COSTS: PHONE HACKING AND REPUTATION: PROPORTIONALITY IS NOT JUST ABOUT THE SUMS AT STAKE
In Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd [2018] EWHC B13 (Costs) Master Gordon-Saker addressed the elements of “proportionality”. “The rule does not prevent the recovery of costs in an amount greater than the…
BREACHING THE RULES, RELIEF FROM SANCTIONS, PERMISSION TO APPEAL AND THE CORRECT JUDGE TO HEAR THE APPEAL
There is much for the litigator to ponder in the Court of Appeal judgment in Broughal v Walsh Brothers Builders Ltd & Anor [2018] EWCA Civ 1610. Firstly how did the claimant come to be in a position when it breached…
COSTS & PROPORTIONALITY: ITS NOT ALL ABOUT THE MONEY: DEFENDANT’S COSTS WERE NOT DISPROPORTIONAL
Proportionality was the central issue in the judgment of Master Leonard in Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs). The Master rejected the claimant’s argument that the defendant’s costs (roughly one-third of the claimant’s costs budget) was disproportional. “In contrast to…
SHAMEFUL LETTERS, LATE DISCONTINUANCE, INDEMNITY COSTS (AND A REFUSAL TO MEDIATE HARDLY COUNTS): THE CLAIMANT WHO LOST SIGHT OF “ANY BASIC STANDARD OF DECENT & COMPASSIONATE BEHAVIOUR”
Earlier posts have looked at the issue of aggressive correspondence. Others have looked at the issues of conduct, refusal to mediate and questions relating to indemnity costs. I am grateful to David Turner QC for drawing my attention to a…
PROVING THINGS 119: WITNESSES & EXPERTS : “IN A CASE OF FAIRLY REMARKABLE REPORTS, THIS WAS THE MOST EXTRAORDINARY”
If you want to see an example of problematic witness statements, and even more problematic expert witnesses, then read the judgment of Mrs Justice Jefford DBE in Castle Trustee Ltd & Ors v Bombay Palace Restaurant Ltd [2018] EWHC 1602 (TCC). …
PROVING THINGS 118: IT SEEMS THAT EVEN THE LORD CHANCELLOR DOESN’T KNOW HOW TO PROVE THINGS: “THAT FINAL SENTENCE WAS BOTH INACCURATE AND MISLEADING”
A body charged with the delivery of legal services to some of the most vulnerable people in our society (and which, incidentally, is in charge of the justice system) should be making decisions that are logical and justifiable – you…
HOURLY RATES AND COMPLEX CASES: MASTER MAY HAVE APPLIED THE WRONG TEST BUT CAME TO THE RIGHT RESULT
In JXA v Kettering General Hospital NHS Foundation Trust [2018] EWHC 1747 (QB) Mr Justice Goss rejected an appeal in relation to hourly rates of the claimant’s solicitor in a high value clinical negligence case. THE CASE The claimant had been…
UNDERPAYMENT OF COURT FEES IS AN ABUSE OF PROCESS: HOWEVER DESPITE THIS AN ACTION WAS ISSUED WITHIN TIME & WOULD NOT BE STRUCK OUT
In the judgment today in Atha & Co Solicitors v Liddle [2018] EWHC 1751 (QB) Mr Justice Turner considered the issue of whether a failure to pay the correct fee on the issue of proceedings meant that a claim was…
ADVOCACY: THE JUDGE’S VIEW SERIES 3 PART 6: MAY IT PLEASE YOU, MADAM: STORIES THAT EVERY LITIGATOR NEEDS TO KNOW…
In the sixth in this series we a looking at “May it please you Madam” by retired District Judge Neil Hickman. This is not designed as a guide for advocates, indeed the subtitle is “A little book of legal whimsy”. …
THE “TRUE VOICE OF THE WITNESSES ARE NOTABLY LACKING FROM THEIR WITNESS STATEMENTS”: INORDINATE AMOUNT OF TIME & COSTS SPENT FOR NO GOOD REASON
In Estera Trust (Jersey) Ltd & Anor v Singh & Ors [2018] EWHC 1715 (Ch) Mr Justice Fancourt made some telling observations about the usefulness of witness statements prepared for the case. This is a common observation in relation to witness…
CASE STRUCK OUT BECAUSE WITNESS EMAILED SOLICITORS AND COUNSEL & SPOKE TO THIRD PARTIES WHILST IN THE COURSE OF GIVING EVIDENCE
NB THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 In Hughes Jarvis Limited v Searle [2018] EW Misc B6 (CC) Her Honour Judge Clarke struck out the claimant’s case…
