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…
COSTS SCHEDULE FILED LATE: COSTS ASSESSED AT NIL: NO RELIEF FROM SANCTIONS
The short judgment of Deputy District Judge Apthorpe in Gretton -v- Santander [2014]Ew Mic B52(CC) demonstrate that Denton is not an authority that states that relief from sanctions is easy to obtain. The claimant failed to serve and file its…
LORD CHANCELLOR REFUSED RELIEF FROM SANCTIONS: CPR 3.9 APPLIES TO THE HIGH AND MIGHTY AS WELL
In the decision yesterday in Lord Chancellor -v- The former Partnership of Taylor Willocks Solicitors [2014] EWHC 3664 (QB) Globe J upheld a decision of Master Leslie refusing to grant the Lord Chancellor relief from sanctions. The decision is interesting…
WITNESSES: YOU ARE IN REAL TROUBLE IF YOU SAY ONE THING IN ONE WITNESS STATEMENT AND A DIFFERENT THING IN ANOTHER
We have looked at issues relating to witness credibility several times recently. However further apposite examples arise in the decision of Sales J in Avonwick Holdings Ltd -v- Webinvest & Shlosberg [2014] EWHC 3661 (Ch). In particular the major (and obvious) difficulties…
WITNESS CREDIBILITY; DOCUMENTS; RECOLLECTION AND PLAYING AWAY FROM HOME WHEN THERE ARE MILLIONS AT STAKE
Earlier posts have looked at the issue of witness credibility in the context of civil trials. Here we look at the issue of witness evidence in the context of a multi million pound dispute between corporations. The judgment, given earlier…
MORE ON EXPERTS: NON-COMPLIANCE WITH THE RULES TAINTS THE EVIDENCE BADLY
We have already looked at one of the observations on experts by HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC 3257 Ch. There we looked at “over eager” experts. The judge also had something to…
"IN TIME" APPLICATION FOR EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM REFUSED: A DANGER AREA TO WATCH
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was…
RELIEF FROM SANCTIONS CAN BE HEARD WITHOUT A FORMAL APPLICATION: CUTLER -V- BARNET
In Cutler -v- Barnet (QBD 31/10/14)* Supperstone J held that an application for relief from sanctions could be heard even if it were not made formally in writing. THE CASE The defendant was resisting a claim for possession. She had…
CIVIL LITIGATION BRIEF 20 YEARS AGO: WHAT WAS IN THE NEWS AND WHAT CAN WE LEARN FROM IT?
Whilst blogs have not been around 20 years* Civil Litigation Brief has. Twenty years ago it was a monthly column in the Solicitors Journal (monthly now seems a leisurely timetable). It is interesting to see what was making the news…
RELIEF FROM SANCTIONS REFUSED: DENTON MADE NO DIFFERENCE
In Blemain Finance Ltd -v- Mukhtar & Osman (28/10/14)* Globe J upheld a decision of the first instance judge refusing relief from sanctions. THE FACTS The claimant sought possession of the defendants’ home following a failure to pay. There was…
CASE NOT STRUCK OUT BECAUSE OF A FAILURE TO FILE TRIAL BUNDLE & PAY COURT FEES
One of the most read posts on this blog was, in the middle of the Mitchell Madness period, when a judge struck out an action because the trial bundle had been lodged late. This issue was considered by Hickinbottom J…
LIMITATION & THE DATE OF KNOWLEDGE CONSIDERED IN THE CONTEXT OF HEARING LOSS
