MEDIATE OR ELSE? THE COSTS CONSEQUENCES OF REFUSING TO MEDIATE
A recent post looked at the Court of Appeal mediation scheme and examined the potential penalties for a party refusing to mediate. In PGF II SA –v- OMES Company I Limited [2013] EWCA CIV 1288 the Court of Appeal looked…
HANDBOOK FOR LITIGANTS IN PERSON: FIND IT AND USE IT!
The Judiciary have published a Handbook for Litigants in Person. It can be found here. WHY YOU SHOULD READ IT I suggest every litigator has a look at it. 1. You should ensure it is sent to every litigant in…
THEVARAJAH –V- RIORDAN NOW FULLY REPORTED: SECOND BITE OF CHERRY IN RELATION TO RELIEF FROM SANCTIONS
The case of Thevarajah –v- Riordan has been discussed before. Initially relief from sanctions was refused, however it was then granted at a second application. Here we look at the decision in more detail, in particular the CPR 3.9…
THE DANGERS OF GETTING THE COURT FEES WRONG: IF THE FEES ARE NOT RIGHT – YOU HAVEN'T ISSUED
If proceedings are being issued at the last moment then it is imperative that the correct fee is lodged at court. A failure to send the correct fee will mean that proceedings are not properly issued. This post looks at…
RELIEF FROM SANCTIONS GRANTED SECOND TIME AROUND: QUITE A TWIST TO THIS TALE?
The case of Thevarajah –v-Riordan has been reported before at http://civillitigationbrief.wordpress.com/2013/08/13/relief-from-sanctions-a-case-where-relief-was-refused/ when the court refused to grant relief from sanctions where the defendant had failed to comply with disclosure obligations. H… Enjoying this post? Become a Civil Litigation Brief member…
MEDIATION IN THE COURT OF APPEAL
The Court of Appeal can recommend that appeals be referred to mediation. This blog looks at the process and some of the case law. THE GUIDANCE A Lord/Lady Justice considering an application for permission to appeal is expressly required…
RELIEF FROM SANCTIONS ORDER OVERTURNED ON APPEAL: ANOTHER CASE GOES TO WASTE
In Biffa Waste Services Ltd –v- Ali Dinler (QBD 10/10/13) Swift J overturned an order granting relief from sanctions. THE FACTS Biffa was a personal injury case. The claimant failed to file a pre-trial checklist in time or to…
ANOTHER FAILED APPLICATION FOR RELIEF FROM SANCTIONS: MORE LESSONS TO LEARN
The decision in Michael –v- Middleton [2013] EWHC 2881 (Ch) provides another example of the difficulties that arise in making an application for relief from sanctions. However close examination of the judgment also provides some interesting lessons in conducting litigation and…
SEX & SUMMARY JUDGMENT: WHERE DOES THE BURDEN OF PROOF LIE IN ESTABLISHING A “COMPELLING REASON” WHEN DEFENDING A SUMMARY JUDGMENT APPLICATION?
The case of Sargespace –v- Eustace had a highly unusual set of facts. However it raises an interesting question of where the burden of proof lies in an application for summary judgment where a respondent to the application wishes to…
NEW SENIOR COURT OFFICE COSTS GUIDE
The Senior Courts Costs Office has produced a comprehensive guide to costs. At 182 pages it probably contains all the procedural points you need to know. https://www.dropbox.com/s/65gbezzxz7l2zpk/SCCO%20Guide%20October%202013.pdf… Enjoying this post? Become a Civil Litigation Brief member to read full articles and…
HAVE YOU COMPLIED WITH AN "UNLESS ORDER"? GUIDANCE IN THE CONTEXT OF E-DISCLOSURE
A hearing on the question of whether a party has complied with an unless order is always a fraught one. The stakes are high, particularly for the party alleged to be in breach. Here we look at compliance in relation…
HOW RELEVANT ARE PART 36 OFFERS TO ISSUE BASED ORDERS? A SALUTARY WARNING ABOUT THE RISKS OF LITIGATION
The making of an “issue based” costs order is now a common aspect of litigation. However how relevant is a Part 36 offer when a court is considering making an “issue based” costs order? A recent case contains discussion of…
RELIEF FROM SANCTIONS AND COSTS BUDGETING: THE JUDGMENT IN MITCHELL -v- NEWS GROUP NEWSPAPERS IN FULL
The full transcript of the decision of Master McCloud in Andrew Mitchell MP –v- Express Group Newspapers [2013] EWHC 2355 (QB) is now available. The case was discussed, in outline in an earlier post, http://civillitigationbrief.wordpress.com/2013/08/11/litigatorswant-to-work-for-nothing-then-don… Enjoying this post? Become a…
DO YOU NEED LETTERS OF ADMINISTRATION TO ISSUE ON BEHALF OF AN ESTATE?