PROVING THINGS 117: A DISHONEST POLICE OFFICER IS “MALICIOUS”: PROVING A CASE FOR MALICIOUS PROSECUTION AND MISFEASANCE IN PUBLIC OFFICE
In the judgment in Rees & Ors v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 the Court of Appeal overturned a finding that a police force was not liable for malicious prosecution and misfeasance in public office because…
“CHANGE IN THE LAW” JUSTIFIES EXTENSION OF TIME: DENTON CONSIDERED IN THE COURT OF APPEAL
The Denton principles were considered by the Court of Appeal in QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413. The fact that a subsequent judgment of the Supreme…
BRIEF FEE NOT TO BE ABATED BECAUSE OF VERY LATE SETTLEMENT: HIGH COURT DECISION TODAY
In Hugh Cartwright & Amin v Devoy-Williams & Anor [2018] EWHC 1692 (QB) Mrs Justice Nicola Davies MBE (sitting with an assessor) overturned a decision of a Master where counsel’s brief fee was reduced because the matter had settled the afternoon…
COURTESY, CONDUCT AND LITIGATION: A ROUND UP OF THE POSTS
Last week I set out the responses on Twitter about professional courtesy and conduct. This is a good opportunity to recap on the four posts on this subject. “AGGRESSIVE CORRESPONDENCE” AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED…
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…
WHEN IS A REPORT NOT A MEDICAL REPORT? RELIEF FROM SANCTIONS GRANTED WHEN CLAIMANT FAILED TO SERVE A “MEDICAL REPORT” WITH THE PARTICULARS OF CLAIM
In a judgment given today at Leeds County Court His Honour Judge Gosnell held that a claimant, seeking damages for industrial deafness, breached the rules when issuing by not serving a medical report but serving an “AMR” report. The judge,…
WHEN YOU THINK THE JUDGE HAS GIVEN INADEQUATE REASONS – BEST ASK THE TRIAL JUDGE BEFORE APPEALING
In Drury v Rafique & Anor [2018] EWHC 1527 (Ch) Mr Justice Birss gave important guidance to those thinking of appealing a judgment on the basis of inadequate reasons. It is dangerous for an appellant to appeal on this grounds without…
AGGRESSIVE INTER-SOLICITOR CORRESPONDENCE: PISTOLS AT DAWN & THE DANGERS OF TALKING ON TRAINS: LESSONS FROM TWITTER
Earlier this week I tweeted a link to earlier posts on this blog “aggressive correspondence”. The responses on Twitter make for interesting (and entertaining) reading. The legal Twitterati provide quite a few lessons here – from the art of brevity…
HOME SECRETARY REFUSED PERMISSION TO SERVE EVIDENCE LATE: THE OVERRIDING OBJECTIVE WAS USED EVEN IF DENTON DID NOT APPLY
In Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) the Secretary of State was refused permission to rely on evidence served late. The issue was decided under the Overriding Objective, rather than by reference to the…
PROVING THINGS 116: HONEST WITNESSES CAN BE WRONG: “INSIGNIFICANT EVENT” BECOMES “MAGNIFIED IN THE CLAIMANT’S MIND”
The judgment in Pauline Carter v Kingswood Learning And Leisure Group Limited [2018] EWHC 1616 (QB) shows a scenario where a claimant can be totally honest and credible, but still be wrong. “I am sure she is an honest person, but…
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…
CORONER ORDERED TO PAY COSTS: CAMDEN RESIDENTS WILL PICK UP THE BILL…
In Adath Yisroel Burial Society & Anor, R (on the application of) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (Admin) the Divisional Court held that a coroner, who was unsuccessful in defending an application for judicial review,…
FIFTH BIRTHDAY REVIEW 9: COURT FEES, FEE REMISSION AND LIMITATION STANDSTILL AGREEMENTS
This is the penultimate post looking back at key series of the past five years. I am here revisiting two aspects of the law relating to court fees. Firstly the series on mitigating the effect of the (ridiculous) increase in…
FIFTH BIRTHDAY REVIEW 8: MYTHS ABOUT LIMITATION
This was a series in 2017. Looking at common “myths” or misconceptions in relation to limitation issues, particularly in personal injury cases. MYTHUSTING 1 The limitation period for a personal injury action based on breach of contract is…
