THE DUTIES OF A SOLICITOR IN LITIGATION: NO DUTY TO TEMPT THE CLIENT TO PURSUE LARGE SUMS: ADVERTISING “TURNED THE CLIENT’S HEAD” AND LED TO INCORRECT ASSERTIONS
In Thomas v Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303 the Court of Appeal considered the extent of a solicitor’s duty and retainer. It is significant in that it: States that the courts should approach the issue of fixed…
NO SPECIAL FORM OF “MEDIATION PRIVILEGE”: MEDIATION AGREEMENT DID NOT OVERRIDE GENERAL PRINCIPLES PREVENTING WITHOUT PREJUDICE COMMUNICATION BEING USED A A FORM OF BLACKMAIL
The decision of Mrs Justice Rose in Interactive Technology Corporation Ltd v Ferster & Ors [2015] EWHC 3895 (Ch) considers the issue of “mediation privilege”. This is not a new case (the judgment was dated 21st December 2015) however it has…
THE DUTY TO PUT YOUR CASE : FINDINGS MADE ON KEY POINTS WHICH WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 the Judicial Committee of the Privy Council considered the extent of the duty to put a case to a witness. It is a reminder of the importance of putting a case…
WRITING TO THE COURT UNILATERALLY (AGAIN) – PROCEDURAL FAIRNESS AND WHY JUDGES NEED THE PATIENCE OF A SAINT
I have no plans to expand this blog to cover issues relating to procedure in Employment Tribunals. However there are certain passages of the judgment of Mr Justice Kerr in Jones v The Secretary of State for Business Innovation &…
ANOTHER LATE COSTS BUDGET: RELIEF FROM SANCTIONS GRANTED TO ERRANT DEFENDANTS WHO SERVED BUDGET 10 DAYS LATE
In Mott & Anor v Long & Anor [2017] EWHC 2130 (TCC) His Honour Judge Grant (sitting as a judge of the High Court) considered a relief from sanctions application in relation to defendants who had served a costs budget ten…
COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: A RECAP AND REVIEW OF THE EARLIER CASE MENTIONED
I am writing, again, about the the judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB). The point the case makes about the correct route of appeal has been commented on, however I had not anticipated…
PROVING THINGS 65: : ASSUMPTIONS ARE NOT EVIDENCE: (IF THE COURT OF APPEAL HAVE TO ASK FOR THE MATTER TO BE MADE SIMPLE YOU ARE IN SERIOUS TROUBLE)
The case of Ted Baker Plc & Anor v Axa Insurance UK Plc & Ors [2017] EWCA Civ 4097 could serve as a parable of modern litigation. The claimant won the first trial on this matter, establishing the defendant insurers were…
STOPPING PROBLEMS WITH SERVICE OF THE CLAIM FORM SPRINGING UP: 10 KEY POINTS
In Caretech Community Services Ltd v Oakden & Ors [2017] EWHC 1944 (QB) Master McCloud described how the Masters’ Corridor is plagued by “a dry and unlovely crop of procedural service issues. Despite efforts by numerous courts at all levels to prevent their…
LATE (BUT NOT VERY LATE) AMENDMENTS ALLOWED: LIMITATION DEFENCE WAS NOT “MUCKING AROUND AT THE LAST MOMENT”
In Vilca & Ors v XSTRATA Ltd & Anor [2017] EWHC 2096 (QB) Mr Justice Stuart Smith allowed a late, but not “very late” application by the defendant to allow it to plead limitation. “To my mind… all of the…
WHAT DO YOU DO WHEN IT ALL GETS TOO MUCH (OR IT IS YOU THAT HAS TO PICK UP THE PIECES): A RECAP
I am repeating, in large part, an earlier post. I do so without apology. Part of my job involves, periodically, dealing with cases (sometimes multiple cases) where someone has “gone off the rails” leaving numerous practical and procedural problems…
ISSUING NOTICE OF COMMENCEMENT OF COSTS PREMATURELY: CAN CAUSE PROBLEMS: CLAIMANT SUCCESSFUL ON THE THIRD ATTEMPT
There is an article on the Temple Garden Chambers website of the decision of Master Gordon-Saker of the judgment in Austin -v- East Sussex Fire and Rescue Service (08/08/17). The report concentrates upon the Master’s decision that he would not…
MORE ON FISH FILES: “LEAVE THEM IN THE CORNER UNTIL THEY START TO SMELL”: RECOGNISING THE PROBLEM AND SOLUTIONS
Everyone, at some stage, has a “fish file” – a file that has been left for so long it has started to smell (sometimes literally). Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe….