A recent e-mail enquiry has led to my considering the issue of the right to issue proceedings on behalf of the estate of someone who died intestate. The solicitor wanted to bring an action for personal injury on behalf of…
EXTENDING TIME FOR SERVICE OF PART 20 CLAIMS: WHAT IS THE RELEVANT TEST?
Applying to extend time for service of the claim form is a practice fraught with danger, even if done prospectively. In Haskew –v- Pannone LLP (and others) the Court of Appeal considered the relevant criteria for granting an extension when…
ADMISSIONS AND THE PORTAL: HOW WILL THE COURTS CONSTRUE PROCEDURAL ISSUES ARISING UNDER THE RTA PROTOCOL?
How significant are admissions made under the MOJ portal and what is their practical significance? A close look at the case of Ullah –v- Jon and its significance in relation to construction of the RTA Protocol. I am grateful…
SANCTIONS AND DEFAULT: THE NEW APPROACH IN PRACTICE. THE FULL TRANSCRIPT OF BAKER -v- HALLAM ESTATES
The post yesterday looked at the duties owed by an applicant making a without notice application. The full transcript of the case is now available and contains some salutary observations. Baker –v- Hallam Estates Baker -v- Hallam Estates [2013]…
THE DANGERS OF WITHOUT NOTICE APPLICATIONS: THE WHOLE TRUTH IS THE ONLY OPTION
Since the advent of CPR 3.3 and CPR 23.8 and 9 there appears to have been a growth in the number of applications made without notice. Two recent cases highlight the very onerous duty on a party making such an…
DOES THE CIVIL LITIGANT HAVE HUMAN RIGHTS? CPR 3.9, ARTICLE 6 AND THE RIGHT TO A FAIR TRIAL
This post looks at the case law relating to Article 6 and the right to a fair trial in civil proceedings. It looks at whether decisions under the new CPR 3.9 need to consider the issue of “proportional response”. …
APPLYING TO SET ASIDE WITHOUT NOTICE ORDERS: BE QUICK: BE VERY QUICK
This post looks at the power the courts have to make costs orders when making an order of its own motion or without notice to one party. A party attempting to challenge or vary such an order must act promptly….
LITIGATION AFTER JACKSON: A 10 POINT SURVIVAL GUIDE
There has been a tremendous change in policy in relation to case management after 1st April 2013. This has already led to major difficulties for some litigators. This post is the first (of what may be many) survival guides for…
SERVICE OF A COPY CLAIM FORM IS NOT GOOD SERVICE: HOW COULD THIS BENEFIT A CLAIMANT?
This post looks at the unusual case of Hills Construction –v- Struth [2013] EWHC 1693 (TCC) which considered issues relating to service of the claim form and extensions of time for service of the Particulars of Claim. The facts…
FAILURE TO COMPLY WITH CPR: CAN BITE DEFENDANTS TOO!
