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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. Hardwicke, London
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2019 AND CIVIL PROCEDURE - THE YEAR IN REVIEW (2): SERVICE OF THE CLAIM FORM (AND ALLIED ISSUES)

2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (2): SERVICE OF THE CLAIM FORM (AND ALLIED ISSUES)

December 4, 2019 · by gexall · in Case Management, Civil Procedure, Relief from sanctions, Service of the claim form, Serving documents

The one “certainty” about writing about civil procedure is that every year there will be a few (often more than few)cases about service of the claim form.  This is always a fruitful source of difficulty for claimants.  The causes of…

MAKING FINDINGS ON THE BASIS OF THE LIST OF DOCUMENTS ALONE: THE MACKENZIE PERPLEX

MAKING FINDINGS ON THE BASIS OF THE LIST OF DOCUMENTS ALONE: THE MACKENZIE PERPLEX

December 1, 2019 · by gexall · in Appeals, Case Management, Civil evidence, Disclosure

There is one aspect of the judgement in Mackenzie v Alcoa Manufacturing (Gb) Ltd [2019] EWCA Civ 2110 that requires a little more attention. That is is the question of how parties, faced with the absence of documents and where…

CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP - NOVEMBER 2019

CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – NOVEMBER 2019

November 29, 2019 · by gexall · in Case Management, Civil evidence, Civil Procedure, Witness statements

Here we have links to blogs and articles about civil procedure and costs from November 2019. COSTS Costs Barrister Blaming others Costs Barrister The undiscovered country Herbert Smith Freehills Court of Appeal confirms jurisdiction to award claimant interim payment on account of costs…

PROVING THINGS 167: BUNDLES, EXPERTS, ABSENT WITNESS, UNPLEADED DEFENCES AND... SEWAGE: ALL MODERN LITIGATION IS HERE...

PROVING THINGS 167: BUNDLES, EXPERTS, ABSENT WITNESS, UNPLEADED DEFENCES AND… SEWAGE: ALL MODERN LITIGATION IS HERE…

October 31, 2019 · by gexall · in Bundles, Case Management, Expert evidence, Experts, Witness statements

 The judgment of HHJ Russen (QC) (sitting as a High Court Judge) in Kivells Ltd v Torridge District Council [2019] EWHC 2846 (TCC), contains a number of interesting scenarios in relation  to civil evidence.  Many  of the common problems of…

PROSPECTIVE APPLICATIONS FOR EXTENSIONS OF TIME (CONSTITUTIONAL LAWYERS DO NOT GET EXCITED)

PROSPECTIVE APPLICATIONS FOR EXTENSIONS OF TIME (CONSTITUTIONAL LAWYERS DO NOT GET EXCITED)

October 28, 2019 · by gexall · in Applications, Avoiding negligence claims, Case Management, Civil Procedure, Extensions of time, Relief from sanctions

Today seems a good day to consider prospective applications for extensions of time. These are going to figure in every litigators career at some point.  A knowledge of the relevant law is essential. A prospective application of time is dealt…

CONDITIONAL FEE AGREEMENT IS ENFORCEABLE AFTER DEATH: HIGH COURT JUDGMENT TODAY

CONDITIONAL FEE AGREEMENT IS ENFORCEABLE AFTER DEATH: HIGH COURT JUDGMENT TODAY

October 24, 2019 · by gexall · in Appeals, Case Management, Civil Procedure, Conditional Fee Agreements, Costs

In Higgins & Co Lawyers Ltd -v- Evans [2019] EWHC 2809 (QB) Mr Justice Pushpinder Saini overturned a decision that a conditional fee agreement was not enforceable after death. THE CASE The deceased had signed a CFA agreement with the…

BOOK REVIEW: CLINICAL NEGLIGENCE MADE CLEAR: NIGEL POOLE QC

BOOK REVIEW: CLINICAL NEGLIGENCE MADE CLEAR: NIGEL POOLE QC

October 21, 2019 · by gexall · in Book Review, Case Management, Civil evidence, Clinical Negligence

