IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY
A post last month highlighted a case where a defendant obtained judgment in default on a counterclaim. The judge refused to set aside the judgment and, in effect, the claimant’s entire claim failed. There is a clear and obvious need…
PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID
There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence. A surprising number of these have been in the context of clinical negligence claims….
ANOTHER CLAIM FORM CASE: WHY IT CAN BE DANGEROUS FOR A DEFENDANT TO TAKE TECHNICAL POINTS
The decision of Master Mathews in DB UK Bank Limited -v- Sinclair Solicitors [2015] EWHC B29 (Ch) has today been reported on Bailli. It is a case that shows the dangers of taking technical points as to service. “if I…
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
YOU CAN BE A TOUGH NEGOTIATOR- YOU CAN ALSO FALL FLAT ON YOUR FACE: HIGH COURT CASE EXAMINED
The law of privilege prevents a close study of the negotiation process in most cases. That is why everyone involved in litigation could benefit from reading the judgment today of Mrs Justice Slade in FPH Law -v- Brown [2016] EWHC…
PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)
There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…
COSTS BUDGETING – THE KEY DATES: A QUICK REMINDER TO AVOID A SHARP (BUT NOT NECESSARILY SHORT) SHOCK
You would think that everyone involved in litigation would know that new rules as to cost budgeting came into force on the 6th April 2016. However, judging from some of the blank (and worried) looks I have seen recently when…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID? WHEN THE CFAS DID NOT COVER THE COSTS: BAD NEWS FOR SOLICITORS AND COUNSEL
The judgment today of Mr Justice Warby in Radford -v- Frade [2016] EWHC 1600 (QB) contains an important warning in relation to the construction of CFAs both for solicitors and counsel. KEY POINTS A solicitor entered into a CFA with…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
NEW RULES ON COSTS CAPPING
New rules (The Civil Procedure (Amendment No.2) Rules 2016 were passed yesterday which amend CPR Part 3 in relation to costs capping. They are of relatively limited ambit, applying only to Judicial Review applications. They replace protective costs orders in…
SWITCHING FROM LEGAL AID TO CFA: THE SUCCESSFUL APPEAL
The saga relating to the assessment of costs where a claimant changed from public funding to a conditional fee agreement has been dealt with many times on this blog*. All of these issues are now dealt with in the judgment…
CLAIMANT'S PART 36 OFFERS: WHEN HAS THE CLAIMANT BEATEN ITS OWN OFFER? AN INTERESTING QUESTION
The judgment of HH Judge Pelling QC in Purrunsing -v- A’Court & Co (a firm) [2016] EWHC 1582 (Ch) considers the impact of interest on a claimant’s Part 36 offer. Should the court simply compare the offer with the sum…
DEFAULT JUDGMENT ON COUNTERCLAIM NOT SET ASIDE – AN OBJECT LESSON IN STAYING AWAKE IN LITIGATION
The decision of Master Matthews today in Goldcrest Distribution Ltd -v- McCole [2016] EWHC 1571 (Ch) provides an object lesson in the need to stay awake to procedural issues throughout litigation. The claimant had a default judgment on a counterclaim…
COSTS BUDGETING & DAVID -v- GOLIATH: DOES IT GIVE THE "LITTLE GUY" A CHANCE?
Costs budgeting remains highly controversial. One question that is open to debate is – is it useful? Its utility may be most apparent in cases where the sizes and resources of the litigants are vastly disparate. (Many personal injury lawyers…
PROVING THINGS 23: SERVING IMPORTANT EVIDENCE LATE
It is surprising how many posts there are on this blog which deal with the late service of witness evidence. This is an issue that occurs across the whole spectrum of civil procedure. The question arose again in the judgment…
PART 36: ADDITIONAL AMOUNTS AND INTEREST
In Bolt Burdon -v- Tariq [2016] EWHC 1507 (QB) Mr Justice Spencer considered the appropriate approach to additional liabilities where a claimant beats its own Part 36 offer and interest was awarded on a contractual basis. However the judgment appears…
BREXIT: THE LEGAL CONSEQUENCES: USEFUL LINKS
The vote to leave the EU has legal consequences across a wide range of practice areas. Here I aim to provide links to useful posts and articles that discuss those issues. This post is updated regularly. THE INDIVIDUAL SECTIONS There…
PROVING THINGS 22: DAMAGES, MITIGATION , PART 36 (AND EVEN SOMETHING ABOUT BUNDLES)
The Court of Appeal decision today in Pawar -v- JSD Haulage Ltd [2016] EWCA Civ 551 contains some important lessons in relation to proving damages, mitigation of loss and Part 36 offers. “The fact that a claimant does not mitigate…
WHO WON? CLAIMANTS GET 33% OF THEIR COSTS AFTER TRIAL
In the judgment today in Kupeli -v- Cyprus Turkish Airlines [2016] EWHC 1478 (QB) Mrs Justice Whipple considered issues relating to costs liability after the trial of a preliminary issue. “….there is a world of difference between a case which…
ADVOCACY – THE JUDGE’S VIEW IV: "AVOID BULLSHIT, SMOKE AND MIRRORS" (OH AND BEWARE OF "WELL PADDED VANITY")
In the fourth in this series we are returning to Australia and looking at the guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember…
SERVICE OF PROCEEDINGS AND MISSING DOCUMENTS: WHY IT IS DANGEROUS FOR A DEFENDANT TO ATTEMPT TO STAND ON ITS RIGHTS
When proceedings are served and key documents are missing it is tempting for a defendant to attempt to stand on its rights and not reply at all to the claim. However the case of Rushworth -v- Harvey [2016] EWHC 1386…
THE HARB CASE: IT'S ALL ABOUT THE EVIDENCE: A TRIAL JUDGE MUST "SHOW THEIR WORKINGS"
The Court of Appeal judgment in Harb -v- HRR Prince Abdul Aziz Bin Fahd Bin Abdud Aziz [2016] EWCA Civ 556 has attracted a lot of attention because of the comments the Court made about the allegations of judicial bias….
