“WHAT’S THE DIFFERENCE BETWEEN A WITNESS STATEMENT AND SUBSTANTIVE SUBMISSIONS”
The title of this piece is a search term that led someone to this blog today. Again it caused me to repeat a point made several years ago on this blog. THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS In a…
WITNESS STATEMENTS: KEEPING DRAFTS AND “THE SHREWSBURY 24”: LESSONS FROM PAST MISTAKES
It may seem strange to link the highly important Court of Appeal decision in Warren & Ors v R. [2021] EWCA Crim 413 with modern civil litigation. However this is an important case and there are direct parallels to many…
PROVING THINGS 207: CORPORATE INSOLVENCY AND CORONAVIRUS: A COMPANY STILL HAS TO PROVE SOLVENCY PROBLEMS WERE DUE TO COVID
In PGH Investments Ltd v Ewing [2021] EWHC 533 (Ch) Deputy ICC Judge Passfield considered questions of evidence in relation to the provisions that prevent winding up of a company when it can establish that its financial state is due…
“THIS APPLICATION WAS A SIGNIFICANT ABUSE OF THE PROCEDURES … AND SHOULD NEVER HAVE BEEN MADE”: THE ADMINISTRATIVE COURT, DUTIES TO THE COURT AND THE HAMID JURISDICTION
In the judgment today in DVP & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2021] EWHC 606 (Admin) the Administrative Court exercised considered a case referred to it under the “Hamid” jurisdiction…
EXAGGERATING AND INFLATING CLINICAL NEGLIGENCE CLAIM LED TO CLAIMANT BEING SENTENCED TO SIX MONTHS IMPRISONMENT: “THERE IS NO ROBIN HOOD DEFENCE HERE”
In Calderdale & Huddersfield NHS Foundation Trust v Metcalf [2021] EWHC 611 (QB) Mr Justice Griffiths sentenced a claimant to six months imprisonment following the exaggeration of a claim for damages. “She was, by her contempt of court, effectively stealing…
JUDGE STRIKES OUT CLAIMS OF CLAIMANTS JOINED INTO ACTION AFTER CLAIM FORM WAS ISSUED: WHEN AMENDED PLEADINGS START TO RESEMBLE A RAINBOW
The case of Various Claimants v G4S Plc [2021] EWHC 524 (Ch)is one that bristles with procedural issues. Here we look at one issue – the judge striking out the claimants that were added after issue of the claim form…
HOUSING POSSESSION DUTY DESK: SIMON MULLINGS AND SUE JAMES: “SO MUCH MORE THAN” A PRACTICAL GUIDE
If there is a “front line” of the legal world a large part of it has to be the housing possession duty desk. A lawyer, with no previous knowledge of the case, is called upon to try to save the…
ALL YOU NEED TO KNOW ABOUT FUNDAMENTAL DISHONESTY: WEBINAR 11th MAY 2021
I am co-presenting a webinar with solicitor John McQuater on fundamental dishonesty in personal injury action on the 11th May 2021. HOW TO BOOK Details of how to book are available here. THE WEBINAR This webinar will bring you right…
LAWYERS (AND ALL LITIGANTS) REMEMBER THAT YOU CANNOT WRITE TO THE COURT WITHOUT COPYING IN THE PARTIES TO THE LITIGATION
For the second time in two days I am writing of a case where a party has written to the court unilaterally, without copying in the other parties. It was a matter raised in the judgment of Mr Justice Fordham…
JUDGE REFUSES TO VARY THE TERMS OF ORIGINAL ORDER: DEFENDANT’S APPLICATION FOR RECONSIDERATION DID NOT FLY
In Walton Family Estates Ltd & Ors v GID Services Ltd & Ors [2021] EWHC 464 (Comm) Andrew Hochhauser QC, sitting as a judge of the High Court, refused a defendant’s application to reconsider the terms of an earlier order. …
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6TH APRIL 2021: THE DECLARATION THAT THE CLIENT HAS TO SIGN – AND WHY IT POINTS STRAIGHT BACK AT YOU
In addition to the new requirement for the solicitor to sign a declaration that the witness statement complies with the rules the witness themselves has to sign a declaration. The witness declaration, however, does not get the lawyer off the…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6th APRIL 2021: THE DECLARATION THAT THE SOLICITOR HAS TO SIGN
