5th BIRTHDAY REVIEW 3: AVOIDING NEGLIGENCE CLAIMS
This is the third post that looks back at series of posts over the past five years. The series on avoiding negligence claims was written at the end of 2013. The emphasis was on avoiding negligence claims, particularly for personal injury…
5th BIRTHDAY REVIEW 2: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL: 10 POSTS THAT STARTED ON A TRAIN STATION
I am continuing looking back at series on this blog over the past five years. A series of posts in early 2017 was probably the most “collaborative” work on this blog. Dozens of people participated in giving advice to law…
CIVIL LITIGATION BRIEF FIFTH BIRTHDAY CELEBRATIONS 1: POSTS ABOUT STRESS AND WORKLOAD FOR LITIGATORS AND LITIGANTS
This week sees the 5th anniversary of the start of Civil Litigation Brief as a blog. I am marking this by going over some of the key series of posts over the five year period. Here I recap on those…
AVOIDING THE TERMS OF A CONSENT ORDER: A CASE THAT HAS A LOT OF LESSONS FOR SOLICITORS: WHY A CONSENT ORDER MAY NOT BE WORTH THE PAPER ITS WRITTEN ON
The judgment in Riordan & Ors v Moon Beevor Solicitors (a firm) [2018] EWHC 1452 (QB) gives an interesting insight into the fallout from litigation – where the disgruntled client blames the solicitors. There are important lessons here about the drafting…
APPLICATION TO ADDUCE NEW EVIDENCE: COURT OF APPEAL WOULD NOT BE MOVED
In The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302 the Court of Appeal refused the appellant’s application to adduce new evidence. It is a a case that highlights the difficulties of…
APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE
A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique. This was emphasised in the judgment of Miss Penelpe Reed QC in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018]…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
STAGE 3 ISSUE FEES: COURT REPAYS OVERPAID FEES: GOOD NEWS FROM LIVERPOOL
In January this year I blogged about correspondence I had received from Jon Heath, a solicitor at Levins, in Liverpool about the courts overcharging on Stage 3 issue fees. Yesterday I received an email from Jon telling me that the…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
NB THIS DECISION WAS OVERTURNED ON APPEAL SEE THE REPORT HERE In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a…
APPLICATION FOR SPLIT TRIAL FAILS TO FLOAT THE MASTER’S BOAT
The judgment in Howard & Ors v Chelsea Yacht And Boat Company Ltd & Anor [2018] EWHC 1118 (Ch) provides a useful “cut out and keep” summary of the principles relating to applications for a split trial. “questions of case…
“NOTHING SHORT OF A RECOGNISED PSYCHIATRIC INJURY CAN AMOUNT TO A PERSONAL INJURY”: SECTION 33 CANNOT APPLY WHERE THE CLAIMANTS SUFFERED “FEAR”
The judgment of Mr Justice Stewart in Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) (24 May 2018) considers the question of what is an “injury” for the purpose of Section 33 of the Limitation Act…
PROVING THINGS 103: CAUSATION WHEN THE CLAIMANT TRIED TO ESCAPE FROM A BALCONY: A TALE OF TWO JUDGMENTS
There is an interesting consideration of causation in the Court of Appeal judgment today in Clay v TUI UK Ltd [2018] EWCA Civ 1177. This has the flavour of a case that may go further. There is an interesting dissenting judgment…
PROVING THINGS 97: AN APPROACH THAT WAS UTTERLY FLAWED AND HOPELESSLY CARELESS: WHEN SOLICITORS LETTERS BECAME PART OF A PROCESS OF UNLAWFUL HARRASSMENT