In Platt -v- BRB Residuary Ltd [2014] EWCA Civ 1401 the Court of Appeal considered issues relating to the date of knowledge in the context of a claim for hearing loss. THE LAW The relevant sections of the 1980 Act…
MITCHELL: THE CASE THAT KEEPS ON GIVING: EXPERT EVIDENCE; SIMILAR FACT EVIDENCE AND THE EDITING OF WITNESS STATEMENTS
Regular readers of this blog will need no introduction to the procedural issues that Mitchell -v- News Group Newspapers Ltd has given rise to already. Procedural issues have arisen again and were considered by Mr Justice Warby (2014 EWHC 3590…
THAT WITNESS STATEMENT I SIGNED: IT'S JUST NOT TRUE
There is an interesting discussion of witness evidence in the judgment of Mr Justice Eder in Austen -v- Pearl Motor Yachts Ltd [2014] EWHC 3544 (Comm). The case was opened on the basis that certain key facts in a witness…
SECTION 14A OF THE LIMITATION ACT: DON'T RELY ON s.14A BEING A GOOD INVESTMENT
In Susan Jacobs -v- Sesame Ltd [2014] EWCA Civ 1410 the Court of Appeal held that the claimant could not take advantage of s.14A of the Limitation Act 1980. The date of knowledge was much earlier than that found by…
CASE STRUCK OUT BECAUSE DELAY WAS AN ABUSE OF PROCESS: WEARN -v- HNH CONSIDERED
In Wearn -v- HNH International Holdings Ltd [2014] EWHC 3542 (Ch) Mr Justice Barling struck out a claim for delay, holding that the claimant’s delay amounted to an abuse of process. There are also a few interesting observations about the…
EXTENSIONS OF TIME: RESPONDENT'S NOTICES AND THE "MITCHELL" PRINCIPLES & THE "SERIOUSNESS AND SIGNIFICANCE OF THE BREACH"
The question of the general applicability, and the application, of “Mitchell” principles was considered today by the Court of Appeal in Altomart Ltd -v- Salford Estates (No 2) Limited [2014] EWHC 1408. The court considered the principles to be applied…
COSTS, OFFERS AND ESTATES: A CASE IN POINT
There is an interesting discussion as to costs in the judgment of HH Judge Hodge QC in Goenka -v- Goenka [2014] EWHC 2966 (Ch). This also shows the difficulty in dealing with costs issues at the end of a long…
IF YOU THINK THE WHEELS OF JUSTICE CAN GRIND SLOWLY: TRY THE EU! IMPORTANT DECISION ON DISCLOSURE, CONFIDENTIALITY, REDACTION AND THE POWER OF THE COURT TO REVIEW ITS EARLIER ORDERS
A decision by Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC was considered in the previous post. However another issue arose in the same case which is at [2014] EWHC 3513 (Ch). The application was of an…
SUMMARY JUDGMENT AND STRIKING OUT: COMPLEX ISSUES CANNOT BE DECIDED SUMMARILY
The decision of Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC [2014] EWHC 3514 (Ch) highlights the difficulties in seeking summary determinations or striking out of cases and issues in complex cases. The judge declined to grant…
ADJOURNMENT OF SUMMARY JUDGMENT HEARING TO ARGUE NOVATION? NO VAY
In A.T. Stannard Ltd -v- James Tobutt and Thomas Tobutt [2014] EWHC 3491 (TCC) Mr Justice Akenhead refused an application for the adjournment of a hearing for summary judgment to allow the defendants to, belatedly, argue novation of a contract. THE…
SHOULD THE ASSESSMENT OF COSTS BE IN PUBLIC OR IN PRIVATE? WHEN IS LEGAL PROFESSIONAL PRIVILEGE WAIVED?
