THE DUTY OF FULL AND FRANK DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: ANOTHER CASE ILLUSTRATING THE DANGERS
The duty of full and frank disclosure owed when a without notice application is made has been looked at many times on this blog. Another example can be seen in the judgment today by Sir Michael Tugendhat in Ahuja -v-…
GOOD WITNESS STATEMENTS ARE NOT JUST FOR CHANCERY LAWYERS: THE CHANCERY GUIDE TO WITNESS STATEMENTS
In a post last week we looked at a comment in the judgment of HHJ Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch which concluded “In so far as there is a criticism of the preparation it…
LITIGATION PRIVILEGE, DECEPTION AND THE ACCIDENTAL DISCLOSURE OF PRIVILEGED DOCUMENTS
In Property Alliance Group -v- The Royal Bank of Scotland PLC [2015] EWHC 3341 (Ch) Mr Justice Birss made some important observations on the scope of litigation privilege when evidence was obtained by deceit. Significant guidance was given on the…
DENTON, DOCUMENTS AND DELAY: FAILURES IN DISCLOSURE LEAD TO APPEAL BEING STRUCK OUT
In Walton -v- Allman [2015] EWHC 3325 (Ch) Mr Justice Snowden upheld a decision refusing relief from sanctions. It is a case that shows the importance of considering, and making full disclosure and the dangers of taking a “wrong-headed” view…
NO INDICATIONS GIVEN FROM TRIAL JUDGE IN RELATION TO EXCEEDING COSTS BUDGET: THE APPROPRIATE APPROACH TO INTERIM COSTS WHERE THE COSTS HAVE EXCEEDED THE COSTS BUDGET
Can (and should) the trial judge give any indication in relation to costs budgets at the end of a trial if the costs budgets have been exceeded. Further what is the appropriate approach to an application for interim costs when…
GOOD BUNDLES, GOOD ADVOCACY, POOR WITNESS STATEMENTS
The final paragraph of the judgment of HH Judge Behrens in Royal National Institute for Deaf People -v- Turner [2015] EWHC 3301 Ch speaks volumes. I will allow it to speak for itself. “I cannot leave this case without…
DEFENDANT NOT ALLOWED TO WITHDRAW FROM ADMISSION AND DEBARRED FROM RELYING ON FURTHER EVIDENCE: PLEADINGS ARE STILL IMPORTANT
In Clark -v- Braintree Clinical Services Limited [2015] EWHC 3181 HH Judge Burrell QC (sitting as a High Court judge) refused a defendant’s application to resile from an admission. He also granted the claimant’s application to debar the defendant from…
STRIKING OUT FOR DELAY: SOLLAND UPHELD ON APPEAL
We have looked before at the decision of Master Bowles in Solland International Ltd -v- Clifford Harris & Co [2015] EWHC 2018 (Ch) where the claimant’s action was struck out because of their failure to progress the action for 31…
"THAT PART OF MY WITNESS STATEMENT IS NOT TRUE": NEVER A GREAT START TO A CASE
In Monks -v- National Westminster Bank PLC [2015] EWHC 2310 (Ch) HH Judge Simon Baker (QC)(sitting as a judge of the High Court) had some acute observations about the witness statements and witness evidence adduced by the defendant bank. “…it…
COSTS AFTER RELIEF FROM SANCTIONS: A SUMMARY ASSESSMENT
An earlier post looked at the decision of Mr Justice Edwards-Stuart in North Midland Construction plc -v- Geo Networks Ltd [2015] 2384 (TCC). Here we look at the subsequent order in relation to costs. THE CASE The claimant failed to…
THE STEPS THAT HAVE TO BE TAKEN WHEN WORKING ON A LIMITED RETAINER: COURT OF APPEAL GUIDANCE
In Minkin -v- Landsberg [2015] EWCA Civ 1152 the Court of Appeal gave important guidance on the practical steps solicitors can taken when acting for a party under a “limited retainer”. “It goes without saying that where a solicitor acts…
FATAL ACCIDENTS DAMAGES MASTERCLASS: HARDWICKE BUILDING: CENTRAL LONDON: 3rd DECEMBER 2015
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SUMMARY JUDGMENT FOR DEFENDANT WHEN THERE WERE ALLEGED DISPUTES OF FACT: DON'T PARK THE CAR
Is it prudent to apply for summary judgment when there are alleged disputes of fact? I am grateful to my colleague Colm Nugent for sending me a copy of the judgment of Mr Justice Cooke in Price -v- Euro Car…
THE ALDI PRINCIPLE AND SECOND ACTIONS: A STING IN THE TAIL
In Chamonix Private Equity LLP -v- Caledonia Investments plc [2015] EWHC 3290 (Comm) Mr Justice Knowles noted that, in the absence of prior notification, it was going to be difficult for a claimant to bring a second action against different…
WASTED COSTS ORDER MADE AGAINST SOLICITORS: COMPLIANCE WITH ORDERS, ABSENT STATEMENTS AND LATE BUNDLES
In F-v-M [2015] EWHC 3259 (Fam) Mr Justice Cobb made a wasted costs order against a firm of solicitors. The judgment is (and was designed to be) an object lesson in the need to comply with court directions and court…
