WHY DEFENDANTS HAVE TO KNOW THE RULES ABOUT SERVICE AND JURISDICTION AND ACT PROMPTLY: YOU’LL FIND YOURSELVES MAKING AN APPLICATION FOR RELIEF FROM SANCTIONS
The judgment today in Babcock Marine (Clyde) Ltd v HS Barrier Coatings Ltd [2019] EWHC 1659 (TCC) highlights the need for defendants to be prompt if they are making an application in relation to service or jurisdiction. CPR 11 gives…
BENCH WARRANT ISSUED IN CIVIL ACTION: WARRANT ISSUED TO ENSURE DEFENDANT’S ATTENDANCE AT A HEARING
In Hanson & Ors v Carlino & Anor [2019] EWHC 1366 (Ch) Mr Justice Birss issued a bench warrant to ensure a defendant’s attendance at a hearing. The defendant had a history of non-compliance and attempts to avoid the…
MAKING APPLICATIONS IN ADVANCE OF A BREACH: WHY A STITCH IN TIME OFTEN, BUT NOT INVARIABLY, SAVES AN APPLICANT
The post earlier today about the decision in Bedzhamov & Ors Re Vneshprombank LLC [2019] EWHC 1430 (Ch) was an example of the court refusing an application for an extension of time made in advance of the date of breach. The…
PROVING THINGS 155: WITNESS EVIDENCE THAT GOES WRONG: HOTEL PROPRIETOR NOT LIABLE TO GUEST FOR ASSAULT BY TRESPASSER
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB) Mr Justice Dingemans found that proprietors of a hotel had not been in breach of duty when some of their guests had been assaulted by a…
AN OFFER THAT IMPOSES A CONDITION AS TO COSTS IS NOT A VALID PART 36 OFFER: MERE FAILURE TO ACCEPT REASONABLE OFFER DOES NOT LEAD TO INDEMNITY COSTS
In Knight & Anor v Knight & Ors (Costs) [2019] EWHC 1545 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) held that an offer that attempted to limit costs was not a valid Part 36 offer. The judge…
FOOTBALL CLUB’S APPLICATION DOES NOT GET EXTRA TIME: APPLICATION FOR RELIEF FROM SANCTIONS IN ORDER TO DISPUTE AUTHENTICITY OF DOCUMENTS IS REFUSED
In UTB LLC v Sheffield United Ltd [2019] EWHC 1377 (Ch) Mr Justice Fancourt refused Sheffield United’s application for relief from sanctions so as to allow it to dispute the authenticity of documents during the course of a trial. “A…
MOTOR INSURERS BUREAU IS LIABLE TO COVER VEHICLE BEING DRIVEN OFF ROAD: COURT OF APPEAL DECISION TODAY
NB THE PRACTICAL EFFECT OF THIS DECISION WAS OVERTURNED BY THE THE MOTOR INSURERS (COMPULSORY INSURANCE) ACT 2022 In Motor Insurers’ Bureau v Lewis [2019] EWCA Civ 909 the Court of Appeal upheld the finding of Mr Justice Soole that…
PROCEDURAL ISSUES ON COMMITTAL APPLICATIONS: GETTING THE PROCEDURE RIGHT
The judgment of Mr Justice Warby in Quantum Tuning Ltd v White [2019] EWHC 1376 (QB) highlights some errors made in a committal application. Fortunately for the claimant in that case the procedural errors were overlooked and contempt established. Nevertheless…
GUIDANCE ON INSTRUCTING EXPERTS (4): THE SINGLE JOINT EXPERT IS NOT A DEMIGOD
This blog looked recently at the case of O v B-M [2019] EWFC B23 where the trial judge was critical of a jointly instructed expert’s attempt to find facts and state that something was “proven by overwhelming evidence”. That case contains…
ASKING QUESTIONS AFTER JUDGMENT: NOT TO BE USED IN AN ATTEMPT TO RE-OPEN THE CASE (OR ARGUE A DIFFERENT CASE ON DIFFERENT GROUNDS)
I am looking again at the decision in O v B-M [2019] EWFC B23. That case predates the more recent Court of Appeal judgment in Children [2019] EWCA Civ 898. However it is another example of a party attempting to use the…
GUIDANCE ON INSTRUCTING EXPERTS (1): GUIDANCE FROM THE LAWYERIST: “MUCH LIKE A COWBOY HERDING CATTLE”
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known and widely reported recently. This is one of the matters that crosses boundaries and gives rise to common problems across…
CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET
There is an ongoing debate going on on Twitter at the moment about “how to instruct counsel”. More particularly the problems caused by “instructions” being sent in a chain of emails (or other electronic communication) with major difficulties in finding…
