WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION
In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility. It is an example of a court dealing with a witness who, the judge finds, has “convinced…
YET MORE ON BUNDLES : BREACH OF ORDER MADE ON "MITCHELL" GROUNDS UPHELD ON "DENTON" GROUNDS
The case of Patel -v- Mussa [2015] EWCA Civ 434 is, in essence, another sorry story about bundles. It is also an example of the Court of Appeal upholding a case management decision made by a judge who applied “Mitchell”…
COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because…
ADJOURNMENTS ON THE GROUNDS OF ILL HEALTH: A DETAILED CONSIDERATION
In Decker -v- Hopcraft [2015] EWHC 1170(QB)Mr Justice Warby set out the principles to be considered when a litigant seeks an adjournment of a hearing on the grounds of ill health. The judge held that there were five main factors…
COMMUNICATIONS WITH THE CLIENT AFTER PROCTOR: A NEW TYPE OF LEGAL DRAFTING REQUIRING PARTICULAR SKILLS
In the Proctor -v- Raleys case the standard forms and letters written by the insurers came under close scrutiny at the trial and in the Court of Appeal. Professor Richard Moorhead provides an interesting angle on this issue in his…
JUDGES MUST "CONTEND WITH THE CHANGING FASHIONS OF APPELLATE COURTS": ANOTHER LATE WITNESS STATEMENT; ANOTHER CASE WHERE RELIEF FROM SANCTIONS REFUSED
“This is yet another appeal concerning the proper application of CPR 3.9 as to relief from sanctions.” The opening words of the judgment of Mr Justice Cranston in Fouda -v- The Mayor & Burgesses of the London Borough of Southwark…
LETTERS OF EXPLANATION NOT GOOD ENOUGH: SOLICITOR SHOULD HAVE EXPLAINED MATTERS TO THE CLIENT: COURT OF APPEAL UPHOLD DECISION ON SOLICITOR'S NEGLIGENCE
In Procter -v- Raleys Solicitors [2015] EWCA Civ 400 the Court of Appeal upheld a decision at first instance that a failure to give an oral explanation to a client was negligent. The solicitors could not simply rely on standard…
FAILURE TO GIVE ADEQUATE REPLIES TO PART 18 QUESTIONS LEADS TO ACTION BEING STRUCK OUT: RELIEF FROM SANCTIONS REFUSED
In his judgment today in Griffith -v- Gourgey [2015] EWHC 1080 (Ch) Mr Justice Simon addressed the issue of whether an action stands struck out if a party gives inadequate replies to Part 18 questions after a peremptory order has…
ANOTHER LATE WITNESS STATEMENT: RELIEF FROM SANCTIONS REFUSED
There is a brief report on Lawtel of the decision of Judge Robinson in Buswell -v- Symes (QBD 20/04/2015) this involves another case where a witness statement was served late and permission to rely upon that statement was refused. *…
JUDGE SHOULD NOT HAVE MADE COSTS ORDER WHICH WIPED OUT CLAIMANT'S DAMAGES: COURT OF APPEAL DECISION TODAY
In Begum -v- Birmingham City Council [2015] EWCA Civ 386 the Court of Appeal allowed an appeal by a claimant where the decision on costs at first instance effectively deprived her of damages. THE CASE The issue is succinctly summarised…
COURT CANNOT RE-OPEN "FINAL JUDGMENT": ISSUES RELATING TO DEFENDANT'S CAPACITY: EVESHAM –v- WERRETT CONSIDERED
In the judgment today in Eversham & Pershore Housing Association Ltd -v- Werrett [2015] EWHC 1060 (QB) Mr Justice Nicol held that the court could not re-open a decision because of later evidence in relation to the defendant’s capacity. THE…
WITNESS STATEMENTS AND AVOIDING JAIL: ARE YOU PROTECTING YOUR CLIENTS AND PROTECTING YOURSELF?
In the recent case of Hughmans -v- Dunhill [2015] EWHC 716 (Ch) an interesting point arose about the drafting of a witness statement when a (former) client alleged that it had largely been drafted by her (former) solicitor. The assertion…
THE "URGENT NEED FOR COMMERCIAL PRACTITIONERS TO BRING A SENSE OF PROPORTION" TO LITIGATION: EVIDENCE NEEDED IN WHEN ARGUING SECURITY FOR COSTS "STIFLES" AN ACTION.
