COSTS BITES 53: POSSIBILITY OF AN APPEAL AND INABILITY TO RELY ON COSTS BUDGET ARE NOT GROUNDS FOR REFUSING AN INTERIM ORDER FOR COSTS
In Isaac v Tan & Anor (Re Costs) [2022] EWHC 3478 (Ch) Mr Justice Adam Johnson considered issues of costs following an unsuccessful unfair prejudice application relating to the shares of Cardiff City Football Club. He held that the application…
“INTERROGATION” OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY
We have seen many cases relating to issues arising following the sending out of draft judgments. Another example can be viewed in the Court of Appeal judgment today in C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY £17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE
I am grateful to barrister Ashley Blood-Halvorsen for bringing my attention to the judgment of District Judge Lumb in Reed -v- Boswell (06/12/2022) a copy of which is available here. It is a rare example of costs being awarded against…
PROVING THINGS 245: DEFENDANTS FLOORED: THEY FAILED TO ESTABLISH THAT DISCLOSURE GIVEN INADVERTENTLY “ON THIS QUESTION, THE EVIDENCE BEFORE ME FROM THE DEFENDANTS IS LIMITED AND UNSATISFACTORY”
In Flowcrete UK Ltd & Ors v Vebro Polymers UK Ltd & Ors [2023] EWHC 22 (Comm) Mr Nigel Cooper KC (sitting as a High Court Judge) refused the defendants’ application to prevent the claimant from using certain documents that…
LAWYERS, FONTS, THE RULES AND SKELETON ARGUMENTS BEING REJECTED: A RECAP
Every so often there are discussions on Twitter about the appropriate fonts for lawyers to use. At times these can be heated discussions, including consideration of whether the use of the word “fonts” is itself appropriate. This led me to…
COST BITES 41: PREJUDGMENT INTEREST ON COSTS – CONSIDERED BUT REFUSED
In Adcock & Ors v Blemain Finance Ltd [2022] EWHC 3280 (SCCO) Costs Judge Whalan considered, and rejected, the claimants’ arguments that they should have pre-judgment interest on costs. “It is clear nonetheless that the incipitur rule constitutes the…
THE COURTS IN AN ERA OF AUSTERITY: BROKEN LIFTS AND BROKEN PROMISES
It would be a pity if the speech of Sir James Munby THE FAMILY COURT IN AN ERA OF AUSTERITY: PROBLEMS AND PRIORITIES is only read by family lawyers. There is much of interest to all litigators. It was a…
2022 IN REVIEW (IV): CASE OF THE YEAR: PART 36 OFFERS AND MISTAKES
Choosing a case of the year is never easy. There are many significant judgments throughout a year all of which have an impact on civil procedure. However this year I am returning to a decision in January. The decision of…
2022: IN REVIEW (II): THE QUIRKIER STUFF
Some stranger statistics from the blog this year. Looking at the busiest times, the busiest day, referrers and the countries that visit most (and least). BUSIEST DAY AND TIME The busiest day is Tuesday. The busiest time is 11.00…
2022 IN REVIEW (1) : SOME FACTS AND FIGURES
2022 has been another busy year on this blog. It is always interesting to see what people have been reading. The most recent posts are not always the most read. Instead posts on basic issues, from earlier years, dominate the…
ANOTHER POTENTIAL BREACH OF AN EMBARGO ON A JUDGMENT: JUDGE DECIDES TO TAKE FURTHER ACTION TO INVESTIGATE
The judgment in Wright v McCormack [2022] EWHC 3343 (KB) shows a variation on the risks of disclosing the contents of an embargoed judgment. The claimant did not disclose the full judgment but various messages on social media could be…
AN ACTION ISSUED ON BEHALF OF AN ESTATE BY SOMEONE WITHOUT AUTHORITY AT THE TIME OF ISSUE IS “A DEAD THING INTO WHICH NO LIFE COULD BE INFUSED”
One search term that regularly leads people to this site is “can I issue on behalf of an estate when I don’t have letters of administration”. There are variations on this, but the central theme is always the same. The…
DEFENDANT’S APPLICATION TO VACATE TRIAL DATE, AND FOR A FOUR YEAR STAY, REFUSED: JUSTICE IS ACHIEVED BY THE TRIAL DATE BEING MET
In Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) Mr Justice Ritchie refused the defendant’s application for an adjournment of a trial date. The defendant argued that medical uncertainty meant that it was…
A DRAFT JUDGMENT IS NOT AN INVITATION FOR A SECOND BITE OF THE CHERRY: HIGH COURT JUDGMENT TODAY
In Shepherd & Co Solicitors v Brealey [2022] EWHC 3229 (KB) Mr Justice Cavanagh made some observations on the practice of making submissions once a judgment is sent out in draft. This was not an invitation to the parties to…
IF YOU DON’T SAY WHO YOU ARE THEN YOU CANNOT ARGUE POINTS AT A DETAILED ASSESSMENT OF COSTS
In Wright v Person Or Persons Unknown Responsible for the Operation and Publication of the Website bitcoin.org [2022] EWHC 2982 (SCCO) Costs Judge Rowley held that if a paying party wanted to take part in a detailed assessment of costs…
WHEN THE WORDING OF THE CLAIM FORM COMES UNDER CLOSE SCRUTINY: SOMETHING TO REMEMBER
The precise wording of the claim form came under close scrutiny in the judgment of Mr Justice Trower in Honda Group-UK Pension Scheme Trustee Ltd & Ors v Mercer Ltd & Anor [2022] EWHC 3197 (Ch). It is one of…
BUNDLES: SEDLEY’S LAW REVISITED: HAS MUCH CHANGED OVER THE PAST NINE YEARS?
