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…
A CLINICAL NEGLIGENCE LAWYERS SURVIVAL GUIDE: MANCHESTER 5th DECEMBER 2017: “SCHADENFREUDE FOR CLINICAL NEGLIGENCE LAWYERS”
Along with Stephen Grime QC I am talking on the afternoon of the 5th December 2017 in Manchester. “A Clinical Negligence Lawyers Survival Guide” looks at avoiding substantive and procedure problems during the course of a clinical negligence action. Included…
TRAVEL LAW AND LIMITATION: AN UPDATE AND HELPFUL REMINDER
The aim of the series on limitation “myths” is to be succinct and point out dangers. This is only a starting point. Be aware of the dangers – but there can be exceptions. I am grateful to Julian Chamberlayne from…
LIMITATION MYTHS 9 (A): A BIT MORE ABOUT AVIATION, AIRPORTS AND HOT AIR BALLOONS: A POINT WORTH REPEATING
What has been interesting in the series on Myths and Limitation has been the response, mainly on Twitter. “That happened to me”, or “I sued someone who missed that point”. This even found its way into the “Halloween for Litigators”…
MYTHS ABOUT LIMITATION 8: THE LIMITATION PERIOD FOR A CHILD ALWAYS STARTS ON THEIR 18th BIRTHDAY
The previous posts on this subject set out examples where different limitation periods apply. It is worth noting that often these limitation period often apply to children. An assumption that a child’s limitation period always starts on their 18th birthday…
MYTHS ABOUT LIMITATION 7: A SECTION 33 APPLICATION REQUIRES AN “EXCEPTIONAL INDULGENCE” FROM THE COURT
I still come across arguments that a claimant seeking an order under Section 33 of the Limitation Act 1980 requires an “exceptional indulgence” from the court. This is another myth that has an historical basis, but has been dispatched to…
MYTHS ABOUT LIMITATION 6: ABROAD IS A FOREIGN COUNTRY, THEY DO THINGS DIFFERENTLY THERE
It is now possible to bring actions in England and Wales for accidents that happened abroad. On the whole the Civil Procedure Rules apply. This has led to a myth that English and Welsh limitation periods also apply. In fact…
MYTHS ABOUT LIMITATION 5: EVERYTHING IS NEVER SHIP SHAPE IF YOU ASSUME A THREE YEAR PERIOD APPLIES
The previous post looked at the two year limitation period that applied in relation to air travel (and airports remember). Here we are going further to dispel the myth that every limitation period is two years. Be wary of anything…
MYTHS ABOUT LIMITATION 4: WHEN YOU REALLY BELIEVE THE THREE YEAR LIMITATION PERIOD CAN FLY
The view that all personal injury claims are subject to a three year limitation period is a myth. If any injury is suffered within or near an aircraft the safest assumption is that the limitation period is two years. The…
MYTHS ABOUT LIMITATION 3: THE DATE OF ISSUE FOR LIMITATION IS THE DATE ON THE CLAIM FORM
Once or twice a month I receive a phone call from practitioners in a panic. They sent the claim form to court in good time but the date of issue is outside the limitation period. Further some defendants still take…
MYTHS ABOUT LIMITATION 2: THE LIMITATION PERIOD FOR ASSAULT IS SIX YEARS
This is a myth I didn’t know existed until I heard it being propounded in a bar last week (and which led to the start of this series). Strangely, unlike some of the myths were are looking at, it has…
MYTHS ABOUT LIMITATION 1: IN A BREACH OF CONTRACT CASE THE LIMITATION PERIOD IS ALWAYS SIX YEARS
This is the first of a series of short posts about “myths” about limitation that sometimes exist in litigation, in personal injury in particular. Myth 1 is that if you are bringing a claim based on breach of contract the…
PROPORTIONALITY – A LITIGATOR’S SURVIVAL GUIDE V – A ROUND UP: 12 KEY POINTS TO TAKE YOU INTO OCTOBER (AND BEYOND)
The issue of “proportionality” is central to contemporary litigation. However it is rarely examined in detail and rarely discussed. Attempts to analyse how proportionality can be achieved are even rarer. For the fifth in this (slow burning) series I review…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: A STARK REMINDER FROM THE COUNTY COURT ONLINE PILOT PRACTICE DIRECTION
