TRANSFERRING A CASE FROM THE PROTOCOL TO PART 7: THE APPROPRIATE TEST CONSIDERED
I am grateful to Jamie Carpenter KC for sending me a copy of the judgment in The London Borough of Islington -v- Borous [2022] EWCA Civ 1242, a The case was looked at yesterday. Here I want to consider the…
“LITIGATION SHOULD BE SEEN AS A LAST RESORT, NOT A FIRST PORT OF CALL”: WORDS OF WISDOM FROM THE EAT
In Clark & Ors v Sainsburys Supermarkets Ltd & Anor (PRACTICE AND PROCEDURE) [2022] EAT 143 HHJ James Tayler made some observations in relation to the Early Conciliation scheme that exists in employment tribunals and construction of the rules. He…
THE KING’S BENCH GUIDE: WHERE TO FIND THE CHANGES
The Queen’s Bench guide has now been changed to the King’s Bench guide. There do not appear to be any substantive changes to the text. The text can be found here. COMPARE AND CONTRAST There is a comparison of…
THE COMPUTATION OF TIME AND THE BANK HOLIDAY ON MONDAY: ONE OTHER THING
Another point has arisen in relation the procedural impact of the Bank Holiday on Monday. The courts will be closed. CPR 2.8(5) therefore comes into effect. Any act that should have been done on Monday is effective if, instead, it…
THE COMPUTATION OF TIME UNDER THE CIVIL PROCEDURE RULES AND THE BANK HOLIDAY ON MONDAY
The Government announced that Monday the 19th September 2022 will be a national bank holiday. It is important to remember that this could have some consequences where a court order requires something to be done in 5 days or less….
“CIVIL JUSTICE IS BROKEN”: A SAD, BUT SYMPTOMATIC, TALE IN TWO TWEETS
Sometimes brevity is the key. We see this in two tweets yesterday, reprinted with permission. “Jonathan @TempleBrief Civil Justice is broken – again. Tomorrow’s CCMC for a vet with severe suicidal PTSD who lacks capacity which was postponed in Jan…
COURT REFUSES TO GRANT RESTRICTIONS ON CLAIMANT’S ACCESS TO FORMER SOLICITOR’S FILE: NOT A CASE OF LIEN ON ME
In Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm) His Honour Judge Pearce refused to place any restrictions on the disclosure of a litigation file to the claimant. The claimant was bringing an action alleging professional negligence…
IT IS THE CLAIMANTS’ JOB TO SERVE THE CLAIM FORM ON TIME: HIGH COURT REJECTS ARGUMENT THAT DEFENDANTS WERE ESTOPPED FROM TAKING THE POINT: CLAIMANTS’ OTHER ARGUMENT COME TO GRIEF
We are always seeing new ways in which mistakes are made in relation to service of the claim form. In Lonsdale & Ors v Wedlake Bell Llp & Ors [2022] EWHC 2169 (QB)the claimants agreed an extension of time to…
THE ROLE OF THE EXPERT WITNESS IN FINDING FACTS AND ASSESSING CREDIBILITY
The recent posts on the assessment of witness credibility led an expert witness to enquire whether it was the function of an expert to comment on issues relating to credibility. There have been a number of cases where judges have…
FAILURE TO COMPLY WITH PROTOCOL LEADS TO COSTS OF A MEDICAL REPORT NOT BEING RECOVERED
I was informed recently that permission to appeal was refused in the case of Greyson -v- Fuller. I am grateful to Simon Fisher from DWF for sending me a copy of the decision in Glendining -v- McCarthy,* where DDJ Causton…
HOW TO CALCULATE TIME IN THE CIVIL PROCEDURE RULES
Periodically I write reminders of the importance of being able to calculate time periods correctly. Sometime a miscalculation can lead to fundamental problems. AN EXAMPLE OF MISCALCULATION In Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) Mr Justice Martin Spencer overturned…
