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…
THE NATURE OF EXPERT EVIDENCE: THIS IS NOT EXPERT EVIDENCE AT ALL – AND OF NO HELP TO ME: JUDGE NOT IMPRESSED BY “ATTACHMENT THEORY”
It is rare for the court to reject “expert” evidence placed before it on the grounds that it is not expert evidence at all. This is rarer still now that permission is normally required before expert evidence can be adduced. It…
COURT HAS A DISCRETION AS TO COSTS TO AWARD WHEN CLAIMANTS UNREASONABLY EXIT THE PORTAL: CPR 36.20 IS NOT DECISIVE
I am grateful to solicitor Matthew Hoe of Taylor Rose TTKW for sending me a copy of the transcript in Ansell & Evans -v- A.T & T (GB) Holdings Ltd (County Court at Oxford 14/12/2017 HHJ Clarke). A copy is…
PROVING THINGS 112: ITS NO USE JUST WAVING ACCOUNTANT’S REPORTS AROUND
In Berkshire Homes (Northern) Ltd v Newbury Venture Capital Ltd [2018] EWHC 938 (Ch) the respondent relied on accountant’s reports in an attempt to prove its case. The case shows that it is insufficient just to produce accounts. Evidence has to…
THE DANGER (FOR CLAIMANTS) OF LEAVING PART 36 OFFERS OPEN: CLAIM £125,000, GET £950
It is worthwhile for every litigator (and insurer) to take a quick read of the report on Hogg -v- Newton (Teeside County Court 18th May 2018) which is reported on DAC Beachroft’s website.* It shows the importance, to a claimant…
APPLICATION TO ADDUCE NEW EVIDENCE: COURT OF APPEAL WOULD NOT BE MOVED
In The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302 the Court of Appeal refused the appellant’s application to adduce new evidence. It is a a case that highlights the difficulties of…
APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE
A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique. This was emphasised in the judgment of Miss Penelpe Reed QC in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018]…
GREAT EDSTONE FESTIVAL 2018: THIS WILL BE THE LAST TIME : RAISING MONEY FOR THE MS SOCIETY (THERE IS A LEGAL LINK)
June the 16th 2018 sees the last ever Great Edstone Festival. A festival that has raised thousands of pounds for the MS Society and also had the support of many members of the legal profession. This is your last chance…
JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION
In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
DEFENDANT NOT ENTITLED TO INDEMNITY COSTS IF PART 36 OFFER NOT BEATEN: SUCCESS ON COSTS APPEAL HAS MINUSCULE IMPACT ON OVERALL COSTS OF APPEAL
In Shalaby v London North West Healthcare NHS Trust [2018] EWCA Civ 1323 the Court of Appeal upheld the principle that a defendant is not entitled to indemnity costs simply because a claimant has not beaten a Part 36 offer. It…
PROVING THINGS 111: CAUSATION IN CLINICAL NEGLIGENCE CASES WHERE THERE IS A FAILURE TO WARN: BURDEN OF PROOF REMAINS ON THE CLAIMANT
The judgment of the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 deals with a number of matters. Here I want to look at the question of proving causation in a case where the…
RISK ASSESSMENTS AND THE PERSONAL INJURY LAWYER: IF YOU COULDN’T MAKE THE LECTURE – SEE THE WEBINAR: 10th JULY 2018
I am giving a webinar on the 10th July 2018 at 1.00 pm “Risk Assessments and Personal injury Claims : A Blueprint for action”. “Risk assessments are meant to be an exercise by which the employer examines and…
PROVING THINGS 110: ASSESSING DAMAGES: “BEGIN WITH FIRST PRINCIPLES”: PROVING AND ASSESSING LOSS IN A CLAIM FOR PROFESSIONAL NEGLIGENCE
In Edwards v Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299 the Court of Appeal overturned a finding that the claimant had not established causation for damages in a professional negligence action. When assessing damages the court should begin…