Nigel Poole QC has a book published this month “Clinical Negligence Made Clear A Guide for Patients and Professionals”.  I have had access to the printed and the digital copy, and I’ve had fun… “If you can’t explain it simply, you…

STAYING SANE AS A LITIGATOR 2: FISH FILES AND HOW TO FILLET THEM

STAYING SANE AS A LITIGATOR 2: FISH FILES AND HOW TO FILLET THEM

October 21, 2019 · by gexall · in Avoiding negligence claims, Case Management, Civil evidence, Civil Procedure

We have looked at “fish files” several times on this blog, and with good reason. 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…

WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): "JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS"

WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”

October 20, 2019 · by gexall · in Applications, Case Management, Civil evidence, Civil Procedure, Disclosure, Statements of Truth, Witness statements

In  Paralel Routs Ltd v Fedotov [2019] EWHC 2656 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) emphasised the importance of procedural rules.   There are quite a few interesting observations in relation to disclosure, redaction, civil…

"NOT ALL JUDGES OR COUNSEL ARE HUMOURLESS AUTOMATONS": NO JUDICIAL BIAS WHEN EVIDENCE GIVEN BY WAY OF A SONG

“NOT ALL JUDGES OR COUNSEL ARE HUMOURLESS AUTOMATONS”: NO JUDICIAL BIAS WHEN EVIDENCE GIVEN BY WAY OF A SONG

October 18, 2019 · by gexall · in Appeals, Case Management, Civil evidence, Witness statements

It is not often that appeals over planning decisions make their way to this blog. It must be even rarer for such appeals to consider the question and appropriateness of humour (and song) in the judicial process. That is what…

THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE

THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE

October 17, 2019 · by gexall · in Appeals, Applications, Assessment of Costs, Avoiding negligence claims, Bundles, Case Management, Civil evidence, Civil Procedure, Costs, Costs budgeting, Experts, Limitation, QOCS, Relief from sanctions, Serving documents, Statements of Case, Statements of Truth, Witness statements

  The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements.  The titles are often prompted by elements…

WHEN WITNESSES ATTEMPT TO GIVE EXPERT EVIDENCE: LOOK OUT FOR THOSE PURPLE PASSAGES

WHEN WITNESSES ATTEMPT TO GIVE EXPERT EVIDENCE: LOOK OUT FOR THOSE PURPLE PASSAGES

October 8, 2019 · by gexall · in Case Management, Civil evidence, Witness statements

This blog has reported on numerous cases where lay witnesses have attempted to give expert evidence (and, indeed, where expert witnesses have tried to give evidence of matters of fact).  This issue can be seen in the judgment of Lord…

DEFENDANTS - WAKE UP, SERIOUSLY:  A "VERY RELAXED" ATTITUDE TO THE RULES WILL COST YOUR CLIENTS DEAR: APPLICATION FOR EXTENSION OF TIME TO FILE A DEFENCE REFUSED: REFUSAL CONFIRMED ON APPEAL

DEFENDANTS – WAKE UP, SERIOUSLY: A “VERY RELAXED” ATTITUDE TO THE RULES WILL COST YOUR CLIENTS DEAR: APPLICATION FOR EXTENSION OF TIME TO FILE A DEFENCE REFUSED: REFUSAL CONFIRMED ON APPEAL

October 4, 2019 · by gexall · in Appeals, Applications, Avoiding negligence claims, Case Management, Civil Procedure, Relief from sanctions

In Joan Angela Kember v (As Personal Representative of the Estate of Leonard John Kember, Deceased And On Her Own Behalf And On Behalf of His Dependants) [2019] EWHC 2297 (QB) Mrs Justice Lambert upheld a refusal to grant a…

REALISTIC TIME ESTIMATES: THE IMPORTANCE OF GETTING THIS RIGHT

REALISTIC TIME ESTIMATES: THE IMPORTANCE OF GETTING THIS RIGHT

October 3, 2019 · by gexall · in Applications, Case Management, Civil evidence, Civil Procedure, Written advocacy

There is a short passage in  Barrowfen Properties Ltd v Hambros Investments Ltd & Anor [2019] EWHC 2548 (Ch) where Chief Insolvency and Companies Court Judge Briggs makes it clear that an application had been given an inadequate time estimate….

