EVIDENCE AND CAUSATION: COMMON SENSE CAN BE APPLIED
In Soboleska -v- Threlfall [2014] EWHC 4219 (QB) Mr Justice Foskett made some important observations about the use of commonsense in assessing the likely cause of serious injuries suffered in a road traffic accident. THE FACTS The claimant suffered physical…
SETTING ASIDE A DEFAULT JUDGMENT AFTER AN ORDER IS STILL SUBJECT TO CPR 13: JUDGMENT SET ASIDE WHEN NO GOOD REASON FOR DEFENDANT'S DELAY
In QRS -v- Beach & Kordowski [2014] EWHC 2189 (QB) Mr Justice Warby considered the relevant criteria for setting aside a default judgment when the court makes an order/declaration? There is a detailed discussion of the relevant law and the appropriate…
CLAIMANT BEATS OWN PART 36 OFFER AND RECEIVES AN ADDITIONAL £75,000 IN DAMAGES
The advantages to a claimant in making a prompt, and realistic, Part 36 offer are shown in the judgment of Sir David Eady in Downing -v- Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB). THE KEY POINT…
BACK TO BASICS WITH PLEADINGS: PROPORTIONATE LITIGATION AND BREVITY ESSENTIAL ON APPEALS
“Pleadings are intended to help the Court and the parties. In recent years practitioners have, on occasion, lost sight of that aim. Documents are drafted of interminable length and diffuseness and conspicuous lack of precision, which are often destined never…
WHEN APPLYING FOR RELIEF FROM SANCTIONS MAKE SURE THAT YOU APPLY FOR ALL OTHER RELEVANT FORMS OF RELIEF AS WELL
It is easy to overlook one aspect of the decision in British Gas Trading -v- Oak Cash & Carry [2014] EWHC 4058 (QB). In that case the judge overturned a decision granting relief from sanctions. However she also indicated that…
DENTON, MITCHELL AND ADMINISTRATIVE LAW: PUBLIC INTEREST IS A "HIGHLY SIGNIFICANT FACTOR"
The Denton and Mitchell criteria were considered, in passing, in R (RA-Nigeria) -v- Secretary of State for the Home Department [2014] EWHC 4073(Admin). Where Andrew Thomas QC, sitting as a Deputy High Court Judge, considered an application that the Defendant…
SOLICITOR'S NEGLIGENCE & SOLICITOR'S COSTS: ELEMENTARY ISSUES WORTH READING
The transcript of Edwin Coe LLP -v- Aidiniantz [2014] EWHC 3994 (QB) is worth reading for a number of reasons: (i) The nature of the duty owed by the solicitor in litigation; (ii)evidence and contemporary documents and (iii) the circumstances…
POST-MITCHELL PRE-DENTON DECISION TO GRANT RELIEF FROM SANCTIONS OVERTURNED ON APPEAL
In British Gas Trading -v- Oak Cash & Carry [2014] EWHC 4058 (QB) Mrs Justice McGowan DBE overturned a decision granting a defendant relief from sanctions. What is particularly interesting is that the original decision was made post-Mitchell but prior…
PROPORTIONALITY & SURVIVAL FOR LITIGATORS: LITIGATING WITHIN A BUDGET: PART 1 OF WHAT MAY WELL BE A MULTI PART SERIES
There is now plenty of material on costs budgeting, much of it can be found in links on this blog. However I have not found any guidance for litigators on how the requirement for “proportional” costs will affect their work…
THE MITCHELL JUDGMENT 3: WHY MR MITCHELL WASN'T TELLING LIES AND P.C. ROWLAND WAS TELLING THE TRUTH
This blog has looked at the fact finding process in the Mitchell judgment several times already. Here I want to look at the issue of the “truth”. This is an issue that has wider implications for those involved in the…
COSTS, PROPORTIONALITY AND GETTING THE BUNDLES RIGHT: TAKE EVERYTHING OUT OF COURT NOW AND COME BACK TOMORROW
An earlier post reported on the observations of Mostyn J in J-v-J in relation to costs, proportionality and bundles. If you take the indignation and sense of outrage expressed in J-v-J about costs, preparation and bundles, and then quadruple it,…
MAKING AN "APPORTIONED" COSTS ORDER: A CLAIMANT WHO RECOVERS LESS THAN THEY ARE ASKING IS NOT A "LOSER"
It is more common for a judge to “apportion” costs at the end of a trial to reflect the merits of the case and the “success” of each party. In Trant -v- Stokes (o3/12/2014 CA)* the Court of Appeal overturned…
ADDITIONAL PARTIES CANNOT BE ADDED IF THERE IS NO CONNECTION TO CURRENT ACTION: THE ABC OF XYZ