In Kazakhstan Kagazy Plc -v- Baglan Zhunus [2015] EWHC 996 Mr Justice Walker had strong words to say, and constructive guidance to give, in relation to some aspects of commercial litigation. The case further serves as a reminder of the…
PLEADING, PARTICULARITY, SUMMARY JUDGMENT AND STRIKING OUT: WAIT UNTIL AFTER DISCLOSURE
In Dellal -v- Dellal [2015] EWHC 907 (Fam) Mr Justice Mostyn made some important observations about the need for particularity in pleading THE CASE The claimant was bringing an action under the Inheritance (Provision for Family and Dependants) Act 1975…
FATAL ACCIDENT AND FATAL PLEADINGS: THE NEED TO PLEAD AND PROVE FOREIGN LAW
On the face of it the case of Bianco -v- Bennett [2015] EWHC 626 (QB) is simply a case about fatal accidents. I was going to discuss it solely on the Fatal Accident Blog. On close reading, however, it reveals…
HAYWARD MAY HAVE BEEN WAYWARD BUT THERE WAS NO LOOKING BACKWARD: SETTLED CLAIM NOT RE-OPENED
In Hayward -v- Zurich Insurance Company PLC [2015] EWCA Civ 327 today the Court of Appeal overturned a decision that a claimant should repay a large part of a personal injury award from an earlier settled action. This decision makes…
LAY EVIDENCE AND EXPERT EVIDENCE IN CLINICAL NEGLIGENCE: MORE IS NOT ALWAYS BETTER
In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) conducted a critical analysis of the lay evidence and expert evidence when dismissing a clinical negligence claim against a GP. There are…
SIGNING DISCLOSURE STATEMENTS? REMEMBER YOU CAN GO TO PRISON: OTKRITIE CONSIDERED
In Oktritie International -v- Gersamia and Jemai [2014] EWHC 821 (Comm) a respondent to the action was sentenced to 20 months imprisonment. Part of that committal was relating to forgery. However important observations were made about the disclosure statement. THE…
WHY YOUR WITNESS STATEMENTS SHOULD BE MADE IN CHELSEA: MAKING FIRST HAND STATEMENTS AVOIDS PENALTIES
The post earlier this week in relation to the need for full disclosure on without notice injunctions also highlighted the need for first hand evidence. There are real dangers when a solicitor signs a witness statement. That principle was highlighted…
LITIGATE IN HASTE AND YOU WON'T NECESSARILY BE ALLOWED TO AMEND AT LEISURE: SU-LING -v- GOLMAN SACHS INTERNATIONAL
In the judgment today in Quah Su-Ling -v- Goldman Sachs International [2015] EWHC Mrs Justice Carr DBE refused a claimant permission to amend her particulars of claim at a late stage. The judgment contains a succinct review of the law…
FOOTBALL, SEX, INJUNCTIONS AND MATERIAL NON-DISCLOSURE: BE CAREFUL NOT TO GET ON THE JUDGE'S OFFSIDE
In YXB -v- TNO Mr Justice Warby set out the importance of full and frank disclosure on parties making an application for an ex-parte injunction. It also reiterates the importance of claimants giving direct evidence whenever possible and the dangers…
SOLICITOR FOUND TO HAVE DELIBERATELY MISLED THE COURT: BOREH -v- DJIBOUTI
In Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) Mr Justice Flaux made a clear and unequivocal finding that a solicitor had deliberately misled the court. This led to the setting aside of the injunction that the clients had…
"WALKING THE LINE": THE SRA ON BALANCING THE DUTIES OF LITIGATORS IN LITIGATION: A POTTED SUMMARY
For reasons that may become evident in later posts this is an apposite day to consider the duties owed by litigators. The SRA have produced “Walking the line” a consideration of the ethical duties owed by litigators. A BRIEF SUMMARY…
ASSESSING THE EVIDENCE ON A SUMMARY JUDGMENT APPLICATION: CRITICAL EXAMINATION OF THE RAW MATERIAL IS NECESSARY
In Calland -v- Financial Conduct Authority [2015] EWCA Civ 192 the Court of Appeal set out important principles to be considered when the court is considering an application for summary judgment. THE CASE The claimant brought an action under the…
PLEADINGS, EVIDENCE & PUTTING THE CLAIMANT TO PROOF: AHMED -v- LALIK & THE CO-OP
