MORE ON BUNDLES: JACKSON ON THE BUNDLE AS AN OBSTACLE COURSE
In a judgment today Jackson L.J. made some trenchant remarks about the quality of the appeal bundle. It illustrates the importance of reading (and complying) with the relevant rules and practice directions. “The appeal bundle should be an aid to…
LITIGATION RISKS AND MITIGATION OF LOSS: "MEDIATION IS A JUDGMENT CALL": WHEN IS A REFUSAL TO MEDIATE REASONABLE?
The issue of whether a failure to mediate represented a failure to mitigate loss was considered by Judge Pelling QC (sitting as a High Court judge) in Orientfield Holdings Ltd -v- Bird & Bird [2015] EWHC 1963 (Ch). “Having embarked…
JUDGES AND WITNESSES 4: THE LITIGANT IN PERSON AND THE ABSENT WITNESS
In Otou -v- Brierley [2015] EWHC 1938 (Ch) Edward Murray (sitting as s Deputy Judge of the Chancery Division) was in an unusual situation. A witness statement drafted by a litigant in person contrasted to a witness statement by a…
JUDGES AND WITNESSES 3: "UNCHALLENGED" EVIDENCE AND CREDIBILITY
In Various Claimants -v- Giambrone [2015] EWHC 1946 (QB) Mr Justice Foskett looked at issues relating to the credibility of witnesses where it was alleged that their evidence had not been “challenged” in certain respects. “…the days of the “I…
JUDGES AND WITNESSES 2: POISE AND POLISH IS FAR FROM CONCLUSIVE
This is the second post today on the issue of how judges assess witnesses. In Mudroglu -v- Reddish LLP [2015] EWHC 1044 (Ch) His Honour Judge Keyser QC had to consider issues relating to the credibility of two witnesses. THE…
JUDGES AND WITNESSES 1: IT WAS A LONG TIME AGO
There have been a number of cases recently where the courts have considered, expressly, how they should approach witness evidence. The first, Axa -v- Arab Insurance Group [2015] EWHC 1939 (Comm) related to witnesses who had to consider matters after…
THE NEW UNINSURED DRIVERS' MIB AGREEMENT: COMING INTO FORCE ON THE 1st AUGUST 2015
For those with Motor Insurers Bureau claims a new Uninsured Driver Drivers agreement comes into force on the 1st August 2015. Here we look at the major changes. THE KEY POINT The rules are now much simpler. The key points…
MORE ON WITNESS CREDIBILITY: THE DOG THAT OBTAINED A MBA (WITH BETTER GRADES THAN THE WITNESS)
The post on the Canadian case of The Hearing Clinic (Niagara Falls) -v- Ontario 2014 ONAC 5831 attracted a lot of views and a lot of comments. I am grateful to Chris Rees for pointing out the judgment of Mr…
COSTS: INDEMNITY COSTS; IMMEDIATE ASSESSMENT OF COSTS; SET OFF & POTENTIAL INSOLVENCY: A HIGH COURT DECISION
In Rawlinson & Hunter Trustees SA -v- ITG [2015] EWHC 1924 (Ch) Mr Justice Morgan considered issues relating to indemnity costs and whether assessment of costs ordered on an interlocutory hearing should take place forthwith. KEY POINTS Although the conduct…
A TRIAL WITHOUT WITNESSES: THE PRACTICAL CONSEQUENCES: DUNNAGE -v- RANDALL
The Court of Appeal decision today in Dunnage -v- Randall [2015] EWCA Civ 673 is one of those seminal cases that every tort law student will have to read. Here we look at the case and the procedure. In particular…
ELECTRONIC SIGNATURE OF WITNESS STATEMENTS: IS IT VALID? A FIRST INSTANCE DECISION
The question of whether a witness statement can be signed electronically is often described as an “open” issue. It was considered by District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*). THE CASE The…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT
The observations of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) were considered in an earlier post. However there is one further aspect of the case that justifies examination. A CAVEAT…
HOW THE COURT ASSESSES WITNESSES: NOT A NUMBERS GAME
In TM -v- St George’s Healthcare NHS Trust [2015] EWHC 1866 (QB) Sir David Eady considered the judicial approach to witnesses and the burden of proof, stressing that the assessment of evidence is not a “numbers game”, THE CASE The…
THE LIMITS OF ISSUE BASED COSTS ORDERS: COMMERCIAL LITIGATION IS ABOUT MONEY (WHO KNEW?)
