I DIDN'T MEAN IT WHEN I SIGNED THE JOINT REPORT: WHAT HAPPENS WHEN EXPERTS CHANGE THEIR MINDS?
The judgment of Mr Justice Leggatt in Iraqi Civilians -v- Ministry of Defence [2015] EWHC 1254 (QB) contains some interesting passages in relation to an expert reneging from the contents of a joint report. In particular what is the appropriate…
PROOF OF FACTS: THE BASIC PRINCIPLES SUMMARISED (BORROWING FROM THE FAMILY COURTS)
In a short judgment BR (Proof of Facts) [2015] EWFC 41 Mr Justice Peter Jackson provides a summary of key issues in relation to evidence. The judgment is specifically in relation fact finding in children cases. However part of the…
MORE ON "CHANGING" WITNESS STATEMENTS AND CREDIBILITY: A CLINICAL NEGLIGENCE CASE
A post yesterday commented upon the difficulties caused when a witness produces two (sometimes contradictory) witness statements. Another example of witness evidence leading to problems at trial can be seen in the judgment of HH Judge Collender QC (sitting as…
THAT "DIFFICULT SECOND STATEMENT": IT IS HARDLY EVER GOING TO BE A HIT
The judgment in Buswell -v- Symes [2015] EWHC 1379 (QB) illustrates the dangers of “supplementary “witness statements. Real problems can occur for the party putting in the new evidence. THE CASE The claimant was seriously injured when his motorcycle was…
CIVIL COMMITTAL PROCEEDINGS IN THE COUNTY COURT: THE RISK OF INJUSTICE RUNNING RIFE
Committal proceedings in the civil courts are a serious business. Respondents can, and often do, go to prison. The legal costs incurred by the applicant are often extremely high. However those responding have real and fundamental difficulties in obtaining representation….
LATE WITNESS EVIDENCE AND WITNESS CREDIBILITY IN THE INTELLECTUAL PROPERTY & ENTERPRISE COURT: HANDED OVER ON A PLATE?
The Intellectual Property Enterprise Court is likely to be a model of good practice. Basically designed to ensure the SMEs can protect their intellectual property rights without going broke in the process it has a fairly robust approach to procedure…
COURT OF APPEAL UPHOLDS AWARD OF INDEMNITY COSTS: RAYMOND -v- YOUNG
In Raymond -v- Young [2015] EWCA Civ 456 the Court of Appeal upheld an award of indemnity costs, awarded as a result of the conduct of the defendants. THE CASE The appeal concerned the award of £155,000 for diminution in…
WITNESS STATEMENTS AND FUNDAMENTAL DISHONESTY: NOW THERE REALLY IS ONE LAW FOR THE RICH: THE PRACTICAL IMPLICATIONS FOR CLAIMANT LAWYERS
There has been much debate about the impact of the “fundamental dishonesty” law. One practical effect it must have, however, is to ensure that claimant lawyers consider and explain the importance of the witness statement. THE ISSUE The problem with…
WASTED COSTS HEARING: NOT JUSTIFIED BECAUSE OF LIKELY COSTS INVOLVED: CAVEAT LITIGATOR
In Kagalovsky -v- Balmore Invest Limited [2015] EWEHC 1337 (QB) Mr Justice Turner turned down a wasted costs application at the first stage. “A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should…
CASE PROJECT MANAGEMENT: PRESENTATION BY H.H. JUDGE SIMON BROWN QC.
Attached to this post – Case Project Management (1) – are the slides that HH Judge Brown used in his recent address on Case Project Management to the Association of Cost Lawyers. Reproduced with his permission. KEY POINTS The slides take…
COURT OF APPEAL UPHOLDS ORDER STRIKING OUT CLAIM FOR FAILURE TO SERVE EXPERT REPORT: DON'T PARK THE LORRY WHEN THE TIDE IS AGAINST YOU
In Elliott -v- Stobart Group Ltd [2015] EWCA Civ 449 the Court of Appeal upheld a decision to strike out an application for damages because of a failure to serve a medical report. “In my judgment Judge Platts was correct…
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
"FUNDAMENTAL DISHONESTY" AND STRIKING OUT IN PERSONAL INJURY CASES: TEN KEY PROCEDURAL POINTS
The rule as to “fundamental” dishonesty has attracted a lot of attraction (and a lot of heated debate). However there has been very little examination of the details of the Act and the consequent procedural implications. There are 10 key…
ASHLEY -v- TESCO STORES: FULL TRANSCRIPT NOW AVAILABLE: CLAIMANT HAS SIX MONTHS TO SERVE ON A SCOTTISH COMPANY
The case of Ashley -v- Tesco Stores [2015] EWCA Civ 1423 has been looked at earlier in this blog. The full transcript is now available. THE JUDGMENT OF LADY JUSTICE ARDEN This appeal from the order of Patterson J dated…
PERMISSION TO APPEAL NOT NEEDED FROM JUDGE AT FIRST INSTANCE (BUT YOU SHOULD STILL ASK).
