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…
NON-PARTY COSTS ORDERS: ALL THE LAW IN ONE USEFUL PLACE
Making an application for a non-party costs order can be a controversial step in the proceedings. The, principles, law and practice are thoroughly reviewed by Mr Justice Akenhead in Weatherford Global Products Ltd -v- Hydropath Holdings Ltd [2014] EWHC 3243…
ROBUST DECISIONS, CASE MANAGEMENT AND WITNESS EVIDENCE: AVOIDING REVERSE MACROCOSM
In Tindall Cobham 1 Ltd -v- Adda Hotel [2014] EWHC 2637 (Ch) Peter Smith J made robust orders to ensure that an application would be heard within days rather than months. He also made some telling observations in relation to…
CAPS ON DAMAGES AND PART 36: THE INTELLECTUAL PROPERTY ENTERPRISE COURT
Some interesting and important points of procedure were considered today by H.H. Judge Hacon in Abbot -v- Design & Display Ltd [2014] EWHC 3243 (IPEC). Firstly in relation to the rules of the Intellectual Property Enterprise Court and the damages…
SOME THINGS MAY BE BETTER MEDIATED THAN LITIGATED: NEIGHBOUR DISPUTES FOR INSTANCE
There are some very important observations in the judgment of Norris J in the case of Bradley -v- Heslin [2014] EWHC 3276 (Ch) today. This was given in a neighbour dispute over access and gates which could have been remedied…
PRE-ACTION DISCLOSURE WAS JUSTIFIED AND REASONABLE: COURT OF APPEAL DECISION
In the judgment today in Jet Airways (India) Ltd -v- Barloworld Handling Ltd [2014] EWCA Civ 1311 the Court of Appeal reiterated the criteria for pre-action disclosure. The Court upheld a decision ordering pre-action disclosure and were extremely firm in…
VERY, VERY LATE APPLICATION TO AMEND PARTICULARS OF CLAIM ALLOWED
In MacLeod -v- Mears [2014] EWHC 3140 QB Mr Justice Hamblen allowed the claimant to amend the particulars of claim very late, after a trial in fact. THE FACTS The claimant brought an action alleging a failure to pay a…
MATERIAL NON-DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: A SALUTARY REMINDER
The previous post on the Evans’ case highlights the duty of full and frank disclosure on an ex parte application. In the Evans case it would have been impossible for the claimant to argue material non-disclosure (if indeed there was…
YOU CAN'T GO BEHIND THE OTHER SIDE'S BACK WHEN WITHDRAWING A PART 36 OFFER
Mr Justice Leggatt in a judgment given today described the facts in Evans -v- Royal Wolverhampton Hospitals NHS Foundation Trust [2014] EWHC 3185 (QB) as “remarkable”. It raised the question of “whether a party who requires the court’s permission to…
DENTON APPLIES TO APPLICATIONS TO SET ASIDE DEFAULT JUDGMENTS: HOCKLEY -v- NORTH EAST LINCOLNSHIRE CONSIDERED
The issue of whether the “Mitchell/Denton/CPR 3.9” criteria apply to applications by a defendant to set aside a default judgment has been discussed several times on this blog. In Hockley -v- North Lincolnshire & Goole NHS Trust (19th September 2014)…
THE CREDIBILITY OF WITNESSES; JOINT MEETINGS AND OVERREACHING EXPERTS: A CASE TO POINT
The judgment of Mr Justice Dingemans in Garcia -v- Associated Newspapers Ltd [2014] EWHC 3137 is a defamation action. It contains some interesting examples of evidential issues and problems. Firstly relating to the assessment of witnesses; secondly in relation to…
SORTING MAJOR PROBLEMS OUT IN THE MIDDLE OF A TRIAL: SCHEDULES AND STATEMENT OF ISSUES SHOULD BE PREPARED IN ADVANCE NOT DURING A TRIAL
The major purpose of case management is to ensure that when a matter reaches trial the parties, and the judge, know precisely what the issues are in Redd Factors -v- Bombadier Transportation [2014] EWCH 3138 (QB) this process clearly went…
A PARTY UNREASONABLY REFUSES TO MEDIATE BUT RECOVERS ALL ITS COSTS: WHY NORTHGROP GRUMMAN (2) IS ESSENTIAL READING
The question of costs liability following an “unreasonable” failure to mediate remain a developing area of law. This is an area with profound practical implications for litigators and their clients. That is why the decision of Mr Justice Ramsey in…
PLEADING AND PROVING ALLEGATIONS OF FRAUD OR DISHONESTY: MULLARKE -v- BROAD: USEFUL LINKS AND GUIDANCE
Great care needs to be taken in pleading allegations of fraud or dishonesty. In particular the pleader needs to be sure that there is sufficient evidence to justify the pleading. This was considered in some detail by Lewison J in…
NO INDEMNITY COSTS: GORGEOUS BEAUTY 2
We looked at the Gorgeous Beauty case earlier in the context of witness evidence. I am grateful to Jon Lord for bringing my attention to the subsequent decision on costs. The judge declined to order indemnity costs and awarded the…
INVOLUNTARY BAILMENT AND CIVIL PROCEDURE: CAMPBELL -v- REDSTONE CONSIDERED
The law as to bailment sometimes raises its head in civil procedure. It is relevant for instance when someone damages a car which is borrowed. It is more significant in relation to the duties owed in relation to goods left…
MORE ON WITNESS CREDIBILITY: McIntyre & HENNESSY -v- THE HOME OFFICE