“KAFKAESQUE” PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A “TANGLE” AND A “MUDDLE”
In Anwer v Central Bridging Loans Ltd [2022] EWCA Civ 201 the Court of Appeal resolved procedural issues which it described as a “muddle” and “kafkaesque”. The issue was a simple one of whether a litigant was entitled to transcripts…
PERSUADING THE JUDGE TO CHANGE THEIR MIND AFTER JUDGMENT CAN BE AN EXPENSIVE STEP: COURT OF APPEAL DECISION
We have looked, many times, at issues relating to procedure after the handing down of a draft judgment. The Court of Appeal judgment in George v Cannell & Anor [2022] EWCA Civ 1067 highlights one of the difficulties that arise. …
THERE IS NO OBLIGATION ON A CLAIMANT TO FILE A REPLY: THE BURDEN OF PROOF REMAINS WITH THE DEFENDANT
In Pistachios In the Park Ltd & Anor v Sharn Panesar Ltd [2022] EWHC 2088 (QB) Mr Justice Freedman pointed out that the appellant’s argument in relation to pleading and burden of proof ran contrary to the rules. There is…
WEBINARS ON KEEPING YOUR COOL: UNDERSETTLEMENT, PROCEDURAL PITFALLS AND LIMITATION PROBLEMS: AVOIDING MATTERS HEATING UP WHEN THE HEATWAVE IS OVER
In September I am presenting a number of webinars with the theme of “avoiding problems”. These are avoiding undersettlement: avoiding procedural pitfalls and avoiding problems with limitation. “AVOIDING UNDERSETTLEMENT: A GUIDE FOR PERSONAL INJURY LAWYERS” 19th September 2022 …
TOO MANY CLAIMANTS SPOIL THE CLAIM FORM: THREE STRIKES … AND YOU’RE OUT
NB THIS DECISION WAS OVERTURNED BY THE DIVISIONAL COURT. SEE THE LATER POST ON THE DECISION HERE. In Abbott & 3,499 Ors v Ministry of Defence [2022] EWHC 1807 (QB) Master Davison rejected the claimant’s arguments that it was permissible…
A COURT ORDER IS A SERIOUS, NOT TRIVIAL, MATTER: A PARTY IN BREACH CANNOT ACT AS IF THE ORDER HAD NEVER BEEN MADE: “THAT SHIP HAS SAILED”.
One of the most imprudent things to do in litigation is to let a court order be made, not comply and then respond by arguing that the order should never have been made anyway. We see an example of this…
THE AUTOMATIC STAY AND RELIEF FROM SANCTIONS: AN ISSUE “DESTINED TO LIVE OUT ITS LITIGATION LIFE IN A LIMBO OF OBITER OBSERVATIONS”
The judgment of Mr Justice Foxton in Bank of America Europe DAC v CITTA Metropolitana Di Milano [2022] EWHC 1544 (Comm) serves of a salutary reminder (to some) of the existence of the automatic stay in civil proceedings. A claimant…
DEFENDANTS DEBARRED FROM DEFENDING A CLAIM CANNOT PARTICIPATE IN THE TRIAL: “DEBARRING ORDERS SHOULD MEAN WHAT THEY SAY”
In Financial Conduct Authority v London Property Investments & Ors [2022] EWHC 1041 (Ch) Mr Justice Trower considered whether a defendant, debarred from participating in proceedings, could play any part in the trial of those proceedings. It also highlights…
FIXED COSTS OUSTED WHEN THE PARTIES AGREE COSTS ARE TO BE THE SUBJECT OF A DETAILED ASSESSMENT: COURT OF APPEAL DECISION TODAY
In the judgment today in Doyle -v- M&D Foundations & Building Services Limited [2022] EWCA CIV 927 the Court of Appeal found that it was possible for parties to contract out of the fixed costs provisions of the protocols. THE…
THINGS TO THINK ABOUT WHEN SIGNING A DOCUMENT ON BEHALF OF A CLIENT: A FEW CASES CONSIDERED