In the latest decision in the XYZ case [2014] EWHC 4056 (QB) Mrs Justice Thirlwall DBE rejected an application that the insurers of the defendants be joined into the action. There was no real connection between the issues in the…
SECOND ACTION AGAINST A DIFFERENT DEFENDANT STRUCK OUT FOR ABUSE OF PROCESS: ALCOCK -v- PARK BUSINESS CENTRES LIMITED
Should a second action, issued because the first was struck out for some reason, be struck out? I am grateful to Charles Bagot of Hardwicke Chambers for sending me a copy of the transcript of a decision by District Judge…
IF YOU SETTLE WITH SOME OF THE PARTIES THE OTHERS CAN STILL COME AFTER YOU FOR COSTS: THE LESSONS OF DUFOO
In Dufoo -v- Tolaini and Ors [2014] EWCA Civ 1536 the Court of Appeal considered the issue of costs liability between the claimants where two claimants had settled their action with a defendant but a third went on to trial…
ISSUING CONTRIBUTION PROCEEDINGS WITHIN THE LIMITATION PERIOD: COURT OF APPEAL DECISION TODAY
A party has two years to bring a claim for a contribution under the Civil Liability (Contribution) Act 1978. In The Chief Constable of Hampshire Constabulary -v- Southampton City Council [2014] EWCA Civ 1541 the Court of Appeal found that…
THE MITCHELL JUDGMENT AGAIN: PREVIOUS INCONSISTENT STATEMENTS
The issue of witness credibility in the Mitchell case has already been considered on this blog. However reading the transcript gives rise to more issues. Here we look at one – the significance of the previous statements made by…
GETTING EVIDENCE TO TRIAL TO PROVE YOUR CASE: BE CAREFUL OF "MISSING" WITNESSES?
This has been, it has to be said, an interesting week for considering evidence in civil cases. Another interesting example can be found in the decision in Howmet Ltd -v- Economy Services Limited [2014] EWHC 3933 (TCC), a decision by…
WITNESS STATEMENTS AND WITNESS CREDIBILITY: GETTING BACK TO BASICS
If a litigant takes a matter to trial and the result rests, ultimately, on witness evidence, then those advising must (or at least should) have a clear and certain grasp of the factors governing witness credibility. This issue is almost…
THE MITCHELL CASE AND WITNESS EVIDENCE: CREDIBILITY, STRONG VIEWS AND RELIABILITY
The Mitchell case was at the forefront of attention a year ago when the Court of Appeal set out its (apparently widely misunderstood) views on relief from sanctions. It is even more in the headlines today. The case has been…
COSTS BUDGETING AND MORE CASE MANAGEMENT IN THE COURT OF PROTECTION? EXPECT IT SOON
It is only recently that the Court of Appeal has “opened its doors” so to speak on reports of its cases. The judgment of Peter Jackson J in A & B (Court of Protection: Delay & Costs) [2014] EWCOP 8…
DEVELOPMENTS SINCE DENTON: ALL THE POSTS AND CASES IN ONE PLACE
We are now exactly one year on since Mitchell and 237 days since Denton. This is a good a time as any to review the Post Denton decisions on this blog. It is interesting that there were no reports in…
SUPREME COURT JUDGMENT: SIGNATURE OF DISCLOSURE LISTS, CASE MANAGEMENT AND COMPLIANCE
The Supreme Court judgment in HRH Prince Abdulaziz Bin Mishal bin Abdulaziz Al Saud (Appellant) v Apex GlobalManagement Ltd and another (Respondents) [2014] UKSC 64 contains some important observations in relation to disclosure and case management. BACKGROUND TO THE CASE This…
MORE ON SKELETON ARGUMENTS: DO THEM PROPERLY OR YOU DON'T GET PAID (THE TRIQUEL)
For the third time in the past few months Jackson L.J. has spoken out against over-lengthy skeleton arguments. The costs of preparing those skeletons have been disallowed on each occasion. This is what happened in Inplayer Ltd -v- Thorogood [2014]…
RELIEF FROM SANCTIONS REFUSED WHEN DEFENDANT WAS TACTICALLY PLAYING FOR TIME
In Talos Capital Ltd -v- JSC Investment Holding Ltd (QBC 21/11/14)* Flaux J refused an application for an extension of time to acknowledge service and challenge the jurisdiction in circumstances where the delay was held to be deliberate and tactical….