In Eurasian Natural Resources Ltd -v- Dechert LLP [2014] EWHC 3389 Mr Justice Roth addressed the issue of whether an assessment of solicitor and own client costs should be in private or in public. The judgment also considers important issues…
THIRD PARTY COST ORDERS: NO SPECIAL STANDARD FOR SOLICITORS AS LITIGANTS
For the third time in recent weeks there has been an interesting decision on non-party costs orders. In Virdi -v- R K Joinery Ltd [2014] EWHC 3492 Mr Justice Henderson upheld an order for costs against a non-party. However the…
RESPONDING TO A COMMITTAL APPLICATION: A POINT TO WATCH
The brief report in Lawtel of Royal & Sun Alliance -v- Fahad (QBD Spencer J 17/10/14) brings home an important procedural point in relation to committal applications. THE FACTS The applicant was seeking to commit the respondent for making false…
HEARINGS IN PRIVATE AND REPORTING RESTRICTIONS: THE GENERAL RULE IS THAT HEARINGS SHOULD BE IN PUBLIC
In a short judgment today in V -v- T [2014] EWHC 3432 (Ch)Civ Mr Justice Morgan reviewed the law relating to hearings in private and weighed this up against the protection given by reporting restrictions. It contains an important observation…
RELIEF FROM SANCTIONS GRANTED FOLLOWING FAILURE TO GIVE NOTIFICATION OF CFA & ATE
In Caliendo -v- Mischon De Reya [2014] EWHC 3414 (Ch) Mr Justice Hildyard considered an application for relief from sanctions under the post-Denton regime. He also made interesting observations in relation to applications in relation to considering the relevance of…
CHALLENGING THE AUTHENTICITY OF DOCUMENTS: THE IMPORTANCE OF KNOWING THE RULES & A FEW POINTS FROM THE CASES
The earlier post on Redstone Mortgages Ltd -v- B Legal Ltd[2014]EWHC 3390 (Ch)contained some important observations from the judge on the steps to be taken if a party wishes to challenge the authenticity of a document. Here we look at this…
COSTS ASSESSED AT NIL WHEN SOLICITOR FAILED TO MAKE PROPER INVESTIGATIONS INTO CLIENT'S FUNDING
The case of McDaniel & Co -v- Clark (QBD Hickinbottom J 15/10/14) contains a clear warning that solicitors must make proper enquiries about funding at a very early stage. (This post is based on the Lawtel note of the judgment…
IRRELEVANT EVIDENCE, INFERENCES AND "FORGERY": EVIDENTIAL ISSUES IN A HIGH COURT CASE
The decision of Mr Justice Norris in Redstone Mortgages Ltd -v- B Legal Ltd [2014]EWHC 3390 (Ch) deals with several important issues relating to evidence in civil cases. In particular the relevance and admissibility of “quasi expert” evidence and the…
PLEAD A DEFENCE PROPERLY OR BE STRUCK OUT: A HIGH COURT CASE CONSIDERED
The case of De Vere Holding Company -v- Belgravia Wealth Management KFT & Ors [2014] (QBD Judge Parkes QC) 15/10/14 was briefly reported on Lawtel today. It contains important observations on the role of pleadings. (This post is based on…
COSTS CAPPING IN THE COURT OF APPEAL: ANOTHER EXAMPLE OF COSTS CAPPING BEING REFUSED
We have looked before at issues relating to costs capping in the Court of Appeal. I am grateful to Claire Darwin of Matrix Chambers for bringing my attention to the case of Black -v- Arriva North East Ltd [2014] EWCA…
WHY A SOLICITOR SHOULD NOT MAKE STATEMENTS ON CONTENTIOUS MATTERS
When is it appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners -v- Gutteridge [2001] EWHC 568 (Ch) THE CASE The…
FAILING TO TURN UP TO HEARINGS AND SERVING WITNESS STATEMENTS LATE: AN EXAMPLE OF THE DISCRETION BEING EXERCISED: RELIEF GRANTED UPON CONDITION THAT DEFAULTING PARTY PAYS COSTS AND PAYS £25,000 INTO COURT
The question of relief from sanctions after witness statements were served late has been discussed several times on this blog. The issue was considered by HH Judge Mackie QC in Carlton Advisers -v- Dorchester Holdings Ltd [2014] EWHC 3341 (Comm)….
