BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…
PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A "NON-ADMISSION" & A "DENIAL" EXPLORED
The decision of Mr Justice Bean in Dil -v- Commissioner of Police for the Metropolis [2014] EWHC 2184 (QB) relates to a police force’s obligations in relation to the disclosure of details of undercover operations and informers. However it also deals…
WHICH WITNESS WILL BE BELIEVED? IS IT ALL A LOTTERY?
The post yesterday on the length of “skeleton” arguments and trial bundles was an appeal from a first instance decision where the judge had to decide which witnesses were credible. First instance decisions on the credibility of witnesses are difficult…
DENTON, RELIEF FROM SANCTIONS AND THE "LITIGATOR'S DILEMMA": LIFE IS NOW DANGEROUS FOR RESPONDENTS
I have written before about the “litigator’s dilemma” in relation to whether a point should be taken in relation to a breach, or an application for relief of sanctions opposed. The Denton decision makes this issue far more difficult for…
ANATOMY OF A POST-DENTON APPLICATION FOR RELIEF FROM SANCTIONS 3: THE "THIRD STAGE": EVERYTHING IS IN THE MIX
Having considered whether the breach is serious or significant and the reason for the breach a judge hearing a relief from sanctions application may have to go on to the “third stage”. Here the court considers all aspects of the…
ANATOMY OF A POST-DENTON RELIEF FROM SANCTIONS APPLICATION 2: THE REASON MAY NOT BE GOOD ENOUGH BUT THIS DOES NOT PREVENT RELIEF BEING GRANTED
The first stage of an application for relief from sanctions has been considered in an earlier post. If the breach is neither serious or significant then the court need not spend too much time on the second and third stages….
ANATOMY OF A POST-DENTON RELIEF FROM SANCTIONS APPLICATION 1: THE DEATH OF THE WORD "TRIVIAL"
There are now plenty of places that summarise and give views on the effect of the Court of Appeal decision in Denton -v- White. Here I want to start on the task of looking, in some detail, at the practical…
SANCTIONS HEARING 4: DOES DECADENT VAPOURS LEAVE A PLEASANT SMELL?
The second substantive decision was Decadent Vapours. Here the Court of Appeal overturned a refusal to grant relief from sanctions and the claimant’s case was allowed to proceed. THE FACTS The claimant failed to make payments of fees by the…
SANCTIONS JUDGMENT: THE KEY POINTS (1): STAGES 1 AND 2 OF CONSIDERATIONS IN RELIEF FROM SANCTIONS APPLICATIONS
The history and arguments in relation to the Court of Appeal hearings on sanctions have been fully recorded on this blog. In the judgment given today there are a number of Key points. MITCHELL HAS BEEN THE SUBJECT OF CRITICISM…
“NO CREDIT TO OUR CIVIL JUSTICE SYSTEM” WHAT CONSTITUTES TAKING STEPS TO BRING THE CLAIM FORM TO THE ATTENTION OF THE DEFENDANT?
“This depressing litigation reflects no credit on our civil justice system. It is yet another example of wasteful satellite litigation unconcerned with the merits of the underlying claim. The Claimant alone escapes censure” Tomlinson L J in Power v Meloy…
SERVICE OF THE CLAIM FORM CAN BE A PROBLEM FOR DEFENDANTS TOO: ACT PROMPTLY OR YOU HAVE ACCEPTED JURISDICTION
Issues relating to service of the claim form are always problematic for claimants . They can, however, be problematic for defendants as well. . This is demonstrated by the decision of Eder J in Nwoko –v- Oyo State of Nigeria…
PRECEDENT H: PULLING IT ALL TOGETHER: LINKS TO THE USEFUL POSTS ON COSTS BUDGETING
There are now nearly 400 posts on this blog and some patterns are emerging. Some posts are read in the immediate aftermath of posting, some keep on being read. Posts about Precedent H are part of those keep on being…
NO SPECIFIC FORM OF WRITTEN NOTICE IS REQUIRED TO WITHDRAW A PART 36 OFFER: THE ADVANTAGES AND DISADVANTAGES OF LEAVING A PART 36 OFFER OPEN
Part 36 offers are relatively easy to withdraw. This is demonstrated by the decision of Flaux J in of Supergroup Plc v JustEnough Software Corp Inc where he rejected an application for a declaration that the the claimant had validly…
WITNESS STATEMENTS ARE FOR FACTS: KNOWING THE DIFFERENCE BETWEEN EVIDENCE AND SUBMISSIONS (AND WHY IT MATTERS)
The recent Leeds Law Society Civil Litigation event reminded me of a similar meeting with judges over 25 years ago. The Registrars (District Judges) gave a talk to local articled clerks (trainee solicitors). There was a basic message delivered in…
ALLOCATION BETWEEN THE SMALL CLAIMS TRACK AND THE FAST TRACK: WHAT IS MEANT BY "ANY AMOUNT NOT IN DISPUTE"?