WHAT COSTS AWARD SHOULD BE MADE AFTER A SPLIT TRIAL? A HIGH COURT DECISION
In Merck KGaA -v- Merck Sharp & Dhome Corpe [2014] EWHC 3920 (Ch) Mr Justice Nugee considered what order should be made as to costs after a claimant had succeeded on a trial of a preliminary issue. The judge held…
NOMINAL DAMAGES AWARD LEADS TO NO COSTS AT TRIAL & 25% OF COSTS ON APPEAL
In Walker -v- the Commissioner of the Police of the Metropolis [2014] EWCA Civ 897 the Court of Appeal considered the appropriate costs award when a claimant succeeded on appeal but the appellate court held that he should only recover…
ONE YEAR LATE IN SERVING A WITNESS STATEMENT: RELIEF FROM SANCTIONS GRANTED – BUT ON TERMS
There is a report on Lawtel *of the case of Owners of Motor Vessel Coal Hunter -v- Owners of Motor Vessel Yusho Regulus (QBD Admiralty 20/11/2014, Teare J) where the court considered an application for permission to rely on a…
COSTS, PARTIES & PROPORTIONALITY: CONSTRUCTING AN ARGUMENT AS TO WHO SHOULD PAY WHAT
There are now an increasing number of cases reported where the judge sets out expressly their views in relation to costs. These are important reading. A good example is the decision of Mr Justice Edwards-Stuart in Laing O’Rourke Construction Ltd…
LITIGATION IN THE INTELLECTUAL PROPERTY ENTERPRISE COURT: A TALE OF TWO DRESSES
The transcripts of cases in the Intellectual Property Enterprise Courts are often challenging reading. They regularly contain technical material which is difficult for the non-specialist to follow. However the case of John Kaldor Fabricmaker UK Ltd -v- Lee Ann Fashions…
WITNESS STATEMENTS THAT HARM RATHER THAN HELP AND A FAILURE TO PROVE DAMAGES: A HIGH COURT CASE EXAMINED
In Re-Use Collections Limited -v- Sendall & May Glass Recycling Ltd [2014] EWHC 3852 (QB) H.H. Judge Davies made some important observations about drafting witness statements. It is positively unwise to “cross-reference” witness statements to the evidence of other witnesses…
AN IMPORTANT CASE ON COSTS; "INTERESTED PARTY" COSTS; RELIEF FROM SANCTIONS AND SUMMARY ASSESSMENT
In Group M Uk Ltd -v- The Cabinet Office [2014] EWHC 3863 (TCC) Mr Justice Akenhead mad some important observations as to the liability to pay the costs of “interested parties”; the late serving of costs schedules; relief from sanctions…
CLAIMANTS HAD COMPLIED WITH PEREMPTORY ORDER: CASE NOT STRUCK OUT
There is a brief report on Lawtel of the case of Sharma -v- Quality Redfern Solicitors (Ch D Judge Behrens 19/11/2014). The decision concerns the striking out of a claim for breach of an order and the judge finding, on…
THE COURT'S POWER TO REGULATE NON-LAWYERS INVOLVED IN LITIGATION: REFERENCE TO ARBITRATION
There are several interesting aspects of the Court of Appeal’s decision in Assaubayev -v- Michael Wilson & Partners Ltd [2014] EWCA Civ 1491. One of the points is the power of the courts over non-lawyers providing legal and litigation services….
STRESS AND THE LITIGATION PROCESS: HOW CAN LAWYERS MAKE MATTERS BETTER?
There is a very useful article in the Solicitors Journal on stress and litigation (to avoid hyperbole I will not use the word “brilliant” but it deserves it.) Hugh Koch analyse the sources of stress for litigants. This made me…
OFFER TO SETTLE HAS MAJOR IMPACT ON COSTS OF CASE: NO SUGARING OF THIS PILL
In Sugar Hut Group Ltd -v- AJ Insurance [2014] EWHC 3775 (Comm) Mr Justice Eder held that an offer of settlement had a major impact on costs even though it was not a valid Part 36 offer and the claimant…
EXTRAORDINARY CASE: THE SOLICITOR MADE LITIGATION UP: THE CONSEQUENCES FOR THE CLIENT
The opening paragraphs of the judgment set out an almost unbelievable set of facts in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm). The judgment considered the consequences for…
MORE ABOUT QOCS: CAN THEY APPLY ON APPEAL IF THE CLAIMANT HAD A PRE-APRIL 2013 CFA?
