ACKNOWLEDGMENT OF SERVICE FILED LATE – BUT JUDGMENT IN DEFAULT WAS IRREGULAR AND SET ASIDE: A REMINDER THAT THE RULES HAVE CHANGED
The judgment of Mr Justice Choudhury in MB v RBG [2020] EWHC 3022 (QB) is the first I have seen considering the new provisions of CPR 12.3 and the circumstances in which a default judgment can be set aside. It…
THE APPROACH OF THE COURT AT TRIAL WHEN A PARTY HAS NOT GIVEN DISCLOSURE: THE BENEFIT OF DOUBT IS AGAINST THEM
In Aegean Baltic Bank SA v Renzlor Shipping Ltd [2020] EWHC 2851 (Comm) Mr Adrian Beltrami QC (sitting as a Judge of the High Court) considered the appropriate approach at trial when a party has been debarred from calling evidence….
“A MARKED ‘DISCONNECT’ BETWEEN THE RESPONDENT’S WRITTEN EVIDENCE AND HIS ORAL TESTIMONY”: ANOTHER “ARGUMENTATIVE” WITNESS STATEMENT BITES THE DUST
The judgment of ICC Judge Barber in Leopard v Robinson [2020] EWHC 2928 (Ch) provides another example of a written witness statement being misused. The judge held that the statement consisted of “assertions and legal submissions”. These have no place…
“THE DOG ATE MY HOMEWORK” EXCUSE DOESN’T WORK WELL IN COURT: THE JUDGE MAY HAVE BEEN WRONG ABOUT THE WAY “SIGNED FOR 1ST CLASS” OPERATED BUT THEY WERE RIGHT TO REFUSE RELIEF FROM SANCTIONS: COURT OF APPEAL DECIION
In Diriye v Bojaj & Anor [2020] EWCA Civ 1400 the Court of Appeal held that the judges who heard a relief from sanctions hearing below were in error about the way that “Signed for 1st class” post operated, however…
PROCEEDINGS BROUGHT BY BANKRUPT WERE “DOOMED TO FAIL”: AN IMPORTANT REMINDER
Part of the judgment of Mr Justice Griffiths in Lambert v Forest of Dean District Council [2020] EWHC 2854 (Admin) provides an important reminder that someone who has been declared bankrupt may have no standing at all to bring subsequent…
CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP OCTOBER 2020
This round up covers specific posts and articles in relation to civil procedure . There is a monthly round up of a wide range of legal issues and coronavirus on the Kings Chambers blog, Coronavirus: Guidance for Lawyers and Business….
PART 36: JUDGE WAS WRONG NOT TO ALLOW ENHANCED INTEREST WHEN CLAIMANT BEAT ITS OWN OFFER: COURT OF APPEAL DECISION
In the judgment today in Telefonica UK Ltd v The Office of Communications [2020] EWCA Civ 1374 the Court of Appeal overturned the decision of the trial judge not to award additional interest on damages and costs in a case…
CORONAVIRUS AND CIVIL PROCEDURE: THE PRACTICE DIRECTION ENDS TOMORROW: REVIEW OF THE CASES
Practice Direction 51ZA which allows parties to extend time limits for up to 56 days comes to an end on the 30th October 2020. Unless there is a further rule change then parties can only agree extensions of 28 days. …
GOING FOR A SONG: THE DANGERS OF DOING NOTHING WHEN PART 18 QUESTIONS ARE SERVED, AND ARGUING “NOT” ENTITLED WHEN A COURT ORDER HAS BEEN MADE:
The judgment of Master Kay in Sheeran & Ors v Chokri & Ors [2020] EWHC 2806 (Ch) provides an important reminder that a Part 18 request cannot simply be ignored. Further once a court makes an order that a party…
COURT SET ASIDE A JUDGMENT OBTAINED 10 YEARS LATER: COURT FINDS THAT DOCUMENTS WERE FORGED BY DEFENDANTS: ANOTHER ROUND IN A BARE KNUCKLE FIGHT
In March last year I wrote about the Supreme Court’s decision in Takhar v Gracefield Developments Ltd & Ors [2019] UKSC 13. In that case the Supreme Court held that a claimant could bring an action to set aside an earlier judgment which,…
PROVING THINGS 184: PROVING YOU CAN’T A CLAIM WILL BE “STIFLED” REQUIRES A DETAILED EXPLANATION
In National Tourism Council of Qatar v Mehdiyev [2020] EWHC 2638 (Ch) Deputy Master Hansen considered the defendant’s evidence as to means when deciding whether or not to impose terms when setting aside a judgment. It is important to note…
“ALL MATTERS WERE INFECTED FROM THE OUTSET WITH A REGRETTABLE INJUDICIOUS AND PEREMPTORY LACK OF PROFESSIONAL ASSIDUOUSNESS” : FROM AN ORGANISATION THAT SHOULD KNOW MUCH, MUCH, BETTER: JUST TAKE A WITNESS STATEMENT
This blog has looked, many times, at cases that have floundered at trial because of basic failures to investigate the primary facts. Sometimes applications fail because of a fundamental lack of knowledge as to what “facts” are. The judgment…