COMPLYING WITH DIRECTIONS IN THE FIRST-TIER TRIBUNAL: IT CAN BE A TAXING MATTER: PUBLIC BODIES SHOULD LIVE UP TO THE STANDARDS EXPECTED IN THE CONDUCT OF LITIGATION
The decision of the Supreme Court in BPP Holdings Ltd & Ors v Revenue and Customs [2017] UKSC 55 is interesting for a number of reasons. It is about the provision of textbooks (on law and accountancy presumably) to students….
COSTS AFTER A PART 36 OFFER AFFECTED BY THE CHANGE IN THE DISCOUNT RATE: CONDUCT OF DEFENCE ALONE SUFFICIENT TO JUSTIFY INDEMNITY COSTS
I have written several times about the judgment of Thirlwall LJ in Marsh -v- MOJ*. I have been provided with a copy of a note of the judgment on costs given on the 31st July 2017. I am grateful to…
THE JOB OF THE COURT IN CIVIL CASES: A USEFUL PRIMER: ADJUDICATION, THE BURDEN OF PROOF: THE JUDGE DOES NOT DECIDE WHO HAS THE MORAL HIGH GROUND
In Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) set out clearly and succinctly the principles by which the civil courts determine cases. They serve as a…
“THE CONSTITUTIONAL RIGHT OF ACCESS TO THE COURTS IS INHERENT IN THE RULE OF LAW”: THE JUDGMENT OF THE SUPREME COURT: EDITED HIGHLIGHTS
The decision of the Supreme Court in UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51 may have wide ramifications. Certainly its impact will go well beyond employment law. The Supreme Court set out, in clear and absolute…
BANGING A DRUM FOR YORKSHIRE: THE BEST LAWYERS AND THE BEST CRICKETERS (I’LL KEEP QUIET ABOUT FOOTBALL)
Having spent yesterday seeing concrete evidence of the depth and breadth of talent in Yorkshire (as one of judges on the Yorkshire Legal Awards) I arrived home to find information about the development of the courts and legal profession in…
THIRD PARTY (RIGHTS AGAINST INSURERS) ACT 2010 IS NOT RETROSPECTIVE: PARLIAMENT COULD EASILY HAVE SAID OTHERWISE
In Redman -v- Zurich Insurance PLC [2017] EWHC 1919 (QB) Mr Justice Turner held that the provisions of the Third Party (Rights Against Insurers) Act 2010 are not retrospective. “If Parliament had intended the 2010 regime retrospectively to apply to…
COUNSEL’S OPINION OF NO VALUE AT ALL: (ON THIS OCCASION ANYWAY)
I am returning for the fourth time (and still not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). The parties had exchanged written opinions of leading counsel…
INADEQUATE DISCLOSURE LEADS TO DEFENCE BEING STRUCK OUT – EVENTUALLY: CASE THAT WAS NOT A WALK IN THE PARK
There is a brief report on Lawtel today of the case of Powell -v- Watford Borough Council, a decision made yesterday by Mr Justice Jay (10th July 2017) in the Royal Courts of Justice . This post is based in…
EVIDENCE OF PREVIOUS EXPERT DOES NOT HAVE TO BE DISCLOSED: THE IMPORTANCE OF THE REASON FOR THE CHANGE OF EXPERT
In Condor Vilca & ors -v- Xstrata Limited [2017] EWHC 582 (QB) Mr Justice Stuart-Smith rejected an application that a party disclose its previous expert evidence when it needed to change its choice of expert. The reason for the change…
NOT ALL WITNESS STATEMENTS SHOULD BE MADE PUBLIC AHEAD OF A TRIAL: THE TIMES HAS TO WAIT
In Blue -v- Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm) Mr Justice Leggatt considered whether a witness statement should be disclosed to the public when it had been referred to at a pre-trial hearing. The application was…
WHY YOU SHOULD NEVER JUDGE A BOOK BY ITS COVER: THE UNDERWOOD TRILOGY
There are three volumes in Kerry Underwood’s guide to “Kerry on Personal Injury Small Claims Portals and Fixed costs”. Each has Kerry’s photo on the front. Should that put you off? As ever I have a “quick” review and a…
PROVING THINGS 62: “TOTALLY UNSATISFACTORY” EVIDENCE AT TRIAL FAILS TO PROVE SPECIAL DAMAGES
I wrote about the judgment in Stewart & Chergui -v- The Commissioner of Police for the Metropolis [2017] EWHC 921 (QB), yesterday. There is no harm in repeating one element of that post in this series. I am repeating it because…
SETTING ASIDE JUDGMENT, DELAY AND DENTON: “PROMPTNESS” CONSIDERED: DELAY MUST BE EXPLAINED
In Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC) Mr Justice Coulson refused to set aside a default judgment. The case contains some important discussion on how the Denton principles apply to applications to set aside judgment. “……
CLIFF, THE BBC AND PART 18 OF THE CPR: “WE DON’T TALK ANY MORE”
In Sir Cliff Richard OBE -v- The British Broadcasting Corporation [2017] EWHC 1291 (Ch) Mr Justice Mann considered an issue of whether the BBC should answer Part 18 questions. It is unusual for one Part 18 question to be the…
LIES, DAMN LIES AND CAR HIRE QUOTES: COMPUTER RECORDS, AND INTERNAL DOCUMENTS PREFERRED TO WITNESS EVIDENCE
The judgment in Accident Exchange Limited -v- Broom [2017] EWHC 1096 (Admin) shows a deliberate, and concerted, effort to undermine the civil justice process. It also shows the importance of obtaining computer records, and internal documentation when preparing a trial….