In P -v- P [2-15] EWCA Civ 447 the Court of Appeal held that it is not mandatory for a party who wishes to appeal to seek permission from the judge at first instance. THE CASE The Court of Appeal…
TRIAL HAD NOT "COMMENCED" : ADDITIONAL LIABILITY NOT 100%: HIGH COURT DECISION ON COSTS
In James -v- Ireland [2015] EWHC 1259 (QB) Mrs Justice Slade DBE overturned an earlier decision that a trial had commenced and the claimant was entitled to 100% uplift in costs. (The uplift in costs resulted in a sum of…
TRIAL BUNDLES, SEDLEY'S LAWS AND DOCUMENTARY CARPET BOMBING
“Sedley’s Laws” of trial bundles were mentioned by Mr Justice Turner in Griffiths -v- The Secretary of State for Health [2015]. Another example of over-sized trial bundles. “CPR 1.3 imposes a duty upon the parties to help the court to…
APPLICATION TO SET ASIDE JUDGMENT MADE LATE IN THE DAY: APPEAL AGAINST REFUSAL TO SET JUDGMENT ASIDE ALLOWED
In Priestley -v- Dunbar [2015] EWHC 987 (Ch) H.H.Judge Behrens (sitting as a judge of the High Court) overturned an earlier decision refusing to set judgment aside on the grounds of delay. THE CASE The claimant had obtained default judgment…
WITNESS CREDIBILITY AND APPEALS: A COURT OF APPEAL DECISION
In Curran -v- Collins [2015] EWCA Civ 404 the Court of Appeal considered how an appellate court should approach issues of witness credibility. It is an example of a court dealing with a witness who, the judge finds, has “convinced…
AMENDING PLEADINGS LATE 1: WANI LLP -v- RBS: A MATTER OF INTEREST?
There have been a few cases recently relating to fairly last minute attempts to amend pleadings. The principles governing applications were considered by Mr Justice Henderson in Wani LLP -v- The Royal Bank of Scotland [2015] EWHC 1181 (Ch). It…
COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because…
ADJOURNMENTS ON THE GROUNDS OF ILL HEALTH: A DETAILED CONSIDERATION
In Decker -v- Hopcraft [2015] EWHC 1170(QB)Mr Justice Warby set out the principles to be considered when a litigant seeks an adjournment of a hearing on the grounds of ill health. The judge held that there were five main factors…
COMMUNICATIONS WITH THE CLIENT AFTER PROCTOR: A NEW TYPE OF LEGAL DRAFTING REQUIRING PARTICULAR SKILLS
In the Proctor -v- Raleys case the standard forms and letters written by the insurers came under close scrutiny at the trial and in the Court of Appeal. Professor Richard Moorhead provides an interesting angle on this issue in his…
AMENDED PLEADING FILED LATE: RELIEF FROM SANCTIONS REFUSED: THE NEED TO PLEAD THE CASE PROPERLY
In Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC) the defendant made a mistake in typing an e mail address so that an amended Defence and Counterclaim was served late. The application for relief from sanctions was refused. The…
ADVISING CLIENTS PROPERLY AND THE ECONOMICS OF PRACTICE: WHEN DRAWINGS ARE AT £9.9 MILLION
The earlier post on Procter -v- Raley’s solicitors contained a submission on behalf of the defendant that it was necessary “in modern conditions” for solicitors to “commoditise” their advice to clients. The Court of Appeal were doubtful on that point because there…
INTERIM PAYMENTS; SERIOUS INJURY; ACCOMMODATION AND EELES
The very first post on this blog was a review of the law relating to interim payments in personal injury cases after Eeles. This issue was raised against in the decision of Grainger -v- Cooper [2015] EWHC 1132 (QB). THE…
PAYMENTS ON ACCOUNT OF COSTS DO NOT BREACH BREACH INDEMNITY PRINCIPLE AND SHOULD BE A "REASONABLE SUM"