STAGE 3 ISSUE FEES: COURT REPAYS OVERPAID FEES: GOOD NEWS FROM LIVERPOOL
In January this year I blogged about correspondence I had received from Jon Heath, a solicitor at Levins, in Liverpool about the courts overcharging on Stage 3 issue fees. Yesterday I received an email from Jon telling me that the…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
NB THIS DECISION WAS OVERTURNED ON APPEAL SEE THE REPORT HERE In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a…
TRANSFER FROM COUNTY COURT TO HIGH COURT: YOU CAN ASK FOR THIS ONLY ONCE: A DISCRETION TO BE EXERCISED “WITH GREAT CIRCUMSPECTION”
In Bass v Ministry of Defence [2018] EWHC 1297 (QB) Master Davison held it was an abuse of process for a party to make an application to transfer to the High Court when a similar application had been made, and refused,…
ADVOCACY – THE JUDGE’S VIEW SERIES 3 PART 5: LAW AND THE WHIRLIGIG OF TIME: LEARNING TO LOSE A CASE WELL
It is difficult to review a book like Stephen Sedley’s Law and the Whirligig of Time. A wide ranging series of essays that covers everything from the “role of the judge ” to Bob Dylan and Under Milk Wood. It…
FATAL ACCIDENTS COURSES: MANCHESTER AND LONDON NOVEMBER 2018
In November this year I will, along with solicitor, Hilary Wetherell, be giving two day-long courses organised by APIL “Fatal Accidents, Practice, Procedure and Compassion” Manchester on 21/11/2018 London 28/11/2018 Booking details are available here. Details from the APIL…
PROVING THINGS 108: PROVING PROFESSIONAL NEGLIGENCE WITHOUT EXPERT EVIDENCE
In Avondale Exhibitions Ltd v Arthur J. Gallagher Insurance Brokers Ltd [2018] EWHC 1311 (QB) His Honour Judge Keyser QC (sitting as a Judge of the High Court) considered the issue of whether it was necessary to adduce expert evidence to…
FUNDAMENTAL DISHONESTY ALLEGATION SHOULD HAVE GONE TO A HEARING: HIGH COURT DECISION: NO REQUIREMENT FOR EXCEPTIONAL CIRCUMSTANCES
In Alpha Insurance A/S v Roche & Anor [2018] EWHC 1342 (QB) Mrs Justice Yip found that the circuit judge should have allowed a claim of fundamental dishonesty to be heard. She allowed an appeal and held that the court should…
APPLICATION FOR SPLIT TRIAL FAILS TO FLOAT THE MASTER’S BOAT
The judgment in Howard & Ors v Chelsea Yacht And Boat Company Ltd & Anor [2018] EWHC 1118 (Ch) provides a useful “cut out and keep” summary of the principles relating to applications for a split trial. “questions of case…
COURT OF APPEAL STATES THAT NO ORDER FOR COSTS IS THE APPROPRIATE ORDER: “THIS IS A MELANCHOLY TALE”
In Sirketi v Kupeli & Ors [2018] EWCA Civ 1264 the Court of Appeal overturned an order for costs in favour of the claimants with an order for no costs. It was, as Lord Justice Hickinbottom observed “a melancholy tale”. The…
PROVING THINGS 107: PROVING A “STAGED CRASH” TO THE CRIMINAL STANDARD: CCTV EVIDENCE PROVIDES CONVINCING EVIDENCE
In Aviva Insurance Ltd v Nazir & Anor [2018] EWHC 1296 (QB) His Honour Judge Gosnell (sitting as a Deputy High Court Judge) found the two defendants in contempt of court when they had taken part in a staged crash and…
THE IMPORTANCE DIFFERENCE BETWEEN PROSPECTIVE AND RETROSPECTIVE APPLICATIONS TO EXTEND TIME: THE IMPORTANCE OF THE DATE OF THE APPLICATION
This post is caused by a search term that arrived on this blog today “Is an application for an extension of time an application for relief from sanctions?”. The short answer to that is – it depends. An application made after…
QOCS: WHAT IS A CLAIM FOR “DAMAGES FOR PERSONAL INJURIES”? JUDGMENT HERE – APPEAL PENDING
NB THIS JUDGMENT WAS OVERTURNED ON APPEAL. SEE THE POST HERE. I am grateful to barrister Claire Darwin for sending me a copy of the judgment of His Honour Judge Luba in Brown -v- The Commissioner of Police for the…
