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…
CLINICAL NEGLIGENCE, CONTRIBUTORY NEGLIGENCE AND PART 36: A USEFUL NOTE OF JUDGMENT
I am grateful to solicitor Bethan Parry from Browne Jacobson for sending me a note of the decision of HHJ Khan in Rix -v- Wall, the details of which are set out below. The note is interesting in that it…
CLAIMANT’S APPLICATION FOR PERMISSION TO CONTINUE WITH THIRD SET OF PROCEEDINGS REFUSED: CPR 38.7 CONSIDERED IN DETAIL
In Danielewicz v Cannon & Anor [2023] EWHC 948 (KB) Master Thornett refused the claimant’s application for an order under CPR 38.7. The claimant had issued proceedings twice before, but discontinued those actions. The judgment contains a detailed consideration of…
WASTED COSTS AGAINST A SOLICITOR BECAUSE OF FAILURE TO ENSURE THE CLAIMANT HAD PROBATE PRIOR TO ISSUE: A CASE TO POINT
I am grateful to solicitor Jonathan Fuggle of Browne Jacobson for sending me a copy of the judgment in Rafferty -v- Royal Wolverhampton NHS Trust, a copy of which is available here 1460100_Rafferty v Royal Wolverhampton NHS Trust_Approved Judgment_31.05.22 (2). …
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 25th APRIL 2023
This blog spends a lot of time looking at cases where things have gone wrong, for one reason and another. This webinar on the 25th April 2023 looks at the main problem areas in litigation and the practical steps that…
ANOTHER CHANGE IN THE RULES ON APRIL 6th: PERSONAL INJURY LAWYERS CAN SAY GOODBYE (IN SOME CASES) TO THE ADMIRALTY COURT
The focus on the new rules on QOCS coming into force on the 6th April may lead to losing sight of some other changes. In particular the new rules and amendments to the Practice Direction in relation to accidents at…
LITIGANTS SUBJECT TO A CIVIL PROCEEDINGS ORDER CANNOT ISSUE VALID PROCEEDINGS WITHOUT PRIOR ORDER FROM THE COURT: “RETROSPECTIVE PERMISSION” HAD NO EFFECT: ACTION WAS A NULLITY
In Williamson v The Bishop of London & Ors [2023] EWCA Civ 379 the Court of Appeal held that a person subject to a Civil Proceedings Order must obtain permission from the High Court so they could issue valid proceedings. …
FAILURE TO SERVE A DEFENDANT PROPERLY AND ISSUING OUT OF TIME: HIGH COURT DECISION
In Muhammad v Daily The News International & Ors (Rev1) [2023] EWHC 674 (KB) Master Cook determined a number of procedural issues. Here we look at two: (1) the failure to serve on a defendant properly; (2) the question of…
A LITIGANT CAN “APPEAR” AT A SMALL CLAIMS TRACK HEARING BY THEIR LEGAL REPRESENTATIVE: COURT OF APPEAL DECISION
In Owen v Black Horse Ltd [2023] EWCA Civ 325 the Court of Appeal allowed the claimant’s appeal. The claim had been struck out at the start of a Small Claims Track hearing on the grounds that attendance by the…
MISTAKES AND THE ROAD TRAFFIC PROTOCOL: DOCTRINE OF MISTAKE APPLIED: A WORKING EXAMPLE
In Doyle -v- the NFU (St Helens County Court 24th February 2023) Deputy District Judge Murray held that the doctrine of mistake applied to offers made on the Pre-Action Protocol for road traffic accidents. I am grateful to solicitor Jamil…
SERVICE ON A SOLICITOR WAS NOT DEFECTIVE: WHAT IS MEANT BY A “PLACE OF BUSINESS”?
In Ellison Road Ltd v Mian (t/a HKH Kenwright & Cox Solicitors) & Anor [2023] EWHC 375 (Ch) Master Brightwell rejected a defendant’s argument that he had not been properly served at his “place of business”. The case shows the…
RULE CHANGES IN APRIL 2023: UP TO £100,000 CAN BE PAID INTO COURT FOR A PROTECTED BENEFICIARY
Another change coming into force on the 6th April is an increase, to £100,000, that the court can order be paid into court for a protected beneficiary. This is, quite specifically, aimed to reduce the number of cases that come…
A COURT CANNOT IMPOSE CONDITIONS ONCE IT HAS GIVEN UNCONDITIONAL PERMISSION TO APPEAL: THE DEADWEIGHT OF THE FINALITY PRINCIPLE PREVAILS
In National Iranian Oil Company v Crescent Petroleum Company International Limited & Anor [2023] EWHC 300 (Comm) Mr Justice Butcher refused an application for permission to appeal to be subject to a condition of payment into court. The court had…
VULNERABLE WITNESSES IN THE CIVIL COURTS: THE VULNERABLE WITNESS SHOULD NOT HAVE BEEN SHOWN CROSS EXAMINATION QUESTIONS IN ADVANCE:
There are relatively few cases relating to vulnerable witnesses in civil courts. In GKE v Gunning [2023] EWHC 332 (KB) Mr Justice Ritchie considered the terms of an order made to protect a vulnerable witness. Although the wording of the…
RELIEF FROM SANCTIONS REFUSED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: RECOURSE TO HUMAN RIGHTS ARGUMENTS WERE TO NO AVAIL
In Bank of Scotland Plc v Hoskins [2023] EWHC 306 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused an application for relief from sanctions following late service of witness evidence. The Defendant’s attempt to invoke Human Rights…
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…
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