In Ahmed -v- Lalik & Co-operative Insurance Society Limited [2015] EWCA 651 (QB) Mr Justice Cranston considered some important issues in relation to pleading, evidence and procedure in a case where a defendant insurer has suspicions about the nature of…
IT IS NOT THAT EASY TO WITHDRAW AN ADMISSION: McWILLIAM -v- NORTON FINANCE
In McWilliam -v- Norton Finance [2015] EWCA Civ 186 the Court of Appeal made some important observations in relation to admissions and the withdrawal of admissions. THE CASE The claimant was suing the defendant for secret commissions. The defendant argued…
A WITNESS STATEMENT FROM SOMEONE WITHOUT CAPACITY CAN STILL BE ADMITTED AS EVIDENCE : WITNESS EVIDENCE CONSIDERED IN THE HIGH COURT
The case of Milroy -v- British Telecommunications PLC [2015] EWHC 532 (QB) is an important decision in terms of the analysis of the employer’s duty to provide training. However it also contains some interesting observations from Mr Justice William Davis…
RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: ANOTHER EXAMPLE
In Sloutsker -v- Romanova [2015] EWHC 545 (QB) Warby J granted the claimant relief from sanctions after it failed to serve witness statements in time. THE CASE The claimants brought an action for libel. The defendant applied for orders setting…
LITIGATION IS "VERY MUCH AN OPTIONAL ACTIVITY": HOW WOULD THE MO(I)J RESPOND TO "NON-OPTIONAL" LITIGANTS?
There is no greater sign of the MO(i)J’s lack of understanding of the reality of litigation than the statement, made in the House of Lords by Lord Faulks, that “litigation is very much an optional activity”. TELL THAT TO BUSINESSES…
WHEN BUNDLES & SANCTIONS COLLIDE: DAVIS -v- RAJA: FAILURE TO FILE APPEAL BUNDLE LEADS TO APPEAL BEING STRUCK OUT
In Davis Solicitors LLP -v- Raja [2015] EWHC 519 (QB) Mr Justice Supperstone refused the claimant relief from sanctions following a failure to comply with directions on appeal in relation to the filing of a bundle. There are important practical…
MITIGATING THE IMPACT OF THE COURT FEES INCREASE 1: LIMITATION STANDSTILL AGREEMENTS
The general view of the court fee increases is well known. The increases are based on inadequate research and will have a major detrimental effect on the economy as well as the interests of justice. Since the increases are likely…
THE LADD -v- MARSHALL TEST: WHAT IS MEANT BY "REASONABLE DILIGENCE": A TALE OF COMPUTERS IN COURT
An appeal court will only consider new evidence on very limited grounds. The test in Ladd -v- Marshall [1954] 1 WLR 1489 is that the applicant can show that the evidence could not with reasonable diligence have been obtained for…
Y0UR OPPONENT'S WITNESS STATEMENT CANNOT BE DISCLOSED UNTIL AFTER IT IS USED AT A HEARING IN PUBLIC: A USEFUL REMINDER
The judgment of Mr Justice Warby in Barry -v- Butler [2015] EWHC 447 (QB) contains some important reminders about witness statements. The witness statements received from an opposing party cannot be disclosed generally until they are used at a hearing…
SETTING ASIDE JUDGMENT. DELAY AND THE DENTON CRITERIA: ANOTHER IMPORTANT CASE
In Avanesov -v- Shymkentpivo [2015] EWHC 394 (Comm) Mr Justice Popplewell considered the issue of setting aside judgment after a long period of delay by the defendant and the relevance of the Denton criteria. THE CASE The defendant applied to…
MORE ON BUNDLES: THERE IS MUCH TIME & MONEY TO BE SAVED YET
I have often commented (and been surprised) by the fact that a post on preparing trial bundles is always the most popular page on this blog. Following a prompt from Dominic Regan it was interesting to watch the live feed…
INADEQUATE WITNESS STATEMENTS LEAD TO CASE BEING STRUCK OUT AT TRIAL
We have looked at the case of Devon & Cornwall Autistic Community Trust -v- Cornwall Council before. In the first report Mr Justice Green refused an application to adjourn a trial date but gave permission to serve witness evidence late….
