LIMITATION AND INHERITANCE ACT CLAIMS: SOMETHING TO WATCH CAREFULLY: AGREEING “LIMITATION AMNESTY” MAY NOT BE POSSIBLE
NB – THESE COMMENTS ON THE POWER TO AGREE AN AMNESTY WERE DOUBTED BY THE COURT OF APPEAL SEE THE POST HERE In Cowan v Foreman & Ors [2019] EWHC 349 (Fam) Mr Justice Mostyn set out some importance principles in…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
STRIKING OUT AND SUMMARY JUDGMENT: ANOTHER CASE TO “CUT OUT AND KEEP”: ALS0 – THE EVIDENCE STOPS ONCE THE APPLICATION HAS BEEN HEARD
Some judgments extrapolate and summarise legal principles so succinctly that they can be regarded as “cut out and keep” guides to an area of law or practice. The judgment of Master Shuman in Capita Pension Trustees Ltd & Anor v Sedgwick…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at the…
COURT REFUSED TO ORDER THAT CONTESTED EVIDENCE BE REMOVED FROM EXPERT REPORTS
In A v B [2019] EWHC 275 (Comm) Mrs Justice Moulder refused the defendant’s application to declare inadmissible part of an expert report and a joint expert report. It was held that the principles in Rogers -v- Hoyle are of general…
DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE
In Consult II SRO & Ors v Shire Warwick Lewis Capital Ltd & Ors [2019] EWHC 286 (Comm) Andrew Henshaw QC (sitting as a High Court Judge) refused the defendants’ application for relief from sanctions. The lack of a candid explanation…
STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can…
SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL
Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court. The expert…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL
In Petrou v Lambrou (t/a KCJ Builders) [2019] EWHC 166 (Comm) Mr Justice Freedman upheld the decision of a circuit judge who granted the defendant relief from sanctions when a witness statement was served late. Interestingly the judge, on appeal, exercised…
PERIODICAL PAYMENTS, ASBESTOS CASES AND THE CONDUCT OF LITIGATION: AMBUSH IS TO BE AVOIDED
In the judgment today in Howard v The Imperial London Hotels Ltd [2019] EWHC 202 (QB) Master Thornett had to consider whether periodical payments were suitable for someone with a very short life expectancy. The judgment is a careful and sensitive…
CIVIL PROCEDURE BACK TO BASICS 29: EXPERTS AND FACTS: EXPERTS WHO VENTURE ONTO THE JUDGE’S TERRITORY DON’T USUALLY FARE TOO WELL
We have seen several cases recently where judges have objected, in clear terms, to an expert trying to find “facts”. That is properly a matter for the trial judge. It is worthwhile looking at the guidance and cases on this…
LITIGATORS AND THE ART OF PERSUASION: USEFUL GUIDES (1): MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is, involved in the art of persuasion. Litigation is fundamentally about the art of persuasion. Persuasion is a litigator’s daily task: in correspondence, on the phone, with opponents. It is wrong to confine the consideration of this essential skill…
THE ABSENCE OF KEY DOCUMENTS CANNOT BE EASILY IGNORED: CLAIMANT SHOULD HAVE BEEN SUCCESSFUL: JUDGMENT FOR DEFENDANT OVERTURNED ON APPEAL
In Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWHC 149 (QB) Mr Justice Garnham overturned a judgment in favour of a defendant. The defendant’s failure to produce key documents, or give any explanation for their not being available, was a major…
THE ORDER THE COURTS CAN MAKE WHEN A DEFENDANT HAS DIED AND THERE ARE NO EXECUTORS OR ADMINISTRATORS
Another aspect of the judgment Currie v Thornley & Anor [2019] EWHC. 172 (Ch) relates to the order the courts can make when a defendant in a civil action has died. THE CASE One of two defendants in a civil action had…
