PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED
In the judgment today in Howard v The Imperial London Hotels Ltd [2019] EWHC 202 (QB) Master Thornett had to consider whether periodical payments were suitable for someone with a very short life expectancy. The judgment is a careful and sensitive…
FRESH PROCEEDINGS CAN BE ISSUED IF FIRST PROCEEDINGS ON BEHALF OF THE DECEASED WERE A NULLITY: DENTON CONSIDERED
In the judgment today in Hutson & Anor, The Personal Representatives of v Tata Steel UK Ltd [2019] EWHC 143 (QB) Mr Justice Turner considered several points relating to the ability of those acting on behalf of an estate to…
PRACTICE NOTE: BUSINESS AND PROPERTY COURTS IN MANCHESTER: NO BUNDLE NO HEARING
Below I reproduce a Practice Note issued Mr Justice Barling, Vice-Chancellor of the County Palatine of Lancaster. It deals with a transition process up to the point where (later this year) parties can file all documents electronically in the Manchester…
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…
THE SPI NORTH (NON-ADMISSION IN PLEADING CASE) IN THE COURT OF APPEAL: THE SECOND POINT: COMPELLING EVIDENCE NEEDED AND NO SATELLITE LITIGATION PLEASE
Yesterday’s post on SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 concentrated upon the Court of Appeal guidance in relation to the drafting of a pleading. However the second point on which the claimant’s appeal …
THE BUSINESS AND PROPERTY COURTS: GUIDANCE FOR THOSE WHO GO LIVE AT LEEDS
HHJ Malcolm Davis-White QC has sent out guidance for the County Court at Leeds Property and Business Work. Solicitors and advocates may want to note the strictures in relation the filing of bundles and skeleton arguments in particular. Note it…
FIXED COSTS DO NOT APPLY WHEN THEY ARE INCONSISTENT WITH THE TERMS OF CONSENT ORDER: JUDGMENT ON APPEAL IN THE COUNTY COURT
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL IN Ho v Adelekun [2019] EWCA Civ 1988, see the discussion here. I am grateful to Sam Hayman and Tom Jenkinson from Bolt Burdon Kemp for sending me a copy…
CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR
Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s…
UNANTICIPATED SIZE OF DISCLOSURE WAS AN “UNANTICIPATED DEVELOPMENT”: UPWARD REVISION OF COST BUDGET ALLOWED
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2018] EWHC 3532 (QB) Master Davison allowed an upward variation of the cost budget. The scale of disclosure given by the defendant could not have been anticipated and it was reasonable…
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…
COST BUDGETING: THE PARTIES MUST KNOW WHERE THEY STAND: LEAVING HOURLY RATES “OPEN” IS INAPPROPRIATE
I am grateful Sam Hayman from Bolt Burdon Kemp to for sending me a copy of the decision of Mr Justice Jacobs in Yirenki -v- Ministry of Defence [2018] EWHC 3102 (QB). The judge allowed an appeal against a cost budgeting…
A HAPPY READER WRITES: WHEN BLOG POSTS ARE READ A ZILLION TIMES…
a As a blogger feedback comes in many forms. Yesterday I had an email from a litigant in person. The method described may well become more prevalent. THE EMAIL “Mr Exall, I wrote to you this time last year with…
LET US JUST IGNORE THE PLEADED CASE (MY PLEADED CASE ANYWAY): WHEN THE PARTIES COULDN’T EVEN AGREE ON A STATEMENT OF ISSUES
There is an interesting passage in the judgment of HHJ Klein (sitting as a judge of the High Court) in UK Learning Academy Ltd v The Secretary of State for Education [2018] EWHC 2915 (Comm). It relates to the statements of…
THE LORD CHIEF JUSTICE’S REPORT 2018: SELECTED EXTRACTS
The Lord Chief Justice’s Report for 2018 is available if you follow the link here. Much of it is important. I have selected extracts that may be of particular interest to litigators. (There is an argument that some key indicators that…
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…
THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points of…
EXPERTS BEHAVING BADLY: WHY RECENTLY CROSS-EXAMINED EXPERTS SHOULD NOT E-MAIL THE OTHER SIDE’S COUNSEL…
In D (A child : parental alienation) [2018] EWFC B64 HHJ Clifford Bellamy had to deal with the unusual situation in which an expert witness e-mailed counsel who had cross-examined him. “I was surprised, therefore, to receive an email from Mr…