In the case of Akhtar -v- Boland [2014] EWCA Civ 872 the Court of Appeal gave guidance on CPR 26 and the matters to be considered when a determination is made as to allocation between the Fast Track and the…
WITNESS STATEMENTS CANNOT BE RELIED ON AT TRIAL IF SERVED LATE AND RELIEF FROM SANCTIONS NOT GIVEN
Lawtel today reported the case of Davies -v- Liberty Place [2014] EWHC 2034 (Admin). In that case Leggatt J stated that a party who served a witness statement late was not automatically precluded from relying on that statement at trial….
INSTRUCTING EXPERT WITNESSES: VIEWS FROM "ACROSS THE POND"
Instructing expert witnesses is an important step in many actions. The advantages, and problems, caused by experts are well known. It is clear that the issues are international. A recent article in the American Journal “The Lawyerist” contains some interesting…
UNILATERAL DECISIONS TO VARY ORDERS WILL LEAD TO TROUBLE AND AMOUNT TO CONTEMPT: PARATUS AMC EXAMINED
The case of Paratus AMC Ltd -v- Lewis [2014] EWHC 1577 (Ch) has been placed on Bailli following an order by the judge to highlight an issue of contempt of court. As such it clearly requires wider publication. It also…
FIRST ANNIVERSARY OF CIVIL LITIGATION BRIEF (OR CONFESSIONS OF A RELUCTANT BLOGGER)
Today marks the first anniversary of the setting up of this blog, tomorrow marks the anniversary of the first post. It gives an opportunity to recap (and reminisce). CIVIL PROCEDURE IN JUNE 2013 When the blog started civil procedure was…
NO RELIEF FROM SANCTIONS AFTER APPELLANT FAILED TO FILE TRANSCRIPTS ON TIME.
In Patterson -v- Spencer [2014] EWHC 1878 (Ch) Henry Carr QC (sitting as a High Court Judge) refused an appellant’s application for relief from sanctions after she failed to file transcripts of the initial hearing. THE FACTS One of the defendants,…
ANOTHER CASE WHERE PARTY REFUSED RELIEF FROM SANCTIONS FOLLOWING LATE SERVICE OF WITNESS STATEMENT
The case of Swinden -v- Grima (Nicol J) 18/06/2014 is briefly reported on Lawtel (20th June). It is another example of the court refusing permission to serve witness statements late. THE FACTS The defendant served a witness statement on the…
MORE ABOUT SETTING ASIDE JUDGMENT AND CPR 3.9: NEWLAND -v- TOBA CONSIDERED
The question of whether CPR 3.9 and the Mitchell criteria apply to applications to have judgment set aside is an issue that has been considered several times on this blog. In a decision yesterday Newland -v- Trading FZC (& other)…
RELIEF FROM SANCTIONS FOLLOWING LATE FAILURE TO SERVE WITNESS STATEMENT: ONE OUT OF THREE MAY NOT BE ENOUGH
In Cranford Community College -v- Cranford College Ltd (16/06/2014 IPEC Judge Hacon) the court granted relief from sanctions following late service of a witness statement. (The case was reported on Lawtel on the 18th June 2014). THE FACTS The action…
WELL WHAT SHOULD THE TEST FOR RELIEF FROM SANCTIONS BE? YOUR CHANCE TO COMMENT
“Is there not a more imaginative way to encourage parties to co-operate? Looking at some of the circumstances litigation had been utterly derailed due to satellite litigation. This is inappropriate in 99% of cases. We need a message saying that…
LEEDS LAW SOCIETY MEET THE JUDGES EVENT: JACKSON ONE YEAR (AND A FEW MONTHS) ON
Yesterday evening Leeds Law Society held a “meet the judges” evening when practitioners met local judges and court staff to discuss issues arising out of the implementation of the Jackson reforms. Some of the issues were specific to Leeds but most…
COURT OF APPEAL SANCTIONS HEARING: SUBMISSIONS IN UTILISE -V- DAVIES
The final tranche of the notes taking at the hearing of the sanctions cases yesterday. The case of Utilise -v- Davies. Discussion of the first instance decision can be found in this blog as can a link to the transcript….