LIFE IN LAW ISN’T ALWAYS GLAMOROUS: A CLIENT CAN BLAME THEIR LAWYER (OR FORMER LAWYER) FOR THEIR WITNESS STATEMENT
A classic example of a client seeking to blame their lawyer for the contents of a witness statement can be seen in the judgment in Simpson v Payne, reported in the PI Brief Update Law Journal. THE CASE The claimant…
20 PIECES OF ADVICE FOR THE YOUNG LAWYER (& THE REST OF US): WITH A LITTLE HELP FROM MY FRIENDS
This week I have been concentrating on advice given by judges to lawyers. We are now moving on to advice given by lawyers for lawyers. I have selected twenty from dozens (possibly hundreds) of tweets given when I asked on…
A FURTHER TEN PIECES OF ADVICE FOR THE YOUNG, AND NOT SO YOUNG, LAWYER: AVOIDING THAT “SPECIAL RING IN HELL”
Continuing with the review of those series on this site which collate the guidance that judges have given to lawyers. In series three we looked at everything from going to hell; brevity (the absence of which leads you rapidly towards…
TEN MORE PIECES OF ADVICE FOR THE YOUNG LAWYER: “INCIVILITY IS COUNTERPRODUCTIVE”: “BE BRIEF”; “DON’T CRUMBLE”
I am using this week to look back a previous series where guidance was given, primarily by judges, to young advocates. There are links here to the original posts, and sources for the posts. Here we look at the second…
TEN KEY PIECES OF ADVICE STRAIGHT FROM THE JUDICIARY FOR THE NEWLY MINTED LAWYER (WHICH MAY ALSO HELP THE REST OF US)
Following on from the post yesterday aimed at those about to start their training contracts or pupillage this would seem to be a good time to remind people of the number of series there are on this site about advocacy. …
THE CHILD CLAIMANT AND FATAL ACCIDENT LITIGATION: WEBINAR 8th DECEMBER 2020
I am giving a webinar on the 8th December 2020. I wanted to look at the particular issues facing a child claimant in a fatal accident case. There are quite complex principles governing the losses involved. Booking details are available…
WHAT THEY DIDN’T TEACH YOU AT LAW SCHOOL: 10 KEY POSTS FOR THOSE JUST STARTING OFF (AND THE REST OF US TO BE HONEST)
The transition from learning to practice is not an easy one. It is even more difficult for litigators starting their careers now – with training contracts and pupillage being delayed because of COVID problems. Even if training has started much…
THE PERILS OF THE LAWYER SIGNING THE STATEMENT OF TRUTH: A NECESSARY REPEAT
The previous post about the judgment in North of England Coachworks Ltd v Khan [2020] EWHC 2596 (QB) gives me an opportunity to repeat earlier advice pm the blog in relation to the lawyer signing the statement of truth. In the…
“LITIGANTS SHOULD BE TERRIFIED IF THEY LIE TO THE COURT”: THE IMPORTANCE OF THE STATEMENT OF TRUTH
There are many, many cases about committal proceedings in commercial cases. Some judges have observed that they appear to be used tactically. Most are confined to their own facts. However in North of England Coachworks Ltd v Khan [2020] EWHC…
ODE TO A DYING CORPORATION: “THE SMELL OF CORDITE, GUN POWDER AND NAPALM NO LONGER FILLS THE AIR”
The heading of the judgment of Master Sanderson in Bell Group (UK) Holdings Limited (In Liquidation) [2020] WASC 347 includes “Corporations law – Ode to a dying corporation – Turns on own facts”. This led me to want to investigate…
PROPORTIONAL COSTS: THE LITIGATOR’S WATCHWORDS: 12 PRACTICAL STEPS FOR THE PRUDENT LAWYER…
The issue of “proportionality” is central to contemporary litigation. However it is rarely examined in detail and rarely discussed. Attempts to analyse how proportionality can be achieved are even rarer. Here I reprise some points made several years ago about…
GUIDELINE HOURLY RATES CONSIDERED IN COURT OF PROTECTION: INFLATION CAN BE TAKEN INTO ACCOUNT ON ASSESSMENT
In PLK & Ors (Court of Protection : Costs) [2020] EWHC B28 (Costs) Master Whalan considered the appropriate hourly rate for Deputies in Court of Protection matters. (I am grateful to Carter Burnett, Costs Consultants, for bringing my attention to…
CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP – SEPTEMBER 2020
This round up also covers specific posts and articles in relation to coronavirus. There will no longer be a specific round up covering coronavirus and and civil procedure. There is, however, a monthly round up of a wide range of…