WHEN THE OTHER SIDE’S LAWYER SENDS THE COURT PRIVILEGED DOCUMENTS: THE DILEMMA OF THE PARALEGAL “WHISTLE BLOWER”
Several people have pointed out the judgment in Bruzas v Saxton [2018] EWHC 1619 (Fam) to me. This is a case that could have profound effects for the profession and the principles of legal professional privilege. This is the preliminary…
FIFTH BIRTHDAY REVIEW 7: THE “BACK TO BASICS” SERIES
I am looking back at the posts that have been part of a series over the past five years. The “Back to Basics” posts are part of a series that is very much ongoing. The aim of each post is…
MORE ABOUT WITNESS STATEMENTS AND THE ICI CASE: WHEN EVIDENCE IS NOT ADMISSIBLE AND (WHEN IT IS) IT IS NOT RELIABLE
We are looking again at aspects of the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC).The previous post in this case looked at the “duplicate” witness statements of the defendant. Here…
FIFTH BIRTHDAY REVIEW 6: PROPORTIONALITY: THE POSTS AND 12 PRACTICAL STEPS
The series “Proportionality & Survival for Litigators” started in December 2014. At the outset I said it could be a long-running and difficult series – it is definitely still ongoing. It remains the case that little written is on proportionality, …
PART 36: COURT OF APPEAL SETS ASIDE ORDER THAT CLAIMANT SHOULD PAY COSTS FROM EARLIER DATE FOLLOWING LATE ACCEPTANCE OF AN OFFER
In the decision today in Tuson v Murphy [2018] EWCA Civ 1461 the Court of Appeal allowed an appeal against an order that a claimant accepting a Part 36 offer late should pay costs from a much earlier date than that…
FIFTH BIRTHDAY REVIEW 5: THE JUDGE’S GUIDE TO ADVOCACY SERIES: TWO AND A HALF DONE
There are two completed series on judge’s guide to advocacy – and we are part way through the third. There is still plenty of material available and I wouldn’t be surprised if there is a fourth series. Advice has been…
WHEN LESSONS ARE NOT LEARNT: “IDENTICAL WITNESS STATEMENTS” : COPY AND PASTE FUNCTION OF A WORD PROCESSOR WILL NOT IMPRESS A JUDGE
It is worth looking in more detail at the the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). In particular on witness statements. The judgment sets out some important lessons (it…
5th BIRTHDAY REVIEW 4: AVOIDING PROBLEMS AFTER MITCHELL: LIVING IN THE SHADOW OF THE BIKE
It is universally recognised that the Court of Appeal judgment in Mitchell was a mistake. The Master of the Rolls stated that the decision in Mitchell decision led to a “febrile atmosphere” leading to “unreasonable decision making”. There were 219…
THE SECRET BARRISTER T-SHIRTS: AN UPDATE -SIGNED, IRONED AND DELIVERED: FIND OUT THE TRUE IDENTITY OF THE SECRET BARRISTER…
An update on the Secret Barrister T-shirt saga. As part of the prize for the Secret Barrister T-shirt auction the shirt (which became “shirts” due to my inadvertence – read the story here) were to be ironed by a silk. …
5th BIRTHDAY REVIEW 3: AVOIDING NEGLIGENCE CLAIMS
This is the third post that looks back at series of posts over the past five years. The series on avoiding negligence claims was written at the end of 2013. The emphasis was on avoiding negligence claims, particularly for personal injury…
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…
THE ASSESSMENT OF COSTS: LIABILITY FOR COSTS LAWYER’S ACTS: THE COURT OF APPEAL DECISION IN GEMPRIDE -v- BAMRAH
Yesterday I gave a short summary of the decision in Gempride Ltd v Bamrah & Anor [2018] EWCA Civ 1367. This is a case worth looking at in detail. The substantive case settled for £50,000 shortly after issue. The question of…
5th BIRTHDAY REVIEW 2: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL: 10 POSTS THAT STARTED ON A TRAIN STATION
I am continuing looking back at series on this blog over the past five years. A series of posts in early 2017 was probably the most “collaborative” work on this blog. Dozens of people participated in giving advice to law…