In Worthington & Anor v Metropolitan Housing Trust Ltd [2018] EWCA Civ 1125 the Court of Appeal upheld a decision that a housing association had unlawfully harassed its own tenants. A major part of the problem came from the association’s highly…
STRUCK OUT FOR FAILURE TO PAY THE TRIAL FEE? WELL YOU MAY NOT BE: COURT ORDERS THAT MAY NOT COMPLY WITH COURT RULES
When the rules committee re-introduced the concept of “automatic striking out” into the rules it was always going to cause problems. A case can be automatically struck out for failure to pay the trial fee in time. However some Court…
PROVING THINGS 94: : THE DEFENDANT WANTS TO CHOOSE BOTH THE CLAIMANT’S LITIGATION FRIEND AND SOLICITOR: EVIDENCE IN SUPPORT FAR FROM COMPELLING
There are some audacious applications. However an application by defendants that attempts to dictate who the claimant’s litigation friend should be, and who their solicitor should be, should – at the very least – be backed up by firm evidence. …
WHAT IS THE DIFFERENCE BETWEEN “KNOWLEDGE” AND “BELIEF”? A CASE AND A REVIEW OF 10 KEY POINTS
This blog has looked, many times, at the importance of giving the source of information and belief when a party (and particularly when a legal representative) makes a witness statement. It is sometimes possible for you opponent to attempt to…
VULNERABLE WITNESSES IN THE CIVIL COURTS: EXISTING GUIDANCE AND THE IICSA RECOMMENDATIONS
The criminal and family courts have developed sophisticated methods for dealing with vulnerable witnesses. There is relatively little guidance in the civil courts. This was an issue noted yesterday in the interim report of Independent Inquiry Child Sex Abuse. Here…
CIVIL PROCEDURE – BACK TO BASICS 6: NON-DISCLOSURE OF A PART 36 OFFER
This post is caused by some comments on Twitter this evening. A surprising number of cases where parties have, by one method or other, disclosed a Part 36 offer. This has been done by including the offers in the trial…
A JUDGMENT ADJOURNING A TRIAL: THE CLAIMANT DID NOT KNOW WHETHER THE ACTION WAS NECESSARY; THE TRIAL BUNDLE DID NOT HAVE THE KEY DOCUMENT (AND MORE)
The short judgment of Mr Justice Holman in Matthews v Matthews & Anor [2018] EWHC 906 (Fam) looks like a family case. However it is an inheritance claim and contains some surprising revelations. KEY POINTS If you are asking a judge…
NEW INSOLVENCY PRACTICE DIRECTION: CAME INTO FORCE TODAY: WATCH OUT FOR THIS
I am grateful to barrister Simon Bradshaw for pointing out that there is a new Practice Direction in force in relation to insolvency procedure. This was introduced today and comes into effect immediately. CHANGES The PD now refers to the…
SERVICE ON INSURER ALLOWED WHEN DRIVER COULD NOT BE IDENTIFIED: FACT THAT INSURER HAD AN ORDER DECLARING THE POLICY VOID NOT RELEVANT TO THIS ISSUE
In Farah v Abdullahi & Ors [2018] EWHC 738 (QB) Master Davison rejected an application by an insurer to set aside an order that allowed service of an unnamed driver upon the insurer. It was irrelevant that the insurer had obtained…
LEAVE TO APPEAL, APPEAL NOTICES AND THE NEED TO APPLY TO AMEND: COMPLIANCE WITH THE RULES IS CRUCIAL: KNOW THE RULES
In Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851 the Court of Appeal set out, in categorical terms, that parties should comply with the provisions relating to permission to appeal. In particular a party cannot…
LISTING – WAITING TWO YEARS FOR PERMISSION TO APPEAL: 10 MONTHS TO HEAR AN APPLICATION: THIS IS NOT A MODERN JUSTICE SYSTEM
I’m quite happy to carry on posting about listing issues. Litigants should not suffer in silence. I post these three reports without comment. Delay of 10 months for listing of applications “Fast track personal injury claim in Central London County…
