PROVING THINGS 44: FINDINGS OF FACT, WALTER MITTY AND WITNESS TRAINING
The judgment today of Mr Justice Coulson in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2016] 3188 EWHC (TCC) shows the importance of the judge’s assessment of witnesses. The judge made a clear and robust assessment of the witness evidence,…
ADVOCACY: THE JUDGE’S VIEW X: 10 KEY POINTS FROM AROUND THE WORLD
This is the last in the series of Advocacy the Judge’s view. We have looked at advice given by judges from around the world. Here I select a key point from each. 1. ADVICE FROM CANADA – MANNERS MATTER It…
CLAIMANT'S ACCEPTANCE OF PART 36 OFFER DOES NOT LEAD TO JUDGMENT ON COUNTERCLAIM: A MARATHON EFFORT BUT TO NO AVAIL
In Marathon Asset Management LLP -v- Seddon [2016] EWHC 2615 (Comm) Mr Justice Leggatt rejected an argument that the claimant’s acceptance of a Part 36 offer meant that a defendant was entitled to judgment on its counterclaim. KEY POINTS The…
LEGAL CHRISTMAS SONGS CHARITY CONTEST: THE ENTRIES TO DATE
The deadline for the Legal Christmas song contest expires at Wednesday. Here is a review of the entries to date.* These should inspire you to enter. There are only a few days left to win the unique prize (and a…
PAYING THE INCORRECT COURT FEE: ANOTHER IMPORTANT DEVELOPMENT
There have been several cases this year relating to the consequences that flow when a claimant pays the incorrect court fee. Several issues remain unresolved In a judgment this morning His Honour Judge Godsmark QC considered the position where the wrong…
BOMBARDING THE COURT: AN IMPORTANT POSTSCRIPT
There is an important postscript to the judgment of Lady Justice King in Agarwala -v- Agarwala [2016] EWCA Civ 1252. It sets out the dangers of “bombarding” the court with communications and applications. It sets out a course of…
DISPUTING SERVICE: USING THE RIGHT PROCEDURE: THE APPLICATION OF CPR 3.10
In Bank of Boroda, GCC Operations -v- Nawayny Marine Shipping FZE [2016] EWHC 3089 (Comm) Ms Sara Cockerill QC (sitting as a Deputy Judge of the High Court) considered issues in relation to disputing service. What is interesting here is…
PROVING THINGS 43: HOW THE COURT DECIDES: A PRIMER
The judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160 (Ch) includes a useful primer on how the court goes about the task of deciding civil cases. “…the decision of the court is not necessarily the objective truth…
CIVIL COMMITTAL PROCEEDINGS: STILL A MATTER FOR GRAVE CONCERN
I have written several times about the problems in obtaining representation and funding for civil committal proceedings. The judgement of the Court of Appeal yesterday in Devon County Council -v- Kirk [2016] EWCA Civ 1221 exemplifies the difficulties and…
THE LEGAL CHRISTMAS SONG CONTEST: RAISING MONEY FOR CHARITY – GET THERE, GET THE T-SHIRT
What is the best title for a legal Christmas song? In the run up to Christmas I am running a contest to find out. Because it is Christmas we can also raise money for two charities. This is likely to…
UNDUE HARDSHIP AND THE FOREIGN LIMITATION PERIODS ACT
The Foreign Limitation Periods Act 1984 is one of those matters that litigators must always have at the forefront of their mind when dealing with any matter that has a foreign connection. The stringent nature of the Act is made…
PROVING THINGS 42: SILENCE DOES NOT PROVE INDUCEMENT
We are returning to the case of Francis -v- Knapper [2016] EWHC 3093 (QB). That case has been looked at in relation to a failure to prove damages. However the claimants also had major evidential problems in proving misrepresentation. KEY POINTS…
PROVING THINGS 41: PROVING DAMAGES – YOU ARE NOT GETTING A SECOND BITE OF THE CHERRY
There was one part of the argument in Francis -v- Knapper [2016] EWHC 3093 (QB) that justifies closer examination. That is the claimant’s suggestion that the question of damages be put off. A party struggling to prove damages at trial is…
PROVING THINGS 40: NO EVIDENCE – NO LOSS: LITIGATION IS NOT A WALK IN THE PARK
A constant motif in this series has been the ability of litigants to arrive at trial and not be able to prove central parts of their case – including damages. This is exemplified in the judgment of Mr Justice Baker…
WHY ALL LAWYERS HAVE TO KNOW ABOUT THE FALLIBILITY OF MEMORY (EVEN COMPANY LAWYERS)
I have written about the Gestmin principles many times on this blog. The importance of every litigator knowing about the fallibility of memory, and the way in which a trial judge is likely to approach these issues, is shown in the judgment…
PART 36 CONSEQUENCES AND A FIXED COSTS REGIME: WHAT HAPPENS WHEN THEY MEET?