In The Northampton Regional Livestock Centre Company Ltd -v- Cowling [2015] EWCA Civ 651 the Court of Appeal made some important observations about costs, issue based orders and success, particularly in commercial cases. THE CASE The Court of Appeal were…
EXTENDING TIME FOR SERVING PARTICULARS OF CLAIM: AN APPLICATION AHEAD OF TIME SAVES THE DAY
In Lachaux -v- Independent Print Ltd [2015] EWHC 1847 (QB) Mr Justice Nicol considered the question of whether the court has power to prospectively order an extension of time for service of the particulars of claim. He also considered the…
SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS: A REVIEW OF THE CASES
In MRH -v- The County Court Sitting at Manchester [2015] EWHC 1795(Admin) considered earlier there was a tantalisingly short reference to similar fact evidence. This was not considered in detail by the Administrative Court, however it does highlight some interesting…
A WITHDRAWN PART 36 OFFER DOES NOT ATTRACT INDEMNITY COSTS: GULATI -v- MGN
In Gulati -v- MGN [2015] EWHC 1805 (Ch) Mr Justice Mann considered whether indemnity costs should be awarded in circumstances where a Part 36 offer was withdrawn in one case and a “Calderbank” offer made in the other. KEY POINTS…
MAKING FINDINGS OF FRAUD WITHOUT A PARTY BEING REPRESENTED 2: A HEARING IN THE ADMINISTRATIVE COURT
In MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) the Administrative Court, in essence, overturned findings of fraud against solicitors who had not been notified of the allegations and not given any opportunity to respond….
APPEAL COURT CAN DECIDE ISSUES BETWEEN EXPERTS ON FOREIGN LAW: AND ANOTHER LOOK AT WITNESS STATEMENTS
The issue of when an appeal can court take its own view on expert evidence was considered in Group Seven Limited -v- Allied Investment Corporation Limited [2015] EWCA Civ 631. The judgment at first instance also makes for informative reading…
EVIDENCE, COSTS AND THE CREDIBILITY OF WITNESSES: A CANADIAN VIEW
This blog has discussed issues relating to the judicial approach of the credibility of witnesses many times. Some judges have, shall we say, not been backward in giving their views on the “value” of the evidence of some of the…
IF FINDINGS OF DISHONESTY ARE TO BE MADE THEN WITNESSES HAVE TO BE HEARD
Two cases in two days have shown the difficulties that arise when findings of dishonesty are made by judges without hearing evidence. Here we look at the difficulties that arose when a judge held a trial without hearing evidence and…
PREVIOUS COSTS ORDERS STAND EVEN AFTER DISCONTINUANCE: A HIGH COURT DECISION
In Dar Al Arkan Real Estate Company -v- Al Refai [2015] EWHC 1793 (Comm) Mr Justice Andrew Smith considered whether discontinuance of an action should have an effect on previous costs orders. THE CASE The claimants had agreed terms of…
ANOTHER UNSATISFACTORY EXPERT: WITH A WRONG VIEW OF HIS ROLE
In Sinclair -v- Joyner [2015] EWHC Civ 1800 (QB) Mrs Justice Cox made some important observations about the role of the expert and the conduct of the expert instructed by the defendant in that case. THE CASE The claimant was…
INCREASED COSTS AND "MYSTIFYING" PLEADINGS: A WARNING TO THOSE DRAFTING DEFENCES: IT'S GOING TO COST YOU
The judgment of Mr Justice Edis in Davies -v- Forrett [2015] EWHC 1761 QB is an object lesson on the dangers of lax pleading. Denying the relevance of a conviction in a pleading led to the joinder of a number…
RELIEF FROM SANCTIONS AND COSTS IN THE ADMINISTRATIVE COURT: NO DOUBLE STANDARDS FOR THE GOVERNMENT
In The Queen (on the application of Bhatt) -v- The Secretary of State for the Home Department [2015] EWHC 1724 (Admin) Helen Mountfield QC (sitting as a Deputy Judge) made some interesting observations in relation to the Denton principles, conduct…
RELIEF FROM SANCTIONS REFUSED FOLLOWING INADEQUATE E-DISCLOSURE:
The case of Smailes -v- McNally [2015] EWHC 1755 (Ch) has appeared in the reports before. In his judgment today His Honour Judge Pelling QC refused relief from sanctions after the claimant had failed to give adequate disclosure in compliance…
DATE OF KNOWLEDGE AND SECTION 33 IN SEXUAL ABUSE CASES: A HIGH COURT DECISION
In A -v- The Trustees of the Watchtower Bible and Tract Society [2015] EWHC 1722 (QB) Mr Justice Globe considered the issue of the date of knowledge under s.14 of the Limitation Act 1980 and also stated that, had it…
CAUSATION AND EVIDENCE – A BURNING PROBLEM? IMPORTANT ISSUES FROM A BIZARRE SET OF FACTS
In Graves -v- Brouwer [2015] EWCA Civ 595 the Court of Appeal carried out an extensive review of the principles and authorities relating to evidence and causation. There is a useful discussion on the role and questioning of experts at…
TRUSTEE IN BANKRUPTCY NOT LIABLE FOR COSTS INCURRED BEFORE ADOPTION OF PROCEEDINGS: SUPREME COURT DECISION TODAY
In a short judgment today in BPE Solicitors -v- Gabriel [2015] UKSC 39 the Supreme Court considered the question of whether a Trustee in Bankruptcy who adopts proceedings thereby becomes liable for the previous costs incurred in that action. THE…
IF YOU CAN'T PROVE IT YOU DON'T GET IT: CALLING EVIDENCE AT COURT TO PROVE A LOSS: A WORKING EXAMPLE
A party claiming damages must bring evidence to court to prove the losses it claims. This is a simple statement. However adducing evidence which actually proves the losses claimed often gives rise to difficulties in all spheres of litigation. The…
SETTING ASIDE AN EARLIER ORDER: A WIDE AND UNFETTERED DISCRETION?
In Cole -v- Howlett [2015] EWHC 1697 (Ch) Mr Justice Peter Smith conducted detailed consideration of the power, and discretion, to review and set aside orders already made. The judge agreed to set aside his earlier order striking out the…
LATE WITNESS STATEMENTS IN JUDICIAL REVIEW PROCEEDINGS: DON'T GO TO COLLEGE – JUST READ THE RULES
In R (on the application of the London College of Finance & Accounting) -v- Secretary of State for the Home Department [2015] EWHC 1688 (Admin) Mr Justice Cobb made some important observations in relation to the late service of evidence…
OPINION EVIDENCE IN WITNESS STATEMENTS AND THE CASE THAT MAY HAVE SPARKED OFF THE JACKSON REFORMS: Multiplex -v- Cleveland Bridge
Whilst doing some work on the problems caused when lay witnesses attempt to give expert evidence I came across the case of Multiplex Constructions (UK) LImited -v- Cleveland Bridge UK Limited [2008] EWHC 2220(TCC). It makes interesting reading for a…
COSTS, INDEMNITY COSTS AND CONDUCT WHEN CONSIDERING COSTS FOLLOWING AN ORDER FOR CROSS-EXAMINATION AT AN INTERLOCUTORY STAGE
In JSC Mezhdumarodiniy Promyshlenniy Bank -v- Pugachev [2015] EWHC 1694 (Ch) Mr Justice Hildyard considered the issue of whether a respondent to an order for cross-examination should be ordered to pay the costs of that application and whether those costs…
DENTON IN THE CONTEXT OF JUDICIAL REVIEW: PUBLIC INTEREST A HIGHLY SIGNIFICANT CONSIDERATION
In The Queen (on the application of Charith Missaka Wijesinghe) -v- Secretary of State for the Home Department [2015] EWHC 1558(Admin) HH Judge Deborah Taylor (sitting as a judge of the High Court) considered the Denton principles in relation to an…
SUCCESS FEES : DEFECTIVE NOTICE OF FUNDING AND RELIEF FROM SANCTIONS: A WHOLE BUNDLE OF ISSUES
The decision of Mr Justice Edis in O’Brien -v- Shorrock & the MIB [2015] EWHC 1630 (QB) deals with a number of important issues in relation to costs, notice of funding, the backdating of conditional fee agreements and relief from sanctions. THE…
A JUDGE CAN SUMMARILY ASSESS COSTS WHEN ORDER FOR COSTS WAS MADE BY A DIFFERENT JUDGE: THE RULES TRANSFORMED OR NEEDS BE AS NEEDS MUST?
