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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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MAKING AN APPLICATION FOR PRE-ACTION DISCLOSURE, AFTER THE ACTION IS STARTED: THE CLAIMANTS HAVE FIVE PROBLEMS

MAKING AN APPLICATION FOR PRE-ACTION DISCLOSURE, AFTER THE ACTION IS STARTED: THE CLAIMANTS HAVE FIVE PROBLEMS

June 6, 2022 · by gexall · in Applications, Disclosure

The judgment of Senior Master Fontaine in Hart & Ors v Royal Borough of Kensington And Chelsea & Ors [2022] EWHC 1090 (QB) highlights the need for applications for disclosure to be made with some considerable focus.  The court cannot…

INFERENCES TO BE DRAWN WHEN A PARTY DOES NOT FILE EVIDENCE AND THERE ARE ISSUES WITH DISCLOSURE: A WORKING EXAMPLE

INFERENCES TO BE DRAWN WHEN A PARTY DOES NOT FILE EVIDENCE AND THERE ARE ISSUES WITH DISCLOSURE: A WORKING EXAMPLE

May 16, 2022 · by gexall · in Applications, Civil evidence, Disclosure, Witness statements

In Sinha v Taylor & Ors [2022] EWHC 1096 (Comm) Mr Simon Colton QC considered the inferences to be drawn when the defendants had not filed witness evidence and there was issues in relation to disclosure.   THE CASE The…

POTENTIAL CLAIMANT IN CREDIT HIRE CASE MUST GIVE PRE-ACTION DISCLOSURE OF DOCUMENTS RELEVANT TO IMPECUNIOSITY

POTENTIAL CLAIMANT IN CREDIT HIRE CASE MUST GIVE PRE-ACTION DISCLOSURE OF DOCUMENTS RELEVANT TO IMPECUNIOSITY

March 17, 2022 · by gexall · in Applications, Disclosure

I am grateful to Garry Herring of Keoghs solicitors for sending me a copy of the judgment of HHJ Harrison in Allianz Insurance PLC -v- Holt (3rd December 2021). It is an example of the court exercising its discretion to…

WHEN A DEFENDANT FAILS TO PRESERVE DATA ON SURVILLANCE EVIDENCE IT IS IN BREACH AND THE COURT REQUIRES AN EXPLANATION

WHEN A DEFENDANT FAILS TO PRESERVE DATA ON SURVILLANCE EVIDENCE IT IS IN BREACH AND THE COURT REQUIRES AN EXPLANATION

March 6, 2022 · by gexall · in Civil evidence, Civil Procedure, Disclosure

An earlier post looked at the judgment of HHJ Walden-Smith in Stannard -v- Euro Garages Ltd [2022] EW Misc 3 (CC). There is another aspect of that judgment which is of interest.  The defendant were relying on surveillance evidence.  However the…

LITIGATION PRIVILEGE: WHEN DOES IT START? HOW DOES THE COURT DEAL WITH ISSUES ARISING? A HIGH COURT CASE

LITIGATION PRIVILEGE: WHEN DOES IT START? HOW DOES THE COURT DEAL WITH ISSUES ARISING? A HIGH COURT CASE

February 23, 2022 · by gexall · in Civil evidence, Disclosure

It is difficult to envisage a more apposite tribunal than Charles Hollander QC when matters relating to documentary evidence are in issue.  This makes the reading of the decision in Kyla Shipping Co Ltd & Anor v Freight Trading Ltd…

WHEN WECHAT MESSAGES ARE LOST OR DESTROYED - BY A TWO YEAR OLD: THE ADVERSE INFERENCES A COURT CAN DRAW

WHEN WECHAT MESSAGES ARE LOST OR DESTROYED – BY A TWO YEAR OLD: THE ADVERSE INFERENCES A COURT CAN DRAW

February 16, 2022 · by gexall · in Conduct, Disclosure

In ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm) Mr Justice Calver considered a case where Wechat messages had been “lost”. The judge concluded that the “loss” was deliberate and…

OH WHY ED SHEERAN CAN'T USE A STAND IN:  DISCLOSURE AND THE DUTY TO SEARCH: THE SHAPE OF THINGS

OH WHY ED SHEERAN CAN’T USE A STAND IN: DISCLOSURE AND THE DUTY TO SEARCH: THE SHAPE OF THINGS

February 8, 2022 · by gexall · in Case Management, Civil evidence, Civil Procedure, Disclosure

