PROVING THINGS 87: FAILURE TO PROVE BASIC ELEMENTS MEANT THAT THE FULL PREMIUM WAS NOT RECOVERED
I am grateful to Dominic Regan for sending me a copy of the judgment of District Judge Baldwin in Nicolaou -v- Cass (Liverpool CC 1st November 2017). The claimant failed to recover a substantial figure for a stage 2 premium…
SETTING ASIDE A DEFAULT JUDGMENT IN RELATION TO SOLICITORS’ COSTS: INTEREST SET ASIDE, PRINCIPAL SUM REMAINS A DEBT
In RS v LS & LMP [2018] EWHC 449 (Fam) Mrs Justice Roberts considered an application to set aside a default judgment obtained in relation to a solicitor’s costs. There are issues in relation to a failure to serve the response…
COURT OF APPEAL UPHOLDS REFUSAL OF EXTENSION OF TIME IN FOREIGN JUDGMENTS CASE: JUDGMENT TODAY
A post in 2015 looked at the decision in In Christofi -v- National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB) Mrs Justice Andrews DBE held that there were very limited grounds for extending time in an appeal against the registration of…
WITHOUT PREJUDICE COMMUNICATIONS & WAIVING PRIVILEGE IN A WITNESS STATEMENT: TAXING MATTERS
A post earlier this week looked at the issue of privilege and the third edition of the standard work on the topic. It is worthwhile looking at the decision in Conegate Ltd v Revenue & Customs (CAPITAL GAINS TAX – purchase…
STRESS, LITIGATION AND LAWYERS: USEFUL LINKS AND GUIDANCE
I have blogged on stress and the litigation process several times. This is because there are close links to the work I do on relief from sanctions. Being involved in a case where there is default inevitably causes stress. Further…
LITIGATORS – MISSED A DEADLINE? DON’T DIG BIGGER HOLES FOR YOURSELF: DIG YOURSELF OUT (WITH A LITTLE HELP FROM YOUR FRIENDS)
The decision in Wingate & Anor v The Solicitors Regulation Authority [2018] EWCA Civ 366 may well be Jackson L.J’s last judgment (certainly as a full time judge). It concerned the conduct of solicitors. I want to look at one aspect…
SIR RUPERT JACKSON ON THE DAY OF HIS RETIREMENT: A REVIEW OF SOME JUDGMENTS ON PROCEDURE
It is well known that Sir Rupert Jackson retires on the 7th March. There are several reviews of the work Sir Rupert has done in re-shaping civil procedure. Here I want to look at a few of his judgments that…
A PRIVILEGE TO READ : THE LAW OF PRIVILEGE 3rd EDITION: COUPLED WITH SOME RECENT EXAMPLES – TO SHOW WHY YOU NEED IT
The Law of Privilege is now in its third edition. I have been reading through it and planning a review for some time. I came across the decision, on BAILLI today in Fleming v East of England Ambulance Service NHS Trust…
“MISSING WITNESSES”- THE INFERENCES TO BE DRAWN: THE USE OF YOUR OPPONENT’S WITNESS STATEMENTS – ITS ALL OR NOTHING
In Property Alliance Group Ltd v The Royal Bank of Scotland Plc [2018] EWCA Civ 355 the Court of Appeal considered, amongst other things, two issues relating to witness evidence. Firstly in relation to the inferences a court should draw from missing…
COSTS ON APPEAL – TWO ISSUES: COSTS AWARDED WHERE THERE WAS NO SCHEDULE BELOW: INDEMNITY COSTS WHEN A PARTY HAD MADE AN OFFER TO COMPROMISE AN APPEAL
An earlier post dealt with the substantive decision in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017). A short supplementary judgment dealt with two issues as to costs. KEY POINTS The fact that a party did not have a…
THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