ANOTHER TRIAL BUNDLE CASE: ACTION STRUCK OUT FOR FAILURE TO PREPARE TRIAL BUNDLE: APPEAL AGAINST STRIKING OUT DISMISSED
In Al-Balhaa v Raphael & Ors [2019] EWHC 1323 (QB) Mr Justice Nicol upheld a finding that the action was struck out because of the claimant’s failure to prepare a trial bundle and relief from sanctions should not be granted. …
ADVICE FROM ACROSS THE PROFESSION AND AROUND THE WORLD: “CROWD SOURCED” GUIDANCE: THANKS FOR ALL THE TWEETS
There have been a number of occasions when I have put contributions from people on Twitter on this blog. This is usually in response to specific questions and issues raised. People have been generous in their time and Advice. I…
TELEPHONE HEARINGS WHEN COUNSEL WON’T ANSWER THE TELEPHONE: THE UNHAPPY LORD JUSTICE
There is a short judgment recently arrived on BAILLI which fits in well with the earlier post about telephone and electronic hearings. In Nixon & Anor v Secretary of State for the Home Department [2017] EWCA Civ 2694 Lord Justice…
TALES FROM THE APIL CONFERENCE 4: TIME ESTIMATES FOR HEARINGS (AND WHY YOU SHOULD VISIT KINGSTON UPON HULL)
There were difficult choices to be made when delegates selected their particular lectures at the recent APIL conference. In a show of northern solidarity (and because I am interested in these kind of things) I went to see District Judge…
TALES FROM THE APIL CONFERENCE 1: SOCIAL MEDIA AND THE PERSONAL INJURY LITIGATOR
I have been at the APIL annual conference this week. Ostensibly to give a talk about expert evidence, but a blogger (indeed any practising lawyer) can never miss an opportunity to pick up ideas. I went to a “Fee earner…
COURT REFORM: VIEW FROM THE DISTRICT JUDGES: “WE QUESTION WHETHER THERE HAS BEEN MEANINGFUL (AS OPPOSED TO TOKEN) CONSULTATION WITH ALL LEVELS OF THE JUDICIARY”
The Justice Committee is carrying out an inquiry into the ongoing court reforms. The written evidence it has received is available here. I just want to highlight the views from The Association of Her Majesty’s District Judges. This makes interesting…
APPEALING FINDINGS OF FACT: THE UPHILL BATTLE
In Staechelin & Ors v ACLBDD Holdings Ltd & Ors [2019] EWCA Civ 817 Lord Justice Lewison set out a “cut out and keep” guide for parties attempting to appeal findings of fact. A reminder of the uphill battle that appellants…
CIVIL PROCEDURE BACK TO BASICS 42: WHY A DAY EARLY IS SO VERY DIFFERENT TO A DAY LATE: THE ROBERT CRITERIA
There is a world of different between a prospective and retrospective application to extend time, or comply with an order. Every litigator has to know about Robert -v- Momentum Services [2003] EWCA Civ 229. An application made in advance means that the…
APPEALING FINDINGS OF FACT: SEEKING FURTHER INFORMATION AND THE CONSTRUCTION OF EXPERT EVIDENCE
I am grateful to Charles Bagot QC for sending me a copy of the judgment of Mr Justice Birss in Price -v- Cwm Taf University Health Board [2019] EWHC 938 (QB). A transcript of the case is available on the…
CIVIL PROCEDURE BACK TO BASICS 42: NON-DISCLOSURE OF DOCUMENTS DURING THE COURSE OF PROCEEDINGS
This post arises out of a Twitter discussion. Someone was reporting that documents that had been disclosed during the course of ongoing litigation were being put copied onto social media. Is this allowed? THE RULES: NON-DISCLOSURE OF DOCUMENTS This is…
CIVIL PROCEDURE BACK TO BASICS 41: SEEKING CLARIFICATION OF A PART 36 OFFER: CPR 36.8
The decision in Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 , looked at earlier in this blog highlighted one part of CPR Part 36 that often goes unnoticed. It is important that a recipient of a Part 36 offer…
ASSESSING EVIDENCE 26 YEARS AFTER THE EVENT: THE JUDICIAL APPROACH
In Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1043 (Ch) John Kimbell QC (sitting as a High Court Judge) considered the question of assessing evidence of a brief incident, 26 years after the event, in a case…