PROPORTIONALITY II (THE EXTENDED ALBUM EDITION)
The earlier post on the decision in Dr Brian May -v- Wavell Group Plc [2016] EWHC B16 (Costs) outlined the decision in summary. This is a case that justifies an extended examination. REPRISE Following acceptance of the defendant’s Part 36 offer of…
PROPORTIONALITY: WE WILL, WE WILL ROCK YOU
I am grateful to Jon Lord for sending me a copy of the decision of Master Rowley in Dr Brian May -v- Wavell Group Plc given today (16/06/2016). It is another case that centres on proportionality. There was a considerable…
BUNDLES EXHIBITS AND PAGINATION: AVOIDING COSTLY MISTAKES
I have given up being surprised that the post on trial bundles and Sedley’s Law is the most read post on this blog. Day after day, month after month, it draws a regular readership. However, in practical terms, it is…
MY WITNESS STATEMENT WAS DRAFTED BY MY LAWYER: THANK YOU OFFICER
There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB). I just want to look at one of them. This was a case all…
EXTENSION OF THE CLAIM FORM: A RARE SUCCESS FOR A CLAIMANT (BUT IT HAS GOT A LOT TO DO WITH CONDUCT)
Most cases relating to extensions of time for service for the claim form end badly for the claimant. The decision of Mr Justice Roth in The Khan Partnership LLP -v- Infinity Distribution Limited [2016] EWHC 1390 (Ch) is an exception….
FATAL ACCIDENTS DAMAGES MASTERCLASS: 19th JULY 2016 LEEDS
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CLAIMANT ALLOWED TO RELY ON WITNESS EVIDENCE SERVED DURING TRIAL
Yesterday I looked at a case where a defendant was refused permission to rely upon a witness statement served late,96 although it was served before trial. Today we look at a case where a claimant was given permission to rely…
DEFENDANT REFUSED PERMISSION TO ADDUCE FURTHER EVIDENCE: LATE EVIDENCE IS ALWAYS A PROBLEM
I am grateful to barrister Michelle Fanneran for sending me a copy of the decision of His Honour Judge Cotter QC in the case of Moore -v- Plymouth Hospitals Trust (11th May 2016). This involves consideration of relief from…
STRIKING OUT A PLEADING WHEN IT DOES NOT COMPLY WITH THE RULES
In Jones -v- Longley [2016] EWHC 1309 (Ch) Master Matthews considered the criteria for striking out a pleading, in this case a counterclaim. There are important observations on the needs for pleadings to comply with the rules; on the fact…
IT IS THE CLIENT THAT SHOULD GIVE THE EVIDENCE NOT THE SOLICITOR: ALSO VERY LATE DISCLOSURE
Why should a lawyer ever want to give evidence. What practical value does evidence given by a lawyer have when their clients could have been called? These were issues considered today by Master Marsh in his judgment in Pineport Limited…
OVERSPENDING ON YOUR COSTS BUDGET? BETTER TELL YOUR CLIENT
Way back in the mist of time (that is post-Mitchell, pre-Denton) I reported a decision of District Judge Lumb on sanctions and costs budgeting. That particular post was then plagiarised without any reference to me (matters were resolved amicably). However…
CONTEMPT PROCEEDINGS AND FUNDING: THE OUTCOME OF A LONG STRUGGLE
I have received an email informing me that, thanks to the help received from a post on this blog they – eventually – obtained legal aid and successfully defended committal proceedings. Although the thanks are addressed to me it is…
PROVING THINGS 21: WHEN THE WHOLE PROCESS OF INVESTIGATION IS FLAWED
I have looked at family cases before on this blog, usually in the context of witness evidence and issues relating to the burden of proof. Many of the decisions of family judges have to be taken on the basis of…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: GET THE WORDING RIGHT
On more than one occasion on this blog we have looked at cases where the courts have questioned the wisdom of a lawyer signing a statement of truth on behalf of a client. In Galdikas -v- DJ Houghton Catching Services…
INDEMNITY COSTS ON APPEAL AFTER PART 36 OFFER
