on cases where a party fails to appreciate the scope and depth of evidence needed to prove a claim for damages. This issue arose in the judgment today in Hersi & Co Solicitors, R (On the Application…
MYTHS ABOUT PROCEDURE: THE DATE FOR SERVICE IS NOT CALCULATED FROM THE DAY THE COURT RECEIVES THE CLAIM FORM: IT IS CALCULATED FROM THE DATE OF “ISSUE”
In an earlier post on limitation myths I recounted how I often received phone calls from worried solicitors who feared they had missed a limitation period. The papers had been received by the court within the period, the date of…
LIMITATION MYTHS 10: THE FINAL COUNTDOWN: 9 MYTHS BUSTED AND SOME HELPFUL POINTS
The idea of this series is to be a short, sharp “shock”, just to ensure key issues of limitation are lodged – somewhere – in the busy practitioner’s mind. Here, in the final post in the series, I try to…
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