DOES THE BASIC LAW OF EVIDENCE AND PROCEDURE RUN IN THE IMMIGRATION IMMIGRATION UPPER TRIBUNAL? A MATTER OF CONCERN TO US ALL
The Immigration Upper Tribunal does not appear to recognise some of the basic principles of civil evidence and appellate jurisdiction. Certainly this is the impression you get when reading the judgment of Lord Justice Davis in Palash v Secretary of…
ALLOCATION TO LEVEL OF JUDGE : “FAME” DOESN’T MATTER – THE TIME IT WILL TAKE TO OBTAIN A HEARING DOES
In Schumacher v Clarke [2019] EWHC 1031 (Ch) Chief Master Marsh held that the time it would take to obtain a hearing date is a factor in relation to which judge the matter would be allocated to. The Master also…
CIVIL PROCEDURE BACK TO BASICS 39: A NOTICE TO ADMIT FACTS: THE RULES AND CASE LAW
In a discussion about the 20th anniversary of the Civil Procedure Rules on Twitter today someone asked if “Notices to Admit Facts” were still available, they had not seen one for a long time. The rules still permit parties to…
tWENTY YEARS OF THE CIVIL PROCEDURE RULES: ALL THAT TIME AND THEY HAVE MADE FEW FRIENDS
I have already done a post on the 20th anniversary of the Civil Procedure Rules on the 26th April. In an effort to find supporters I tried again. The Civil Procedure Rules, it appears, has very few friends… …
CIVIL PROCEDURE BACK TO BASICS 38: THE DEFENCE TO COUNTERCLAIM
The previous post was about the “reply”. The rules relating to a Defence to Counterclaim are different. Very importantly the timing of the defence to counterclaim is different. There is an obligation on a claimant to properly and fully plead…
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
WITHOUT NOTICE APPLICATIONS: THE DUTY OF FULL AND FAIR DISCLOSURE – A CASE THAT ILLUSTRATES THE POINT
There is an interesting discussion of the duty to give full and fair disclosure in the judgment of HHJ Klein (sitting as a High Court judge) in Wild Brain Family International Ltd v Robson & Anor [2018] EWHC 3163 (Ch). …
CIVIL PROCEDURE BACK TO BASICS 36A: UNDERSTANDING “LITIGATION WISHFUL THINKING”
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
THE ASSESSMENT OF EXPERT WITNESS CREDIBILITY: THE EARLIER THE BETTER (PARTICULARLY IF IT COSTS SOMEONE £7.5 MILLION)
The judgment of Mr Justice Snowden in Davey v Money & Anor [2019] EWHC 997 (Ch) will, no doubt, be read anxiously by all litigation funders. The judge held that the “Arkin cap” – a limit on the liability of…
FIXED COSTS, CASES OVER £25,000, EXCEPTIONAL CIRCUMSTANCES AND THE BASKET OF CASES
In Ferri v Gill [2019] EWHC 952 (QB)Mr Justice Stewart considered the relevant criteria to be applied when a claimant argued that fixed costs should not be applied to a case that had started in the portal but was settled…
RECORDINGS ARE DOCUMENTS: AN APPROACH TO EVIDENCE THAT WAS UNSATISFACTORY
In the judgment in Guest v Guest & Anor [2019] EWHC 869 (Ch) HHJ Russen (sitting as a High Court judge) commented on the unsatisfactory way in which recordings had been disclosed and produced to the court. It provides a…
FIXED COSTS WHEN A PERSONAL INJURY ACTION SETTLES FOR MORE THAN £25,000: “NEW RULES” TO BE APPLIED AND FIXED COSTS APPLY
I am grateful to Matthew Hoe from Taylor Rose TTKW for sending me a copy of the judgment of HHJ Sephton QC in Lovatt -v- Lew Diecastings Ltd (County Court in Manchester, 4th December 2018). Lovatt v LEW Diecastings Ltd…
ELECTRONIC FILING IN THE QUEEN’S BENCH DIVISION: “LONG OVERDUE MODERNISATION”
You can read the Lord Justice’s speech on the launch of Electronic Filing in the Queen’s Bench Division by following the link here. “It will enable parties to issue claims and applications with ease. Pleadings and other court documents will…
ANOTHER CLAIM FORM CASE: SERVICE AT “LAST KNOWN ADDRESS” FAILS: SERVICE BASED ON COMPANIES ACT SUCCEEDS
Cases on the last known address for service seem to come along like buses – a few at at time. The issue was considered by Mr Richard Salter QC (setting as a Deputy Judge of the High Court) in Idemia…