CIVIL PROCEDURE BACK TO BASICS 86: PRE-ACTION ADMISSIONS: THE DANGERS OF NOT MAKING THEM AND THE CONSEQUENCES IF YOU DO
The judgment in Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) HHJ Pearce emphasises the point that a party can make a formal pre-action admission. A party who tries an alternative “non-formal” admission may well not get…
CIVIL LITIGATION BRIEF 25 YEARS AGO: A QUARTER OF A CENTURY OF CIVIL PROCEDURE
Nobody knew what a “blog” was 25 years ago. However at that time Civil Litigation Brief did exist, it was a monthly column in the Solicitors Journal. It is interesting to see how much (or how little) matters have moved…
CIVIL PROCEDURE BACK TO BASICS 85: DIRECTIONS AND COURT ORDERS SHOULD BE “REALISTIC AND ACHIEVABLE”
One aspect of the Denton decision that is often overlooked, but which was very welcome, was the Court of Appeal’s message to the courts (and the parties) that any directions given should be “realistic and achievable.” WHAT WAS SAID…
SEEK PERMISSION TO APPEAL PROMPTLY (AND TELL THE JUDGE ABOUT IT): “A close analysis of the parties’ cases thus reveals a fractal pattern of progressively complex and ever-finer recursive detail of sharply declining significance.”
The judgment of Mr Justice Turner in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) discloses an unusual turn of events in relation to an appeal. It contains some important observations about the…
CIVIL PROCEDURE BACK TO BASICS 84: HOW NOT TO MAKE A PART 36 OFFER THAT IS NOT VALID:
You may not care to believe it but the title of this post is deliberate, there is a double negative and a lack of clarity. This reflects the ambiguities and uncertainties in many of the attempts at Part 36 offers…
SETTING ASIDE A REGULAR JUDGMENT: TWO HURDLES FOR THE APPLICANT TO CLEAR – AND EVEN THEN THERE CAN BE CONDITIONS
The judgment of Master Kaye in Penta Ultimate Holdings Ltd & Anor v Storrier [2020] EWHC 2400 (Ch) is a reminder that a party attempting to set aside a regular judgment has two hurdles to clear: the test set out…
PART 18 REQUEST FOR INFORMATION ABOUT DAMAGES REFUSED: “NEITHER REASONABLE OR PROPORTIONATE”
In Kings Security Systems Ltd v King & Anor [2019] EWHC 3620 (Ch) Master Kaye refused an application that a party provide further information in relation to damages. “Part 18 requests should be for the purpose of providing further information…
JUDGE SHOULD NOT HAVE GRANTED DEFENDANT PERMISSION TO WITHDRAW FROM ADMISSIONS: CHANGE OF LAW DID NOT JUSTIFY CHANGE OF STANCE
In the judgment today in J v A South Wales Local Authority [2020] EWHC 2362 (Admin) Mr Justice Marcus Smith overturned a decision granting a defendant permission to withdraw admissions. ” changes in the law are to be anticipated, particularly…
CHILDREN AND PERSONAL INJURY LITIGATION: WEBINAR 5th OCTOBER 2020
This webinar looks at practical issues relating to children and personal injury litigation, including liability, damages and procedure. Details of how to book are available here. This webinar looks at the practical implications of acting for children injured in…
SENSIBLE COVID PRECAUTIONS TAKEN WHEN IMPLEMENTING A SEARCH ORDER: APPLICANT TAKES A VERY NUANCED APPROACH
The judgment of Mr Justice Fordham in Calor Gas Ltd v Chorley Bottle Gas Ltd & Anor [2020] EWHC 2426 (QB) has some interesting observations about the way in which COVID affects both the way a hearing is held and…
CIVIL PROCEDURE BACK TO BASICS 83: PART 18 REQUESTS FOR FURTHER INFORMATION
Part 18 requests are often misused. The Practice Direction states “A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the…
PROTOCOL FOR INSOLVENCY AND COMPANY WORK AT CENTRAL LONDON COUNTY COURT: APPLICABLE FROM TODAY
A Protocol for insolvency and company work at Central London applies from today. It is set out in full below. It sets out details for remote hearings of bulk and other work made necessary by the pandemic. “PROTOCOL FOR INSOLVENCY…
PROVING THINGS 182: FAILING TO PROVE A CONTRACT WAS SIGNED AND GETTING DAMAGES OF £1: NOT A GREAT RESULT FOR A CLAIMANT