It is also useful to issue periodic reminders of the dangers that are involved when a solicitor signs a document on behalf of their client. Here we look at several cases and the rules themselves. The observations of the…
CAN A PARTY TO LITIGATION WITHHOLD THEIR ADDRESS FOR SERVICE? COURT FINDS IT HAS A DISCRETION – BUT DECLINES TO EXERCISE IT
In Axnoller Events Ltd v Brake & Anor (Possession and Eviction Proceedings) [2022] EWHC 1162 (Ch) HHJ Matthews (sitting as a High Court judge) considered the question of whether a party to litigation must give an address for service, whether…
MORE ABOUT THE CLAIMS PORTAL: AMENDMENTS RELATING TO LEGAL PROFESSIONALS RESPONDING TO CLAIM IS NOW REVOKED: KEEP UP TO DATE WITH TWITTER…
Another tweet from HMSCTS clarifies the position in relation to defendant’s compulsory use of the claims portal which was discussed yesterday. It appears that the amendments relating to legal professionals responding to claims has not simply been postponed, but this…
TEMPORARY HALT TO USE OF CLAIMS PORTAL: PUBLIC ANNOUNCEMENT BY A TWEET… THESE CIVIL PROCEDURE RULES WILL NOT LONGER COME INTO EFFECT ON 2ND JUNE 2022
Practice Direction 51ZB was amended so that it would be compulsory for defendants to use the portal from the 2nd June 2022. However this has been delayed. A tweet from HM Courts and Tribunal Services made at 1.33 today…
ANOTHER CASE WHERE JUDICIAL REVIEW PROCEEDINGS WERE ISSUED IN LONDON BUT IT WAS TRANSFERRED TO LEEDS
In Fajr Ellis, R (On the Application Of) v Student Loans Company [2022] EWHC 1263 (Admin) Mr Justice Fordham held that judicial review proceedings, issued in London, should be transferred to the administrative court in Leeds. “In my judgment…
THE COURT DOESN’T LIKE MACHISMO, AGGRESSIVE LETTERS AND THE LIKE: HOWEVER A CLAIMANT STILL HAS TO GET ON WITH THINGS
There are some interesting observations about the conduct of litigation in the Court of Appeal judgment in Planon Ltd v Gilligan [2022] EWCA Civ 642. The court made it clear that it is alive to “machismo” methods of conducting litigation….
IS THE CCMCC BREAKING THE LAW ?THE DAMAGES PILOT AND CASES WHERE THE CCMC ARE REFUSING TO ISSUE PROCEEDINGS: WHAT IS THE RELEVANT DATE FOR LIMITATION PURPOSES?
I have come across several examples recently of the CCMCC refusing to issue claim forms on the basis that proceedings should have been issued online using the Damages Claim Pilot. In every case the papers have been returned wrongfully, the…
A TRIAL BUT NOT BY JURY: DEFENDANT’ APPLICATION FOR DEFAMATION TO BE DETERMINED BY JURY REFUSED
In Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB) Mr Justice Nicklin refused the defendant’s application for a jury trial of a defamation action. “… since the removal of the statutory presumption in s.69(1), jury…
WHAT DO YOU DO IF THE DEFENDANT MAKES AN EARLY PART 36 OFFER? WEBINAR 8th JULY 2022
In the recent case of MRA -v- The Educational Fellowships Ltd [2022] EWHC 1069 (QB) it was held that the claimant had to face the usual Part 36 consequences when a Part 36 offer was accepted late. The fact that there…
AN EXPERT REPORT THAT DID NOT COMPLY WITH PRACTICALLY EVERY REQUIREMENT OF CPR 35: IT FAILS TO PERSUADE THE COURT
An example of the importance of the format of an expert report can be found in the judgment of Master David Cook in Pal -v- Damen [2022] EWHC 004697 (QB). It is a decision that shows that the courts will…
A DEFENDANT WAS BOUND BY THE TERMS OF AN ORDER AGREED BY THEIR COUNSEL: THE DEAL WAS DONE
In Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Darryl Allen QC, sitting as a High Court judge, found that a defendant was bound by the terms of an order drawn up with the agreement of their…
YET ANOTHER CASE ON BREACH OF JUDGMENT EMBARGO: SENDING OUT “EMBARGOED” PRESS RELEASE IS A CONTEMPT OF COURT
We have another case of a party breaching an embargo on a draft judgment in the decision of Nicholas Caddick Q.C (sitting as a Deputy High Court Judge) in Match Group LLC & Anor v Muzmatch Ltd & Ors [2022]…
JUDICIAL REVIEW CLAIM SHOULD BE HEARD IN LEEDS: THE USE OF LONDON LAWYERS DOES NOT DRIVE THE CHOICE OF VENUE
In Khyam, R (On the Application Of) v Secretary of State for Justice [2022] EWHC 993 (Admin) Mr Justice Fordham was fairly robust in ordering that a judicial review hearing should take place in Leeds. This was the area with…
LITIGATION BY STEALTH WILL NOT DO: COURT OF APPEAL OVERTURNS ORDER GRANTING DEFENDANT PERMISSION TO AMEND: CARDS SHOULD BE ON THE TABLE AND FACE UP
The judgment of the Court of Appeal in ABP Technology Ltd v Voyetra Turtle Beach Inc & Anor [2022] EWCA Civ 594 concerns a technical issue in relation to trade marks. However it also demonstrates a very powerful principle in…
COURT REFUSED TO SET ASIDE A DEFAULT JUDGMENT ON COSTS: DENTON PRINCIPLES ARE VERY MUCH INVOLVED IN SUCH AN APPLICATION
In Ince Gordon Dadds LLP v Mellitah Oil & Gas BV [2022] EWHC 997 (Ch) Mr Hugh Sims QC, sitting as a Deputy High Court Judge, refused the defendant’s application to set aside a default judgment obtained for solicitor’s costs. …
RELIEF FROM SANCTIONS: NOT ALL BAD REASONS FOR DEFAULT ARE EQUALLY BAD: A PARTY CANNOT ASSERT PREJUDICE BY BEING SILENT
In EXN v East Lancashire Hospitals NHS Trust & Anor [2022] EWHC 872 (QB) Mr Justice Turner allowed an appeal where a District Judge had refused to grant relief from sanctions. The judgment is particularly interesting in that it notes…
RAKING UP OLD CASES WAS NOT A FRUITFUL GROUND FOR CROSS-EXAMINATION OF AN EXPERT
In contemporary litigation it is not unusual for the parties to spend some time (perhaps a considerably time) looking for material about previous cases that expert witnesses were involved in. This may not always be time well spent. In Richards…
THE NATIONAL ARCHIVES AND COURT JUDGMENTS: UP AND RUNNING
Court and Tribunal decisions are now freely available from The National Archives. THE PAGE The case law finder can be found here. THE PRESS RELEASE The press release explaining matters can be found here. NOTE THAT BAILII CARRIES ON …
JUDGE GRANTS SUMMARY JUDGMENT AGAINST CLAIMANT IN ACTION AGAINST SOLICITORS AND LEADING COUNSEL
In Coote -v- Ullstein [2022] EWHC 606 (QB) His Honour Judge Gosnell (sitting as a judge of the High Court) granted the defendants’ applications for summary judgment in relation to a professional negligence claim being brought against them. The judge…
INTEREST ON COSTS: WHAT IS THE APPROPRIATE RATE TO BE PAID IN A CLAIM RELATING TO AN ESTATE
In Almond v Goff & Ors [2021] EWHC 1703 (Ch) Ms Clare Ambrose, sitting as a High Court judge, considered the appropriate rate of interest on costs in a claim concerning an estate. She rejected the argument that interest ran…
HIGH COURT ISSUES A WARNING TO THOSE PLEADING CLAIM FOR EXEMPLARY DAMAGES: THERE MUST BE A PROPER BASIS FOR SUCH A PLEA