In Sheeran & Ors v Chokri & Ors [2021] EWHC 3553 (Ch) Mr Justice Meade set out some of the duties owed by a litigant in relation to the disclosure process. “… Mr Sheeran’s manager undertook the disclosure exercise on…

JUDGES REFUSES TO GRANT RELIEF FROM SANCTIONS FOR DEFENDANTS WHO HAD "BURIED THEIR HEADS IN THE SAND"

JUDGES REFUSES TO GRANT RELIEF FROM SANCTIONS FOR DEFENDANTS WHO HAD “BURIED THEIR HEADS IN THE SAND”

January 13, 2022 · by gexall · in Disclosure, Relief from sanctions

In Vitrition UK Ltd v Caine & Ors [2022] EWHC 51 (Comm) HHJ Davis-White QC, sitting as a judge of the High Court, refused the defendants application for relief from sanctions following their failure to comply with an unless order…

SOCIAL MEDIA AND DISCLOSURE:  A REMINDER OF THE SOLICITOR'S DUTIES

SOCIAL MEDIA AND DISCLOSURE: A REMINDER OF THE SOLICITOR’S DUTIES

December 3, 2021 · by gexall · in Applications, Clinical Negligence, Disclosure

The short judgment of Mr Justice Martin Spencer in Lock v Ravi-Shankar [2021] EWHC 3247 (QB) highlights a number of important issues in relation to the solicitor’s duty, disclosure and social media in particular. “It is necessary for solicitors to…

THE SOLICITOR, SOCIAL MEDIA AND THE DUTY TO DISCLOSE: WHEN A SOLICITOR ADVISES THAT DOCUMENTS BE DELETED OR HIDDEN...

THE SOLICITOR, SOCIAL MEDIA AND THE DUTY TO DISCLOSE: WHEN A SOLICITOR ADVISES THAT DOCUMENTS BE DELETED OR HIDDEN…

November 14, 2021 · by gexall · in Conduct, Disclosure, Wasted Costs, Webinar

There is an interesting/alarming report of an (unnamed) case on Kennedy’s website here, as part of a general discussion about wasted costs.  Discussing issues relating to fundamental dishonesty there is an account of a recent case where a claim had…

WHEN THE DEFENDANT DESTROYS DOCUMENTS AFTER BEING NOTIFIED OF A CLAIM: A "BOMBSHELL" FOLLOWED BY "RADIO SILENCE": HIGH COURT DECISION

WHEN THE DEFENDANT DESTROYS DOCUMENTS AFTER BEING NOTIFIED OF A CLAIM: A “BOMBSHELL” FOLLOWED BY “RADIO SILENCE”: HIGH COURT DECISION

November 4, 2021 · by gexall · in Civil evidence, Disclosure

I am grateful to solicitor Thomas Jervis from Leigh Day for bringing my attention to the judgment of Mr Justice Martin Spencer in Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB).  The judge was considering the…

DISCLOSURE AND DOCUMENTARY EVIDENCE:  WEBINAR 19th NOVEMBER 2021

DISCLOSURE AND DOCUMENTARY EVIDENCE: WEBINAR 19th NOVEMBER 2021

November 3, 2021 · by gexall · in Disclosure, Webinar

There are many cases on disclosure on this blog. Almost invariably these involve something going wrong. For example in Haider v DSM Demolition Ltd [2019] EWHC 2712 (QB) the court, on appeal, found that a claimant had been fundamentally honest…

PRE-ACTION DISCLOSURE CANNOT BE A FISHING EXPEDITION: A JUDGE WILL NOT DO THE PRUNING FOR AN APPLICANT

PRE-ACTION DISCLOSURE CANNOT BE A FISHING EXPEDITION: A JUDGE WILL NOT DO THE PRUNING FOR AN APPLICANT

September 28, 2021 · by gexall · in Applications, Disclosure

The judgment of Deputy Master Brightwell in Willow Sports Ltd v Sportslocker24.com Ltd & Anor [2021] EWHC 2524 (Ch) is a reminder of how difficult it can be to obtain pre-action disclosure, particularly in commercial cases. It is also a…

WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL

WHEN A BARRISTER IS CALLED TO GIVE EVIDENCE AS TO WHAT HAPPENED AT (OR OUTSIDE) COURT: PRIVILEGE IN DRAFT WITNESS STATEMENT WAIVED AS A RESULT OF IT BEING SHOWN TO COUNSEL