SANCTIONS CASE TODAY: SUBMISSIONS AND DISCUSSIONS FROM THE LAW SOCIETY AND BAR COUNCIL
The Bar Council and the Law Society were invited to make submissions at the sanctions hearings in the Court of Appeal today. The discussions between the Bar and the Bench make fascinating reading. (Mr Holland QC for both the Bar…
SANCTIONS HEARING TODAY: NOTES OF THE HEARING IN DECADENT VAPOURS
DECADENT VAPOURS LIMITED V BEVAN Heard by the Court of Appeal on 16th June 2014 (Lord Justice Dyson MR) (Lord Justice Jackson) (Lord Justice Vos) APPELLANT/CLAIMANT’S SUBMISSION In the present case the appellant appeals a decision to refuse relief from…
COURT OF APPEAL HEARING TODAY: DETAILED NOTE OF SUBMISSIONS AND DISCUSSIONS AT THE COURT
The Court of Appeal hearing on sanctions after Mitchell goes on. Here I outline, in detail, the submissions and discussions in Denton. Other cases will follow. DENTON AND OTHERS V T H WHITE LIMITED Heard by the Court of…
DRAFT JUDGMENTS MUST NOT BE DISCLOSED: COURT OF APPEAL EXPRESSES ITS VIEWS IN STRONGEST POSSIBLE TERMS
Draft judgments are often sent to parties in advance. These are sent on confidential terms in O’Connell -v- Rollings [2014] EWCA Civ 806 the Court of Appeal made it clear that wider disclosure of drafts should not be made. THE JUDGMENT…
PORTAL ISSUES: WHAT HAPPENS IF THE DEFENDANT DOESN'T PAY THE COSTS?
It is clear that a new jurisprudence is developing around behaviour in, or around, the portal. A previous post looked at how the court will construe procedural issues arising out of the portal. I am grateful to Tom Melville of…
TWO DAYS LATE SERVICE OF NOTICE OF APPEAL IS A "TRIVIAL" ERROR: HIGH COURT DECISION CONSIDERED
In Harrogate Borough Council -v- Secretary of State for Communities & Local Government & Zammitt [2014] EWHC 1506 (Admin) the appellant was two days late in serving a notice of appeal. His Honour Judge Behrens (sitting as a judge of the…
COSTS DRAFTSMAN SIGNING COSTS BUDGET DOES NOT RENDER IT A NULLITY: HIGH COURT DECISION TODAY CONSIDERED
There may be no end to the Mitchell points being taken. In a case earlier today, Americhem Europe Ltd -v- Rakem Ltd [2014] EWHC 1881 (TCC) e Mr Justice Stuart-Smith considered an argument that the costs budget signed by a…
YET MORE ON SETTING ASIDE DEFAULT JUDGMENT, DELAY & PROMPTNESS
The case of Page -v- Champion Financial Ltd [2014] EWHC 1778 (QB) was discussed in an earlier post in relation to delays in applying to set judgment aside. The case of Dalton -v- Cooper [2014] EWHC 1556 (QB) was decided earlier, by…
THE SUMMARY ASSESSMENT OF COSTS: USEFUL LINKS
The previous post reported on how summary assessment was conducted in a High Court case. This led me to look at the guidance that is available in relation to preparing a bill for summary assessment and also for hearing of…
SUMMARY ASSESSMENT: HOW IT WORKS IN PRACTICE: LOVELL -v- MERTON PRIORY HOMES
There is nothing remarkable about the decision of Mr Justice Edwards-Stuart in Lovell Partnerships Ltd-v- Merton Prior Homes [2014] EWHC 1800 (TCC) where he assessed costs after a trial. However it provides an example of the robust manner in which…
FAILURE TO SERVE FORM N251: ADDITIONAL LIABILITIES & PREMIUM DISALLOWED; RELIEF FROM SANCTIONS REFUSED
We are seeing reports come through of cases that were decided some time ago. However they provide illustrations of the problems that can arise and the court’s likely approach. Ibbertson -v- Black Horse Ltd [Maidstone County Court] is available on…