In XYZ -v- Transform Medical Group (CS) Limited [2015] EWHC 1151 (QB) Mrs Justice Thirlwall DBE considered several issues in relation to payments on account of costs. THE CASE The action is a group action in which nearly 1000 women…
FAILURE TO GIVE ADEQUATE REPLIES TO PART 18 QUESTIONS LEADS TO ACTION BEING STRUCK OUT: RELIEF FROM SANCTIONS REFUSED
In his judgment today in Griffith -v- Gourgey [2015] EWHC 1080 (Ch) Mr Justice Simon addressed the issue of whether an action stands struck out if a party gives inadequate replies to Part 18 questions after a peremptory order has…
ANOTHER LATE WITNESS STATEMENT: RELIEF FROM SANCTIONS REFUSED
There is a brief report on Lawtel of the decision of Judge Robinson in Buswell -v- Symes (QBD 20/04/2015) this involves another case where a witness statement was served late and permission to rely upon that statement was refused. *…
COURT CANNOT RE-OPEN "FINAL JUDGMENT": ISSUES RELATING TO DEFENDANT'S CAPACITY: EVESHAM –v- WERRETT CONSIDERED
In the judgment today in Eversham & Pershore Housing Association Ltd -v- Werrett [2015] EWHC 1060 (QB) Mr Justice Nicol held that the court could not re-open a decision because of later evidence in relation to the defendant’s capacity. THE…
WITNESS STATEMENTS AND AVOIDING JAIL: ARE YOU PROTECTING YOUR CLIENTS AND PROTECTING YOURSELF?
In the recent case of Hughmans -v- Dunhill [2015] EWHC 716 (Ch) an interesting point arose about the drafting of a witness statement when a (former) client alleged that it had largely been drafted by her (former) solicitor. The assertion…
THE "URGENT NEED FOR COMMERCIAL PRACTITIONERS TO BRING A SENSE OF PROPORTION" TO LITIGATION: EVIDENCE NEEDED IN WHEN ARGUING SECURITY FOR COSTS "STIFLES" AN ACTION.
In Kazakhstan Kagazy Plc -v- Baglan Zhunus [2015] EWHC 996 Mr Justice Walker had strong words to say, and constructive guidance to give, in relation to some aspects of commercial litigation. The case further serves as a reminder of the…
FOREIGN JUDGMENTS, EXTENSIONS OF TIME AND RELIEF FROM SANCTIONS
In Christofi -v- National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB) Mrs Justice Andrews DBE considered whether the court had power to extend time in relation to an application to set aside registration of a foreign judgment. She…
PLEADING, PARTICULARITY, SUMMARY JUDGMENT AND STRIKING OUT: WAIT UNTIL AFTER DISCLOSURE
In Dellal -v- Dellal [2015] EWHC 907 (Fam) Mr Justice Mostyn made some important observations about the need for particularity in pleading THE CASE The claimant was bringing an action under the Inheritance (Provision for Family and Dependants) Act 1975…
THE AMENDED PRE-ACTION PROTOCOLS ARE OUT: THE LINK
The revised Pre-Action Protocols are now available (3 days after they came into force). THE LINK The Protocols are available on the Justice website and available here. There are 119 pages. THE AMENDMENTS Amendments are made to 8 of the Protocols….
CHANGES TO THE PRE-ACTION PROTOCOLS THAT WE KNOW ABOUT: LOW VALUE ROAD TRAFFIC ACCIDENTS
Important changes have been made to the Pre-Action Protocols which came into force yesterday. At the moment the whereabout of the the Protocols is a mystery in that they have not been published generally. However there are some changes to…
WHEN YOU GET BACK TO WORK ON TUESDAY THERE ARE NEW CHANGES TO THE PRE ACTION PROTOCOLS IN FORCE: AND YOU MAY STRUGGLE TO FIND THEM
If new rules are important you would think that great time and effort would be spent in making sure that practitioners had plenty of advance notice and they were readily available for study and consideration before they came into force….