WHEN FACT FINDING GOES WRONG: APPEALS TO THE COURT OF APPEAL WHEN THERE ARE DELAYS BY THE JUDGE
I am going to leave it to the family law bloggers to analyse all the implications of the judgment in P (A Child), Re [2018] EWCA Civ 720. It involves all parties in a case agreeing that the fact finding process at…
CIVIL PROCEDURE – BACK TO BASICS 3: THE STATEMENT OF TRUTH
The aim of this series is to look at things that litigators do every day – almost automatically. Signing a statement of truth is one of those things. This is a regular occurrence in many solicitor’s offices. It is a…
PROVING THINGS 88: MATTERS YOU HAVE TO PROVE IF YOU WANT AN INJUNCTION: THE IMPACT OF A SIX MONTH DELAY IN APPLYING
In Blade Motor Group Ltd v Reynolds & Reynolds Ltd [2018] EWHC 497 (Ch) an applicant for an injunction failed because it failed to prove the basic requirements. The fact that there was a six-month delay in applying for the injunction…
PROBLEMS WITH LISTING: A CONTINUING SAGA
Complaints about listing continue. Some are put as comments to the original post on this blog, some use the #courtlisting hashtag on Twitter. This is just a flavour of complaints in the last week. Three months to acknowledge receipt of…
CIVIL PROCEDURE – BACK TO BASICS 2: “EVIDENCE IN SUPPORT” OF AN APPLICATION
The previous post looked at some of the basic requirements of an application to the court. Here we look at the evidence that may be needed in support of an application. The key point here being “evidence”. Numerous hours are…
CIVIL PROCEDURE – BACK TO BASICS 1: THE HUMBLE APPLICATION: WORDING AND TIMING
Last year I was giving an in-house talk at a very prominent firm of litigation solicitors. The litigation partner present (a person of immense experience) made the point that the firm were continually having talks and education on esoteric and…
LISTING IN THE COUNTY COURT: AN EVERY DAY STORY OF EVER DAY FOLK: “WE’VE GOT NO JUDGES”
Problems with listing are one of the hidden problems of civil procedure. Hearings are listed and then pulled out at the last moment, often after the parties have arrived at court. This is an issue that should be publicised. It…
PART 36: ADDITIONAL AMOUNTS AFTER DEFENDANT FAILS TO BEAT CLAIMANT’S 36 OFFER: OFFER “IN THE BAG” SO DECISION CAN BE DEFERRED
We have already looked at the decision in JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB) where Foskett J decided that a 90% offer on liability was a…
SERVICE OF THE CLAIM FORM AT THE “OLD ADDRESS”: THE HIERARCHY OF MEASURES A CLAIMANT HAS TO TAKE
A search term arrived on this blog today “Service of claim form at old address”. This is an interesting issue to look at following the earlier posts on service. In particular the hierarchy of measures a claimant is required to…
THE SECRET BARRISTER AND CIVIL LITIGATORS 3: “WHAT ABOUT OUR STATISTICS: “AN OUTRAGEOUS INTERFERENCE WITH THE RULE OF LAW
Chris Dale has done a proper. full-blown, review of SB’s book. I’m still looking at it piecemeal. Here I want to look at “targets”, statistics and the dangers they pose to the administration of justice. SB ON STATISTICS SB gives…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
THE SECRET BARRISTER AND CIVIL LITIGATORS 2: THE ESSENTIAL ROLE OF THE LITIGATION SOLICITOR
I am back to my review of the book that everyone is reading, the Secret Barrister’s “Stories of the Law and how its Broken”. I’ve already have people ask me not to give too much away – “don’t spoil the plot”. I…
THE ADDRESS FOR SERVICE OF THE CLAIM FORM: HAVE YOU GOT A SYSTEM? LITIGATING OR WINGING IT?
