KNOW (AND FOLLOW) THE RULES – OR ELSE: DPP COPS IT.
There is some irony in the decision of Mr Justice Fraser in R (RA) -v- The Director of Public Prosecutions [2017] EWHC 714 (Admin). The claimant, a litigant in person, complied with the rules. The defendant, a specialised government department…
JUDICIAL INTERVENTION, INTERRUPTIONS AND HOT TUBBING: JUDICIAL LATITUDE IS NOT UNLIMITED
In Shaw -v- Grouby [2017] EWCA Civ 233 the Court of Appeal made some observations about the dangers of a judge getting too inquisitorial in the course of a trial, particularly in the course of cross-examination. “The judge intervened in…
FILE A SKELETON ARGUMENT – IT IS MANDATORY
Many of the posts about skeleton arguments on this blog have been about content (usually length), The surprising aspect of R -v- Secretary of State for the Home Department [2017] EWHC 639 (Admin) is that both sides decided not to file…
LIMITING CLAIM TO £10,000 DID NOT PREVENT COURT AWARDING £140,000: CPR 16.3(7) IN USE
In the judgment today in Harrath -v- Stand for Peace Ltd [2017] EWHC 653 (QB) Sir David Eady awarded £140,000 in a case where the claim form limited the claim to £10,000. This is an interesting development in an environment where…
JUDGMENTS CANNOT EASILY BE RE-OPENED: NOR IS WITHOUT PREJUDICE PRIVILEGE EASILY WAIVED
In Gillian -v- HEC Enterprises Ltd [2017] EWHC 461 (Ch) Mr Justice Morgan considered an application to reconsider and re-open an earlier judgment, The judgment contains interesting observations about attempts to “reopen” court decisions, the use and alleged waiver of “without…
RELIEF FROM SANCTIONS: COURT OF APPEAL ALLOWS APPEAL AND GRANTS RELIEF WHEN THE ORIGINAL ORDER WAS PRE-DENTON
It is surprising, perhaps embarrassing, that the Court of Appeal is still hearing appeals where the judge at first instance applied the pre-Denton approach to relief from sanctions. However a judgment today involved just that*. In Patterson -v- Spencer [2017]…
HIGH COURT WRITES AN OPEN LETTER TO LITIGANTS IN PERSON: STRIKING OUT CAN BE A BENEFIT NOT A BURDEN
There are aspects of the judgment of Mr Justice Walker in Chambers -v- Rooney [2017] EWHC 285 (QB) that amount to an open letter from the High Court to litigants in person. Some of the observations are aimed at everyone…
MICROSOFT, SERVICE AND FULL AND FRANK DISCLOSURE: HIGH COURT JUDGE SAYS “NO”
One feature of this blog for this year has been the duty owed by litigants making without notice applications. Another example of the problems caused can be seen in the judgment on Mr Justice Marcus Smith in Microsoft Mobile OY…
DISCLOSURE, CASE MANAGEMENT, THE COLLATERAL USE OF DOCUMENTS AND PROPORTIONALITY
There are some passages in the judgment of Mr Justice Knowles in Tchenguiz -v- Grant Thornton UK LLP [2017] EWHC 310 (Comm) which highlight, succinctly, the nature of disclosure and the scope of “collateral use protection” in relation to documents…
AN ORDER UNDER THE ARBITRATION ACT IS NOT AN ORDER UNDER CPR 3.1(7)
The judgment of Popplewell J in H -v- L [2017] EWHC 137 (Comm) relates to an application to remove an arbitrator. Most of the judgment considers the principles relating to the independence of arbitrators. The judge also considered points…
CONSEQUENCES OF LATE ACCEPTANCE OF CLAIMANT’S PART 36 OFFERS: RECENT DEVELOPMENTS
There is a useful report on the PIC website of a case where a claimant obtained indemnity costs after the defendant’s late acceptance of its Part 36 offer The case of Car Craft Test Centre -v- Trotman a decision by…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
RASTIN RESURRECTED: DO THE NEW RULES RE-INTRODUCE AUTOMATIC STRIKING OUT?