REVEALING THE TRUE IDENTITY OF A WITNESS IN CIVIL PROCEEDINGS: APPLICATION FOR ANONYMITY SCUTTLED
In the judgment today in Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2018] EWHC 2929 (Comm) Mr Justice Teare allowed an application by the defendants that the true identity of a witness be disclosed. The witness…
UNDERSTANDING THE CODED LANGUAGE OF THE LEGAL DIRECTORIES: HUMBLEBRAGS AND BEYOND
This if the time of year that several legal directories are published. It leads to an inevitable pattern of behaviour. Thanks to law lecturer John Bates we can all now understand the coded language of the legal directory. THE PATTERN…
JUDGES: SOME COURTS DO HAVE ‘EM: MISSIVES FROM THE BENCH: “IT MUST HAVE BEEN A VERY SHORT JOURNEY”
There has been a recent trend on Twitter for people to share their “favourite” moments of intervention from the bench. Here is an edited collection (there is talk of these going into a book to raise money for charity). “DJ…
YOU’RE FIRED: A LITIGATOR ON THE APPRENTICE 6: SOMEWHAT DOWN AT HEEL: “BASICALLY – ITS JUST A LOT OF FANCY BOLLOCKS FOR SOME SHOES”
Our lawyers have yet to the decent thing and get fired. Both were in the losing team this week. Their entire team got called back in to get fired. Both survived. Their fancy high heeled shoe was beaten by a…
WITNESS STATEMENT EXCLUDED BECAUSE IT WAS OF NO USE: THE DANGERS OF NOT KNOWING THE RULES RELATING TO WITNESS EVIDENCE
I have noted, many times, on this blog the dangerous tendency of some practitioners to conflate witness statements with submissions. Witness statements express opinions, comments on documents and the law and do not give the source of information and belief. …
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
CASE MANAGEMENT HEARING: SHOULD WE STAY OR SHOULD WE GO? PROCEEDINGS NOT DELAYED BECAUSE THERE ARE PENDING APPEALS
In Sberbank of Russia v The OJSC International Bank of Azerbaijan [2018] EWHC 2777 (Comm)Mr Justice Bryan had to consider whether to adjourn a case management conference pending appeals in other cases. The judge considered the overriding objective and held that…
NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited [2018] EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert…
VERY LATE CHANGE FROM PART 8 TO PART 7: NUANCED CASE MANAGEMENT IN THE TCC
There is an interesting piece of case management in the judgment of Recorder Andrew Singer QC (sitting as a Judge of the Technology and Construction Court) in Ealing Care Alliance Ltd v London Borough of Ealing [2018] EWHC 2630 (TCC). …
USING A SKELETON ARGUMENT TO TRY TO FILL GAPS IN THE EVIDENCE THIS IS NOT GOING TO END WELL…
The judgment today in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) makes interesting reading. The appeal concerned criticisms of the conduct of a trial by a circuit judge. The main difficulty was that the…
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…
YOU’RE FIRED: A LITIGATION LAWYER ON THE APPRENTICE 2: TRICKY CROSS-JURISDICTIONAL ISSUES: OUR LAWYERS SURVIVE
I am glad to report that both lawyer and law student survived the first round of the Apprentice. They were not, it has to be said, not at the forefront of the programme. There was no sign of “laying down…
“EFFICIENCY” AND THE COURT SYSTEM 2: A COMEDY OF ERRORS – YOU BE THE JUDGE
Yesterday I did a short post on court errors. I have been given permission to post another one. Again I will let the facts speak for themselves. A series of tweets from Mairead @m417ead 10 repeated with their permission. A SAD SAGA Trial 1…
ARE THE COURTS MANAGED IN A COMPETENT MANNER? YOU BE THE JUDGE…
A post earlier this week emphasised the need not to make pejorative statements in litigation, an American judge stated “the better practice is usually to lay out the facts and let the court reach its own conclusions.” That is all…
SKELETON ARGUMENTS: A ROUND UP: GUIDANCE ON DRAFTING: JUDICIAL COMPLAINTS (& THERE ARE PLENTY): EXAMPLES ONLINE & SANCTIONS FOR LATE SERVICE
Recent online discussions about skeleton arguments started with a search term that led to this blog “how long should a skeleton argument be?” This was probably a good time to provide a review highlighting all the posts about skeleton arguments…
CARE EXPERTS, ALLOWED ON APPEAL: NEW EVIDENCE ALSO ALLOWED