September 21, 2021 · by gexall · in Civil evidence, Disclosure, Witness statements

In Axnoller Events Ltd v Brake & Anor (cross-examination on a draft witness statement) [2021] EWHC 2539 (Ch) HHJ Paul Matthews considered the unusual circumstances whereby a barrister gave evidence, and was cross-examined, on what happened at (or outside) a…

SERIES OF WEBINARS ON CIVIL EVIDENCE: COMING TO YOUR SCREENS SOON

SERIES OF WEBINARS ON CIVIL EVIDENCE: COMING TO YOUR SCREENS SOON

September 15, 2021 · by gexall · in Civil evidence, Disclosure, Expert evidence, Webinar

Now that the nights are drawing in people’s thoughts will, almost invariably, be drawn towards matters of civil evidence and the need to prove things. To cater for this I am presenting six webinars , covering key aspects of civil…

PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY'LL TAKE A MILE

PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY’LL TAKE A MILE

August 11, 2021 · by gexall · in Civil evidence, Disclosure

An interesting issue as to proof and evidence arose in the decision of Mr Justice Zacaroli in Smith v Dryden & Ors [2021] EWHC 2277 (IPEC).  The claimant failed to establish that a song had been “copied”.  There are also…

IF YOU HAVE GOT ISSUES WITH DISCLOSURE YOU SHOULD HAVE SORTED THESE OUT WELL BEFORE TRIAL: HIGH COURT JUDGMENT

IF YOU HAVE GOT ISSUES WITH DISCLOSURE YOU SHOULD HAVE SORTED THESE OUT WELL BEFORE TRIAL: HIGH COURT JUDGMENT

June 24, 2021 · by gexall · in Civil evidence, Civil Procedure, Disclosure, Fatal Accidents

The judgment of Mr Justice Martin Spencer in Chouza v Martins & Ors [2021] EWHC 1669 (QB) contains much of interest and importance to anyone involved in fatal accident litigation. Indeed I will be writing a series of posts on…

CLAIMANT SUCCESSFUL ON APPEAL IN APPLICATION FOR NON-PARTY DISCLOSURE: THEY "SHOULD NOT HAVE HAD TO MAKE THE DISCLOSURE APPLICATION IN THE FIRST PLACE"

CLAIMANT SUCCESSFUL ON APPEAL IN APPLICATION FOR NON-PARTY DISCLOSURE: THEY “SHOULD NOT HAVE HAD TO MAKE THE DISCLOSURE APPLICATION IN THE FIRST PLACE”

May 20, 2021 · by gexall · in Appeals, Disclosure, Fatal Accidents

In Sparkes v London Pension Funds Authority & Anor [2021] EWHC 1265 (QB) Mr Justice Murray allowed an appeal and made an order for non-party disclosure in favour of a claimant.  There are few appellate decisions in relation to non-party…

JOURNALIST ALLOWED TO VIEW DOCUMENTS REFERRED TO IN COURT JUDGMENT SIX YEARS AGO: CPR 5.4C CONSIDERED

JOURNALIST ALLOWED TO VIEW DOCUMENTS REFERRED TO IN COURT JUDGMENT SIX YEARS AGO: CPR 5.4C CONSIDERED

May 11, 2021 · by gexall · in Civil evidence, Civil Procedure, Disclosure

In Goodley v The Hut Group Ltd [2021] EWHC 1193 (Comm) Mr Justice Calver allowed a journalist’s application for sight of documents referred to in open court. The judgment contains some important observations in relation to CPR 5.4C.   THE…

THE DISCLOSURE PILOT SCHEME AND COSTS BUDGETING: YOU CAN AGREE TO DEFER BUDGETING OF THE DISCLOSURE PHASE

THE DISCLOSURE PILOT SCHEME AND COSTS BUDGETING: YOU CAN AGREE TO DEFER BUDGETING OF THE DISCLOSURE PHASE

May 10, 2021 · by gexall · in Civil Procedure, Disclosure, Webinar

In  Persimmon Homes Ltd & Anor v Osborne Clark LLP & Anor [2021] EWHC 831 (Ch) Master Kaye pointed out that the Disclosure Pilot for the Business and Property Courts allows the parties to agreed to defer budgeting of the…

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