There have been comments on Twitter, and now in the Gazette, that “automatic striking out” is being introduced by the rules coming into force on the 6th April 2017. This is true, however it is important that the rules are…
NEW RULES COMING INTO FORCE: COSTS BUDGETING AND QADER RESULT CODIFIED
The Civil Procedure (Amendment) Rules 2017 were made on the 3rd February. Most of these come into force on the 6th April 2017. The new rules are available here COSTS BUDGETING The amendments set out below may be perplexing. However…
AMENDMENT TO ADD NEW ISSUES THAT HAVE ARISEN SINCE ISSUE: CONSIDER THE OVERRIDING OBJECTIVE AND NOT THE RSC
I said that there would be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). The first looked at the lifting of the automatic stay. Here we look…
FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN
There are going to be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post…
ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE
In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias. This judgment emphasises the fact that the test is one of the fair minded and informed observer and not…
THOSE LETTERS: DEAR JUDGE – YOU WERE WRONG – PLEASE CHANGE YOUR MIND: ONLY IN THE MOST EXCEPTIONAL CIRCUMSTANCES
There is an interesting postscript to the judgment of Mr Justice Mostyn in Goyal -v- Goyal [2017] EWFC 1. It relates to the practice of using letters to the judge in an attempt to alter the terms of a draft…
LIMITATION, DISABILITY AND THE HUMAN RIGHTS ACT: COURT REFUSES TO EXTEND TIME: KEY DUTY ON LEGAL ADVISERS
In AP -v- Tameside Metropolitan Borough Council [2017] EWHC 65 (QB) Mr Justice King considered issues relating to limitation, disability and a claim under the Human Rights Act. KEY POINTS The fact that a party lacks capacity does not prevent…
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL X: THE BEST OF THE REST
This series started as a series of tweets from a (cold) train station early last Friday morning. It is fitting I finish it on a Friday evening. Much ground has been covered and we have gathered advice from around…
PROVING THINGS 47: FIRE IN THE LOFT: IT WASN’T THE MOUSE MAN AT ALL
The judgment of Mr Justice Coulson in Palmer -v- Nightingale [2016] EWHC 2800 (TCC) is another example of a claimant failing to prove their case. More curiously, in some respects, the claimant’s own evidence contradicted their case. “In circumstances where there…
FIRST CLAIM FORM CASE OF THE YEAR: AND THERE'S A BRIGHTSIDE
Every year brings a batch of cases relating to service of the claim form. This year starts with an unusual issue. In Brightside Group Ltd -v- RSM UK Audit LLP [2017] EWHC 6 (Comm) Mr Justice Andrew Baker considered issues…
IF YOU ARE BELIEVED YOU WILL WIN: THE NEED FOR A DEVIL'S ADVOCATE IN CIVIL LITIGATION
The post written yesterday on litigators and memory has already given rise to a large number of responses, particularly on Twitter. It is worthwhile taking the matter further by considering how and when a litigator should take stock of the quality…
CIVIL CASE OF THE YEAR 2016: THE CASE THAT ENCAPSULATES CIVIL EVIDENCE: HOW THE COURT DECIDES
There were many important cases on procedure and costs in 2016. Choosing a case of importance to litigators was not an easy task. However I kept coming back to the judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160…
A NEW YEAR'S RESOLUTION FOR 2017 : EX PARTE APPLICATIONS ARE NO PARTY (AND CAN LEAD TO CRYING)
Last year I had 10 new year’s resolutions for litigators. This year I have one. (The resolutions from last year remain current but one resolution is easier to keep) THINK VERY CAREFULLY BEFORE, DURING AND AFTER, MAKING AN EX-PARTE APPLICATION…
CAN AN APPLICATION BE AMENDED? AN INTERESTING POINT TO START THE YEAR
There are some procedural issues where you would assume that there was clear pre-existing authority in existence. However, on examination (usually just before the hearing) it transpires that the point is a “novel” one. In Agents Mutual Limited-v- Moginnie…
LIMITATION AND DATE OF KNOWLEDGE: NO SPECIAL RULE BECAUSE THE CLAIMANT WAS A SOLICITOR
I am grateful to Thomas Jervis of Leigh Day for sending me a copy of the judgment of Mr Justice Goss in Lewin -v- Glaxo Operations UK Limited [2016] EWHC 3331 (QB), an interesting decision in relation to limitation. (A…
CIVIL LITIGATION REVIEW OF 2016: PROMISCUOUS BUNDLES & THAT CRAZY LITTLE THING CALLED PROPORTIONALITY
This is the third annual review of the year on this blog. 2016, as ever, has been an interesting year. As ever, a comprehensive review can be found in Herbert Smith Freehills A litigator’s yearbook: 2016 (England and Wales). PREDICTIONS…
PAYING THE CORRECT COURT FEE, AMENDMENT & STRIKING OUT: ANOTHER DECISION
There have been a number of cases in relation to the consequences for a claimant when the correct court fee has not been paid upon issue. This issue was considered by His Honour Judge Robinson this week in an appeal…
BOMBARDING THE COURT: AN IMPORTANT POSTSCRIPT
There is an important postscript to the judgment of Lady Justice King in Agarwala -v- Agarwala [2016] EWCA Civ 1252. It sets out the dangers of “bombarding” the court with communications and applications. It sets out a course of…
INTERPRETERS CANNOT (AND WOULD NOT) BE COMPELLED TO ATTEND TRIAL FOR CROSS-EXAMINATION
The case of Kimathi -v- The Foreign & Commonwealth Office [2016] EWHC 3004 (QB) has already featured several times on this blog. Here we look at the judgment made last week relating to the defendant’s application that interpreters attend trial…
THE DEAD CAN'T SUE: AN IMPORTANT REMINDER
In Kimathi & Ors -v- The Foreign & Commonwealth Office [2016] EWHC 3005 (QB) Mr Justice Stewart reviewed the principles in relation to bringing an action on behalf of a deceased party. It is an important reminder of some very…
PROVING THINGS 38: PROVING INABILITY TO PAY ON A SECURITY FOR COSTS APPLICATION
A party opposing an application for security costs sometimes has to argue that the ordering of security would “stifle” a genuine claim. This means giving evidence as to that party’s inability to pay. This test was considered by Mr Richard…
WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED
There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence….