This post looks at the decision in Dass –v- Dass where the defendant was refused permission to rely upon medical experts because they had not been served in accordance with court directions. Many of the recent cases in relation to…
NEW FORM H FROM 1st OCTOBER 2013
One important change introduced from the 1st October is a slightly revised Form H. A copy of the new Form H can be found here http://www.justice.gov.uk/courts/procedure-rules/civil/pdf/preview/precedent-h.pdf The explanation of the Practice Direction amendments is at http://www.justice.gov.u… Enjoying this post? Become a…
AMENDMENTS TO THE CIVIL PROCEDURE RULES: EASY ACCESS TO CHANGES AND UPDATED RULES
There have been seven amendments to the Civil Procedure Rules so far this year. In an attempt to give easy access to the amendments They are http://www.legislation.gov.uk/uksi/2013/262/contents/made http://www.legislation.gov.uk/uksi/2013/515/contents/made http://www.legislation.gov.uk/uksi/2013/789… Enjoying this post? Become a Civil Litigation Brief member to read…
RELIEF FROM SANCTIONS: THE KEY DATE FOR IMPLEMENTATION OF THE NEW CPR 3.9
This post deals with misunderstandings that appear to be in place as to which cases the new CPR 3.9 provisions on relief from sanctions apply to. In particular whether the key date is the date of issue of proceedings or…
AMENDMENTS TO THE CIVIL PROCEDURE RULES COMING INTO FORCE IN OCTOBER 2013
This post looks at the changes to the Civil Procedure Rules introduced by The Civil Procedure Rules (Amendment No 7) Rules 2013. These rules come into force on 1st October 2013. The main provisions are that: A…
LIMITATION: WHAT'S THE POSITION WHEN THE DEFENDANTS WON'T TELL YOU WHO THEY ARE?
This post looks at the issue raised in Parkin –v- Alba Proteins Ltd where a party failed to disclose the identity/ existence of additional defendants prior to the issue of proceedings. In Parkin –v- Alba Proteins Ltd [2013] EWHC 2036…
PREPARATION FOR CASE MANAGEMENT HEARINGS: GUIDANCE FROM BIRMINGHAM MERCANTILE COURT
The Birmingham Mercantile Court has produced a standard form to be used in Case Management hearings. Although some of the provisions are specific to Mercantile Court procedure many of the matters contained in the form, and accompanying list, are of…
RELIEF FROM SANCTIONS: A CASE WHERE RELIEF WAS REFUSED
This post discusses a recent case where the Court refused relief from sanctions. In Thavattheva Theveraraja and Southern Territory Ltd –v- Riordan, Burke and Prestige Property Developer UK Ltd (Ch D 09/08/2013) Hildyard J refused relief from sanctions when…
LITIGATORS:WANT TO WORK FOR NOTHING? THEN DON'T FILE YOUR COSTS BUDGET ON TIME
This post deals with the extremely draconian penalty imposed on a litigant who fails to file a costs budget on time. THE RULES CPR 3.13 and 14 deals with the duty to exchange costs budgeting. Filing and exchanging…
GUIDES AND LINKS TO APPEALING TO THE COURT OF APPEAL
This post provides useful links to guidance, forms, rules and practice directions dealing with appeals to the Court of Appeal The Guide to Chancery Applications was a popular post. There is clearly a market for clearly written guidance to…
GUIDE TO INTERIM APPLICATIONS IN THE CHANCERY DIVISION
The Judiciary in England and Wales have produced a guide to Interim Applications in the Chancery Division. This is designed for litigants in person. However it will be useful to all those who do not normally practice in the…
PART 36: A NEAR MISS IS NOT ENOUGH
A recent case emphasises that a “near miss” with a Part 36 offer is not relevant to the court’s assessment of costs after a trial. There was, for a time, a developing jurisprudence around “near miss” offers and…
CHANGES TO PRACTICE AND PROCEDURE IN THE CORONERS COURTS
I have set out a summary of the changes to the Coroners Court Rules at http://fatalaccidentlaw.wordpress.com/2013/07/25/changes-to-coroners-rules-where-to-find-the-law-useful-links-and-a-summary/ That post also links through to all the relevant legislation and the new rules (which came into force la… Enjoying this post? Become a Civil…
RELIEF FROM SANCTIONS: A CASE IN WHICH RELIEF WAS GRANTED. WYCHE -v- CAREFORCE GROUP LTD