In the judgment today in Phonographic Performance Ltd -v- Raymond Hagan [2016] EWHC 3076 (IPEC) Judge Hacon considered the interaction between a fixed costs regime and Part 36. KEY POINTS The fixed cost rules in the Intellectual Property Enterprise Court…
SECOND APPLICATION FOR SECURITY FOR COSTS WAS NOT AN ABUSE OF PROCESS (THIS TIME)
In Holyoake -v- Candy [2016] EWHC 3065 (Ch) Mr Justice Nugee decided that a second application for security for costs was not an abuse of process. The judgment reviews the law relating to second applications and abuse in detail. It…
PROVING THINGS 39: YOU CAN SPEND £10 MILLION IN COSTS AND STILL NOT PROVE YOUR CASE: DAMAGES CLAIM WAS A "NOTIONAL DESKTOP EXERCISE"
It is unusual to look at the substantive judgment in a case after examining the decision on costs. We have already looked at the cost judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496. However the substantive…
INTERPRETERS CANNOT (AND WOULD NOT) BE COMPELLED TO ATTEND TRIAL FOR CROSS-EXAMINATION
The case of Kimathi -v- The Foreign & Commonwealth Office [2016] EWHC 3004 (QB) has already featured several times on this blog. Here we look at the judgment made last week relating to the defendant’s application that interpreters attend trial…
CIVIL PROCEDURE: THE BEHRENS' EFFECT
His Honour Judge Behrens, the resident Chancery judge in Leeds, retires tomorrow. This led me to consider the contribution he has made to civil procedure. JOHN BEHRENS AT THE BAR I could begin by telling of the meticulous neatness of…
THE DEAD CAN'T SUE: AN IMPORTANT REMINDER
In Kimathi & Ors -v- The Foreign & Commonwealth Office [2016] EWHC 3005 (QB) Mr Justice Stewart reviewed the principles in relation to bringing an action on behalf of a deceased party. It is an important reminder of some very…
LATE AMENDMENT OF PARTICULARS OF CLAIM NOT PERMITTED: HIGH COURT DECISION TODAY
In a judgment today in Henderson -v- Dorset Healthcare University Foundation NHS Trust [2016] EWHC 3032 (QB) Mr Justice Warby refused a claimant’s application to amend the Particulars of Claim. The judgment covers a number of points. In particular it…
CROSS-EXAMINATION OF EXPERTS IN PATENT CASES: SHOULD BE SHORT AND FAIR
In his judgment today in Merck Sharp and Dhome Limited -v- Shionig & Co Limited [2016] EWHC 2989 (Pat) Mr Justice Arnold made some observations about the cross-examination of expert witnesses. These related to experts in patent cases, they are…
JUDGE USES COSTS BUDGET TO ASSESS COSTS AT THE END OF A TRIAL: THE RELEVANCE OF THE BUDGET & WHEN SHOULD THE COURT GO OUTSIDE IT?
