COST BITES 111: LOOKING AT DETAILED ASSESSMENTS (1): YOU SHOULDN’T BE CLAIMING 62.3 HOURS FOR DRAFTING A LETTER OF CLAIM
It is surprising how few legal practitioners have actually been to a detailed assessment hearing, my own enquiries suggest it is a tiny fraction of litigators. A much higher percentage, however, have had cause to comment, possibly complain, about the…
PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM
The judgment of Deputy District Judge Batstone in Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC) illustrates the care that needs to be taken when attempting to call a witness who is giving evidence remotely…
THE “SLIP RULE” CONSIDERED IN DETAIL: ALSO THE COURT’S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS…)
The “slip rule” in civil procedure is often mentioned, but rarely considered at length. There is a detailed consideration of the rule and relevant authorities in the judgment of Mr Justice Henshaw in Deutsche Bank AG v Sebastian Holdings Inc…
WINDING UP PETITION NEEDS TO BE ISSUED IN LOCAL COURT: TYNE FOR PETITIONERS TO CHANGE THEIR PRACTICES
In The One Collection Real Estate Ltd v Insolvency & Law Ltd [2023] EWHC 2673 (Ch). HHJ Kramer held that a winding up petition should be issued and heard in the circuit that has closest links to the case. A block policy…
WANT TO OBTAIN AN ORDER AFTER RECEIVING A DRAFT JUDGMENT? BETTER READ THIS
I have been kindly sent a message from Tim Lord KC which sets out observations made by Miles J in relation to Practice Direction 40E., in particular 4.4.. The Practice Direction deals with the handing down of judgments. 4.4. imposes…
FIXED RECOVERABLE COSTS: A POWER TO ORDER GREATER AMOUNTS IN “EXCEPTIONAL CIRCUMSTANCES” AND THE STING IN THE TAIL
Continuing the examination of fixed recoverable costs. CPR 45.9 gives the court power to order sums greater than FRC in “exceptional circumstances”. The applicant’s difficulties are (i) there is no definition of exceptional circumstances (ii) there is a real sting…
FIXED COSTS AND PART 36: THE 35% GAIN IF A CLAIMANT BEATS THEIR OWN OFFER
The new rules introduce a fixed percentage as an “additional liability” in cases where a case is subject to fixed costs and a case has Part 36 costs consequences. Where a claimant has beaten their own offer and, normally, an…
LEEDS BUSINESS AND PROPERTY COURT: MOVING IN EARLY 2024
This weeks HMCTS update contains the news that Leeds Business and Property Court is moving in early 2024, to the fourth Floor of Westgate House. Over the road from the Combined Court Centre. MOVING TO WEST GATE Leeds Business and…
DELAYS, ADJOURNMENTS AND THE SIZE OF THE TRIAL BUNDLE: NOT JUST AN ACADEMIC PROBLEM: ELECTRONIC BUNDLES DOESN’T MEAN YOU CAN JUST THROW EVERYTHING IN
The judgment of Mr Justice Constable in Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2023] EWHC 2394 (TCC) contains another interesting insight into the preparation of trial bundles and how that, in itself, can become highly contentious. …
CIVIL PROCEDURE BACK TO BASICS 99: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF A WITNESS STATEMENT AND AFFIDAVIT
The purpose of this series is to look at the most basic elements of civil procedure. One, very common, omission practitioners make is to fail to follow the mandatory requirements of Practice Direction 32 in relation to the information on…
COURTS THAT ARE (OR MAY BE) CLOSED ON THE 25th, 27th AND 29th SEPTEMBER 2023
The weekly HMCTS update reports that a number of courts are closed due to industrial action. The update lists those courts that were closed last Friday. Presumably there is a strong probability that the same courts will be closed on…
NEW FIXED COSTS RULES: WHEN IS A CASE ALLOCATED TO THE INTERMEDIATE TRACK?
