USING WITNESS STATEMENTS PREPARED IN ANOTHER ACTION: WHEN IS A "HEARING HELD IN PUBLIC"
CPR 32.12 prevents witness statements served in an action being used for any other purpose. However there is an exception when a statement is “put in evidence at a hearing held in public”. This issue was considered in Kimathi -v- Foreign…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
SUPREME SANCTIONS IN THE SUPREME COURT: NO SECOND BITE OF THE CHERRY
The judgment of the Supreme Court in Thevarajah -v- Riordan [2015] UKSC 78 has been long anticipated since it related to the law relating to sanctions. In fact it is a decision in relation to a very narrow issues. The…
GOING ON A FISHING EXPEDITION? DON'T BANK ON AN ORDER FOR SIMILAR FACT EVIDENCE
In Claverton Holdings Ltd -v- Barclays Bank PLC [2015] EWHC 3603 (Comm) Mr Justice Phillips was highly critical of the claimant’s application for similar fact evidence. “The application has, at this point, in my judgment, become a fishing expedition, hoping…
PERSONAL INJURY LITIGANTS, LAWYERS & SOCIAL MEDIA
Social media is coming to play an increasingly important part in personal injury litigation. It is worthwhile taking a look at developments and the lawyer’s duties. There is no doubt at all that the close scrutiny of social media accounts…
LITIGATION PRIVILEGE, DECEPTION AND THE ACCIDENTAL DISCLOSURE OF PRIVILEGED DOCUMENTS
In Property Alliance Group -v- The Royal Bank of Scotland PLC [2015] EWHC 3341 (Ch) Mr Justice Birss made some important observations on the scope of litigation privilege when evidence was obtained by deceit. Significant guidance was given on the…
PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT
The judgment of the Court of Appeal in One Money Mail Ltd -v- RIA Financial Services [2015] EWCA Civ 1084 highlights a surprisingly common theme in many judgments. A party wants damages but has simply failed to adduce the evidence…
BUDGETS , PROPORTIONALITY AND DISCLOSURE: THE RELEVANT TEST APPLIED WHEN A PARTY "GOES AWRY"
The judgment of Mr Justice Coulson in The Dorchester Group Ltd -v- Kier Construction Limited [2015] EWHC 3051 (TCC) contains much of interest in relation to admissions and procedure. However there are also interesting observations in relation to the way…
DOCUMENTS WIN CASES: E-DISCLOSURE & EVIDENCE: LEEDS 20th OCTOBER 2015: SAVE THE DATE FOR YOUR DIARY
Huron Legal, in association with Zenith Chambers, are running an evening panel session on “E-Disclosure and Evidence for the 21st Century Litigator.” It features, Chris Dale from the eDisclosure Information Project, Jonathan Maas from Huron and me. It lasts for…
A FAILURE TO DISCLOSE CAN BE JUST AS TELLING AS DISCLOSURE ITSELF: EVIDENCE, INFERENCES AND THE BLUE ANGEL CASE
The decision of Mr Robin Hollington QC (Sitting as a Deputy Judge of the Chancery Division) in Davy -v- Croxen [2015] EWHC 2372 (Ch) (“The Blue Angel case”) contains some illuminating observations about the practicalities and costs of disclosure and…
RELIEF FROM SANCTIONS REFUSED FOLLOWING INADEQUATE E-DISCLOSURE:
The case of Smailes -v- McNally [2015] EWHC 1755 (Ch) has appeared in the reports before. In his judgment today His Honour Judge Pelling QC refused relief from sanctions after the claimant had failed to give adequate disclosure in compliance…
LATE APPLICATION FOR DISCLOSURE AND EXPERT EVIDENCE REFUSED: STOPPED AT THE DOCK
The judgment of His Honour Judge Stephen Davies in (sitting as a judge of the High Court) in William Clark Partnership Limited -v- Dock St PCT Limited [2015] EWHC B5 (TCC) illustrates the problems caused when applications are made late….
SOLICITOR FOUND TO HAVE DELIBERATELY MISLED THE COURT: BOREH -v- DJIBOUTI
In Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) Mr Justice Flaux made a clear and unequivocal finding that a solicitor had deliberately misled the court. This led to the setting aside of the injunction that the clients had…
IT IS NOT THAT EASY TO WITHDRAW AN ADMISSION: McWILLIAM -v- NORTON FINANCE
In McWilliam -v- Norton Finance [2015] EWCA Civ 186 the Court of Appeal made some important observations in relation to admissions and the withdrawal of admissions. THE CASE The claimant was suing the defendant for secret commissions. The defendant argued…
Y0UR OPPONENT'S WITNESS STATEMENT CANNOT BE DISCLOSED UNTIL AFTER IT IS USED AT A HEARING IN PUBLIC: A USEFUL REMINDER
The judgment of Mr Justice Warby in Barry -v- Butler [2015] EWHC 447 (QB) contains some important reminders about witness statements. The witness statements received from an opposing party cannot be disclosed generally until they are used at a hearing…
INADEQUATE WITNESS STATEMENTS LEAD TO CASE BEING STRUCK OUT AT TRIAL
We have looked at the case of Devon & Cornwall Autistic Community Trust -v- Cornwall Council before. In the first report Mr Justice Green refused an application to adjourn a trial date but gave permission to serve witness evidence late….