I have looked before at the issues that arise when the legal representative signs a statement of truth on behalf of a client. These issues are shown in stark terms in the Practice Direction 51S – The County Court Online…
SERVICE ON SOLICITORS: A REMARKABLE VIEW LEADS TO MAJOR MISTAKE: THE LAW SUMMARISED
I have already written today about the decision in Higgins & Ors v ERC Accountants & Business Advisers Ltd [2017] EWHC 2190 (Ch). I want to isolate one element of that case that relates to the remarkable view that the claimants’ solicitor…
ASKED TO SIGN A GUARANTEE: WORDS OF WISDOM
It is rare for a judgment to include clear guidance to the public on how to avoid problems. However this can be found in the judgment of Mr Justice Max Barrett in AIB Plc. -v- Rostaff Property Development Limited & ors…
FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH
The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims. The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance…
WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP
Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want…
STOPPING PROBLEMS WITH SERVICE OF THE CLAIM FORM SPRINGING UP: 10 KEY POINTS
In Caretech Community Services Ltd v Oakden & Ors [2017] EWHC 1944 (QB) Master McCloud described how the Masters’ Corridor is plagued by “a dry and unlovely crop of procedural service issues. Despite efforts by numerous courts at all levels to prevent their…
WHAT DO YOU DO WHEN IT ALL GETS TOO MUCH (OR IT IS YOU THAT HAS TO PICK UP THE PIECES): A RECAP
I am repeating, in large part, an earlier post. I do so without apology. Part of my job involves, periodically, dealing with cases (sometimes multiple cases) where someone has “gone off the rails” leaving numerous practical and procedural problems…
MORE ON FISH FILES: “LEAVE THEM IN THE CORNER UNTIL THEY START TO SMELL”: RECOGNISING THE PROBLEM AND SOLUTIONS
Everyone, at some stage, has a “fish file” – a file that has been left for so long it has started to smell (sometimes literally). Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe….
PRESSING THE WRONG BUTTON: THE PERILS OF EMAIL “REPLY ALL” IN LITIGATION (OR ARBITRATION)
Many, if not all, of us will have made some errors with emails on some occasion. There is a danger, however, when this happens in litigation. This can be seen in the judgment of Mr Justice Popplewell in T -v-…
London Seminar for PIBA MEMBERS: It’s all Counsel’s fault: key problem areas and how to manage your practice to avoid them
Title: “It’s all Counsel’s fault: key problem areas and how to manage your practice to avoid them” Speaker: Gordon Exall, Barrister at Hardwicke, London and Zenith Chambers, Leeds. Topics to be covered: * Your name in the law reports…
ADVISING ABOUT THE RISKS OF LITIGATION: YOU DON’T PAY ME TO TELL YOU WHAT YOU WANT TO HEAR: PROFESSIONAL NEGLIGENCE ACTION AGAINST SOLICITORS DISMISSED
In Seery -v- Leathes Prior (a firm) [2016] EWHC80 (QB) Sir David Eady dismissed a claim for negligence against a firm of solicitors. One of the issues considered was whether the claimant should have been encouraged to litigate. The claim…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL IX: IF THEY SAY IT’LL BE “GOOD EXPERIENCE FOR YOU” – WATCH OUT…
Here we have most (but I can’t guarantee all) of the tweets given on what they don’t teach you at law school. You will see it is an eclectic mix. The advice given can be world weary but, for the…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL VIII: BUNDLES, COURTESY & MINTS
This is the second review of guidance to young lawyers given on Twitter. There is lots of interest here. Some common themes appear to be: bundles; courtesy; be very nice to court staff; manage client expectations; don’t work too hard….