WITNESS STATEMENTS AND COST BUDGETS: “THEY WILL HAVE BECOME AN ARTIFICIAL CONSTRUCT OF THE LAWYERS”
There are some interesting observations in the judgment of Chief Master Marsh in Various Claimants v MGN Ltd [2018] EWHC 1244 (Ch). The way in which a witness statement is likely to be drafted can be considered at the cost budget…
“NOTHING SHORT OF A RECOGNISED PSYCHIATRIC INJURY CAN AMOUNT TO A PERSONAL INJURY”: SECTION 33 CANNOT APPLY WHERE THE CLAIMANTS SUFFERED “FEAR”
The judgment of Mr Justice Stewart in Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) (24 May 2018) considers the question of what is an “injury” for the purpose of Section 33 of the Limitation Act…
PROVING THINGS 106: YOU DIDN’T COMPLY WITH YOUR OWN RISK ASSESSMENT AND YOU WANT TO APPEAL: COURT REJECTS DEFENDANT’S ARGUMENT THAT CLAIMANT FAILED TO PROVE CAUSATION
In CC v Leeds City Council [2018] EWHC 1312 (QB) Mr Justice Turner reiterates the importance of the risk assessment in personal injury litigation. On appeal the judge rejected an argument that a claimant had failed to prove causation. The defendant’s…
PROVING THINGS 105: BURDEN ON CLAIMANT TO PROVE A DEFECT: THE DIFFICULT TASK OF APPEALING FINDINGS OF FACT ON APPEAL
I am grateful to Matthew Snarr for sending me a copy of the judgment, given yesterday, in Bond -v- Tom Croft (Bolton) Ltd [2018] EWHC 1290 QB. It contains an important observation about the burden of proof in establishing that…
“AVOIDING PAROCHIALISM”: TRANSFER BETWEEN DIVISIONS – NO EVIDENCE ONE DIVISION IS BETTER THAN ANOTHER
In Mezvinsky & Anor v Associated Newspapers Ltd [2018] EWHC 1261 (Ch) Chief Master Marsh refused an application to transfer from the Business and Property Courts to the Media and Communications List. “the court hearing an application for transfer must be…
FINDINGS OF FUNDAMENTAL DISHONESTY SHOULD HAVE BEEN MADE BY TRIAL JUDGE: DEFENDANT’S APPEAL ALLOWED
The previous post dealt with a judgment of Mr Justice Martin Spencer overturning a judgment in favour of the claimant. The judgment in Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB) is in similar terms. Only on…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
PROVING THINGS 104: “THERE IS NO EVIDENCE BEFORE ME AS TO HOW THE PLAINTIFF WOULD PROVE THE EXISTENCE OF A GHOST”
I don’t normally travel too far from England and Wales in the Proving Things series. However a kind reader sent me an article on the Canadian decision in Ont. Inc. v K-W Labour Association et al, 2013 ONSC 5401 (CanLII). It…
COURT FEES AND STRIKING OUT: CROSS -v- BLACK BULL: PERMISSION TO APPEAL REFUSED
In January this year I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) 072 – Cross v Black Bull – Judgment.Where HH Judge Robinson allowed an appeal where the District Judge had struck out a case…
PROVING THINGS 103: CAUSATION WHEN THE CLAIMANT TRIED TO ESCAPE FROM A BALCONY: A TALE OF TWO JUDGMENTS
There is an interesting consideration of causation in the Court of Appeal judgment today in Clay v TUI UK Ltd [2018] EWCA Civ 1177. This has the flavour of a case that may go further. There is an interesting dissenting judgment…
PROVING THINGS 1O2: FAILING TO PROVE CHANCE OF RECONCILIATION
A claimant in a fatal accident claim does not have to prove an entitlement to a dependency claim on the balance of probabilities. The court can, in appropriate cases, look at the case on the basis of loss of chance,…
PROVING THINGS 101:A RECAP – THE FIRST 100 POSTS : WHEN BASIC MATTERS ARE JUST NOT PROVEN
When I started this series I never anticipated it would run to 100 posts. Up until last week I had planned to stop after 100. However the Leeds Legal Walk served, inadvertently, as a feedback session for this blog. Since…
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