ANOTHER CASE WHERE INDEMNITY COSTS AWARDED – FOR PART OF THE CLAIM
There are now several posts on this blog considering the importance of an award for costs on an indemnity basis and cases where judges have considered this issue. Another example can be found in the decision of Stephen Jourdan QC…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -V- WEBINVEST IN THE COURT OF APPEAL
The case of Avonwick -v- Webinvest has been looked at before on this blog. Mr Justice David Richards held that letters asking for time to pay a debt were not covered by privilege just because they were headed “without prejudice”….
CIVIL CASE OF THE YEAR: AA -v- LBS: DAVID -v- GOLIATH?
There were only a few comments when I asked, on twitter, for recommendations for the civil case of the year. I have overlooked the obvious candidate (Denton)and gone for a case that can, and should, reinvigorate belief in the civil…
CIVIL LITIGATION: REVIEW OF 2014: PROLIXITY, SANCTIONS, CREATIVE WRITING AND MUCH MORE
It is coming to that time of the year where everyone does an annual review. We civil litigators cannot be left out. Here is an annual review for the past 12 months. If people want to make additional suggestions in…
E-DISCLOSURE & BREACH OF ORDERS: CASE STRUCK OUT: NO QUESTION: AND NO QUARTER GIVEN
In Smailes -v-McNally [2014] EWCA Civ 1296 the Court of Appeal made it clear that breach of a peremptory order in relation to disclosure will lead to grave consequences for the defaulting litigant. THE CASE This case was looked at…
SUPREME COURT JUDGMENT: SIGNATURE OF DISCLOSURE LISTS, CASE MANAGEMENT AND COMPLIANCE
The Supreme Court judgment in HRH Prince Abdulaziz Bin Mishal bin Abdulaziz Al Saud (Appellant) v Apex GlobalManagement Ltd and another (Respondents) [2014] UKSC 64 contains some important observations in relation to disclosure and case management. BACKGROUND TO THE CASE This…
WANT TO KNOW ABOUT ONEROUS PART 18 QUESTIONS; DISCLOSURE, COSTS CAPPING & BUDGETS: JUST GOOGLE IT
In Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB) Mr Justice Edis considered some interesting issues of costs management and costs capping. The short judgment is important reading in relation to the scope of Part 18 questions…
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
OVER EAGER EXPERTS JUST DO NOT HELP: THEY HINDER AND HARM THE CASES OF THOSE WHO CALL THEM
Several preliminary remarks of HH Simon Barker QC in Bacciotinni & Cook -v- Gotelle & Goldsmith [2014] EWHC 3257 Ch underline the dangers of an “over eager” expert witness making comments which undermine their own evidence and taint the case…
MITCHELL: THE CASE THAT KEEPS ON GIVING: EXPERT EVIDENCE; SIMILAR FACT EVIDENCE AND THE EDITING OF WITNESS STATEMENTS
Regular readers of this blog will need no introduction to the procedural issues that Mitchell -v- News Group Newspapers Ltd has given rise to already. Procedural issues have arisen again and were considered by Mr Justice Warby (2014 EWHC 3590…
IF YOU THINK THE WHEELS OF JUSTICE CAN GRIND SLOWLY: TRY THE EU! IMPORTANT DECISION ON DISCLOSURE, CONFIDENTIALITY, REDACTION AND THE POWER OF THE COURT TO REVIEW ITS EARLIER ORDERS
A decision by Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC was considered in the previous post. However another issue arose in the same case which is at [2014] EWHC 3513 (Ch). The application was of an…
SHOULD THE ASSESSMENT OF COSTS BE IN PUBLIC OR IN PRIVATE? WHEN IS LEGAL PROFESSIONAL PRIVILEGE WAIVED?