MISCONDUCT ON ASSESSMENT LEADS TO COSTS BEING HALVED: IMPORTANT DECISION ON SOLICITOR’S DUTIES & DELEGATION OF ASSESSMENT PROCESS
I am grateful to Dominic Regan* for sending me a copy of the Court of Appeal decision today in Gempride Ltd -v Bamrhah [2018] EWCA Civ 1367. A case that concerns misconduct on assessment. (This is a preliminary post on…
CIVIL LITIGATION BRIEF FIFTH BIRTHDAY CELEBRATIONS 1: POSTS ABOUT STRESS AND WORKLOAD FOR LITIGATORS AND LITIGANTS
This week sees the 5th anniversary of the start of Civil Litigation Brief as a blog. I am marking this by going over some of the key series of posts over the five year period. Here I recap on those…
LATE APPLICATION TO AMEND DEFENCE RIGHTFULLY REFUSED: LATE APPLICATION TO AMEND NOTICE OF APPEAL ALSO GOT THE BARNSLEY CHOP
In First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 the Court of Appeal upheld a decision by the trial judge to refuse a late amendment to the defence. An application to amend the Notice…
PROVING THINGS 115: WHEN HANDWRITTEN NOTES OF MEETINGS VARY FROM THE TYPED VERSION (AND THERE IS MORE…)
For the second time in recent weeks I am looking at how a judge assesses evidence in a family case. Again this shows issues of general importance and relevance in the relation of those responsible for gathering evidence in the…
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…
CFA IS STILL VALID EVEN IF IT NAMES THE WRONG DEFENDANT: COURT OF APPEAL DECISION
In Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376 the Court of Appeal held that a Conditional Fee Agreement was valid even though it named the wrong defendant. The judgment contains important observations on how conditional fee agreements should…
PROVING THINGS 113: POOR EVIDENCE COLLECTION: EXPERTS STRAYING WELL BEYOND THEIR REMIT AND WHO ARE “NOT ENTITLED TO REACH THAT CONCLUSION”
Family cases, however, often come up with interesting observations in relation to the judge’s role as a fact finder. Similarly much can be gained by looking at the judge’s observations on experts. We see a critique of the process of…
THE LIMITS OF DECLARATORY RELIEF: THE DANGERS OF APPLYING FOR IT: CLAIMANT’S ARGUMENTS (AND PLEADINGS) FAIL TO RAISE THE ROOF
I am grateful to my colleague John de Waal QC at Hardwicke for bringing my attention to the judgment of Mrs Justice O’Farrell in Office Depot International (UK) Ltd v UBS Asset Management (UK) Ltd & Ors [2018] EWHC 1494 (TCC). It…
ORDER FOR COSTS TO BE ASSESSED DOES NOT OUST FIXED COSTS: CIRCUIT JUDGE DECISION
I am grateful to Matthew Hoe of Taylor-Rose for sending me a copy of the decision of His Honour Judge Yelton in Bratek -v-Clark-Drain Limited (County Court at Cambridge 30th April 2018). A copy is available here Bratek v Clark-Drain Ltd…
WITNESS DEMEANOUR: NOT THAT IMPORTANT (INDEED PROBABLY UNIMPORTANT): COURT OF APPEAL DECISION
I am grateful to Laurie Anstis for drawing my attention to the decision of the Court of Appeal decision in SS (Sri Lanka), R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 1391….
INSURANCE COMPANY ENTITLED TO EXEMPLARY DAMAGES AGAINST FRAUDSTERS: COURT OF APPEAL DECISION TODAY
In Axa Insurance UK Plc v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330 the Court of Appeal held that an insurance company was entitled to exemplary damages against parties who had attempted to defraud it. “the present case…
AVOIDING THE TERMS OF A CONSENT ORDER: A CASE THAT HAS A LOT OF LESSONS FOR SOLICITORS: WHY A CONSENT ORDER MAY NOT BE WORTH THE PAPER ITS WRITTEN ON
The judgment in Riordan & Ors v Moon Beevor Solicitors (a firm) [2018] EWHC 1452 (QB) gives an interesting insight into the fallout from litigation – where the disgruntled client blames the solicitors. There are important lessons here about the drafting…
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