In Sony Communications International AB -v- SSH Communications Security Corporation [2016] EWHC 2985 (Pat) Mr Roger Wyand QC (sitting as a Deputy High Court Judge) used the costs budget to carry out an assessment of the costs at the end…
MINISTRY OF DEFENCE REFUSED EXTENSION OF TIME TO COMPLY WITH PEREMPTORY ORDER: ORDERS ARE ORDERS
In Eaglesham -v- Ministry of Defence [2016] EWHC 3011 (QB) Mrs Justice Andrews DBE refused the defendant’s application for an extension of time for compliance with an unless order. The Defence was struck out. “A party who faces genuine difficulties…
WITNESS STATEMENTS & DISCLOSURE: OMISSIONS MEAN THAT CASE FAILS AT SECOND HURDLE AND HAS TO GO BACK TO THE START
S When a proponent of proportionate litigation, such as Jackson L.J., orders a retrial in a case where the judgment was for £4,449 the case merits examination. In Knowles -v- Watson [2016] EWCA Civ 1122 a re-trial was ordered because…
PROPORTIONATE COST ORDERS WHEN COSTS ARE £8 MILLION AND £10 MILLION APIECE: HIGH COURT DECISION
We have already looked at the decision in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496 (TCC) in relation to the question of proportionality. However the judgment contains much more of interest in relation to costs. It provides an…
PROPORTIONALITY DOES NOT AFFECT A PROPORTIONATE COSTS ORDER: HIGH COURT DECISION
There are many aspects of the judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496 (TCC) that are of interest to readers of this blog. Here I want to explore the judgment in relation to proportionality. “The…
THIRD PARTY FUNDING: YOU WANT THE PROFITS YOU TAKE THE RISKS: EXCALIBUR IN THE COURT OF APPEAL
In Excalibur Ventures LLC -v- Texas Keystone LLC [2016] EWCA Civ 1144 the Court of Appeal confirmed that commercial funders are liable to indemnify on the indemnity costs basis. “I can see no principled basis upon which the funder can…
THE DANGER OF NOT REPLYING TO CORRESPONDENCE: COSTS AWARDED AGAINST DEFENDANTS (& THE NEED FOR CO-OPERATION WHEN INSTRUCTING EXPERTS)
The judgement of Chief Master Marsh in UPL Europe Limited -v- Agchemaccess Chemicals Limted [2016] EWHC 2898 (Ch) provides an object lesson in the dangers of failing to reply to correspondence. The judgment also contains important observations about need for…
PROVING THINGS 38: PROVING INABILITY TO PAY ON A SECURITY FOR COSTS APPLICATION
A party opposing an application for security costs sometimes has to argue that the ordering of security would “stifle” a genuine claim. This means giving evidence as to that party’s inability to pay. This test was considered by Mr Richard…
WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED
There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence….
QADER 2: REMAINING PROBLEMS AND ISSUES: THE CONTINUING DEBATE
The post yesterday on the Qader decision has led to a large number of comments. These are easy to overlook. I have placed the comments here since these outline the issues that remain unresolved. I have added some sub-headings, but…
IF ONLY SOMEONE WOULD WRITE A BOOK ON EXPERTS…
There have been many occasions on this blog where I have commented on expert evidence. The links below show many cases where experts have caused major problems (usually for the party instructing them). There are numerous reports of cases where…
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
QADER IN THE COURT OF APPEAL: FIXED COSTS NO LONGER APPLY TO ACTIONS ALLOCATED TO THE MULTI TRACK
Perhaps the most surprising thing about the decision of the Court of Appeal in Qadar -v- Esure [2016] EWCA Civ 1109 is the route that had to be taken to get to the result. The Court of Appeal added, to…
TALES FROM COSTS LAW CONFERENCE IV: PROPORTIONALITY – A LITIGATOR'S SURVIVAL GUIDE V
The issue of proportionality raised its head more than once at the recent ACL conference. However I addressed the issue directly (or perhaps obliquely). My central argument being that proportionality requires a fundamentally different approach to litigation. Further there is…
TALES FROM COSTS LAW CONFERENCE III: SATELLITE NAVIGATION, MERRIX AND COSTS BUDGETING