An earlier post on the risks posed by the transitional provisions of QOCS led to several comments. One of those comments was the question whether you can get QOCS protection on appeal if the original CFA did not cover appeals….
RIGHT TO INDEMNITY COSTS ARISES OUT OF CONTRACTUAL TERM
In Renewable Power & Light Ltd -v- McCarthy Tetrault [2014] EWHC 3848 (Ch) Mr Justice Morgan held that a defendant was entitled to indemnity costs when a claimant discontinued a claim half way through a trial. Indemnity costs were awarded…
RELIEF FROM SANCTIONS GRANTED DESPITE INADEQUATE REPLIES AND BREACH OF PEREMPTORY ORDER
There is a brief report on Lawtel today of the decision of S Monty QC in In the matter of Bankside Hotels (Ch D 13/11/2014) Relief from sanctions was granted when a party was in breach of a peremptory order and failed…
ROUTE OF APPEAL FOR AN UNALLOCATED CASE: LIE -v- MOHILE
In Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal. THE ACTION This was a partnership…
APPLICATIONS TO SET ASIDE DEFAULT JUDGMENT & THE MITCHELL/DENTON PRINCIPLES: ANOTHER HIGH COURT CASE
There are now several cases that deal with how the “Mitchell/Denton” principles effect applications to have judgment set aside. In Robinson -v- Kensington & Chelsea Royal London Borough (Sir Michael Tugendhat 03/011.204 QB)* a default judgment was set aside on…
WANT TO KNOW ABOUT ONEROUS PART 18 QUESTIONS; DISCLOSURE, COSTS CAPPING & BUDGETS: JUST GOOGLE IT
In Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB) Mr Justice Edis considered some interesting issues of costs management and costs capping. The short judgment is important reading in relation to the scope of Part 18 questions…
NO GENERAL PRINCIPLES APPLY TO AWARD OF INDEMNITY COSTS: COURT OF APPEAL DECISION
In the short supplementary judgment in Tchenguiz -v- Director of the Serious Fraud Office [2014] EWCA Civ 1471 the Court of Appeal stated that there is no general principle that indemnity costs in applications under CPR 31.22. However the judge’s…
THE TRANSITIONAL PROVISIONS OF QOCS: A DANGER AREA
I have seen a few problems recently with the transitional provisions of QOCS. In essence if the claimant has entered into a conditional fee agreement at any time in the past then they cannot have the benefit of QOCS. A…
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
"MADNESS" OVER COSTS AND USELESS TRIAL BUNDLES : VIEWS FROM ANOTHER JURISDICTION
Civil practitioners may benefit from reading the observations of Mostyn J in J -v- J [2014] EWHC 3654 (Fam). It suggests that family lawyers may soon be subject to much more rigorous costs budgeting. There are also important observations about…
"SIMILAR FACT EVIDENCE" IN CLINICAL NEGLIGENCE CASES: EVIDENCE OF INCOMPETENCE IN OTHER CASES
In Laughton -v- Shalaby [2014] EWCA Civ 1450 the Court of Appeal considered the issue of whether evidence of incompetence in other cases should be admitted in a claim for clinical negligence. THE APPEAL The claimant was appealing a decision…
"WITNESS TRAINING" DOES IT DO ANY GOOD? THE ROLE OF THE SOLICITOR IN DRAFTING WITNESS STATEMENTS
In Globe Motors portugal-Material Electrico Para A Industria Automvel LDA -v- TRW Lucas Varity Electric Steering Ltd [2014] EWHC 3718 QB HH Judge Mackie QC considered witness evidence of routine business transactions that took place over a decade before. He…
SOLICITOR'S BILL OF COSTS STRUCK OUT BECAUSE CLAIM WAS EXAGGERATED AND (IN PART) FALSE
In Alpha Rocks Solicitors -v- Alade [2014] EWHC 3606 (Ch) Kevin Prosser Q.C., sitting as a judge of the High Court, struck out part of the solicitor’s bill as an abuse of process. The case makes instructive reading. It involved…