This blog has covered numerous cases relating to Section 33 of the Limitation Act 1980. It is worthwhile considering what causes a lawyer to miss a basic three year limitation period. In In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the…
WITNESS CREDIBILITY 3: A JUDGMENT FROM TODAY: CREDIBILITY A CENTRAL PART OF THE CASE
This is the third post today about the subject of the assessment of witness credibility. By a curious piece of good planning it comes from a judgment today in Jiangsu Shagang Group Co Ltd v Loki Owning Company Ltd [2018] EWHC…
WITNESS CREDIBILITY 2: ACADEMIC SCRUTINY: PSYCHOLOGICAL RESEARCH AND WITNESS EVIDENCE
Near the beginning of many judgments after a trial there is a section where the judge gives their view of the reliability and credibility of the witnesses. In about 98% of cases it is not necessary to read further to…
WITNESS CREDIBILITY 1: A STRUCTURED APPROACH: DEMEANOUR NOT DETERMINATIVE
This blog has looked at issues relating to witness credibility on many occasions. Here we look at a decision by the Upper Tribunal in KB & AH (credibility-structured approach : Pakistan) [2017] UKUT 491 (IAC). This is of general interest. Issues…
TIME ESTIMATES: PROBLEMS WHEN THE ESTIMATES ARE TOO SHORT: STILL LOOKING FOR GUIDANCE
I have been searching (so far unsuccessfully) for guidance to litigators and litigants to help provide accurate time estimates. This may well be more of an art than a science. However it is a skill that needs honing. Not only…
WHO SHOULD PAY WHAT WHEN A PART 36 OFFER IS WITHDRAWN? HIGH COURT DECISION: COSTS LIABILITY DOES NOT RUN FROM THE DATE OF AN OFFER THAT IS WITHDRAWN
In Ballard v Sussex Partnership NHS Foundation Trust [2018] EWHC 370 (QB) Mr Justice Foskett considered the impact of a Part 36 offer that had been withdrawn. He overturned an order that the claimant should pay the costs from the date…
ATTENDING A HMCTS REFORM ROADSHOW: “JUSTICE BY SNAPCHAT”?
There have been a series of HMCTS Reform Roadshows throughout the country. These are discussing reforms to courts and tribunals. Discussing “Virtual Hearings”; “Flexible Operating Hours” and “Scheduling and Listing” I attended the Roadshow in Leeds. I made notes. This…
EXTENSIONS OF TIME FOR SERVICE WERE PROPERLY GRANTED: APPLICATIONS TO SET ASIDE ARE A REHEARING NOT A REVIEW: HIGH COURT DECISION
Another week, another case about service of the claim form. This time the claimant was more successful. In DDM v Al-Zahra (PVT) Hospital & Ors [2018] EWHC 346 (QB). Mr Justice Foskett allowed an appeal against a Master’s decision setting aside…
WHEN QOCS APPLY: COURT OF APPEAL DECISION: THE SWINGS AND THE ROUNDABOUTS
In Corstorphine (An Infant) v Liverpool City Council [2018] EWCA Civ 270 the Court of Appeal considered an important issue in relation to Qualified One Costs Shifting. What order should be made when the claimant has QOCS protection against some of…
PAYMENTS ON ACCOUNT OF COSTS: YOU CAN’T ALWAYS GET WHAT YOU WANT: THE COURT’S APPROACH WHEN THE COSTS SCHEDULES ARE “EYE-WATERING”
In Dana Gas PJSC v Dana Gas Sukuk Ltd & Ors [2018] EWHC 332 (Comm) Lord Justice Leggatt considered the principles relating to payments on account of costs. In particular the approach the court should take when there were weighty commercial…
SUMMARY JUDGMENT FOR DEFENDANT IN A NEGLIGENCE ACTION AGAINST SOLICITORS
I am grateful to my colleague at Hardwicke, Laurence Page, for sending me a transcript of the judgment of District Judge Langley in the case of Wright -v- Rix & Kay Solicitors, Central London County Court, 30/11/2017 (available here Wrighttranscript)….
EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”
There are several passages in the judgment of Mrs Justice Yip in David John Saunders -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports. That is the problematic “agenda”. A …
THE ASSESSMENT OF EVIDENCE: DECLARATIONS FOR THE DEFENDANT IN A PERSONAL INJURY CASE
The judgment of Master Thornett in Day v Bryant (declaratory relief – costs – QOCS) [2018] EWHC 158 (QB) is an example of a rare case where a defendant, in a personal injury case, obtained a declaration on a counterclaim. It…
AVOIDING PROBLEMS WITH SERVICE OF THE CLAIM FORM: WEBINAR 14th MARCH 2018
The judgment yesterday in Barton -v- Wright Hassall LLP [2018] UKSC 12 shows how crucial correct service of the claim form can be. There are dozens of examples on this blog of cases where service with the claim form goes wrong. In an…
LATE AMENDMENT: COURT OF APPEAL DECISION
We looked at the decision in Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16) in an earlier post. The defendant appealed to the Court of Appeal Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018]…
12 POINTS RELATING TO SERVICE OF THE CLAIM FORM: THINGS THAT YOU REALLY, REALLY, NEED TO KNOW
Today is all about service of the claim form. Following on from the Supreme Court decision in Barton -v- Wright Hassall LLP [2018] UKSC 12 this morning this is a good time to update your knowledge about basic points of procedure. TWELVE…
BARTON -V- WRIGHT HASSALL: JUDGMENT IN THE SUPREME COURT TODAY: A DETAILED BREAKDOWN OF THE MAJORITY JUDGMENT
It is rare for issues relating to procedure to reach the Supreme Court. The judgment today in Barton -v- Wright Hassall LLP [2018] UKSC 12 concerned the issue of correct service of the claim form. The claimant lost the appeal (albeit…
CLAIM FORMS IN THE SUPREME COURT: SERVICE BY EMAIL NOT GOOD SERVICE: NO SPECIAL RULES FOR A LITIGANT IN PERSON
The Supreme Court dismissed the claimant’s appeal in Barton -v- Wright Hassall [2018] UKSC 12. Service by email on a solicitor who had not confirmed they would accept service was not good service. A claimant would not be granted any…
EXPERT EVIDENCE AS TO EARNINGS NOT NECESSARY (THOUGH NOT A CIVIL CASE): ASSESSMENT OF EVIDENCE IS THE JUDGE’S JOB NOT THE EXPERTS
I am trespassing into the area of family law to look at decision of Mr Justice Moor in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam). It is of general interest to civil lawyers because it involves the court considering whether expert…
PROPORTIONALITY AND CASE MANAGEMENT: THE OVERRIDING OBJECTIVE APPLIES ON A MACRO SCALE: “ACADEMIC” ISSUE SHOULD PROCEED TO A HEARING
In London Borough of Haringey v Simawi [2018] EWHC 290 (QB) Mr Justice Nicklen expressly considered the Overriding Objective when determining whether a human rights issue that could be rendered “academic” should continue to a hearing. “Those rules are directed at…
PROVING THINGS 86: CLAIMANTS PROVE THE FACTS BUT FAIL TO PROVE CAUSATION: A SALUTARY TALE
The decision of His Honour Judge Simpkiss in O’Neill -v- Bull & Bull* (Canterbury County Court 5th February 2018) is an almost classical example of the need to prove things. It also provides a warning to non-contentious lawyers on the…
ANONYMOUS WITNESSES AND CONFIDENTIALITY CLUBS: HIGH COURT DECISION
In Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) Mr Justice Turner considered the issue of anonymous witnesses and confidentiality clubs. He granted six witnesses anonymity. This was subject to the identity of the witnesses being…
INTERPLEADER PROCEEDINGS: FILLING THE GAP IN THE RULES
In Celador Radio Ltd v Rancho Steak House Ltd (Equitable Interpleader – Enforcement) [2018] EWHC 219 (QB) Master McCloud had to look back at a few centuries of jurisprudence in order to find a solution to a very modern problem. What…
LIMITATION PERIOD RUNS FROM DATE OF COMPLETION OF WORK: AGREED TERMS FOR PAYMENT DO NOT EXTEND LIMITATION PERIOD
In Ice Architects Ltd v Empowering People Inspiring Communities (Rev 1) [2018] EWHC 281 (QB) Mrs Justice Lambert found that the six year contractual limitation period ran from the date of completion of work and not the date of invoice. A…
PART 36 AND INTERIM PAYMENTS: SOMETHING TO BE WARY ABOUT : COURT OF APPEAL DECISION
The case of Gamal v Synergy Lifestyle Ltd [2018] EWCA Civ 210 is one that needs to be read with great care. A defendant who made a voluntary interim payment after making a Part 36 offer. The effect of this was…
SECTION 33 IN AN INDUSTRIAL DEAFNESS CASE: COURT OF APPEAL SAYS NO
We are looking again at the decision in Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190 This was the first time the Court of Appeal had considered Section 33 of the Limitation Act since the decision in Carroll v Chief…
