CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS
This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”. This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law. …
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
WHEN A JUDGE MAKES A WRONG DECISION BECAUSE RELEVANT PAPERS (WHICH HAVE BEEN SENT TO COURT IN GOOD TIME) HAVE NOT REACHED THEM
The decision in Singh v The Secretary of State for the Home Department [2019] EWCA Civ 1504 related to a case where a decision was made when the judge was not given relevant papers that had arrived at court. “In…
SETTING ASIDE JUDGMENT IN DEFAULT: DEFENDANT’S SOLICITOR FAILED TO NOTICE THAT PARTICULARS OF CLAIM HAD BEEN SERVED WITH THE CLAIM FORM
The judgment of HH Judge Hodge QC (sitting as a HIgh Court Judge) in Praetura Asset Finance Ltd v Hood [2019] EWHC 2231 (Comm) shows how important it is to check what has been served. The one, overwhelming, lesson for…
CIVIL CONTEMPT: THE KANGAROO COURTS OF THE JUSTICE SYSTEM: THE DANGERS OF NOT FOLLOWING THE CORRECT PROCEDURE
In January this year I wrote “I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure. It is as…
TRIAL JUDGE SHOULD HAVE WAITED FOR PARTIES TO ARRIVE AT COURT: APPEAL AGAINST ORDER UNDER CPR 39.3 ALLOWED
In Akita & Anor v Governor and Company of the Bank of Ireland [2019] EWHC 1712 (QB) Mr Justice Martin Spencer held that a trial judge, knowing that parties were on the way to court, should have waited longer before…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 11: PROCEDURE: AN EIGHT POINT SURVIVAL GUIDE
Here we have a short eight point guide on some of the key problem areas in relation to procedure once proceedings have been issued. Rule 1: Have everything ready pre-issue and have a plan. Effectively this means that you have,…
WHEN THE COURT LOSES IMPORTANT DOCUMENTS: ANOTHER EXAMPLE OF ADMINISTRATIVE PROBLEMS IN THE COURTS: “CIVIL JUSTICE: 2019 STYLE”
I am grateful to solicitor Aaron Pearson for giving me permission to post some comments he put on LinkedIn earlier today. It is small issue, but is an example of the administrative errors that occur daily within the court system,…
THE COURT CAN ORDER PARTIES TO TAKE PART IN AN EARLY NEUTRAL EVALUATION: COURT OF APPEAL DECISION
I am grateful to barrister Christopher Buckingham for pointing out that the Court of Appeal decision in Lomax v Lomax [2019] EWCA Civ 1467 is now on BAILLI. The Court of Appeal held that the consent of both parties was…
CIVIL PROCEDURE BACK TO BASICS 58: HOW TO CALCULATE TIME IN THE CIVIL PROCEDURE RULES
The previous post on the errors made in relation to calculation of time highlight the need for practitioners to be aware of the precise rules in relation to calculation of time. In this respect this may be the easiest post…
PART 8 PROCEDURE USED FOR CLAIM FOR £2.6 MILLION: THE CLAIMANT COMES TO GRIEF – IS ANYONE SURPRISED?
A common practice has occurred of issuing Part 8 proceedings under the MOJ Protocol and “parking” cases there for an extended period. This is an extremely dangerous practice. It is even more dangerous if the case that has been parked…
WHAT IS THE APPROPRIATE TEST IF SOMEONE APPLIES IN ADVANCE TO EXTEND TIME TO COMPLY WITH A PEREMPTORY ORDER? HIGH COURT DECISION
In Everwarm Ltd v BN Rendering Ltd [2019] EWHC 2078 (TCC) Mr Alexander Nissen QC (sitting as a Deputy High Court Judge) considered the appropriate test to be applied when the court made a peremptory order and an application was…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS AND EXPERT EVIDENCE SERVED LATE : EXPLAIN DELAY EVEN IF THERE IS NO GOOD REASON FOR IT
In Castle Trustees Ltd -v-Bombay Palace Restaurant Ltd [2017] EWHC 3893 (TCC) Mrs Justice Jefford allowed the defendant’s application for relief from sanctions when the defendant served witness and expert evidence late. This case is interesting for a number of…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 6: MAKE SURE YOUR CLIENT IS NOT BANKRUPT (& KNOW WHAT TO DO IF THEY ARE)
Many litigants don’t tell their lawyers that they are bankrupt. Some firms ask as a matter of course, many do not. Some litigators do not appreciate the impact of personal bankruptcy on a litigant. A CASE TO POINT: A TRIAL,…
RIGHTS OF AUDIENCE AND HEARINGS IN “CHAMBERS”: BAR COUNCIL GUIDANCE
I am grateful to Charles Bagot QC for referring me to the Bar Council publication “Acting as a Solicitor’s Agent”. This has a different view to those set out in earlier posts. It would be prudent for those involved in…
COURT ENTERS JUDGMENT IN DEFAULT OF DEFENCE – SIDESTEPPING THE LATE ACKNOWLEDGEMENT OF SERVICE ARGUMENT: DENTON PRINCIPLES APPLIES
In Hanson & Ors v Carlino & Anor [2019] EWHC 1940 (Ch) Mrs Justice Falk neatly sidestepped the vexed question of when a claimant can enter judgment in default of acknowledgement of service by entering judgment in default of defence. …