For the second time today I express my thanks to John McQuater. This time for drawing my attention to the Court of Appeal decision on costs in Summers -v- Bundy (11/02/2016)* This case shows the importance of making Part 36…
PART 36: INDEMNITY COSTS WHEN A DEFENDANT ACCEPTS OUT OF TIME
I am grateful to John McQuater for sending me a copy of the judgment of District Judge Besford in the case of Sutherland -v- Khan (21st April 2016) (a copy of the transcript is attached to this blog here …
ADVOCACY – THE JUDGE’S VIEW III: MORE GUIDANCE FROM CANADA
As part of the series looking at the advice that judges give to advocates (and how this relates to civil litigators in particular) we return to Canada. Judge Carol Baird Ellan collected the views of 12 of her colleagues in…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
"THAT PROPORTIONALITY JUDGMENT": 10 KEY POINTS
The post yesterday on the decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) set out the case in some detail. Here are the key points of that decision. KEY POINTS On an assessment of costs on…
PROPORTIONALITY CONQUERS ALL? PROFIT COSTS (AND COUNSEL'S FEES) HALVED
The decision of Master Gordon-Saker in BNM -v-MGN Limited [2016] EWHC B13 (Costs) has already received widespread publicity. The principle of proportionality was used to halve profit costs and counsel’s fees and make a substantial reduction on the insurance premium….
THINGS LAWYERS DO TO ANNOY JUDGES: EDITED HIGHLIGHTS
Regular readers of this blog will be familiar with the judgment of Mr Justice Joseph W. Quinn in the case of The Hearing Clinic (Niagara Falls) -v- Ontario Ltd, 2014 ONAC 5831 where he was more than blunt in his…
WITNESS EVIDENCE, RELIABILITY AND CREDIBILITY: WHY EVERYONE SHOULD READ GESTMIN (OR FAILING THAT, MY SUMMARY)
I spent the afternoon lecturing to a group of enthusiastic lawyers about the importance of witness statements (and where things can, and do go wrong). I was worried that the enthusiasm could be waning waning when I took them, in…
PROVING THINGS 20: ALLEGATIONS OF IMPROPER CONDUCT HAVE TO BE PROVEN: INDEMNITY COSTS ORDERED
In Collins -v- Thanet District Council Collins anor v Thanet DC anor (19 4 16)(Jud) 2 [2016] EWHC 1008 (QB) His Honour Judge Yelton (sitting as a Judge of the High Court) considered the evidence available to support allegations of misfeasance…
IT'S NOT JUST WINNING BUT HOW YOU PLAY THE GAME: COSTS ORDERS WHEN BOTH PARTIES ASSERT THAT THEY HAVE "WON"
In Milanese -v- Leyton Orient Football Club Limited [2016] EWHC 1263 (QB) Mrs Justice Whipple considered issues relating to costs after a case in which each party claimed to have won. “I remind myself that this is an area where…
ELEMENTARY EVIDENCE: THE COURTS DO NOT FOLLOW THE APPROACH OF SHERLOCK HOLMES
The judgment of Mrs Justice Carr DBE in Cooper -v-Thameside Company Ltd [2016] EWHC 1248 (TCC) contains an interesting, and ultimately important, consideration of the judicial approach to fact finding. It is interesting that this £6.5 million depended, primarily, on…
EXPERT SHOPPING: CHANGING EXPERTS AND DISCLOSURE OF REPORTS
Suspicions are often aroused when an party wants to change expert mid-way through a case. There is, usually, a requirement that before a court grants permission to instruct a new expert the previous report has to be disclosed. The case…
QOCS CONTINUE TO APPLY ON APPEAL: HIGH COURT DECISION
In Parker -v- Butler [2016] EWHC 1251 (QB) Mr Justice Edis decided that QOCS protection continued to apply when a claimant appealed. “To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in…
SOCIAL MEDIA AND CIVIL EVIDENCE: WHAT DID YOU SAY ON LINKEDIN?
Social media played a part in the decision of Registrar Derrett in Green -v- Marston [2016] EWHC B11 (Ch). It illustrates the importance of social media across many fields of litigation. THE CASE The claimant was the liquidator of a…
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