One issue discussed at the Association of Costs Lawyers in Manchester on the 24th October was the decision in Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB). The question of whether a detailed assessment is needed…
LEGAL REPRESENTATIVE SIGNING THE DISCLOSURE STATEMENT II: SEE WHAT THE COMMERCIAL COURTS GUIDE SAYS: BUT…
The post on legal representatives signing the disclosure statement written earlier in the week had a lot of response. My attention has been drawn to the Admiralty & Commercial Courts Guide which suggests (in certain undefined circumstances) a legal representative…
SERVING WITNESS STATEMENTS LATE: THERE IS NO CLEARWAY BACK
In Clearway Drainage Systems Ltd -v- Miles Smith Ltd (08/11/2016) the Court of Appeal upheld a decision not to grant the claimant relief from sanctions when witness statements were served late. Here we look at the first instance decision in…
PART 36: OFFER DID NOT COVER COSTS OF ADJUDICATIONS
In Wes Futures Limited -v- Allen Wilson Construction Limited [2016] EWHC 2863 (TCC) Mr Justice Coulson considered the terms of an offer from the claimant that the Defendant accepted 10 months afterwards. Curiously it was the claimant that was arguing…
SOLICITOR SIGNING THE STATEMENT OF TRUTH IN A DISCLOSURE STATEMENT: NOT PERMISSIBLE AND NOT ADVISABLE
There has been a lot of discussion on Twitter recently in relation to a search term that arrived on this blog “solicitor signing disclosure statement”. So many people contributed to that discussion that I cannot thank them all. However it…
A DISPOSAL IS A "TRIAL": COURT OF APPEAL DECISION TODAY
Several people have kindly sent me details of the Court of Appeal decision in Bird -v- Acorn Group Limited [2016] EWCA Civ 1096. The Court considered whether a matter listed for a disposal under the EL/PL Protocol was a “trial”…
THE DANGERS OF RELYING ON EXPERT EVIDENCE: BEWARE YE THE PARTISAN EXPERT: "UNBALANCED AND HIGHLY MISLEADING"
Some types of litigation are heavily reliant upon expert evidence. Clinical negligence cases are often determined by the judge’s assessment of the experts involved. It is disturbing to see the matters raised in judgment today of His Honour Peter Hughes…
HOURLY RATES, SUCCESS FEES, RELIEF FROM SANCTIONS – ALL IN ONE CASE
There is a great deal of material covered in the judgment of Master Gordon-Saker in Various Claimants -v- MGN Limited [2016] EWHC B29 (Costs). THE CASE The court was determining various preliminary issues in relation to costs in the “phone…
ANOTHER EXAMPLE OF THE DIFFICULTY IN REVISING A BUDGET: AN ACUTE CHANGE OF CASE IS REQUIRED
I am grateful to Michael Davidson from Acumension who has sent me a copy of the judgment of District Judge Hovington in the case of Warner -v- The Pennine Acute Hospital NHS Trust (Manchester County Court 23rd September 2016) (available…
"SECOND HAND" SIGNATURES WILL NOT DO -"PRE-SIGNING" THE STATEMENT OF TRUTH? – NOT A GOOD IDEA
This blog has covered the importance of the statement of truth on many occasions. However the issues revealed in the Solicitors Disciplinary hearing in SRA -v- Jackson reveals a remarkably insouciant approach to the statement of truth. THE CASE The…
PROVING THINGS 36: CREDIBILITY & CONTEMPORANEOUS DOCUMENTS: WORKING WITH CHILDREN AND ANIMALS
One of my colleagues tweeted that the judgment in Harris -v-Miller [2016] EWHC 2438 (QB) was “short on the law and long on the facts”. This is a correct assessment. The case shows just how important the facts are in…
WHAT IS MEANT BY AN "INDEPENDENT" EXPERT? CASES ON EXPERTS THIS WEEK III
In Hopkinson -v- Hickton [2016] EWCA Civ 1057 the Court of Appeal considered what was meant by an “independent” expert. KEY POINTS The fact that a valuer, appointed to value a property by the parties under the terms of a…
THE INTERACTION BETWEEN LAWYER AND EXPERT: CASES ON EXPERTS THIS WEEK II
We have already looked at the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21 in relation to costs budgeting. Here I want to isolate one aspect of that budgeting exercise – in relation to…
You must be logged in to post a comment.