In Eurasian Natural Resources Ltd -v- Dechert LLP [2014] EWHC 3389 Mr Justice Roth addressed the issue of whether an assessment of solicitor and own client costs should be in private or in public. The judgment also considers important issues…
FINDINGS OF FACT AND CREDIBILITY: THE COURT OF APPEAL WILL RARELY INTERFERE
The decision of the Court of Appeal today in Exsus Travel Ltd -v- James Turner [2014] EWCA Civ 1331 reinforces the points made in earlier posts about the reluctance of the Court of Appeal to interfere with findings of fact…
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…
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…
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…
ADDUCING A SECOND EXPERT WITNESS LATE IN THE DAY: THWAYTES -v- SOTHEBYS CONSIDERED
There is a brief report on Lawtel today of a decision of Rose J in Thwaytes -v- Sothebys (16/09/2014) where permission was given for the defendant to rely on an additional expert and the application was heard six weeks before…
PROTOCOL FOR THE INSTRUCTION OF EXPERTS: THE NEW BITS
There has been much coverage of the forthcoming changes to the guidance for the instruction of experts in civil claims. There have been several additions which impose specific duties upon solicitors. SOLICITOR MUST MAKE POSITION CLEAR IF FURTHER DOCUMENTS ARE…
FAILURE TO COMPLY WITH AN ORDER FOR E-DISCLOSURE: DECISION THAT A PARTY HAD COMPLIED OVERTURNED IN THE COURT OF APPEAL
The first instance decision in Smailes -v- McNally (Re Atrium Training Service) [2013] EWHC 2882 (Ch) was looked at in detail in a previous post in October last year. It is worth noting that the Court of Appeal have overturned the…
PROPORTIONATE PENALTY FOR BREACH OF DISCLOSURE OBLIGATIONS: THE AMERICAN APPROACH: MAKE A VIDEO
One of the comments in Denton was that a “strict” construction of Mitchell led to disproportionate results. A judgment reported this week in Above the Law provides an example of how a judge can attempt to remedy continuous defaults. THE ISSUE:…
DENTON APPLIED: A (VERY) BRIEF REPORT
The Denton principles were mentioned, in passing, in the judgment of HHJ Moloney QC In NNN -v- DI [2014] EWHC B14 (QB). The defendant had been in default in serving a list of documents on the claimant. A peremptory…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
CASE MANAGEMENT AFTER DENTON: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"
Most of the articles about the Denton case focus upon the relief from sanctions and “clarification” of the principles in Mitchell. However the Court of Appeal made it clear that part of the focus of case management should be to…
MITCHELL CASE IN THE COURTS AGAIN (2): NON PARTY DISCLOSURE ISSUES
The substantive action in Mitchell goes on. A post on this blog in March considered the application for disclosure made against the police. This issue was considered again by Tugendhat J again yesterday when the judge made orders for…
HAS PROPER DISCLOSURE BEEN GIVEN? A NEW AREA OF BATTLE. GLOBAL MARINE DRILLSHIPS LIMITED –V- WILLIAM LA BELLA [2014] EWHC 1230 (Ch) CONSIDERED
In the post Mitchell world parties are anxious to demonstrate that their opponents have not complied with orders of the court and, consequently, should have their actions struck out. These arguments are likely to be particularly problematic in issues relating…
"PAPER MUST VANISH FROM THIS COURT": CANADIAN JUDGE ORDERS E-TRIAL TO PREVENT COURTS BECOMING MUSEUM PIECES
At a time when increased resources are promised to the court it is interesting to read the observations in the Canadian Courts of Brown J in the case of Broome Financial Corporation -v- Bank of Montreal 2014 ONSC 2178 (CanLII). Essentially…
RELIEF FROM SANCTIONS CONSIDERED IN THE HIGH COURT AGAIN: MCTEAR CONSIDERED IN DETAIL
The case of McTear -v- Englehard [2014] EWHC 722 (Ch) was looked at briefly in an earlier post in relation to the number of cases cited to the Court. Here we look at the substantive decision in relation to applications…
MITCHELL CASE IN THE NEWS AGAIN: THIS TIME ON NON-PARTY DISCLOSURE
Despite the costs order upheld by the Court of Appeal the Mitchell libel action continues. There is a report of a decision today by Tugendhat in relation to an application for disclosure [2014] EWHC 879 (QB). It concerned an…
SURVIVING MITCHELL 5: CAN YOU EVEN AGREE EXTENSIONS OF TIME?
The earlier post on extensions of time gained a lot of attention and numerous issues were raised at twitter. This is such a fast moving area that a case, reported yesterday, deals with some of the issues raised. I wanted…
HAVE YOU COMPLIED WITH AN ORDER FOR DISCLOSURE? THE APPROPRIATE TEST: AN OBJECT LESSON ON LITIGATION TACTICS IN A POST-MITCHELL WORLD
With relief from sanctions being notoriously hard to obtain the question of whether a party has complied with an order, particularly an unless order, is now of critical importance. In Dinsdale Moorland Services Ltd –v- Evans 2014] EWHC 2 (Ch)…