THE ROLE OF THE APPELLATE COURT IN CONSIDERING FINDINGS OF FACT
In Clydesdale Bank -v- Duffy [2014] EWCA Civ 1260 the Court of Appeal set out a clear statement of the limited role of the appeal court in considering appeals in relation to findings of fact by the trial judge. THE…
SETTING ASIDE JUDGMENT, MITCHELL AND DENTON: THE COURT OF APPEAL'S VIEW
The question of how far the “Mitchell/Denton” principles apply to applications by defendants to set aside judgments was considered by the Court of Appeal in Regione Piemonte -v- Dexia Credop SpA [2014] EWCA Civ 1298. It can be seen that these principles…
DRAFTING A SKELETON OR WANT TO SERVE AN ADDITIONAL SKELETON ARGUMENT? THEN YOU HAD BETTER READ THIS
We have looked before at judicial complaints about the length and extent of skeleton arguments. Similar grievances can be seen in the judgment of the Court of Appeal earlier this week in Tchenguiz -v- Director of the Serious Fraud Office…
A JUDGE SHOULD RARELY RECUSE THEMSELVES: COURT OF APPEAL DECISION IN OTKRITIE CONSIDERED
In Otkritie International Investment -v- Mr George Urumov [2014] EWCA Civ 1315 decided today the Court of Appeal reviewed the circumstances in which a judge should recuse themselves for bias. It is clear that this cannot be done lightly. In…
LIES, EVIDENCE, DISCLOSURE AND PROCEDURE : AA -v- LONDON BOROUGH OF SOUTHWARK CONSIDERED
It is certain that the decision in AA -v- London Borough of Southwark [2014] EWHC 500 QB will receive considerable coverage. It is a remarkable case. There are enormous implications for local authorities. Here we look at the procedural issues in…
THE DUTIES OWED TO THE COURT ON A WITHOUT NOTICE APPLICATION: A VERY HIGH STANDARD
In Standard Bank -v- Just Oil LLC [2014] EWHC 2687 (Comm) the Hon Mr Justice Walker considered the duties owed when a party makes an without notice application to the court. Strong words are said. THE FACTS The claimant had…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -v- WEBINVEST CONSIDERED
Putting “without prejudice” on inter partes correspondence does not mean that the court will not look at them. This issue was considered by Mr Justice David Richards in Avonwick -v-Webinvest [2014] EWHC 3322 (Ch). The case also contains a short…
RELIEF FROM SANCTIONS, VERY LATE SERVICE OF WITNESS STATEMENTS AND DOCUMENTS: A DECISION TODAY
The judgment of the Hon Mrs Justice Asplin DBE given today in Lictor Anstalt -v- MIR Steel UK Ltd [2014] EWHC 3316 (Ch) contained a consideration of the Denton criteria in relation to late service of witness evidence and documents….
INTEREST AND COSTS WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: WATCHORN –v- JUPITER CONSIDERED
There have been relatively few cases dealing with the approach of the courts under the new Part 36 provisions when a claimant beats their own Part 36 offer at trial. The judgment of HH Judge Purle QC in Watchorn -v-…
COURT ORDERED MEDIATION: DRAFT PRECEDENTS
In Bradley -v- Heslin Norris J set out , in strong terms the desirability of a formal order for mediation. Here we look at the precedents available. THE OBSERVATIONS IN BRADLEY In Bradley -v- Heslin [2014] EWHC 3276 (Ch) “If in…
WRITTEN SUBMISSIONS: STATEMENTS OF ISSUES; PLEADING AND PROOF
The decision of Mr Justice Walker in Burrows -v- Northumbrian Walker Ltd [2014] EWHC 3305(QB) considers the need for clarity in written submission and for the issues the judge is asked to determine to be clearly defined. It also considers…
TRIAL PREPARATION, BUNDLES & WITNESS STATEMENTS: THE JUDGE'S LAMENT
The earlier post on the decision in Weathford -v- Hydropath concentrated upon the application for a non-party costs order. However in the primary judgment on liability the judge made some all too common criticisms in relation to trial preparation, skeleton…