Nine years after it was first published I am re-visiting a very early post on this blog. Regular readers will know that the issue of trial and hearing bundles have featured regularly over the intervening period. It is not uncommon…
PART 36: CONDUCT & REDUCTION OF CLAIMANT’S COSTS: A SETTLEMENT STRATEGY THAT WAS “COMPLETELY UNREALISTIC”
In Moradi v The Home Office (Costs) [2022] EWHC 3125 (KB) HHJ Tindal (sitting as a High Court Judge) considered the appropriate costs consequences where a case settled on the eve of trial. The defendant made a Part 36 offer…
WHEN YOU HAVEN’T CALLED YOUR OWN EXPERT BUT WANT TO CRITIQUE THE EXPERT FOR THE OTHER SIDE: THIS IS NEVER GOING TO BE EASY
In White & Ors v Secretary of State for Health and Social Care [2022] EWHC 3082 (KB) Jeremy Hyam KC (Sitting as a Deputy Judge of the High Court) considered the issues that arise when a party has not called…
Christmas and New Year courts and tribunals opening times 2022: See them here
The Gov.Uk website has details of Christmas and New Year courts and tribunals opening times 2022. CLOSING DATES OVER CHRISTMAS ” Our courts and tribunals will temporarily close on various dates over the Christmas period. The closure dates for this year are:…
WHAT DO YOU CALL A JUDGE IN COURT? MESSAGE FROM THE LORD CHIEF JUSTICE AND SENIOR PRESIDENT OF TRIBUNALS
In a message yesterday the Lord Chief Justice and Senior President of Tribunals announced changes in the way that certain judges are addressed in court. THE MESSAGE “We are today announcing a change in the practice of how certain…
A PARTY CANNOT SIMPLY ADD A PENAL NOTICE TO A COURT ORDER: IF THE COURT DOESN’T ORDER IT THEN IT SHOULD NOT BE IN THE ORDER
In Taray Brokering Ltd, Re [2022] EWHC 2958 (Ch) HH Pearce held it was not open to a party to place a penal notice on a court order when the court itself had not placed such a notice on the…
NOTICE OF APPEAL FILED IN TIME WHEN IT WAS ELECTRONICALLY FILED AFTER 4.30 pm: COURT OF APPEAL DECISION
In Microsoft Ireland Operations Ltd & Ors v JJH Enterprises Ltd (Re Electronic Filing of Appellant’s Notice) [2022] EWCA Civ 1509 the Court of Appeal upheld a finding that an appellant’s notice filed electronically after 4.30pm on the last date…
DEFENDANT GRANTED SUMMARY JUDGMENT ON A SINGLE EVIDENTIAL ISSUE: CPR 24.2 CAN BE USED IN THIS CONTEXT
In Holdgate v Bishop [2022] EWHC 2850 (KB) Master Thornett granted the defendant’s application for summary judgement on a specific issue. The Master granted the defendant judgment on the issue of whether the claimant had instructed solicitors to sell land…
DEFENDANT SOLICITOR IN COSTS ASSESSMENT NEED NOT RESPOND TO PART 18 REQUESTS ABOUT PREMIUMS: “THE GENERAL QUESTIONS POSED ARE A PARADIGM EXAMPLE OF A FISHING EXPEDITION”
I am grateful to Nick McDonell from Kain Knight for sending me a copy of the judgment of Costs Judge Rowley in Brown -v- JMW Solicitors LLP [2022] 2848 (SCCO). In that case the judge refused to make an order…
CONSEQUENTIAL ISSUES AFTER JUDGMENT IS HANDED DOWN: NO TIME TO START ACTING UP
The judgment of Mr Justice Foxton in Royal & Sun Alliance Insurance Ltd & Ors v Tughans (a firm) [2022] EWHC 2825 (Comm) shows considerable concern about the way in which parties are attempting to deal with issues following the…
I’M PICKING UP BAD CITATIONS: USE LAW REPORTS – DON’T SURF THE NET
There is a short postscript to the judgment of Paul Bowen KC (sitting as a Deputy High Court Judge) in YR, R (On the Application Of) v London Borough of Lambeth [2022] EWHC 2813 (Admin), which is of general importance….