THE COURT “REGRETTED IF NOT DEPLORED” EXCESSIVE EXPENDITURE ON JURISDICTION ISSUES: COURT OF APPEAL DECISION
In Ogale Community & Ors v Royal Dutch Shell Plc & Anor [2018] EWCA Civ 191 the Court of Appeal made observations about the need to keep applications about jurisdiction in proportion. “… hearings concerning the issue of appropriate forum should…
LIMITATION: DATE OF KNOWLEDGE: IT IS A MATTER OF FACT
I used to write a section/chapter on limitation in a legal looseleaf. The part on “date of knowledge” was, of course, my favourite*. Section 14 of the Limitation Act 1980 has led to many cases in relation to date of…
A “PART 36 OFFER” THAT ATTEMPTS TO VARY USUAL COSTS CONSEQUENCES IS NOT A PART 36 OFFER AT ALL: HIGH COURT DECISION
In James v James & Ors [2018] EWHC 242 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) determined an interesting issue in relation to an offer made in the course of proceedings. A “Part 36” offer which attempted to…
APPLICATIONS FOR PERMISSION TO APPEAL: THE PROPOSED RESPONDENT CAN HAVE THEIR SAY
An interesting point arose in the Court of Appeal decision today in Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190. When a party seeks permission to appeal from the trial judge – can the other party make submissions in…
LIMITATION: WHAT A DIFFERENCE A DAY MAKES: LIMITATION PERIOD STARTS TO RUN ON DAY CAUSE OF ACTION BEGINS
In Matthew & Ors v Sedman & Ors [2017] EWHC 3527 (Ch) His Honour Judge Hodge QC (sitting as a Judge of the High Court) had to consider an interesting issue in relation to limitation. “… where it is absolutely clear…
FUNDAMENTAL DISHONESTY: INACCURATE STATEMENT OF MEDICAL TREATMENT WAS DISHONEST: NO “SUBSTANTIAL INJUSTICE”
One of the many complex issues that Mrs Justice Cockerill considered in Razumas v Ministry of Justice [2018] EWHC 215 (QB) today was the question of fundamental dishonesty. The claimant gave a misleading account of medical treatment. He was found to…
OVERTURNING THE SUMMARY ASSESSMENT OF COSTS FOR A COMMITTAL: THE AMOUNTS INVOLVED WERE “DISPROPORTIONATE AND WRONG
The previous post looked at the Court of Appeal decision today in Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101. A third element of that judgment was the defendant’s successful appeal against the costs of a committal application. The Court held…
JUDGE WAS WRONG NOT TO GRANT ADJOURNMENT ON THE GROUNDS OF ILL HEALTH AND TO REFUSE TO SET ASIDE SUBSEQUENT JUDGMENT
In Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101 today the Court of Appeal overturned a decision discussed on this blog in 2015. The Court found that a judge should have granted a defendant an adjournment on ill-health grounds. He…
WITNESS EVIDENCE AND DOCUMENTS: GESTMIN CONSIDERED IN THE SUPREME COURT
In Bancoult, R (on the application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs (Respondent)[2018] UKSC 3 the Supreme Court considered the “Gestmin” principles. There are several aspectse of the judgment. Here we look at the judgment…
MOVING THE APPEAL TRIBUNAL FURTHER & FURTHER AWAY FROM THE APPELLANT’S HOME: PROCEDURAL UNFAIRNESS
Earlier this week I paid tribute to Sir Henry Brooke. This included his most recent work dealing with PIPs and ESAs. He wrote in his blog: “Readers of these blogs will know I have been telling stories of the injustices…
GOBBETS AND LIMITATION: ISSUES AT THE DREAMING SPIRES
There are many fascinating aspects of the judgment in Siddiqui v The Chancellor, Masters & Scholars of the University of Oxford [2018] EWHC 184 (QB). As is often the case I have chosen to concentrate on one of the most prosaic…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID II? LAWYERS COME TO GRIEF IN THE COURT OF APPEAL: REVIEW YOUR RETAINER CAREFULLY
In Radford & Anor v Frade & Ors [2018] EWCA Civ 119 the Court of Appeal upheld the early decisions that lawyers, who worked outside the terms of their retainer under a CFA, could not recover costs from the unsuccessful party….
90% WAS A GENUINE OFFER OF SETTLEMENT: CLAIMANT RECEIVES PART 36 BENEFITS AFTER OFFERING A 10% DISCOUNT
In the judgment today in JMX (A child by his Mother and Litigation Friend, FMX) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB) Mr Justice Foskett was very robust in his view that an offer of…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VI: COULD PROJECT MANAGEMENT HELP?
This series on proportionality for litigators is a long-running one. One suggestion is that “Legal project management” could help. There is a very short entry in Wikipedia as to what “Legal project management” is. LEGAL PROJECT MANAGEMENT I put questions to…
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