The judgment of JJH Melissa Clarke, sitting as a High Court Judge, in DPA (London) Ltd v D’Aguanno & Ors [2020] EWHC 2374 (IPEC) is a classic example of failing to prove key matters in a claim. Firstly the claimant…
SIMILAR WITNESS STATEMENTS (WITH THE SAME TYPOS) AND WITNESS CONFERRING WITH OTHERS: WHY “I SAY THE SAME AS THEM” RARELY HELPS
In the judgment today in Dr Jones Yeovil Ltd v The Stepping Stone Group Ltd [2020] EWHC 2308 (TCC) HHJ Russen QC (sitting as a High Court judge) made some observations about the witnesses giving evidence. The fact that some…
LETTER STATING THAT THE DEFENDANT CONSENTED TO SOME AMENDMENTS DID NOT OUST COURT’S JURISDICTION: TRY TO AMEND AT YOUR PERIL
In Scott & Ors v Singh [2020] EWHC 1714 (Comm) HHJ Eyre QC rejected an argument that a letter stating that the defendants agreed to some proposed amendments by the claimant meant that the court had no jurisdiction to prevent…
“PREPARED IN A WAY THAT MAKES ME ASHAMED OF MY PROFESSION”: ENSURING WITNESS STATEMENTS ARE ACCURATE IS AN IMPORTANT TASK – IF YOU WANT TO KEEP YOUR JOB…
There are nearly 800 posts on this blog that deal with issues relating to witness statements. The importance of ensuring that a statement is accurate is seen in the judgment of the Solicitors Disciplinary Tribunal in SRA -v- Gilfillan, available…
CIVIL PROCEDURE (CORONAVIRUS): BLOG AND ARTICLES ROUND UP – AUGUST 2020
A round up of blog posts and articles relating to civil procedure and coronavirus for August 2020. Remote Hearings Stewarts – Divisional Court judgment offers lessons for virtual trials Litigation Litigation Futures – NHS, solicitors and patients group agree Covid-19 claims…
CIVIL PROCEDURE (NOT-CORONAVIRUS): BLOG AND ARTICLES ROUND UP – AUGUST 2020
A round up of blogs and articles about procedure, evidence and damages published in August 2020. Costs DAC Beachcroft – Beware of costs sanctions if your conduct falls out of line Costs Barrister – Crypto tokens and litigation funding ACL – Claimant debarred…
CHALLENGING THE AUTHENTICITY OF DOCUMENTS: A REMINDER OF THE BASIC RULES: IF YOU DON’T DISPUTE YOU ARE DEEMED TO ADMIT AUTHENTICITY
Earlier posts have looked at the importance of serving a notice of non-admittance of the authenticity of documents promptly. Here we look at the basics of the rule. Put bluntly if you do not serve a notice that you wish…
THE NIGHTINGALE COURTS: WHERE THEY ARE AND WHAT THEY COVER
HMCTS has published a list of “Nightingale Courts. Details are available here. Site Address Opening date Business being heard East Pallant House East Pallant Chichester PO19 1TY Monday 20 July 2020 Civil work from Worthing County Court and family work from Worthing…
NIGHTINGALE COURT IN LEEDS: STARTING 28th AUGUST 2020: BUSINESS AND PROPERTY COURTS AND CIVIL CASES: GUIDANCE FOR USERS
A “Nightingale Court” has started in Leeds from the 28th August 2020. It is being run at Cloth Hall Court, Quebec Street, Leeds. Below I have the formal notice from HMCTS and the guidance that has been issued to users…
NEWTON’S LAW AND COMMUNICATING WITH THE COURT: THE NEED FOR PARTIES TO GO THROUGH THE APPROPRIATE PROCEDURE
There are is brief passage in the judgment of Mr Recorder Allen QC in G v C [2020] EWFC B35 (OJ) (16 July 2020) that is of general application. “The communication has served to demonstrate Newton’s third law of…
EXTENSION OF STAY OF POSSESSION PROCEEDING TO THE 20th SEPTEMBER 2020
The Civil Procedure (Amendment No. 5) (Coronavirus) Rules 2020 extend the stay on possession proceedings from the 23rd August to the 20th September 2020. THE RULES The rules can be found here. WHAT THE RULES DO The mechanism is…
COVID-19 Clinical Negligence Protocol 2020
A Protocol has been introduced between SCIL, NHS Resolution and AVMA, which deals with the conduct of personal injury litigation. Details can be found here. SUMMARY The press release has a useful summary “The protocol is wide-ranging, covering: moratoriums…
REMOTE HEARINGS: ZOOM PLATFORM USED, AND WORKED: ALSO AN ENTRY FOR THE OPENING LINE OF JUDGMENT CONTEST: “FAMILY LAW CRAVES FINALITY”
In LB v DB [2020] EWFC B34 (OJ) Deputy District Judge Hodson expressed his dissatisfaction with telephone hearings, but found that a zoom hearing worked. This has not been a platform viewed with favour by the court authorities, yet appears…
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