Do you know the address for service of all your cases? Are you sure? Looking at the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) brings out the point as to how insouciant litigators can be…
STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”
In Brown & Anor (t/a Maple Hayes Hall School) v AB [2018] EWHC 623 (QB) Mr Edward Pepperall QC (sitting as a Deputy High Court Judge) struck out a defence that was . In giving the defendant another chance he made…
OVER-LISTING HAS CONSEQUENCES : (SO DOES TALKING OVER YOUR OPPONENT): HEARINGS SHOULD NOT BECOME A “SHOUTING MATCH”
There is a page on this blog where I am attempting to collate problems with listing (across all jurisdictions). The judgment reported today in A v R & Anor (Appeal of Summary Determination) [2018] EWHC 521 provides a reminder that listing…
SERVICE OF THE CLAIM FORM: DEFENDANTS HAVE A DUTY UNDER THE CPR TO POINT OUT TECHNICAL ERRORS (OR WHY LIFE HAS SUDDENLY GOT A LOT HARDER FOR DEFENDANT LAWYERS)
NB THIS DECISION WAS OVERTURNED ON APPEAL – SEE THE POST HERE I wrote earlier this week about the “tantalising” judgment of Master Bowles in the case of Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch). At…
PROCEDURAL DEFECTS AND CPR 3.10: CONSIDERATION BY THE COURT
The judgment in Baxendale-Walker v APL Management Ltd [2018] EWHC 543 (Ch) covers several issues relating to procedure. Here I want to look at the assertions made in relation to procedural defects. The judge held that some procedural errors by the…
COURT WATCH: DON’T SUFFER IN SILENCE: REPORT CANCELLATIONS AND LISTING ISSUES HERE
There have been constant, and consistent, grumblings on social media about problems with court listing. Cases are cancelled at the last moment. Courts are overbooked. There appears to be no, or very little, thought given to the expense involved and…
DELAY IN GETTING TO TRIAL – AND ITS NOT THE COURT’S FAULT: COUNSEL’S AVAILABILITY AND DELAYS – A REMINDER OF THE JIGSAW PROBLEM…
There is often much criticism about the length of time it takes to obtain a trial date. The observations of Mr Justice Fraser in Dacy Building Services Ltd v IDM Properties LLP [2018] EWHC 178 (TCC) indicate that it is not…
LITIGATORS – MISSED A DEADLINE? DON’T DIG BIGGER HOLES FOR YOURSELF: DIG YOURSELF OUT (WITH A LITTLE HELP FROM YOUR FRIENDS)
The decision in Wingate & Anor v The Solicitors Regulation Authority [2018] EWCA Civ 366 may well be Jackson L.J’s last judgment (certainly as a full time judge). It concerned the conduct of solicitors. I want to look at one aspect…
SIR RUPERT JACKSON ON THE DAY OF HIS RETIREMENT: A REVIEW OF SOME JUDGMENTS ON PROCEDURE
It is well known that Sir Rupert Jackson retires on the 7th March. There are several reviews of the work Sir Rupert has done in re-shaping civil procedure. Here I want to look at a few of his judgments that…
A PRIVILEGE TO READ : THE LAW OF PRIVILEGE 3rd EDITION: COUPLED WITH SOME RECENT EXAMPLES – TO SHOW WHY YOU NEED IT
The Law of Privilege is now in its third edition. I have been reading through it and planning a review for some time. I came across the decision, on BAILLI today in Fleming v East of England Ambulance Service NHS Trust…
WHEN QOCS APPLY: COURT OF APPEAL DECISION: THE SWINGS AND THE ROUNDABOUTS
In Corstorphine (An Infant) v Liverpool City Council [2018] EWCA Civ 270 the Court of Appeal considered an important issue in relation to Qualified One Costs Shifting. What order should be made when the claimant has QOCS protection against some of…
SUMMARY JUDGMENT FOR DEFENDANT IN A NEGLIGENCE ACTION AGAINST SOLICITORS
I am grateful to my colleague at Hardwicke, Laurence Page, for sending me a transcript of the judgment of District Judge Langley in the case of Wright -v- Rix & Kay Solicitors, Central London County Court, 30/11/2017 (available here Wrighttranscript)….
EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”
There are several passages in the judgment of Mrs Justice Yip in David John Saunders -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports. That is the problematic “agenda”. A …
12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW
Today is all about service of the claim form. Following on from the Supreme Court decision in Barton -v- Wright Hassall LLP [2018] UKSC 12 this morning this is a good time to update your knowledge about basic points of procedure. TWELVE…
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