CIVIL PROCEDURE BACK TO BASICS 36 : WHAT TO DO WHEN A PROPOSED DEFENDANT HAS DIED AND THERE IS NO GRANT OF PROBATE
A search term that arrived on this blog earlier today asked “how to you sue a dead person?” The basic answer is that you can’t. You have to sue their executors or administrators. The problem arises when probate has not…
ARGUMENT THAT DEFENDANT NOT LIABLE TO PAY COURT FEES SENT TO COVENTRY
I am grateful to Michael Fletcher from Glaisyers Solicitors LLP for sending me a copy of a note of a judgment from Coventy County Court yesterday in Cook -v- Malcolm Nicholls Limited. It is a case concerning whether the claimant…
CIVIL PROCEDURE BACK TO BASICS 35: WITNESS CREDIBILITY: MORE THAN MEMORY OR HONESTY
The question of witness credibility is often the central issue of most cases that get to trial. Surprisingly it is a matter that barely features in legal education. A knowledge of the factors that a judge will take into account…
TWENTY YEARS OF THE CIVIL PROCEDURE RULES (AND 107 SERIES OF AMENDMENTS): A CHANCE TO REMINISCE, CRITICISE, SHARE EXPERIENCES…
This month sees the 20th anniversary of the Civil Procedure Rules coming into force. This is a good time to invite practitioners (and judges if they are so minded) to look back at the old rule and the “new” rules…
SERVICE OF THE CLAIM FORM: DANGERS OF SERVING AT THE LAST KNOWN ADDRESS (2019)
It is difficult for a month, sometimes a week, to pass without there being a service of the claim form case. The issue of service was central to the decision of Mr Justice Martin Spencer in Brayshaw -v- Partners of…
MORE ON THE GREAT BUNDLE TAKEAWAY DEBACLE: A “DIFFICULT” QUESTION OF STATUTORY CONSTRUCTION FOR FAMILY LAWYERS
There has been a large amount of comments on the previous posts in relation to taking away of bundles after trial. For family lawyers there is an even greater problem. The “joint notice” from HMCTS endorsed by the Bar Council…
CIVIL PROCEDURE BACK TO BASICS 34: “THE SOURCES OF INFORMATION AND BELIEF” IN WITNESS STATEMENTS: 10 KEY POINTS
The maker of a witness statement must given the source of their information or belief. This obligation is often overlooked, or simply paid lip service to. However the careful following of this rule could prevent many of the common problems we…
NEW RULES COMING INTO FORCE TOMORROW
Why anyone chose a Saturday as the implementation date for new rules may be a mystery. Nevertheless new rules are in force from tomorrow. Two crucial items: court bundles and writing directly to the court have already been looked at. …
RELIEF FROM SANCTIONS GRANTED WHERE MONEY PAID 17 HOURS LATE:”A SENSE OF PERSPECTIVE IS NECESSARY”
In Khandanpour v Chambers [2019] EWCA Civ 570 the Court of Appeal allowed an appeal in relation to a refusal to give relief from sanctions. A delay in payment of 17 hours of part of the moneys ordered by the…
AMENDMENT, FOOTBALL AND THE ALLEGEDLY NEGLIGENT SOLICITOR: SIX KEY POINTS (WITH THE LAST ONE BEING THE MOST IMPORTANT OF ALL)
There are many reasons litigators should read the judgment of Mrs Justice O’Farrell in Jenkins v JCP Solicitors Ltd [2019] EWHC 852 (QB). 1. It provides yet another example of a claimant suing the wrong entity The firm of solicitors…
DO NOT WRITE TO THE COURT WITHOUT COPYING IN THE OTHER SIDE: NOW ITS IN THE RULES – AND THERE ARE SANCTIONS FOR NON-COMPLIANCE
This blog has looked several times at judicial warnings against one party writing to the court without copying in the other party. Those warnings have now been inserted into the Rules. The Civil Procedure (Amendment) Rules 2019 introduce a new…
SERVICE, THE CLAIM FORM AND DENTON: THE COURT WOULD NOT TAKE THE HUMP WHEN DOCUMENTS WERE NOT SERVED: NEITHER SERIOUS OR SIGNIFICANT
In Ablynx NV & Anor v Vhsquared Ltd & Ors [2019] EWHC 792 (Pat) HHJ Hacon brushed aside the defendant’s objections in relation to service of the claim form. THE CASE The action was in relation to patents from an…
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