PAY COURT FEES ON TIME AND DON'T RELY ON COURT STAFF FOR LEGAL ADVICE: ANOTHER REPORTED CASE WHERE RELIEF FROM SANCTIONS REFUSED:
The case of Decadent Vapours Ltd -v- Bevan et al (Judge Jarman Q.C. Cardiff District Registry, 18th February 2014) was reported on Lawtel this morning. It provides another warning of the dangers involved in not complying with court orders on…
CROSS-EXAMINING EXPERT WITNESSES: HINTS, TIPS AND LINKS
The impartiality, or otherwise, of expert witness witnesses is in the news today. This would seem an appropriate time to look at the cross-examination of expert witnesses, particularly in the context of civil litigation. THE ROLE OF THE EXPERT IN…
WHO IS WATCHING YOUR BACK? A CHECKLIST ON "DEFENSIVE LITIGATION"
The previous post looked at the “fish file” checklist prepared by groups in a recent session I conducted in at one of Kerry Underwood’s courses. A second checklist was also prepared by the groups and this related to “defensive litigation”….
OTHER ESSENTIAL CHECKLISTS: DEALING WITH THOSE "FISH FILES"
Earlier posts looked at the essential checklists prepared by delegates at the “how to get sued” conference. Missing from those checklists was any discussion of one real problem for practitioners that can often lead to problems – the “fish file”….
WHEN CAN YOU SERVE WITNESS SUMMARIES? A HIGH COURT CASE ON THE QUESTION OF WHETHER A PARTY IS "UNABLE" TO OBTAIN A WITNESS STATEMENT
The case of Scarlett -v- Grace (4/6/2014) QBD Phillips J was reported briefly on Lawtel yesterday. It provides an example of the difficulties when a party proposes to serve witness summaries rather than witness statements. THE RULES: CPR 32.9 CPR…
PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE
I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings. However Jon Williams pointed out that the case has an…
73rd AMENDMENT TO THE CIVIL PROCEDURE RULES COMES INTO FORCE TODAY: FINAL TRIO OF LINKS
Monmouthshire Law Society’s twitter account announced Happy 73rd update to CPR day this morning. Here are three crucial links so you can join in the celebrations. CELEBRATORY LINKS A general summary and the rules themselves are here Guidance as to…
YOU CAN AGREE TO EXTEND TIME NOW: BUT SHOULD YOU AGREE TO EXTENSIONS?
Parties can agree to extend time from the 5th June. I have already written on the dangers of the system. However, if the dangers can be sidestepped, should a litigator agree to extend time. THE HEATED DEBATE: SHOULD PARTIES AGREE EXTENSIONS? This…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
AVOIDING UNDERSETTLEMENT: THE FINAL "ESSENTIAL CHECKLIST" & A USEFUL LINK
The final list in the “essential checklist” series is on “avoiding undersettlement”. The day the course was held the Law Society Gazette had published Rachel Rothwell’s piece on Why Cannibalism is coming to PI. One delegate noted that he had…
PRE-ACTION CONDUCT: ESSENTIAL CHECKLISTS AND USEFUL LINKS
This is the 5th in the series of “Essential Checklists”. The group “Prequel” (the clue is in the name I guess) set out what they thought were essential elements in Pre-action procedure. PREQUEL’S CHECKLIST PRE-ACTION STEPS, PROTOCOL AND LETTERS BEFORE…
COSTS AND COSTS BUDGETING SOME ESSENTIAL CHECKLISTS: GROUP H AT WORK
This is the checklist produced by Group H. You can see the cost lawyer’s concerns at work in relation to the proper allocation of the case and the need to keep an ongoing record. Of particular interest is the…
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