Every case in relation to relief from sanctions is being examined carefully after 1st April. The case of IAN ALAN WYCHE v CAREFORCE GROUP PLC (2013)QBD (Comm) 25/07/2013 is going to be of interest. The case is not yet fully reported…
SERVING WITNESS STATEMENTS LATE: AN EXTREMELY DANGEROUS PRACTICE
The recent decision in Fons HF –v- Corporal Ltd & Pillar Securitisation [2013] EWHC 1278 (Ch) provides an object lesson on the difficulties that can arise when both parties fail to file witness statements in accordance with directions. The facts…
65th amendment to the Civil Procedure Rules
The new rules extending the personal injury portal to £25,000; extending fixed costs and dealing with Part 36 offers are now available at http://www.justice.gov.uk/courts/procedure-rules/civil… Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all…
CIVIL EVIDENCE AND WITNESS STATEMENTS
I have written two articles on witness statements and civil evidence for Local Government Lawyer One on the inferences a court can draw when a litigant elects to call no evidence on an issue http://www.localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=13497%3Asilence-… Enjoying this post? Become a…
LITIGANTS IN PERSON: THE LAWYER’S DUTY AND WITNESS STATEMENTS
The Judiciary Working Group on Litigants in Person has been published and is available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf It is worth reading for anyone involved in cases where litigants in person are involved. These always involve additional challenges. Th… Enjoying this…
AVOIDING NEGLIGENCE 1 : THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
How does anyone miss a three year limitation period? The basic answer is usually some kind of maladministration. Often a failure of the diary system. Someone has inserted the wrong month, occasionally the wrong year. Sometimes there is no diary…
SERVICE OF THE CLAIM FORM: FURTHER TRAPS FOR THE UNWARY
The post on “Service Faults” http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/ pointed out one of the traps for the unwary in relation to service of the claim form. However the decision in Bethell Construction –v- Deloitte & Touche [2010] EWHC (Judge Ho… Enjoying this post? Become…
New Court Fees after the 1st July 2013
The Civil Proceedings Fees (Amendment No. 2 ) Order 2013… Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all premium content. Become a member Already a member? Log in below Username or E-mail…
SERVICE, FAULTS AND …. THE MATCH IS OVER
As Wimbledon is underway it is worth reminding ourselves that even apparently minor faults in service can be fatal to an action. This is illustrated by the decision in Venulum Property Investments Ltd –v- Space Architecture Ltd & 9 others …
ONE DIRECTION SINGING FROM THE SAME HYMN SHEET ?
THE USE OF STANDARD DIRECTIONS I have put the standard directions as a link because they will normally be the first port of call for anyone drafting directions (and I once spent a frustrating half hour trying to find…
THANKS FOR THE £500,000. NOW WHERE’S THE EXTRA £50,000 YOU OWE ME? KNOWING THE RISKS AND ADVANTAGES FOR THE CLAIMANT IN THE NEW PART 36
The new provisions when a claimant beats their own Part 36 provide challenges (including potential negligence claims) for the claimant lawyer. A claimant who beats their own Part 36 offer at trial now obtains considerable benefit. CPR 36.13(3) states that…
Extensions of time after Jackson: Safety First
Taking a close look at the decision in Atrium Training Services [2013] EWHC regarding extensions of time and its practical significance for litigators One of my main reasons for starting this blog was to keep a close eye on developments…
SUING THE “MAN OF STRAW”: IS THERE ANYTHING YOU CAN DO ABOUT THE IMPECUNIOUS AND UNINSURED DEFENDANT?
A perennial problem for litigators is the situation where a claimant has a good case but the Defendant is impecunious and uninsured. In many (but not all) motor claims the Motor Insurers Bureau will provide a practical remedy. In all…
INTERIM PAYMENTS AND THE SERIOUSLY INJURED CLAIMANT: SOMEWHERE TO LIVE OR DOWN AT EELES?
Cases and principles relating to interim payments and accommodation in catastrophic injury cases are considered. Prior to the decision in Cobham Hire Services –v- Eeles [2009] EWCA Civ 204 it was a relatively simple matter to obtain a substantial interim…
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