We have looked at issues of witness credibility many times before. It is often the key issue when a matter reaches trial. A graphic example of credibility issues can be found in the judgment of Mr Justice Mostyn in McIntyre…
"GRABBING THE CASE BY THE SCRUFF OF THE NECK": CASE MANAGEMENT IN THE FAMILY DIVISION
For the second time in two days we are looking at a report from the Family Division, seeking inspiration for civil lawyers. The robust case management decisions by Holman J in Abuchian -v-Maksoud [2014] EWHC 3104(Fam) are, in part, decisions…
WITNESS STATEMENTS IN FOREIGN LANGUAGES: THE APPROPRIATE PROCEDURE
If a witness cannot speak English and a witness statement is required what needs to be done? Some guidance can be found in the rules and in a recent case in the Family Division. GUIDANCE IN PRACTICE DIRECTION 32 23.2…
TALK ON SANCTIONS AND HOW TO AVOID THEM: LEEDS 23rd OCTOBER 2014
I am taking part in the Costs and Litigation Funding Update organised by Clarion solicitors and K2 Legal Support in Leeds on the 23rd October 2014. I am talking on “sanctions and how to avoid them” .Other speakers are dealing…
MAKING AN APPLICATION IN THE CHANCERY DIVISION AFTER THE 1ST OCTOBER 2014: NO BUNDLE NO HEARING
The Chancery Division has introduced strict new provisions which apply from 1st October 2014. No bundle no hearing. Here we look at the essential elements of the guidance and application bundles. THE PRACTICE NOTE The Practice Note states: “Old and…
RULE CHANGES COMING INTO FORCE ON THE 1st OCTOBER 2014
A reminder that rule changes come into force on the 1st October with links to the relevant rules and useful articles and guidance. AN OUTLINE OF THE CHANGES The following summary is taken from The Justice guide The changes are,…
SUCCESS FEES IN CHILDREN CASES: LIVERPOOL AND MANCHESTER PRACTICE
The question of deducting success fees from the damages of a child remains a vexed one. I am grateful to Gillian Shaw from Paul Rooney LLP Solicitors who sent me the following note in relation to the practice in Liverpool…
COSTS CAPPING IN THE COURT OF APPEAL: DON'T BANK ON THE TIDE BEING IN YOUR FAVOUR
In Tidal Energy -v- Bank of Scotland Plc Arden L.J. considered, and rejected, an application for costs capping in relation to a forthcoming Court of Appeal hearing. The Court was keen to discourage satellite litigation in the Court of Appeal….
THE WITNESSES SAY THE OTHER SIDE IS LYING: WHAT DOES THE JUDGE DO? A GORGEOUS BEAUTY CONSIDERED!
We have looked before at issues of witness credibility, particularly in relation to the drafting of witness statements. This was an issue considered by Arnold J in Gorgeous Beauty Ltd -v- Liu (and others) [2014] EWHC 2952 (Ch). It provides…
THINKING OF ISSUING WITHOUT A LETTER BEFORE ACTION? THINK AGAIN IT MAY BE BAD FOR YOUR HEALTH(CARE)
In Baxter Healthcare UK Ltd -v- Fresenius Kabi* (17/09/14) Judge Hacon set out the dangers of issuing proceedings without sending a letter before action. THE ISSUES The claimant issued proceedings without sending a letter before action. The dispute was resolved….
COSTS IN THE SUPREME COURT: NEGLIGENT SOLICITORS ORDERED TO PAY COSTS OF BOTH SIDES
What costs order should the Supreme Court make when an appellant succeeds in establishing that wills are valid despite the fact that they have been improperly executed because of negligence on the part of a solicitor? A pragmatic view was…
CHANGES TO CHANCERY PROCEDURE FROM 1st OCTOBER
Master Marsh has put out two Practice Notes which deal with changes in Chancery Procedure from the 1st October 2014. The first deals with lodging of documents electronically and in hard copy. Documents will not be able to be filed…
COSTS CLAIMED AS DAMAGES 2: THE CASE LAW IN DETAIL
I am grateful to P.J.Kirby Q.C. for responding to the previous post on costs claimed as damages. The situation is far more complex than the passage cited in the Rentokil case suggests. THE ISSUE P.J. asked whether the case of…
WHAT IS THE POSITION WHEN LEGAL COSTS ARE CLAIMED AS A HEAD OF DAMAGES?
The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) was looked at in the previous post in relation to evidence. However it also raised an interesting issue as to the approach a court should take when a…
LITIGATION: EVIDENCE; MITIGATION OF LOSS AND "BLACK BOXES" IN THE EVIDENCE
The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) contains some interesting observations on evidence. In particular what is the position when a party claims privilege and fails to disclose legal advice relating to a settlement…
INTERIM COSTS ORDERS: USEFUL GUIDES AND LINKS
I was asked to speak at the Inaugural meeting of the Yorkshire Branch of the Association of Cost Lawyers recently. One matter that came up in discussion was how rarely applications were made for interim applications for costs. This can…
LIMITATION IN A BREACH OF CONTRACT CLAIM: DATE OF ACCRUAL; LATENT DAMAGE AND AMENDING UNDER CPR 17.4.(2): A CASE IN POINT
In Interface Europe Ltd -v- Premier Hanks Dyers Ltd [2014] EWHC 2610 (QB) Judge Saffman (sitting as a judge of the High Court) considered the issue of the relevant date of accrual of a cause of action in a breach…