OPENING LINES OF JUDGMENTS:  A DELUGE OF DOCUMENTARY EVIDENCE AND FRUSTRATED CASE MANAGEMENT MECHANISMS

OPENING LINES OF JUDGMENTS: A DELUGE OF DOCUMENTARY EVIDENCE AND FRUSTRATED CASE MANAGEMENT MECHANISMS

October 1, 2019 · by gexall · in Bundles, Case Management

This year has been fairly sparse in relation to notable opening lines to judgments. It is indeed difficult to match up to Martinez (t/a Prick) & Anor v Prick Me Baby One More Time Ltd (t/a Prick) & Anor [2018] EWHC…

QUICK REMINDER OF NEW COSTS BUDGETING RULES COMING INTO FORCE TODAY: INCURRED COSTS INCLUDE THE COSTS OF THE CCMC

QUICK REMINDER OF NEW COSTS BUDGETING RULES COMING INTO FORCE TODAY: INCURRED COSTS INCLUDE THE COSTS OF THE CCMC

October 1, 2019 · by gexall · in Case Management, Costs, Costs budgeting, Rule Changes

Part of the 109th update to the Civil Procedure Rules came into force today.  A quick reminder that, from today, there is a change in the way that the courts approach the costs of the CCMC itself.   INCURRED COSTS…

CPR 3.1 USED, PROPERLY AND EFFICIENTLY, TO KEEP DOWN THE WAITING (AND ANGUISH)

CPR 3.1 USED, PROPERLY AND EFFICIENTLY, TO KEEP DOWN THE WAITING (AND ANGUISH)

September 30, 2019 · by gexall · in Case Management, Civil Procedure

In  Irish & Anor, Re [2019] EWHC 2508 (Ch) HHJ Matthews (sitting as a High Court Judge) used CPR 3.1 to cut down greatly the time (expense and anguish) in relation to a difficult and sensitive application. “it seemed to…

STARTING PUPILLAGE OR A TRAINING CONTRACT – WHAT DO YOU PUT IN YOUR BAG? ADVICE FROM THE LAWYERS OF TWITTER

September 8, 2019 · by gexall · in Bundles, Case Management, Experts

Many people are starting their pupillages and training contracts tomorrow. When pupil-to-be Chloe Branton asked for some advice as to what to take in her bag to court the legal twiterrati were, as ever, generous in their advice. THE QUESTION…

THE COURT CAN ORDER PARTIES TO TAKE PART IN AN EARLY NEUTRAL EVALUATION: COURT OF APPEAL DECISION

THE COURT CAN ORDER PARTIES TO TAKE PART IN AN EARLY NEUTRAL EVALUATION: COURT OF APPEAL DECISION

August 20, 2019 · by gexall · in Appeals, Case Management, Civil Procedure

I am grateful to barrister Christopher Buckingham for pointing out that the Court of Appeal decision in Lomax v Lomax [2019] EWCA Civ 1467 is now on BAILLI.  The Court of Appeal held that the consent of both parties was…

CIVIL PROCEDURE BACK TO BASICS 55: THE 70 KEY POINTS OF THE DENTON JUDGMENT

CIVIL PROCEDURE BACK TO BASICS 55: THE 70 KEY POINTS OF THE DENTON JUDGMENT

July 21, 2019 · by gexall · in Applications, Avoiding negligence claims, Case Management, Relief from sanctions

The judgment in Denton -v- White [2014] EWCA Civ 906 was given five years ago. It is a case that is still cited daily in the courts. It can be misunderstood or misquoted. Here are the 70 key points of this…

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