In Transformers and Rectifiers Ltd -v- Needs Ltd [2015] EWHC 1687(TCC) Mr Justice Coulson considered the question of whether a judge can summarily assess costs when the costs order in question was made by a different judge. KEY POINTS There…
EXPERT REPORTS: TOO LONG AND NOT MUCH USE: CARE EXPERTS MUST TAKE MORE CARE
In the case of Harman -v- East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB) Mr Justice Turner had some very clear criticisms of the expert reports. Some of the comments are of general importance. “Against the background of…
COSTS BUDGETS IN FACEBOOK DEFAMATION CLAIM: AN IMPORTANT EXAMPLE IN PRACTICE
In Stocker -v- Stocker [2015] EWHC 1634 (QB) Mr Justice Warby considered the costs budgets of both sides in a defamation case. It provides a useful, and important, example of the practical implementation of cost budgeting in practice. “It would…
THE MEETING OF EXPERTS: CASE LAW AND GUIDANCE
The case of Cintas Corp No 2 -v- Rhino Developments (2015 Ch D Newey J 10/6/2015) * reported on Lawtel today provides an interesting scenario in relation to the conduct of an expert and joint meetings. There is relatively little…
APPEALING DECISIONS IN RELATION TO EXPERTS: SOME USEFUL EXAMPLES
An earlier post commented on how rare it was for appeals to take place in relation to the instruction of experts. John McQuater of Atherton Godfrey has kindly sent me two examples of appeals on the issue of experts. (Both…
PERSONAL INJURY LAWYERS AND THE AGEING POPULATION: WHY YOU SHOULD BE THERE ON THE 24th JUNE
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RELIEF FROM SANCTIONS, LATE WITNESS STATEMENTS AND LITIGANTS IN PERSON
The judgment of Mr Justice Warren in Chadwick -v- Burling [2015] EWHC 1610 (Ch) highlights some important issues in relation to relief from sanctions in general, and the position of litigants in person in particular. THE CASE The applicant in…
HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE (2015 EDITION): LEEDS 30th JUNE 2015
If you are a litigator and feeling happy, confident and have no concerns at all about getting things wrong, being sued or making a loss, then something may be missing from your life. TO MAKE YOUR LIFE COMPLETE Come to…
WITNESS EVIDENCE, CLINICAL NEGLIGENCE AND CLINICAL NOTES: A CASE IN POINT
The judgment of Mr Justice Jay in FB -v- Rana & Princes Alexandra Hospital NHS Trust [2015] EWHC 1536 contains another interesting consideration of the value of witness evidence and contemporary records in a clinical negligence case. I was recently…
RECOVERY OF THE INSURANCE PREMIUM IN CLINICAL NEGLIGENCE CASES: 10 KEY POINTS
The recent post on the decision in Nokes -v- Heart of England Foundation Trust [2015] EWHC B6 highlighted the issues relating to recoverability of the premium in clinical negligence cases. Here is a 10 point summary: 1. ONLY THAT PART…
OVERTURNING FINDINGS OF FACTS AND "INFERENCES" ON APPEAL
In Vann -v-Ocidental [2015] EWCA Civ 572 the Court of Appeal overturned a finding that there was no contributory negligence. There is an interesting discussion about appeals on findings of fact and the inferences that the judge draws from those…
PERCENTAGE COSTS ORDERS AFTER A TRIAL: ISSUE BY ISSUE DEDUCTIONS
The judgment of Mr Justice Arnold in Novartis AG -v- Focus Pharmaceuticals Limited [2015] EWHC 1553 (Pat) is another example of an approach to percentage costs orders and interim orders for costs after a trial. The judge ordered that the…
ANOTHER MIS-SERVED CLAIM FORM: CLAIMANTS DO NOT PASS GO AND DO NOT GET TO THE BANK
There are a number of issues considered by Mr Justice Arnold in Chopra -v- Bank of Singapore [2015] EWHC 1549 (Ch). However the claimants failed at the very first, and very familiar, hurdle – service of the claim form. THE…
ASSESSING THE CREDIBILITY OF A WITNESS: IT IS A MATTER OF COMMUNICATIONS
The judgment of HH Judge Brown QC in Mainline Digital Communications Ltd -v- Chaddah [2015] EWHC 1580 (QB) is an important illustration of the manner in which a judge assesses the credibility of a witness. “In my judgment, contemporaneous written…
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