FRESH PROCEEDINGS CAN BE ISSUED IF FIRST PROCEEDINGS ON BEHALF OF THE DECEASED WERE A NULLITY: DENTON CONSIDERED
In the judgment today in Hutson & Anor, The Personal Representatives of v Tata Steel UK Ltd [2019] EWHC 143 (QB) Mr Justice Turner considered several points relating to the ability of those acting on behalf of an estate to…
HAVING A COPY OF WITNESS STATEMENTS AVAILABLE AT COURT: IT IS IN THE RULES
One other aspect of the decision in Prosser v British Airways Plc [2018] EW Misc B13 is worth noting. There was a rare reference to the requirements of CPR 32.13(1). Copy witness statements must be available at the trial for inspection. …
CIVIL PROCEDURE BACK TO BASICS 28: EXHIBITS TO WITNESS STATEMENTS AND AFFIDAVITS
The “exhibiting” of documents to witness statements and affidavits is common. It is surprising how common it is for the exhibit, and the witness statement, to fail to comply with the rules. Here we look at the rules relating to…
CIVIL PROCEDURE BACK TO BASICS 27: WAIVING LEGAL PROFESSIONAL PRIVILEGE IN A WITNESS STATEMENT
One matter that all litigators must be aware of is that there is a risk of waiving privilege when mentioning legal advice in a witness statement. This can (and does) happen even when the statement states, expressly, that the maker…
CIVIL PROCEDURE BACK TO BASICS 26: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the discretion…
THE ADMISSIBILITY OF POLICE REPORTS AS EVIDENCE: NO NEGLIGENCE WHEN DRIVER FEARED HE WAS TO BE ASSAULTED: A CASE TO POINT
In Mohmed v Barnes & Anor [2019] EWHC 87 (QB) Mr Justice Turner found that a driver had not been negligent when he drove into a pedestrian an attempt to escape an assault. The case is important in relation to an…
UNDERSTANDING LEGAL TERMINOLOGY: USEFUL GUIDANCE: IT DOESN’T ALL RES IPSA LOQUITUR YOU KNOW
The Radio 4 programme “Word of Mouth” had a programme last week on “legal language”: “demystifying the language of the court room”. This led one of the participants, barrister, author and blogger Lucy Reed to write a post “Why do…
LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and…
ELECTRONIC BUNDLES, WITNESSES AND THE TRIAL PROCESS: A WARNING FROM THE COURTS: SORT THIS OUT OR THE COURT WILL GO BACK TO PAPER BUNDLES
There is a warning to anyone considering the use of electronic bundles at trial contained in the judgment of Mr Justice Birss in Invista Textiles (UK) Ltd & Anor v Botes & Ors [2019] EWHC 58 (Ch). THE CASE The judge…
INTRANSIGENT EXPERT’S APPROACH LEADS TO “SIGNIFICANT PART OF CLAIMANT’S CASE BEING STRUCK OUT”: A CASE FOR EVERY EXPERT AND LITIGATOR TO READ – NOW
The judgment of Mr Justice Males in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) is one of the most robust I have seen in relation to expert evidence. An expert’s failure to properly engage…
CIVIL PROCEDURE: BACK TO BASICS 24: THE BANKRUPT CLAIMANT (PERSONAL INJURY LITIGANTS IN PARTICULAR)
I am writing this primarily because of a conversation I had with a law graduate who thought the term “bankruptcy” was a generic term to cover anyone who was hard up. The very basic point about what bankruptcy is, and…
FATAL ACCIDENTS: AVOIDING THE PITFALLS: WEBINAR 29th MARCH 2019
I am presenting a webinar on avoiding the pitfalls in fatal accident claims on the 29th March 2019, 1 – 2 pm. The idea came about from of a number of search terms that led to this blog, including “fatal…
PROVING THINGS 137: PROVING A DEFENCE TO A COUNTERCLAIM: NO EVIDENCE TO PROVE MATTERS – THEN JUDGMENT IS GOING TO BE ENTERED AGAINST YOU