One of the many requirements that come into force on the 6th April is the requirement for the solicitor to sign a declaration that the witness statement complies with the rules. This is not an obligation that can be taken…
AVOIDING PROBLEMS: TWELVE THINGS FOR LITIGATORS TO THINK ABOUT IN MARCH
I am here re-visiting advice first given in 2016. However everything written then appears equally valid today. Indeed the contents of this blog over the past five years serves basically amplifies every issue raised here. 1. NEVER, EVER, GUESS ABOUT…
“WHAT’S THE DIFFERENCE BETWEEN KNOWLEDGE AND BELIEF?” WHY IS THIS IMPORTANT? 10 KEY POINTS RE-VISITED
The question “What’s the difference between knowledge and belief” was a search term that led to this blog yesterday. I mentioned this on Twitter and it has led to some interesting responses, ranging from the philosophical to the whimsical. You…
SETTING ASIDE A DEFAULT JUDGMENT: DELAY, FAILING TO KNOW THE CORRECT PROCEDURE AND ABSENCE OF MERITS: LORD CHANCELLOR WINS THE DAY…
The judgment of Master Thornett in The Lord Chancellor (as Successor to the Legal Services Comission) v Halberstadt-Twum (t/a Cleveland Solicitors) & Anor [2021] EWHC 413 contains some object lessons for anyone involved in an application to set aside default…
THE NEW WITNESS STATEMENT REQUIREMENTS AND ADMIRALTY CLAIMS: NEW RULES WILL APPLY
The new requirements for certification of witness statements in the Business and Property Courts come into force on the 6th April 2021. Initially it was thought that Admiralty claims may be excluded, because of the importance of contemporary statements in…
SNAILS, BOXES, RATES, OFFICES AND CIVIL PROCEDURE: A DRAFT JUDGMENT IS NOT AN INVITATION TO CRITIQUE IT
The judgment of Mr Justice Fordham in Isle Investments Ltd v Leeds City Council (Rev 1) [2021] EWHC 345 (Admin) contains a reminder of the point that a draft judgment is not an opportunity to re-open or critique the substance…
UNLESS ORDER MADE WHEN THE CLAIMANT HAD NOT PAID AN INTERLOCUTORY ORDER FOR COSTS
In Junejo v New Vision TV Ltd [2021] EWHC 449 (QB) Deputy Master Hill QC made a peremptory order that the claimant pay an order for costs. However that payment was to be by instalments. There is a useful review…
CIVIL PROCEDURE AND COSTS ROUND UP: FEBRUARY 2021
A round up of posts and articles about civil procedure and costs in February 2021. THE CIVIL PROCEDURE RULES The Law Society Gazette Litigants baffled as Civil Procedure Rules move to new site Litigation Futures Minister promises urgent review of…
“BUILD IT AND WHO CARES IF THEY COME”: THE REGISTER ON WHAT IS HAPPENING WITH THE COURT RULES AND LISTING ONLINE: THE ABSENCE OF “SCHOOL-GRADE WEB SKILLS”
An interesting explanation of why practitioners, and others, are having problems with access to rules of court and listing can be found in The Register – which provides news on technology for I T Professionals. The Register reports that the…
AN APPLICATION THAT WAS “OPPORTUNISTIC AND WITHOUT MERIT”: NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL
The issue of non-payment, or under-payment, of court fees was considered by the Court of Appeal in the judgment today in Butters & Anor v Hayes [2021] EWCA Civ 252. THE CASE During the course of an action the court…
THE RULES ARE BACK IN TOWN: ASKING WHERE THEY COULD BE FOUND…
After some, shall we say “adverse”, comments on the way that the Civil Procedure Rules are presented on the government website the “old” site has has been given a reprieve. ON THE JUSTICE WEBSITE The Rules are still available…
CIVIL PROCEDURE BACK TO BASICS 91: MAKE SURE YOUR CLIENT IS STILL ALIVE WHEN YOU ISSUE – AT CERTAINLY AT THE TIME OF TRIAL: A SITUATION THAT IS UTTERLY BIZARRE
The facts in Amirtharaja & Anor v White & Anor [2021] EWHC 330 (Ch) are unusual to say the least. Someone who had died two years prior to issue was included as a party in a claim form. The matter…
CIVIL PROCEDURE BACK TO BASICS 90: APPEALS, RESPONDENT’S NOTICES AND DENTON