HAYWARD MAY HAVE BEEN WAYWARD BUT THERE WAS NO LOOKING BACKWARD: SETTLED CLAIM NOT RE-OPENED
In Hayward -v- Zurich Insurance Company PLC [2015] EWCA Civ 327 today the Court of Appeal overturned a decision that a claimant should repay a large part of a personal injury award from an earlier settled action. This decision makes…
TROUBLESOME BUNDLES YET AGAIN: MR JUSTICE EDER SPEAKS OUT ON WASTEFUL BUNDLES IN THE COMMERCIAL COURT
The question of bundles was raised by Mr Justice Eder in Taberna Europe -v- Selskabet [2015] EWHC 871 (Comm). This is hardly a new complaint and appears across the board in all jurisdictions. (There are now 16 posts on this…
SOMETHING FOR THE WEEKEND: THE SOLICITOR WHO TOOK ON SALFORD OVER COURT FEES AND WON
I may make a habit of blogging cheerful(ish) stuff on a Friday*. This weeks its hats of to Dominic Cooper of IE Legal Solicitors who was sent me details of his run in, and success, with Salford. THE DISPUTE Like…
COSTS NOT RECOVERED WHEN DEFENDANT NOT NAMED IN CFA: SENIOR COSTS OFFICE DECISION
The GWS website has a link to a decision of a decision of Deputy Master Friston made in the Senior Court Costs Office in Hailey -v- Assurance Mutuelle Des Motards (CCD 1405291). It relates to the question whether costs can…
ITS NOT WHAT THE JUDGE SAID BUT THE WAY THAT THEY SAID IT: DISCUSSIONS FROM DOWN UNDER
The Supreme Court of South Australia made some interesting observations about the interaction between the bench and the bar in Stone -v- Moore [2015] SASC 46 (24th March 2015). In particular what does the appellate court do when a complaint…
LITIGATE IN HASTE AND YOU WON'T NECESSARILY BE ALLOWED TO AMEND AT LEISURE: SU-LING -v- GOLMAN SACHS INTERNATIONAL
In the judgment today in Quah Su-Ling -v- Goldman Sachs International [2015] EWHC Mrs Justice Carr DBE refused a claimant permission to amend her particulars of claim at a late stage. The judgment contains a succinct review of the law…
FOOTBALL, SEX, INJUNCTIONS AND MATERIAL NON-DISCLOSURE: BE CAREFUL NOT TO GET ON THE JUDGE'S OFFSIDE
In YXB -v- TNO Mr Justice Warby set out the importance of full and frank disclosure on parties making an application for an ex-parte injunction. It also reiterates the importance of claimants giving direct evidence whenever possible and the dangers…
SOLICITOR FOUND TO HAVE DELIBERATELY MISLED THE COURT: BOREH -v- DJIBOUTI
In Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) Mr Justice Flaux made a clear and unequivocal finding that a solicitor had deliberately misled the court. This led to the setting aside of the injunction that the clients had…
"WALKING THE LINE": THE SRA ON BALANCING THE DUTIES OF LITIGATORS IN LITIGATION: A POTTED SUMMARY
For reasons that may become evident in later posts this is an apposite day to consider the duties owed by litigators. The SRA have produced “Walking the line” a consideration of the ethical duties owed by litigators. A BRIEF SUMMARY…
DOES THE COURT OF APPEAL NEED TO "SHOW ITS WORKINGS"? ALL KICKING OFF IN THE COURT OF PROTECTION
An interesting point of procedure arose in the decision of Mr Justice Mostyn in Rochdale Metropolitan Council -v- KW [2015] EWCOP 13. Is a Court of Appeal decision valid when it is allowed by consent and there is no reasoned…
IS SERVICE OF AN UNSEALED CLAIM FORM GOOD SERVICE? NOW THAT'S A QUESTION
In Heron Bros Ltd -v- Central Bedfordshire Council [2015] EWHC 604 (TCC) Mr Justice Edwards-Stuart considered the question of whether service of an unsealed claim form is good service. In most cases the answer is probably “no”. However the judge…
PLEADINGS SHOULD CONTAIN FACTS NOT ARGUMENT OR RHETORIC
There have been a surprising number of occasions recently where judges have had to draw attention to the basic principles of pleadings. Pleading are for facts, nor argument or “rhetoric”. Another example can be seen in the judgment of Sir…
You must be logged in to post a comment.