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
TALES FROM COSTS LAW CONFERENCE III: SATELLITE NAVIGATION, MERRIX AND COSTS BUDGETING
One issue discussed at the Association of Costs Lawyers in Manchester on the 24th October was the decision in Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB). The question of whether a detailed assessment is needed…
LEGAL REPRESENTATIVE SIGNING THE DISCLOSURE STATEMENT II: SEE WHAT THE COMMERCIAL COURTS GUIDE SAYS: BUT…
The post on legal representatives signing the disclosure statement written earlier in the week had a lot of response. My attention has been drawn to the Admiralty & Commercial Courts Guide which suggests (in certain undefined circumstances) a legal representative…
PART 36: OFFER DID NOT COVER COSTS OF ADJUDICATIONS
In Wes Futures Limited -v- Allen Wilson Construction Limited [2016] EWHC 2863 (TCC) Mr Justice Coulson considered the terms of an offer from the claimant that the Defendant accepted 10 months afterwards. Curiously it was the claimant that was arguing…
THE INTERACTION BETWEEN LAWYER AND EXPERT: CASES ON EXPERTS THIS WEEK II
We have already looked at the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21 in relation to costs budgeting. Here I want to isolate one aspect of that budgeting exercise – in relation to…
WHEN IS EXPERT EVIDENCE ADMISSIBLE: A MASTERLY EXPOSITION
The judgment of Master Matthews in Darby Properties Ltd -v- Lloyds Bank Plc [2016] 2494 (Ch) contains an important consideration of the rules relating to the admissibility of expert evidence. In particular when is expert evidence “necessary”? “… although I…
SURVEILLANCE EVIDENCE A BREACH OF ARTICLE 8 RIGHTS: ECHR DECISION
In Vukota-Bojic -v- Switzerland the European Court held that the surveillance of an insurance claimant represented a breach of Article 8 rights (but use of that evidence at a hearing was not a breach of Article 6 rights). It could…
A JUDGMENT ON THE RELATIONSHIP BETWEEN COSTS BUDGETING AND THE ASSESSMENT OF COSTS: MAPPING & SURVEYING THE TERRAIN
In a judgment given today in Merrix -v-Heart of England NHS Foundation Trust Regional Costs Judge District Judge Lumb (sitting in Birmingham) considered the extent to which the costs budgeting regime fettered the powers and discretion of the costs judge…
ADVOCACY – THE JUDGE’S VIEW VIII: "CREDIBILITY IS ALL YOU HAVE"
This post looks at at an article by Sidney Butcher in the ABA publication “Views from the Bench: Tips for Young Lawyers on How to Make a Good Impression.” The Honorable Lynne Stewart, a District Court Judge and the Honourable…
BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)
There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload. This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is…
LITIGANTS IN PERSON AND CASE MANAGEMENT: TIMELY SERVICE OF DOCUMENTS – DRAWING FROM THE FAMILY DIVISION
Recent cases have made it clear that litigants in person do not have any special status during the conduct of litigation. However it is equally clear that, when making case management decisions, the court has to have regard to the…
SOLICITOR'S AGENT HAS NO RIGHT OF AUDIENCE AT STAGE 3 HEARING: COUNTY COURT DECISION CONSIDERED
Who has a right of audience at a Stage 3 hearing? This issue has been considered in the county court and I am grateful to barrister Jonathan Dingle for sending me a copy of the decision of District Judge Peake…
CANAL TRUST’S ATTEMPTS TO BARGE OVER WITHOUT PREJUDICE RULE IS SUNK WITHOUT TRACE: NO WATERING DOWN OF THE PRINCIPLES
Can a party refer to without prejudice correspondence at interlocutory hearings? The previous post looked at the judgment of Chief Master Marsh in Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) in relation to the issue of McKenzie friends….
MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY
In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 2: THE STRESS OF LITIGATION: GUIDANCE AND LINKS
The earlier post on looking at litigation from the litigant’s viewpoint led to some interesting comments, on the blog itself; on LinkedIn and on twitter. It was particularly interesting to hear from lawyers who had been involved in litigation…
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