In Underwood & Anor v Bounty UK Ltd & Anor [2022] EWHC 888 (QB) Mr Justice Nicklin sent out a warning about the pleading a claim for exemplary damages. Such claims should only be made where there is a proper…
“IT SHOULD BE UNDERSTOOD THAT DELIBERATE FLOUTING OF ORDERS, GUIDANCE AND PROCEDURE IS A FORM OF FORENSIC CHEATING AND SHOULD BE TREATED AS SUCH”
In Xanthopoulos v Rakshina [2022] EWFC 30 Mr Justice Mostyn considered some key aspects of procedure, including costs and transparency. Here we look at that part of the judgment that deals with compliance with the rules. “This utter disregard…
THE COURT WILL GRANT A DECLARATION THAT AN ED SHEERAN SONG DID NOT BREACH COPYWRIGHT: OH WHY PUT YOURSELF THROUGH THIS
The judgment of Mr Justice Zacarolli in Sheeran & Ors v Chokri & Ors [2022] EWHC 827 (Ch) contains some observations as to why the court should grant a declaration that a song had not breached another composer’s copyright. The…
LEADING COUNSEL MAY HAVE BEEN IN CONTEMPT OF COURT: “LAWYERS INVOLVED IN CASES OF THIS KIND HAVE A PROFESSIONAL RESPONSIBILITY TO INFORM THEMSELVES ABOUT THE RULES AND ABIDE BY THEM”
There has been a number of judgments recently concerning the disclosure of embargoed judgments. The Court of Appeal decision in Griffiths v Tickle & Ors (Re Disclosure by Counsel for Appellant and Application by First Respondent) [2022] EWCA Civ 465…
USING THE DAMAGES CLAIM PILOT PRACTICE DIRECTION FROM TODAY ONWARDS: SIGN UP AND SEE THE MOVIE
The HMCTS weekly update yesterday stated “From Monday 4 April 2022, legal professionals issuing claims for damages that fall under the scope of Practice Direction 51ZB should use the Damages Claim service on MyHMCTS.” SIGN UP Legal professionals acting for…
TAILOR YOUR SUBMISSIONS TO KEEP TO TIME: A CODA TO A JUDGMENT – WITH A FAMILIAR THEME
There is another aspect of the judgment of Richard Salter QC (sitting as a Deputy Judge of the High Court) in Al Saud & Anor v Gibbs & Anor [2022] EWHC 706 (Comm) looked at earlier this week. A “Coda” to…
PART 18 REQUESTS SHOULD NOT BE AUTOMATIC ASPECT OF LITIGATION, NOR SHOULD THEY BE MADE AS A MATTER OF ROUTINE: HIGH COURT DECISION
The judgment of Richard Salter QC (sitting as a Deputy Judge of the High Court) in Al Saud & Anor v Gibbs & Anor [2022] EWHC 706 (Comm) contains a detailed consideration of the rules and case law relating to…
“LEGAL PROCEEDINGS DO NOT EXIST FOR THE PURPOSE OF PERMITTING PARTIES TO PUT IRRELEVANT MATTERS INTO THE PUBLIC DOMAIN”: EVIDENCE ON BEHALF OF THE DUKE OF SUSSEX IS CURTAILED
In The Duke of Sussex, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 682 (Admin) Mr Justice Swift excluded irrelevant material in witness statements and other documents. He also refused the claimant’s request…
ANOTHER CASE OF A JUDGMENT EMBARGO BEING BREACHED: ALL RECIPIENTS NEED TO UNDERSTAND THE IMPORTANCE AND BREADTH OF THE EMBARGO ON DRAFT JUDGMENTS
In The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 368 the Court of Appeal considered yet another case of breach of an embargoed judgment. There was clearly a breach (somewhere) which…
“WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM”: PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE
In WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Mr Justice Peel had some stringent criticisms of the way in which a party attempted to bypass the rules on witness statement length. Also he highlighted the futility of making…
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