DECIDING CASES ON PAPER: WOODLANDS, EVIDENCE & DECIDING CASES "ONLINE"
The decision in Woodland -v- Maxwell looked at in an earlier blog is interesting because it is one of the rare cases where the Court of Appeal carried out a (brief) analysis of the evidence in the case more than…
A GAME OF MORE THAN ONE HALF: THE COSTS ORDER IN HAMED -v- TOTTENHAM HOTSPUR
In Hamed -v- Mills & Tottenham Hotspur Football Club [2015] EWHC 298 (QB) Mr Justice Hickinbottom found negligence on the part of a doctor and football club in a claim brought by a professional football player. In a judgment, given…
PLEADINGS MUST BE CONCISE – OR ELSE! TOO MANY COUNSEL SPOILING THE BROTH?
We have looked before at problems caused by over-lengthy pleadings. In Vincent Aziz Tchenguiz -v- Grant Thornton UK LLP [2015] EWHC 405 (Comm) Mr Justice Leggatt provides a virtual “cut out and keep” set of warnings of the dangers of not complying…
ANOTHER CASE WHERE INDEMNITY COSTS AWARDED – FOR PART OF THE CLAIM
There are now several posts on this blog considering the importance of an award for costs on an indemnity basis and cases where judges have considered this issue. Another example can be found in the decision of Stephen Jourdan QC…
PROVING MATTERS BY EVIDENCE: A LESSON FROM THE FAMILY COURT
It is certain that most lawyers involved in childcare matters will read the decision of Sir James Munby in Darlington Borough Council -v- M [2015] EWFC 11. However there are points made in that judgment of general relevance to all…
WITHDRAWING FROM ADMISSIONS, MISTAKES AND THE DENTON PRINCIPLES
There is a report on Lawtel of the decision of Judge Bidder QC in Moore -v- Worcestershire Acute Hospitals NHS Trust [12/02/15].* This case demonstrates some of the difficult issues in relation to the law of withdrawing from admissions. THE…
WHO SAYS THAT YOU'LL WIN NOTHING WITH KIDS? THE WITNESS EVIDENCE IN WOODLAND -v- MAXWELL CONSIDERED
The case of Woodland -v- Maxwell [2015] EWHC 273 (QB) is almost a procedural epic. It has involved one trip to the Court of Appeal to allow a withdrawal of admissions and a further trip to the Supreme Court on…
IN A DOG EAT DOG WORLD MAKE SURE YOU GET YOUR WITNESS STATEMENTS RIGHT (OR DON'T LET YOUR WITNESSES RABBIT ON WITHOUT GOOD EVIDENCE)
The judgment of Mr Justice Arnold in Supreme Petfoods Limited -v- Henry Bell & Co (Grantham) Limited [2015] EWHC 256 (Ch) contains a detailed analysis of the law relating to trade marks. Thanks to technology the judgment contains some vivid…
EXPERT EVIDENCE ABOUT THE VERACITY OF WITNESSES: WELL, IT IS PROBABLY A WASTE OF TIME
In Wigan Council -v- C [2015] EWFC 8 Mr Justice Peter Jackson raised considerable doubts as to whether an expert report on the potential veracity of child witnesses was of much value to a judge. It is a family case…
WITNESS STATEMENTS AND "LITIGATION WISHFUL THINKING"
It is surprising how many cases turn, in essence, on the judge’s assessment of the credibility of the witnesses. In assessing the evidence on your own, and the other wise, litigators must be aware of the concept, and dangers, of…
WITNESS CREDIBILITY: WHAT FACTORS DOES THE COURT LOOK AT? ANOTHER EXAMPLE FROM THE MERCANTILE COURT
The case of Excelerate Technology Ltd -v- Cumberbatch [2015] EWHC B1 Mercantile was looked at in an earlier post in relation to the judge’s observations about the costs budget*. It did, however, contain important observations about the way in which judges assess…
LATE SERVICE OF WITNESS STATEMENTS AND RELIEF FROM SANCTIONS IN THE HIGH COURT
In Devon & Cornwall Autistic Community Trust -v- Cornwall Council [2015] EWHC 129 (QB) the claimant’s application for the adjournment of the trial date was refused. However the claimant was given permission to serve witness statements late. Mr Justice Green…
MORE ON ADVERSE INFERENCES FROM ABSENT WITNESSES: A CLINICAL NEGLIGENCE CASE
In Webb -v- Liverpool Women’s NHS Foundation Trust [2015] EWHC 133 (QB) HH Judge Saffman (sitting as a judge of the High Court) considered the implications of an important witness not called by the defendant in a clinical negligence case….
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