TALES FROM THE APIL CONFERENCE IV: HOW PROCEDURAL CHANGES CAN MAKE A DIFFERENCE IN THE REAL WORLD
This may have been a strange venue to be talking about intellectual property rights and civil procedure. However it arose because Mr Justice Birss was on the panel and he has a background in intellectual property law. HOW CHANGES TO…
A “DEFENCE STRAIGHT OUT OF THE 1970S”: DEFENDANT’S PLEADINGS 40 YEARS OUT OF DATE
Some defences are inadequate. Some are (rightly) struck out. Some do not recognise the essential difference between a non-admission and a denial. A series of denials is, the case law makes clear, an inappropriate and archaic way of proceeding. “Churchill’s…
AN UNUSUAL APPLICATION FOR RELEASE OF AUDIO RECORDING OF JUDGMENT: NOT NECESSARY AND NOT ALLOWED
What does a litigant do if a written judgment varies from the oral judgment given in court? This issue was considered by HHJ Matthews (sitting as a High Court judge) in Bath -v- Escott [2017] EWHC 1101 (Ch). The judgment…
DUTY OF FULL AND FRANK DISCLOSURE: APPLIES TO APPLICATIONS MADE ON SHORT NOTICE
The “new year resolution” I recommended for litigators this year was to be very careful when making without notice applications. A failure to make full and frank disclosure has proven to be financially and professionally disastrous for some litigants (and…
COSTS AGAINST NON-PARTIES: COSTS ORDER NOT MADE AGAINST DIRECTOR
When is it appropriate to make an order against a director personally? This issue was considered in Housemaker Services Ltd -v- Cole [2017] EWHC 924 (Ch) by HHJ Paul Mattews (sitting as a High Court Judge). The judge declined to…
OPENING LINES OF A JUDGMENT: IT STARTED WITH A TWEET: PAGING DOCTOR FREUD
The opening line of a judgment is often a good guide as to what it to follow. For a few days there has been some, occasionally heated, discussion, as to the best opening lines of a judicial pronouncement. THE TWITTER…
PRESSING THE WRONG BUTTON: THE PERILS OF EMAIL “REPLY ALL” IN LITIGATION (OR ARBITRATION)
Many, if not all, of us will have made some errors with emails on some occasion. There is a danger, however, when this happens in litigation. This can be seen in the judgment of Mr Justice Popplewell in T -v-…
APPLICATIONS TO AMEND APPEAL NOTICE AND PARTICULARS AT A LATE STAGE NOT ALLOWED BY THE COURT OF APPEAL
I am grateful to Jill Greenfield from Field Fisher for sending me a copy of the Court of Appeal transcript in Howe -v- Motor Insurers Bureau (CA 8th February 2017). This is a judgment refusing permission to amend and for…
INTEREST ON AWARD NOT AUTOMATIC: A DECISION WHERE NO INTEREST WAS AWARDED
The question of when, and whether, interest should be awarded is one of these issues in litigation that receives little coverage. In Pinfold -v- Ansell [2017] EWHC 889 (Ch) HHJ David Cooke decided not to award interest at all. It…
CIVIL COMMITTAL PROCEEDINGS: STILL A MAJOR PROBLEM: PROCEDURAL ERRORS ARE “INEVITABLE”
We have had graphic examples recently of cases where committal proceedings in civil, or family, proceedings have gone badly wrong. In LL -v- Lord Chancellor [2017] EWCA Civ 237, the Court of Appeal held that the procedure adopted…
ISSUING PROCEEDINGS BEFORE LETTERS OF ADMINISTRATION ARE TAKEN OUT: A FATAL ERROR FROM THE OUTSET
In Qunintana -v- Surrey and Sussex Healthcare NHS Trust 28/03/2017 Master Cook upheld the established principle that an action cannot be brought by administrators of an estate before the letters of administration are taken out. Proceedings cannot later be amended…
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…
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