PROVING THINGS 241: “IT IS EXTRAORDINARY HOW MUCH OF THE CASE WAS BEING ‘PATCHED UP’ AS THE TRIAL WENT ALONG”
The judgment of HHJ Luba KC in Ibrahim v London Borough Of Haringey & Anor [2022] EW Misc 9 (CC) shows a surprising approach to evidence on the part of the both sides. “Given the nominal value of the claim,…
COST BITES 29: THE PRINCIPLES OF BUDGETING CONSIDERING AND APPLIED: 15% REDUCTION TO BUDGET
In Associated Newspapers Ltd v Buckingham Group Contracting Ltd (Cost Budgeting) [2022] EWHC 2767 (TCC) Mr Roger Ter Haar KC considered principles relating to the budgeting process. He reduced a budget by 15% across the board. “In my judgment, the…
TWO ISSUES: WITNESS CREDIBILITY: ATTEMPTING TO RE-OPEN A JUDGMENT ON THE BASIS OF OMISSIONS IN THE JUDGMENT: ADVOCATES NEED TO CONSIDER THE POSITION CAREFULLY
There are two aspects of the judgment of Mr Justice Mostyn in Cazalet v Abu-zalaf [2022] EWFC 119 that are of general interest to litigators. Firstly the judge’s observations as to witness credibility. Secondly the observations in relation to re-opening…
“BOILERPLATE” STATEMENTS OF THE LAW MUST BE TREATED WITH CIRCUMSPECTION: COURT OF APPEAL DECISION
In A (Children) (Pool of Perpetrators), Re [2022] EWCA Civ 1348 Lady Justice King set out a note of warning about cases where agreed notes of the relevant law are relied on. It may be better for the law to…
PROCEDURAL DEFAULTS IN JUDICIAL REVIEW PROCEEDINGS: ADJOURNMENTS OF TRIALS AND APPARENT BIAS
I first looked at the judgment in Saunders v Bristol Magistrates Court [2022] EWHC 2544 (Admin) because my attention was drawn towards the sub-heading “Procedural Defaults”. There were defaults. However this facts of this matter are important in themselves. …
WHAT GOES ON IN LEEDS STAYS IN LEEDS: ANOTHER MISSIVE FROM THE ADMINISTRATIVE COURT
In Bhimsinhji & Anor v Secretary of State for the Home Department (Determination as to Venue) [2022] EWHC 2556 (Admin) Mr Justice Fordham reiterated a point that has been made several times before in relation to venue for hearing in…
PROCEDURAL AND EVIDENTIAL PROBLEMS WHEN REPRESENTING FOREIGN DEFENDANTS: WITNESSES COULD NOT GIVE EVIDENCE BY VIDEO LINK: AN INCORRECT TRANSLATION OF A REPORT HAD BEEN PROVIDED
The judgment of HHJ Howells in Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2436 (QB) shows the difficulties that can occur when representing foreign defendants. The defendant was not permitted to allow witnesses to give video evidence from abroad. …
PRACTICE NOTE ON DISCLOSURE IN THE INSOLVENCY AND COMPANIES LIST – PART 8 CLAIMS
Chief Insolvency and Companies Court Judge Briggs issued a Practice Note on Disclosure in the Insolvency and Companies List on the 6th October 2022. It deals with issues relating to disclosure and Part 8 claims. Part 8 claims are not…
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…
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