WHEN YOU ARE CHALLENGING A PROVISIONAL ASSESSMENT “BE PREPARED”: MASTER FINDS THAT COURT COSTS OFFICERS DO HAVE JURISDICTION TO CONDUCT PROVISIONAL ASSESSMENTS: THE LIMITED SCOPE OF AN APPEAL FROM A PROVISIONAL ASSESSMENT
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of Master Leonard in PME -v- The Scout Association (30/07/2019). 1. JUDGMENT PME (003). This deals with two issues (i) the jurisdiction of…
DISCLOSURE OF DOCUMENTS MENTIONED IN WITNESS STATEMENTS: MENTION MUST MEAN “SPECIFICALLY MENTION”
The judgment in Rudd v Bridle & Anor [2019] EWHC 1986 (QB) also considered, and rejected, the claimant’s application for specific disclosure of documents. Mr Justice Warby held that for an order to be made under CPR 31.15 there must be…
RIGHTS OF AUDIENCE: WHAT IS MEANT BY CHAMBERS? CLAIMANT’S REPRESENTATIVE SENT HOME…
I am grateful to barrister Christopher Buckingham for sending me a copy of the judgment in National Westminster Bank -v- Smith. (27th February 2019). A copy of which is attached here E6BA4N32 – National Westminster Bank PLC v Smith (27.02.19)…
PROVING THINGS 157: DEFECTS IN EVIDENCE “SO FUNDAMENTAL” THAT APPLICATION DISMISSED
In Mircom International Content Management & Consulting Ltd & Ors v Virgin Media Ltd & Anor [2019] EWHC 1827 (Ch) Mr Recorder Campbell QC (sitting as a High Court judge) refused an application on the grounds that the evidence was…
ADVICE TO A NEWLY QUALIFIED LITIGATOR (1): READ THIS CASE: BE WARY OF OPENING YOUR MOUTH TOO WIDE: TURN DOWN £1.5 MILLION AND GET £2.00 INSTEAD
A member of my family qualifies as a solicitor tomorrow and starts working in litigation. I have been pondering the best advice to give a newly qualified litigation solicitor. I intended a recap post of all those cases where litigants…
“CAN A DEAD PERSON BE TAKEN TO COURT?” : CPR 19.8: A RECAP
There have been a number of search terms arriving on this blog recently relating to the appropriate procedure when a party has died. Today the question was “can a dead person be taken to court?” This may be an opportune…
THE GENERAL DUTY ON LAWYERS TO INFORM THE COURT IF IT IS OBVIOUS THAT THE TIME ESTIMATE IS INCORRECT
There is a judgment today on BAILLI in a family case. The case appears to be subject to reporting restrictions so I do not propose to link to it, or even name it, until these are clarified. However what is…
CIVIL PROCEDURE BACK TO BASICS 54: SCHEDULES OF DAMAGES SHOULD NOT BE WORKS OF FICTION
Anyone drafting anything in the litigation process must remain acutely aware that there is real possibility that the document they are drafting will one day be read by a judge. This is even more likely in relation to a schedule…
DRAFTING WITNESS STATEMENTS: THE FINER DETAIL: NO ROOM FOR A MARGIN OF ERROR
A search led to this blog today “witness statement margin” which led me to look this issue up and realise that, despite the dozens of posts on witness statements on this blog, the important issue of margin size has never…
TWO SHORT TWEETS THAT SUM UP THE STATE OF COURT ADMINISTRATION IN 2019
In the civil courts we don’t have someone like the Secret Barrister who exposes, carefully, clearly and meticulously, the shortcomings in the justice system. However two tweets from yesterday seem to me to exemplify the current state of court administration….
CIVIL PROCEDURE BACK TO BASICS 52: THE REPLY AND DEFENCE TO COUNTERCLAIM: TO REPLY OR NOT TO REPLY – THAT IS THE QUESTION
Here we take a quick look at the rules and practice directions in relation to filing a Reply and Defence to a Counterclaim. In particular claimants should be very aware of the fact that a defendant can apply to enter…
CIVIL PROCEDURE BACK TO BASICS 51: BULLOCK AND SANDERSON ORDERS: COSTS WHERE THERE ARE MULTIPLE DEFENDANTS
When writing the previous post about a Bullock order it struck me that there may be some people not quite certain of what a “Bullock order ” or “Sanderson order” is. This gives rise to a need to explain those…
PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS
In Bull v Desporte [2019] EWHC 1669 (QB) Mr Justice Knowles rejected the defendant’s argument that a Part 36 offer meant that she did not have to pay costs. THE CASE The claimant succeeded in an action for misuse of…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
CIVIL PROCEDURE BACK TO BASICS 49: THE CASE SUMMARY: THE RULES, SOME GUIDANCE AND AN EXAMPLE
A search term arrived on this blog today “how do I prepare a case summary for a civil litigation case”. A Case Summary should be prepared in virtually every Multi Track case. Very little is written about it. THE RULES…
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…
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