The new rules introduce the “intermediate track”. Here we look at the factors that lead to allocation to that track. From the 1st October 2023 we have a new CPR 26.9. The small claims track remains. The fast track is…
MANCHESTER CIVIL JUSTICE CENTRE CLOSED, 22ND, 25TH, 27TH & 29TH SEPTEMBER 2023
Anyone planning to turn up to Manchester Civil Justice Centre on the 22nd, 25th, 27th or 29th September should know that a formal notice has been sent out stating that the Centre is closed on those dates due to Security…
PRACTICE DIRECTION CHANGES PUBLISHED YESTERDAY: CAME INTO FORCE 40 MINUTES AGO… CHANGES TO THE ONLINE CIVIL CLAIMS PILOT
The 159th update – Practice Direction Amendments was published yesterday and came into force at 11.00 today. (I am told that this is an improvement over some previous amendments which came into force before they were published). THE PRACTICE DIRECTION The update…
ADMINISTRATIVE COURT JUDICIAL REVIEW GUIDE 2023: NOW AVAILABLE
The latest Administrative Court Judicial Review Guide is available on the link here. It may well be ahead of time (it is dated October 2023). THE CONTENTS It includes guidance on: litigants in person civil restraint orders starting a claim…
FIXED RECOVERABLE COSTS EXTENSION LECTURES: KERRY UNDERWOOD ON TOUR
The new rules as to fixed costs are coming soon. Kerry Underwood is undertaking a national tour of day long lectures on the fixed costs provisions. It cannot be stressed enough that the new rules are of significance to all…
NEW RULES AS TO SUMMARY JUDGMENT: COMING INTO FORCE ON THE 1st OCTOBER 2023: NEW CPR 24
“New” rules as to summary judgment come into force on the 1st October 2023. These are part of the process of “simplifying” the rules. The rules are introduced by the Civil Procedure (Amendment No.3) Rules 2023 THE NEW RULES “PART…
NEW RULES AS TO ADMISSIONS: READ THEM HERE: IN FORCE 1st OCTOBER 2023
The Civil Procedure (Amendment No.3) Rules 2023 introduce a “new” Part 14 on admissions. The is not to make any substantial changes but are part of a process of simplifying the rules. So, for instance, the criteria for seeking to…
MESSAGE FROM THE DESIGNATED CIVIL JUDGE IN MANCHESTER: STAFF REDUCTIONS IN THE COURTS HAVE CONSEQUENCES: PRACTICAL POINTS TO HELP
It is a sign of the times when the Designated Civil Judge sends out a message dealing with pressures on the Court, and staff in particular. Manchester Law Society has a “Message from the Designated Civil Judge” in which the…
BACK TO BASICS 98: COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: IT IS DANGEROUS TO ASSUME THAT THESE ARE “ADMINISTRATIVE” MATTERS
I am grateful to barrister Justin Bates for drawing my attention to the final paragraphs of the judgment of Mr Justice Fordham in Debenham-Schon v Anchor Hanover Group [2021] EWHC 3023 (QB). It concerns the duty of a litigant to…
THE NEW RULES ON FIXED COSTS: TRANSITIONAL PROVISIONS: THEY CANNOT AFFECT CURRENT CASES
I was at a social event on Friday night (but a blogger is never really off duty). During the course of the evening someone told me that they had had recently had a personal injury case where the judge, rather…
WHAT CAN A DEFENDANT ARGUE AFTER JUDGMENT ON LIABILITY: A REVIEW OF THE CASES
We are looking again at the judgment of Jason Beer KC (sitting as a High Court Judge) in Celebrity Speakers Ltd v Daniel & Ors [2023] EWHC 2158 (KB). The judge had to consider what a defendant could argue as…
CAN A CLAIMANT RECOVER MORE THAN THEY HAVE CLAIMED IN THE CLAIM FORM? YES THEY CAN…
We will be looking several aspects of the judgment of Jason Beer KC (sitting as a High Court Judge) in Celebrity Speakers Ltd v Daniel & Ors [2023] EWHC 2158 (KB). The first issue is a surprisingly common one. Can…
DRAFTING SCHEDULES OF DAMAGES: “THE SCHEDULE WAS A FICTION … THE POINT WAS RECOGNISED ON BEHALF OF BOTH CLAIMANTS”: SELECTED QUOTES (AND A WEBINAR)
The the judgment of Costs Judge James in HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) is one of a long series of cases where judges have been critical of the way in which schedules of damages have been…
THE COVER UP IS INVARIABLY WORSE THAN THE ERROR: WHAT TO DO WHEN MISTAKES ARE MADE
The post earlier this week based on the article by the Honourable Joseph Quinn led to to look in detail at one point made – that of avoiding a “cover up” and acting immediately to deal with mistakes. This led…
SKELETON ARGUMENTS: KEY POINTS AND ISSUES: ANOTHER REMINDER
Periodically I reprise the links to online guidance on skeleton arguments. Here we have a series of links to posts and articles giving guidance on written submissions. “Sir James Hunt has told us of the (unattributed) judicial reaction on receiving…
COST BITES 97: CLAIMANT NOT ALLOWED 62.3 HOURS TO DRAFT THE LETTER OF CLAIM: WHAT SHOULD LETTERS OF CLAIM CONTAIN?
In HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) Costs Judge James considered the question of how much time should have been spent drafting a letter of claim in a clinical negligence case. She disallowed the 62…
TWELVE KEY POINTS FOR PERSONAL INJURY LAWYERS ABOUT BANKRUPTCY AND INSOLVENCY (AND A PLUG FOR A WEBINAR)
I still see, on a fairly regular basis, problems caused in personal injury cases where a claimant is bankrupt and has failed to tell their lawyers. Equally often there are cases where it is clear that a claimant is, or…
WHEN LAWYERS GIVE WITNESS STATEMENTS: THE SOURCE OF INFORMATION AND BELIEF IS ESSENTIAL
We are looking back at a post in 2019. Primarily because the issues the case raises in relation to lawyers making witness statements are prevalent. There are numerous examples on this blog of the difficulties that can occur when a…
WITNESS STATEMENTS, PART 18 QUESTIONS AND CASE MANAGEMENT: THE MASTER WAS RIGHT TO ORDER THE CLAIMANT TO DISCLOSE HIS WITNESS EVIDENCE FIRST
It has taken to the third time of writing about the decision in Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB) to get to the detail of what the appeal was actually about. This part of the judgment is important…
AN INTERESTING ISSUE: CLAIMANT WHO FAILS TO PLEAD CONTRACTUAL INTEREST – DOESN’T GET INTEREST AT ALL
The judgment of Mr Justice Foxton in Rolls-Royce Holdings Plc v Goodrich Corporation [2023] EWHC 2002 (Comm) illustrates an important issue in relation to interest. If a successful party has a contractual right to interest, but has not pleaded that…
ADVISING ON THE RISKS OF LITIGATION: A RECAP: “CLIENTS WANT TWO INCONSISTENT THINGS”
Continuing with the look back at previous years we are looking at a post written in July 2019 about advising on the risks of litigation. “The difficulties facing those giving advice about litigation is summed up in a…
A LICENCE TO THRILL: JAMES BOND, THE MOVIES AND THE COURTS: LEGAL TALES THAT WON’T SCARE THE LIVING DAYLIGHTS OUT OF YOU
This morning I am encouraging you to read ‘James Bond and the Law’ : A talk to the Manchester Business and Property Courts Forum [2023] UKSpeech 7REH2, given by Mr Justice Foxton. A look through at the James Bond franchise…
REDACTION OF DOCUMENTS SHOULD NOT BE ROUTINE: ADMINISTRATIVE COURT DECISION
In FMA & Ors v Secretary of State for the Home Department [2023] EWHC 1579 (Admin) Mr Justice Swift made the point the redaction of documents in judicial review proceedings should not be routine. THE CASE The judge was…
UNSUCCESSFUL RESPONDENT CANNOT INTRODUCE NEW EVIDENCE AFTER DRAFT JUDGMENT HANDED DOWN
In Manolete Partners Plc v White [2023] EWHC 1644 (Ch) HHJ Hodge KC (sitting as a High Court judge) considered an application to adduce further evidence after a draft judgment had been circulated. The application was refused. The respondent was…
JUST LET GO: COURTS CANNOT FORCE A LITIGATION FRIEND TO KEEP ON ACTING: HIGH COURT DECISION
In Major v Kirishana [2023] EWHC 1593 (KB) Mr Justice Cotter allowed an appeal in which a judge had refused a Litigation Friend’s application to terminate their appointment. The judgment makes it clear that there will be very few circumstances…
ON THIS BLOG 10 YEARS AGO: PART 36; INTERIM PAYMENTS AND SUING THE “MAN OF STRAW”
Now that the blog is 10 years (and 2 days) old it gives me an opportunity to look back at previous posts in a way that remains useful. Some (but not all) of the posts over the past decade stand…
TEN YEARS OF BLOGGING : A DECADE OF CIVIL LITIGATION BRIEF: A QUICK LOOK BACK AND AN EVEN QUICKER LOOK FORWARD
The 24th June 2023 marks the 10th anniversary of the start of the blog. I did worry, when I started, whether there would be enough material to . However, over the past 10 years I have never been short of…
USING TRANSLATORS: COURT HEARINGS AND WITNESS STATEMENTS: WHERE CAN IT ALL GO WRONG
In Alam v Alam & Anor [2023] EWHC 1460 (Ch) the Court had to deal with issues relating to translators and witness statements. There were several issues in relation to the use of translators. The evidence of one witness was…
3,450 CLAIMANTS CAN USE THE SAME CLAIM FORM: DIVISIONAL COURT DECISION ON CPR 7.3.