The Court of Appeal judgment in Unite the Union v Alec McfAdden [2021] EWCA Civ 199 highlights the needs for a party, responding to an appeal, to file a Respondent’s Notice if it wants to argue there are additional, or…
CIVIL PROCEDURE BACK TO BASICS 89: THE 2% CAP ON COSTS BUDGETING: SOMETHING TO WATCH OUT FOR
Some draft orders for CCMCs I have seen recently included, towards the end a provision for the 2% cap on the budgeting process to be be applied. Anyone faced with such a draft should point to the provisions of CPR…
“TOPSY TURVY STATUTORY CONSTRUCTION”: THE CORONAVIRUS ACT DOES NOT ALLOW THE BROADCASTING OF THE COURTS
In Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care [2021] EWHC 346 (Admin) Mr Justice Chamberlain rejected an argument that the Coronavirus Act implicitly gave the courts power…
WHERE HAVE ALL THE CIVIL PROCEDURE RULES GONE? (2): A LONG TIME MAY NOT BE PASSING (AND SOME – MAYBE NOT SO USEFUL – LINKS)
As an update on the decision to move the online version of the Civil Procedure Rules. David Wolfson QC, (Parliamentary Under-Secretary of State for Justice) tweeted yesterday that the problem had been recognised “I’ve asked my officials to look at…
THE TORT OF “BRINGING PROCEEDINGS FOR AN IMPROPER PURPOSE”: MAY STILL BE ALIVE, BUT NOT VERY WELL…
The judgment of Andrew Lenon QC in Kings Security Systems Ltd v King & Anor [2021] EWHC 325 (Ch) contains a detailed consideration of the tort of “bringing proceedings for an improper purpose”. This tort (may well) still exist, however…
WHERE HAVE ALL THE CIVIL PROCEDURE RULES GONE? WHEN WILL THEY EVER LEARN?
From the day this blog started there has always been a link to the Civil Procedure Rules. These were available, in an easily accessible form, on the Ministry of Justice website. They may still be there – but not for…
REPLIES TO DEFENCES: WHY AND WHEN…
A post yesterday made me think that this is an opportune time to re-visit the function of the Reply in litigation. I am here concerned only with a Reply to a Defence which is, essentially voluntary, not a Defence to…
NEW RULES COMING INTO FORCE IN APRIL 2021 4: NON-DISCLOSURE OF AFFIDAVITS
A new rule coming into force on the 6th April 2021 expressly extends the prohibition on the use of witness statements in proceedings to affidavits. THE ISSUE There is currently a lacuna in the rules. There is a prohibition on…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
RULE CHANGES COMING INTO FORCE IN APRIL 2021 (3): VULNERABLE PARTIES AND WITNESSES (AGAIN)
I am returning to the changes being introduced in relation to vulnerable parties and witnesses because the new rules are now available here . The new Practice Direction was looked at in detail in an earlier post. CHANGES TO…
UPDATED DENTON RESOURCE: AVAILABLE ONLINE NOW
The Sanctions Case Watch section of this blog does its best to keep up to date with cases relating to relief from sanctions. It does this in chronological order. There is always a link in that section to the useful…
STATEMENTS OF CASE, DRAFTING, DANGERS AND PITFALLS: WEBINAR 17th FEBRUARY 2021
I am giving a webinar on the 17th February 2021 on avoiding problems with Statements of Case. This is part series of webinars on the theme of “staying safe” in the running of personal injury cases. The webinars look at…
FAILURE TO COMPLY WITH CIVIL PROCEDURE RULES AND PAY CORRECT COURT FEE CAN (BUT DIDN’T) LEAD TO AN ACTION BEING STRUCK OUT
In Udeshi & Ors v Sieratzki [2021] EWHC 213 (Ch) Master Kaye considered an argument that a failure to pay the correct fee, and other breaches of the CPR, should lead to an action being struck out. Given that the…
THE CORRECT COURT FEE WHEN ADDITIONAL PARTIES ARE JOINED INTO AN ACTION: NOT £55 BUT £10,000 (OH, AND YOU CAN’T RELY ON WHAT THE COURT TOLD YOU…)
There are not many cases where a judge is asked to determine what the appropriate court fee should be. However this is precisely what occurred in the judgment of HHJ Pearce in Walayat & Ors v Berkeley Solicitors Ltd [2021]…
TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING
A real and profound warning about the dangers of issuing against someone without capacity is given in the judgment of HHJ Hodge QC sitting as a judge of the High Court in Kumar v Hellard [2021] EWHC 181 (Ch). …
THE RULES OF LITIGATION ARE DETAILED AND IMPORTANT: COURT REFUSES APPEAL – DEFENDANT’S ATTEMPT TO RE-LITIGATE HEARING WAS AN ABUSE OF PROCESS
The judgment of Collins Rice J in Vafa v Patel [2021] EWHC 198 (QB) shows the importance of knowing and complying with the rules. The judge dismissed an appeal where it had been held that a defendant’s attempt to re-litigate…
THE FAMILY COURT IS NOT THE HIGH COURT: SEVEN YEARS ON AND THERE IS STILL CONFUSION: MOSTYN J RE-STATES THE POSITION
I am treading, warily, in the patch of the family law bloggers in looking at the judgment of Mr Justice Mostyn in TK v ML [2021] EWFC. This is a judgment about procedure that highlights the point that the Family…
SERVICE OF THE CLAIM FORM AND THE PARTICULARS OF CLAIM: AVOIDING THE PITFALLS: WEBINAR 11th FEBRUARY 2021
The problems that claimants face when serving the claim form are well documented on this blog. I am presenting a webinar on the 11th February 2021 on identifying and avoiding the (many) pitfalls of service of the claim form and…
COSTS NOT REDUCED BECAUSE OF THE WAY A DEFENDANT CONDUCTED ITS CASE: THE PRAGMATIC PRUNING OF A CASE SHOULD NOT BE DETERRED
We are returning again (and not for the last time) to the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). This time we are looking at the claimants’ argument…
BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL
The judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC) sets out the judge’s concerns in relation to the over-lengthy documents filed in support of an application for…
CIVIL PROCEDURE ROUND UP: POSTS AND ARTICLES ON PROCEDURE AND COSTS: JANUARY 2021
We all know that January has been a very long month. There has been much written about procedure and costs. Here is the first round up of the year. COSTS ACL – Master upholds default costs certificate in case where draftsman…
AMENDMENTS TO PD 55 C: STAY EXTENDED TO 30th JULY 2021
The online version of PD 55C shows an extension of the time period for suspension of possession proceedings to 30th July 2021. THE AMENDED PRACTICE DIRECTION Is available here. THE RULE 1.1 of the PD now reads ” This…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN WITNESS STATEMENTS: A MANDATORY OBLIGATION THAT IT IS DANGEROUS TO OVERLOOK
We have looked many times at cases where problems have occurred because someone making a witness statement fails to comply with the mandatory obligation to give the sources of their information and belief. The problems this can lead to are shown…
KERRY UNDERWOOD ON COSTS – AND SO MUCH MORE: SUBSCRIPTION SERVICE READ ALL ABOUT IT
Kerry Underwood has started a new Newsletter – “Kerry On Costs… And So Much More…” THIRTY ISSUES IN 2021 The first issue can be seen here (and the link on this blog) and Kerry will produce at least 30…
NEW FORM N244: SOMETHING TO WATCH OUT FOR
On the 20th January there were some slight amendments to Form N244 – the form for making applications in civil proceedings. THE CHANGES So far as I can tell the main change is to the statement of truth. There…
THE QUEEN’S BENCH GUIDE: 2021 EDITION : OUT TODAY – READ IT WHILE IT’S FRESH…
Hot on the heels of the new Senior Costs Office Guide today there is a new edition of the Queen’s Bench Guide. THE GUIDE The guide is available here THE PREFACE The President of the Queen’s Bench Division, Dame Victoria…
INJUNCTION AND POSSESSION AGAINST TRESPASER SUSPENDED BECAUSE OF COVID
In Merritt v Thurrock Council & Anor [2021] EW Misc 2 (CC) HHJ Karen Walden-Smith found that the defendant had no defence to a claim for trespass. However enforcement of the order was delayed because of the coronavirus situation. …
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