In Ryan v Resende [2018] EWHC 2145 (QB) Mr Justice Goose allowed the claimant’s appeal and granted permission for it to rely on a care expert. The judgment shows the importance of having evidence to hand to counter an argument that…
EXPERTS, LAWYERS & THE JOINT REPORT (II): NO SUBSTANTIVE INPUT FROM LAWYERS PLEASE
This is the second case today looking at observations made in cases this week in relation to the joint meeting of experts. In BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC) HH Honour Judge Stephen Davies stated…
WHEN LITIGATION LAWYERS SPLIT UP: THE FALL OUT CONTINUES: A SPLIT TRIAL WAS FAR FROM WISE…
In FPH Law (a firm) v Brown (t/a Integrum Law) [2018] EWCA Civ 1629 the Court of Appeal dismissed the defendant’s appeal against a finding on a preliminary issue. There was a potential cause of action between two firms of solicitors…
FIFTH BIRTHDAY REVIEW 10: THE PROVING THING SERIES: SIZE DON’T SEEM TO MATTER…
This is the last in the series looking back at key series of posts on this blog over the past five years. Keen observers will note that most series last for about 10 posts. When the “Proving Thing” series started…
JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION
In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
TRANSFER FROM COUNTY COURT TO HIGH COURT: YOU CAN ASK FOR THIS ONLY ONCE: A DISCRETION TO BE EXERCISED “WITH GREAT CIRCUMSPECTION”
In Bass v Ministry of Defence [2018] EWHC 1297 (QB) Master Davison held it was an abuse of process for a party to make an application to transfer to the High Court when a similar application had been made, and refused,…
APPLICATION FOR SPLIT TRIAL FAILS TO FLOAT THE MASTER’S BOAT
The judgment in Howard & Ors v Chelsea Yacht And Boat Company Ltd & Anor [2018] EWHC 1118 (Ch) provides a useful “cut out and keep” summary of the principles relating to applications for a split trial. “questions of case…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
PROVING THINGS 99: THE ROLE OF THE JOINTLY INSTRUCTED EXPERTS: TRIAL JUDGE COULD PREFER VIEWS OF OTHER EXPERT
The opinion of a single joint expert is not binding on the court. This is clear from the judgment of Mr Justice Turner today in HJ v Burton Hospitals NHS Foundation Trust [2018] EWHC 1227 (QB) “The opinion of a single…
BUNDLES: CREDIT WHERE CREDIT IS DUE: CORE BUNDLE OF EVIDENCE DRAWS THANKS FROM THE TRIAL JUDGE
Most of the posts on bundles on this blog have been judges complaining about their quality or quantity. It is worthwhile looking at the observations of Mr Justice Martin Spencer today in Lesforis v Tolias [2018] EWHC 1225 (QB) (of which…
PROVING THINGS 93: PROVING A WILL: THERE ARE SPECIFIC RULES THAT THE PARTIES SHOULD FOLLOW
I cannot remember the last time I read a case where the Court of Appeal heard evidence from witnesses (who had not been heard below) and made a request that it have sight of original documents. This is what happened…
CIVIL PROCEDURE – BACK TO BASICS 7: BUNDLES: A CHANCE TO REVISIT “SEDLEY’S LAWS”
If there is a league for blogs with the most number of posts about bundles then Civil Litigation Brief may well be in the top 10 (sadly I suspect even in the top place). There is a reason for this….
NO LUCK WHEN REACHING FOR THE SKY: LITIGANTS SEEKING A SECOND BITE OF THE CHERRY FROM THE TRIAL JUDGE GET SHORT SHRIFT
In an earlier post about the case of P (A Child), Re [2018] EWCA Civ 720 we looked at an example where the parties (all the parties in the case) had correctly used the guidance in English v Emery Reimbold and Strick Ltd [2002]…
LATE SKELETON ARGUMENTS AND LATE EVIDENCE: THE GOVERNMENT SHOULD DO BETTER: DIVISIONAL COURT DECISION: A TEXTBOOK EXAMPLE OF WHAT NOT TO SAY AND DO
In The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor (Procedural Matters) [2018] HC 976 (Admin) the Divisional Court took care to file a supplemental judgment that dealt…
COURT LISTING – JUST WHEN YOU THOUGHT IT COULDN’T GET ANY WORSE
I wasn’t planning a regular series on the vagaries of court listing. I post these without comment. Both from Twitter today. Parties not told of an adjournment Barrister Banter @balchinlawyer 11 So at Court to discover case was adjourned a week ago…
SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL
An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence. This case emphasises the importance of witnesses not…
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