I am grateful to David Platt KC for sending me a copy of the decision of the Divisional Court in Abbott -v- Ministry of Defence [2023] EWHC 1475 (KB). The Court overturned a previous decision of a Master and allowed…
CIVIL PROCEDURE BACK TO BASICS 97: GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: 10 BASIC POINTS
This is not the first time that this series has dealt with this issue. The post earlier this week on the judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) shows that it is a regular issue….
CLAIMANT DID NOT RECEIVE PART 36 BENEFITS WHEN IT BEAT ITS OWN OFFER BY SEVEN PENCE: A REQUEST TO CAPITULATE IS NOT A GENUINE OFFER OF SETTLEMENT
I am grateful to barrister James Miller for sending me a copy of the judgment of District Judge Griffith in Gohil -v-Advantage Insurance Company (County Court at Birmingham, 11th May 2023) a copy of which is available here. Gohil v…
DEFECTIVE WITNESS STATEMENTS CONSIDERED: THE MAKER OF THE STATEMENT MUST GIVE THE SOURCE OF INFORMATION AND BELIEF
The judgment in MF Tel Sarl v Visa Europe Ltd [2023] EWHC 1336 (Ch) records it was before “Master Marsh (sitting in retirement). However the Master has lost none of his pre-retirement keenness for ensuring that parties filing witness statements…
RULE CHANGES ON THE 1ST OCTOBER 2023: FIXED RECOVERABLE COSTS AND ALL THAT: LOOKING AHEAD – A QUICK GLANCE AT THE PRIMARY SOURCES
The rules introducing the “Intermediate Track” for cases between £25,000 and £100,000 are now published, they come into force on the 1st October 2023. There are links to the source material below. A more detailed guide to the changes will…
APPEALS, BUNDLES AND “SPEAKING NOTES”: BUNDLES(INCLUDING PAGE NUMBERING) GO AWRY: A “SPEAKING NOTE” IS NOT TO BE USED AS A SUPPLEMENTARY SKELETON ARGUMENT
The judgment of Mr Justice Ritchie in Masih & Anor v Royal Wolverhampton NHS Trust [2023] EWHC 1280 (KB) contains many matters of interest in relation to the conduct of the trial and appeal. Here we look at two aspects:…
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (3): EMBARGOED JUDGMENTS – DON’T DISCLOSE EARLY TO ANYONE (LET ALONE THE LAWYER’S PR TEAM…)
The new guide has extended the section on embargoed judgments. This makes it absolutely clear that the disclosure of judgments to third parties (for example the lawyers’ PR teams) for the purpose of preparing a press release to publicise the…
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (1): LAWYERS STAY OUT OF THE MEETING OF EXPERTS
A new edition of the King’s Bench Division Guide was published last week (although it is dated March 2023). I will take a short look at the major changes. Firstly looking at a new passage in relation to the instruction…
CIVIL PROCEDURE BACK TO BASICS 96: PERMISSION TO APPEAL: THE APPLICATION TO THE FIRST-INSTANCE JUDGE HAS TO BE MADE AT THE INITIAL HEARING (OR ADJOURNMENT THEREOF)
The judgment of HHJ Pelling in FG Financing Ltd & Anor v Lagun [2023] EWHC 126 (Comm) serves as a useful reminder of the limited period of time available to make an application to the first-instance judge for permission to…
CIVIL PROCEDURE BACK TO BASICS 95: ACCEPTING A PART 36 OFFER WHEN THERE IS MORE THAN ONE DEFENDANT
This post arises out of an interesting question I was asked in a recent webinar on Part 36.* The questioner asked wanted to accept a Part 36 offer by one defendant and continue the action against others. The situation here…
PART 36: NORMAL COSTS PROVISIONS DISAPPLIED WHEN A CHILD ACCEPTED A PART 36 OFFER LATE:
Yesterday I gave a webinar on recent developments in Part 36*. Almost inevitably a new case was reported as soon as the webinar finished. Further that case addresses, directly, some of the interesting questions that arose in the webinar. In…
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