The judgment in UK Dry Risers Ltd v Maher [2019] EWHC 44 (QB) shows the importance of being able to prove a defence to a counterclaim. The claimant succeeded on a claim for £3,690.72, the defendant obtained a judgment for £13,628.00. …
THE SPI NORTH (NON-ADMISSION IN PLEADING CASE) IN THE COURT OF APPEAL: THE SECOND POINT: COMPELLING EVIDENCE NEEDED AND NO SATELLITE LITIGATION PLEASE
Yesterday’s post on SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 concentrated upon the Court of Appeal guidance in relation to the drafting of a pleading. However the second point on which the claimant’s appeal …
YOU CAN’T MAKE SOMEONE BANKRUPT IF THEY’VE GOT NOTHING: AN INTERESTING APPEAL
In Lock v Aylesbury Vale District Council [2018] EWHC 2015 (Ch) HHJ Hodge QC (sitting as a High Court judge) allowed an appeal against the granting of a bankruptcy petition. Essentially the petition should have not have been granted because the…
THE BUSINESS AND PROPERTY COURTS: GUIDANCE FOR THOSE WHO GO LIVE AT LEEDS
HHJ Malcolm Davis-White QC has sent out guidance for the County Court at Leeds Property and Business Work. Solicitors and advocates may want to note the strictures in relation the filing of bundles and skeleton arguments in particular. Note it…
LEGAL FUTURES CIVIL LITIGATION CONFERENCE 19th MARCH 2019 (IF CARLSBERG DID CONFERENCES ABOUT LITIGATION…)
The Legal Futures Civil Litigation Conference is on the 19th March this year at the Grand Connaught Rooms in London. Details of the day and how to book can be found here. This should be a highly informative day. “This conference…
“A MISUSE OF JUDICIAL POWER”: A WITNESS SPEAKING TO LAWYER IN THE COURSE OF GIVING EVIDENCE DOES NOT JUSTIFY COMMITTAL OR STRIKING OUT A CASE
In the judgment today in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ the Court of Appeal robustly overturned a decision committing a witness to prison and striking out a case. It was found that the trial judge had,…
THE DEFENDANT’S “WRONG” APPLICATION TO DISPUTE JURISDICTION WAS STILL VALID: DEFENDANT ALLOWED EXTENSION OF TIME AND TO CORRECT APPLICATION
Twelve years ago, in Hoddinott and others v Persimmon Homes (Wessex) Limited [2007] EWCA Civ 1203; [2008] 1 WLR 806, the Court of Appeal held that the correct way for a defendant to challenge the validity of a claim form was to issue…
CIVIL PROCEDURE BACK TO BASICS 23: YOU CAN’T SUE THE DEAD: BUT YOU CAN SUE THEIR ESTATE: WHAT TO DO IF THERE IS NO ESTATE
This post is due to a search term that arrived on this blog today “how to join a deceased person to litigation”. The simple answer is that you can’t. An action has to be against the deceased’s estate. Attempting to…
WITNESS STATEMENTS AND TRANSLATION: WHY YOU CAN’T RELY ON PD 22 IN RELATION TO WITNESS STATEMENTS
This is the third post on this subject in one day. Someone responded to the first post on the need to for witness statements to be in the language of the witness by asserting that Practice Direction 22 could be…
THE STATEMENT OF TRUTH AND WITNESSES WITH POOR ENGLISH: PRACTICE DIRECTION 22
The post earlier today about witness statements in a foreign language led (almost immediately) to a telephone enquiry as to what happens when a party cannot read or understand the statement of truth in a statement of case. The answer…
WHEN A WITNESS CANNOT SPEAK ENGLISH: INTERPRETING THE RULES: GUIDANCE FROM THE CASES
If a witness cannot speak English and a witness statement is required what needs to be done? There are several cases where the issue of translation has caused a problem at trial. The best guidance comes from the Family Division….