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL VII: FLAT SHOES & DOUBLE STUFFED OREOS: SOME OF THE CONTRIBUTIONS FROM TWITTER
This series started off as a series of Twitter interactions. I am gradually making my way through them. Not all the contributions received were serious. However most have a underlying truth. I will try to put the remainder of the…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL IV: OWNING AND FIXING YOUR MISTAKES
The Fourth in this series goes to Pennsylvania and looks 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…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL III: THRIVE & SURVIVE: GUIDANCE FROM NEW SOUTH WALES
This series is designed to help lawyers, and litigators in particular, in the initial stages of practice. We will be looking at guidance from around the world. Many of the problems that young lawyers face are universal. In this…
LITIGATORS: WHAT DO YOU DO WHEN THINGS GO WRONG? 10 KEY POINTS
There has been an unusual amount of sympathy today on Twitter for the report of a newly qualified solicitor who was struck off. The solicitor “had ‘messed up’ on a handful of the 170 cases he was handling and did…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)
There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload. This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is…
I'VE LOST £5 MILLION AND ITS ALL MY SOLICITOR'S FAULT: WHEN THE CLIENT BLAMES YOU FOR THEIR OWN BAD DECISIONS
This post is unusual in that it deals with a case from a different jurisdiction (Northern Ireland) and a professional negligence action against a conveyancer not a litigator. However the decision of Deeny J in Eden (NI) Limited -v- Mills,…
FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: GET THE WORDING RIGHT
On more than one occasion on this blog we have looked at cases where the courts have questioned the wisdom of a lawyer signing a statement of truth on behalf of a client. In Galdikas -v- DJ Houghton Catching Services…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
DOES COSTS BUDGETING APPLY TO A FATAL ACCIDENT CLAIM WHERE A CHILD IS A DEPENDANT? SOME MORE DETAIL
Over the weekend I heard two speakers on costs budgeting mention my view that costs budgeting may not now apply to fatal accident claims where children are dependants. Given the potential significance of this, it is worth expanding my concerns….
IN-HOUSE COURSES ON WITNESS STATEMENTS AND CIVIL PROCEDURE
In response to several e-mails over recent months I have prepared two courses, available in-house only: one on drafting witness statements, the other on “avoiding procedural pitfalls”. WITNESS STATEMENTS “Too often (indeed far too often) witnesses who have had statements…
LITIGATION AND WORKLOAD 3: INSURERS
The first post in this series on litigators and workload got an (unexpected) amount of attention. As part of the series I want to look at one often overlooked, but crucial, part of the litigation chain, insurers. In particular claims…
SECTION 33: CERTAIN FALLACIES DISPLACED
Each application under s.33 of the Limitation Act 1980 is, of course, unique. It is interesting, however to examine the decision of Her Honour Judge Walden Smith (sitting as a High Court judge) in Sanderson -v- City of Bradford City…
LITIGATORS, LITIGATION AND THE APPROPRIATE CASE LOAD 2: "IT’S NUTS"
I had no idea that the earlier post on a litigator’s case load would receive such a large response and have many hundreds of people reading it within hours (it was posted on a Sunday remember). Most of the response…
LITIGATION: WHAT IS AN APPROPRIATE CASE LOAD AND IS IT IMPORTANT?
I have been planning to write on litigators’ workloads for a considerable time. It is an important issue and, as far as I can tell, very little is written about it. The issue is a fundamental one. What is the…
APPROVAL HEARINGS: CLAIMANTS SHOWING ADVICES TO THE DEFENDANT: A VERY PECULIAR PRACTICE
This is a post inspired by a twitter conversation. It started as a general issue about children and approval hearings. During the course of the discussion it became clear that there were some claimant solicitors who as a matter of course…
IN LITIGATION, AS IN LIFE, THINGS WILL GO WRONG: HAVING A STRATEGY IN PLACE
There has been a lot of publicity recently about lawyers who have been struck off for, effectively, making things up to cover up mistakes. In the most recent case a time limit was missed for the First Tier Tribunal and…
A FURTHER GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 2: BE CAREFUL ABOUT THE ADDRESS FOR SERVICE
Now that the gyms are emptying out again this is a good time to provide one of the periodical reminders about the civil litigator’s new year’s resolutions. Just concentrating upon the address for service. RESOLUTION 2 KNOW THE ADDRESS AND…
EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: A RISKY BUSINESS
In Medhi Kohsravi -v- British American Tobacco PLC [2016] EWHC 123 (QB)Sir David Eady stated that he would have set aside an order extending time for service of the claim form. It is a timely warning that obtaining an extension…
LIMITATION, PAIN AND ANGUISH: A GENTLE REMINDER ABOUT NEW YEAR'S RESOLUTIONS (1)
Most New Year’s resolutions last 24 days. In an effort to keep litigators on board for the whole of the year in relation to the Resolutions for Litigators for 2016 I am doing a series of short reminders about the…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS
We civil litigators cannot be left out of the, apparently universal, need for an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing. Here we look at poetry, carpet bombing and disappearing…
"THAT PART OF MY WITNESS STATEMENT IS NOT TRUE": NEVER A GREAT START TO A CASE
In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank. “…it…
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