DEFENDANT’S APPLICATION FOR PRE-ACTION DISCLOSURE REFUSED: AN ORDER WOULD NOT SAVE COSTS OR ASSIST THE DISPUTE TO BE RESOLVED WITHOUT PROCEEDINGS
In Lacey v Leonard [2018] EWHC 3528 (QB) Mrs Justice Slade DBE upheld a decision refusing the defendant’s application for pre-action disclosure. The primary ground for refusal was that disclosure of medical records, and various documents relating to employment, would not…
CIVIL LITIGATION REVIEW OF 2018 2: CASE OF THE YEAR: HOW WINNING ON A PRELIMINARY ISSUE CAN LEAD YOU UP THE GARDEN PATH
There are no objective criteria for selecting case of the year. This year I have chosen Burges & Anor v Lejonvarn [2018] EWHC 3166 (TCC). This case is a classic illustration of a basic failure to prove things. It is of central…
PROVING THINGS 134: WINNING A FEW BATTLES BUT LOSING THE WAR: ALL IS NOT ROSY IN THESE CLAIMANTS’ GARDEN
Law students have probably already been taught, and will be lectured for generations to come, about the implications of the Court of Appeal decision in Lejonvarn v Burgess & Anor [2017] EWCA Civ 254. If any of those law students plan…
PROVING THINGS 130: BY THE TIME OF TRIAL YOU SHOULD REALLY KNOW WHAT YOU HAVE LOST: SOME OF THESE CLAIMANTS MAY HAVE SUFFERED NO LOSS AT ALL
The final paragraphs of the judgment in Anderson & Ors v Sense Network Ltd [2018] EWHC 2834 shows that some of the claimants in that case were unable to establish their losses. Indeed two of the claimants may have suffered no…
SUCCESSFUL PRE-ACTION DISCLOSURE APPLICATION BY DEFENDANTS: CLAIMANTS HAD TO GIVE INFORMATION AS TO IMPECUNIOSITY
In EUI Ltd v Charles & Ors [2018] EW Misc B7 (CC) HHJ Robert Harrison made an order that claimants give pre-action disclosure of documents relevant to the issue of impecuniosity. The practical consequences of this decision could be enormous. Given…
A POSSIBLE SOLUTION WHEN A DEFENDANT IN A PI CASE WILL NOT PAY: LOOK AT YOUR OWN CLIENT’S HOME INSURANCE POLICY
I am repeating something that has appeared in this blog twice already. However it is a topic that that has featured in recent legal discussions on Twitter. That is the use of your own client’s home insurance policy to recover damages…
WHY SOLICITORS’ ATTENDANCE NOTES CAN BE IMPORTANT: CONSTRUING A CONSENT ORDER: DICTIONARIES AND REASONABLENESS
In Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB) Master Thornett had to construe the terms of a consent order. It is a case that emphasises the importance of attendance notes. …
PROVING THINGS 125: THE IMPORTANCE OF KEEPING YOUR OWN EXPERT IN THE LOOP: ALSO THE IMPORTANCE OF READING AN EXPERT’S NOTES
In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert gave a lengthy judgment in a high value personal injury case. One interesting aspect of that case is the problems caused by the defendant’s expert evidence on care. An additional…
PROVING THINGS 123: THE PERSONAL INJURY CLAIMANT WHO COULD NOT SAY WHETHER OR NOT HE HAD BEEN INJURED
We looked at the case of Kavak v FMC – HHJ Pearce Manchester CC 24.04.18) in an earlier post, primarily in the context of re-allocation. However that case provides a clear illustration of a failure to prove a basic element of…
CHANGING TRACK AFTER TRIAL: CLAIM RE-ALLOCATED FROM FAST TRACK TO SMALL CLAIMS TRACK: CLAIMANT CONFINED TO SMALL CLAIM TRACK COSTS
I am grateful to Michael Cordeux from Plexus Law for sending me a copy of the decision of His Honour JudgePearce, sitting in the Manchester County Court, on the 9th April 2018. It is an example of how a case…
APPEAL ON FINDING OF FACT ALLOWED: ANOTHER SKIRMISH IN THE CREDIT HIRE WAR
I am grateful to Lee Kipling from Winns, solicitors for sending me a copy of the decision of HH Judge Gosnell in Morris -v- MCE Insurance Company Ltd.( Morris v MCE Insurance (23.07.18) (Jud) (2)). A case where the judge allowed…
PROVING THINGS 122: THE CLAIMANT MAY NOT BE DISHONEST BUT SHE IS NOT ACCURATE: A HIGH IQ IS NO GUARANTEE OF COMMONSENSE
Many cases rest on the credibility of witnesses. A detailed examination can be found in the judgment of HH Judge Saggerson (sitting as a High Court Judge) in Hibberd-Little v Carlton [2018] EWHC 1787 (QB). There are issues here in relation…
RESPONDENT CAN STILL RAISE ISSUES ON DAMAGES AFTER LIABILITY IS DETERMINED: IMPORTANT POINT ON PROTECTING AN APPLICANT AS TO COSTS
The Court of Appeal decision in Office Equipment Systems Ltd v Hughes [2018] EWCA Civ 1842 is in relation to procedure in the Employment Tribunal. However there are two points in the judgment that are of general importance to civil practitioners. …
PROVING THINGS 121: FAILING TO PROVE LOSS OF EARNINGS, AND THE APPROPRIATE APPROACH WHERE FUTURE TREATMENT IS UNCERTAIN
Yesterday I looked at Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB) and the comments from the judge in relation to the joint statement of experts. The case also contains interesting observations in relation to proving damages. These are observations on matters…
PROVING THINGS 120: PROVING DAMAGES: THE DANGERS OF NOT HAVING A CREDIBLE “FALL BACK” POSITION
In Moore & Anor v National Westminster Bank [2018] EWHC 1805 (TCC) Mr Justice Birss dismissed an appeal by the defendant against an award of £115,000 in damages. It is a case about the appropriate assessment of damages when the defendant…
A FINDING OF FUNDAMENTAL DISHONESTY: CLAIM DISMISSED – SOCIAL MEDIA AND FACEBOOK PLAY A PART…
In Pinkus v Direct Line [2018] EWHC 1671 (QB) HHJ Coe (sitting as a judge of the High Court) found a claimant to be fundamentally dishonest. It is another example of how the courts can look at social media to come…
ERRORS BY YOUR OWN EXPERT ARE NOT GOING TO LEAD TO A WIN ON APPEAL: A KNOTTY SITUATION
In Network Rail Infrastructure Ltd v Williams & Anor [2018] EWCA Civ 1514 the Court of Appeal considered a “rather obscure” argument that an error by the appellant’s expert should lead to damages being reconsidered. “It would be quite wrong…
FIFTH BIRTHDAY REVIEW 10: THE PROVING THING SERIES: SIZE DON’T SEEM TO MATTER…
This is the last in the series looking back at key series of posts on this blog over the past five years. Keen observers will note that most series last for about 10 posts. When the “Proving Thing” series started…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
PROVING THINGS 114: A WITNESS OF FACT CANNOT GIVE EXPERT EVIDENCE: NO ADMISSIBLE EVIDENCE OF ANY LOSS
There are several elements worth looking at in the judgment in Wessely & Anor (Liquidators of Laishley Ltd) v White [2018] EWHC 1499 (Ch). However it is a prime example of a simple failure to prove things. If the applicants had…