SKELETON ARGUMENTS: BE SUCCINCT AND TO THE POINT: “THE ISSUE WAS ALL BUT LOST IN THE PLETHORA OF PAPER”: COURT OF APPEAL FIRES WARNING SHOT
Now that Lord Justice Jackson has retired someone needs to take his place to provide the (more or less quarterly) reminder to practitioners to keep skeleton arguments short and to the point. Step in Lord Justice Hickinbottom in Harverye v The…
BEING A LITIGATOR: “WHAT I’D TELL A YOUNGER ME” 2: BRIE STEVENS-HOARE QC
In the second in this series I popped into chambers at Hardwicke and spoke to property and probate law litigator Brie Stevens-Hoare QC. A QC since 2013 Brie is also Deputy Adjudicator to HM Land Registry and sits as a fee-paid…
ADVERSE INFERENCES DRAWN WHEN SOLICITOR DID NOT GIVE EVIDENCE: IF YOU’VE HAD £22 MILLION YOU NEED TO EXPLAIN IT
In The Lord Chancellor v Blavo & Co Solictors Ltd & Anor [2018] EWHC 3556 (QB) Mr Justice Pepperall found it was appropriate to draw adverse inferences when key participants did not give evidence. It is another example of the principles…
CIVIL LITIGATION REVIEW OF 2018 3: THE OPENING LINES OF JUDGMENTS: THE CACTI WINS IT…
Every year we look at the contenders for the best opening lines of a judgment. This year we have even looked abroad. The winner comes, perhaps surprisingly, from the Intellectual Property and Enterprise Court. THE TATOO ARTIST -v- THE…
CIVIL LITIGATION REVIEW OF 2018 2: CASE OF THE YEAR: HOW WINNING ON A PRELIMINARY ISSUE CAN LEAD YOU UP THE GARDEN PATH
There are no objective criteria for selecting case of the year. This year I have chosen Burges & Anor v Lejonvarn [2018] EWHC 3166 (TCC). This case is a classic illustration of a basic failure to prove things. It is of central…
CIVIL LITIGATION: REVIEW OF 2018 1: FACTS AND FIGURES: MOST READ POSTS & INTERESTING SEARCH TERMS
Rather than try one all-encompassing review of the year this will be done in a series of posts. THE TOP TEN BLOG POSTS OF 2018 With over 1, 145,000 views the blog remains fairly popular. It is interesting to see…
THE WITNESS WHOSE STATEMENT WAS “SOMEWHAT FICTIONAL”: EXCELLENT EXPERTS WHO ROSE ABOVE THE FRAY
There are several aspects of the judgment in JAH v Burne & Ors [2018] EWHC 3461 (QB) that are of interest to civil litigators. Firstly it is another example of a case where the claimant’s witness statement was not accepted (at…
BACK TO BASICS 14: SERVICE OF THE CLAIM FORM ON A SOLICITOR
In the case I wrote about yesterday, Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch), the very basic errors made by the claimant’s solicitor in relation to service of the claim form were held to amount to “misconduct” (albeit in…
“THIS IS AN ARCHETYPAL CASE WHERE IT WOULD NOT BE APPROPRIATE TO GRANT RELIEF FROM SANCTIONS”: ANOTHER LATE COSTS BUDGET CASE
The judgment OF Mr Justice Bryan in BMCE Bank International Plc v Phoenix Commodities PVT Ltd & Anor [2018] EWHC 3380 (Comm) provides, as the judge noted, an archetypal example of the way not to go about cost budgeting, coupled with…
THE ASSIGNMENT (OR NOVATION) OF CFAS: BOXING PROMOTER’S APPEAL SUFFERS KNOCKOUT BLOW BEFORE A PUNCH WAS THROWN
In Warren v Hill Dickinson LLP [2018] EWHC 3322 (QB) the proposed appellant did not get permission to appeal against a decision that an assigned (or novated) CFA remained valid. THE CASE The claimant argued that conditional fee agreements he had…
PROVING THINGS 136: THE IMPORTANCE OF CROSS-EXAMINATION – YET AGAIN: FAILURE TO CROSS-EXAMINE RESPONDENT LEADS TO FINDINGS BEING SET ASIDE
For the second time in a week I am reporting on the importance of cross-examination, albeit from a slightly different angle. The importance of putting the case to a witness arises clearly and squarely in the judgment of Mr Justice…
PROVING THINGS 135: WHAT A DIFFERENCE CROSS-EXAMINATION CAN MAKE
There has been much controversy recently about the need for cross-examination when allegations are made. I have no intention of entering that controversy, however those who want to be fully informed on these matters should read the judgment of Mr…
LATE SERVICE OF THE PARTICULARS OF CLAIM AND ACCOMPANYING DOCUMENTATION: IT MAY STILL BE DANGEROUS – AND HERE’S WHY
We have looked twice already at the judgment in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB). One of the key findings in that case was that the claimant, who had served the particulars of claim, medical…
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