PROVING THINGS BY EVIDENCE: ANOTHER EXAMPLE OF AN ABSENCE OF EVIDENCE LEADING TO A CASE FAILING
The case of Goldsmith Williams -v- E.Surv Limited [2015] EWCA Civ 1147 will, no doubt, be discussed as a professional negligence case and it may have some impact on the duties of conveyancing solicitors. However the appeal, at heart, relates…
COSTS WHERE CLAIMANTS ARE REPRESENTED BY MORE THAN ONE FIRM OF SOLICITORS: IT CAN GET DIFFICULT
In Ong -v- Ping [2015] EWHC 3258 (Ch) Mr Justice Morgan considered the relevant order to make as to costs when the claimants in an action had been represented by separate solicitors. THE CASE Four claimants had been successful in…
PROPORTIONALITY, COSTS AND PAYMENTS ON ACCOUNT: A HIGH COURT DECISION
In Rallinson -v- North West London Hospitals NHS Trust [2015] EWHC 3255 (QB) Mr Justice Garnham considered issues relating to proportionality when assessing costs to be paid on account. “In my view, there is an argument of real substance here…
COSTS WHERE A CLAIMANT ACCEPTS A PART 36 OFFER LATE: TWO CASES WHERE THE CLAIMANTS CAME TO GRIEF
When a claimant accepts a Part 36 offer late costs become at large. Here we look at two cases where late acceptance of a Part 36 offer had grave consequences for a claimant.* “A claimant who pursues a claim in…
DENTON, DELAY AND THE COURT OF APPEAL: OUT OF TIME APPEAL REFUSED
The Court of Appeal considered the Denton criteria in JA (Ghana) -v- The Secretary of State for the Home Department [2015] EWCA Civ 1031. A decision that emphasises that the criteria can be applied rigorously. “A more appropriate and (individually)…
PROPORTIONALITY AND SURVIVAL FOR LITIGATORS 4: CLAIM ONLY WHAT YOU CAN PROVE
Proportionality is, mostly, about money. The problems that proportionality causes increase in those cases where the sums recovered are much less than those originally sought. The over-claiming of damages is a dangerous tactic for many reasons. Not least it…
DOES EVERY FIRM NEED A "PROPORTIONALITY" TSAR? PROPORTIONALITY AND SURVIVAL FOR LITIGATORS 3
In January this year I started a series “Proportionality and Survival for Litigators”. I predicted it would be a lengthy series. I want to look at practical ways in which litigators can ensure that costs remain “proportional”. This, most probably,…
ANOTHER CASE WHERE THERE WAS AN INVALID PART 36 OFFER; NO RESPONSE TO OFFERS TO MEDIATE AND NEITHER PARTY RECOVERED COSTS
There is a brief report on Lawtel of the Court of Appeal decision in NJ Rickard Ltd -v- Holloway (CA 03/11/2015)*. It is an example of: (i)the importance of making a valid Part 36 offer; (ii)an example of the consequences…
WHAT IS MEANT BY "PROPORTIONALITY"? CONSIDERATION BY THE SENIOR COURTS COSTS OFFICE
In Hobbs -v- Guy’s and St Thomas’ NHS Foundation Trust [2015] EWHC B20 (Costs) Master O’Hare considered the question of proportionality in the context of a low value clinical negligence case. “In my judgment, although it was reasonable for the…
YOU'RE AS BAD AS EACH OTHER: NO-ONE IS GETTING ANY COSTS: POWERFUL WORDS IN THE HIGH COURT
In GBM Minerals Engineering Consultants Limited -v- GM Minerals Holdings Limited [2015] EWHC 3091 (TCC) Mr Justice Fraser had some some strong words to say about conduct and costs, resulting in a decision that no order for costs should be…
WHEN IS PERSONAL SERVICE EFFECTED? A CASE TO SEND TO ALL YOUR PROCESS SERVERS
In Tseitline -v- Mikhelson [2015] EWHC 3065 (Comm) Mr Justice Phillips had to consider whether effective personal service had taken place. THE CASE The claimants had attempted to serve the defendant outside, and then later inside, the National Gallery. The…
LIMITATION AND THE DATE OF KNOWLEDGE: WHAT IS MEANT BY "SIGNIFICANT"?
In Summers -v- The City and County of Cardiff [2015] EWHC 3066 (QB) Mr Justice Hickinbottom considered what was meant by “significant” in s.14(1) of the Limitation Act 1980. “The test for “significance” of injury is one of quantum alone,…
DAMNED IF YOU DO: DAMNED IF YOU DON'T: AGREEING COSTS BUDGETS AND COMPLYING WITH THE OVERRIDING OBJECTIVE
“Are lawyers colluding on fees?”, asked Rachel Rothwell in the Law Society Gazette yesterday. Rachel was reporting on a concern, albeit a low key one expressed by some judges that parties are “colluding” to keep their fees high in costs…
WITNESS EVIDENCE & THE BURDEN OF PROOF: A CIVIL TRIAL IS NOT A SEARCH FOR THE ABSOLUTE TRUTH: FOOTBALLERS ON TRIAL
Anyone looking for a detailed consideration of the law relating to witness evidence and the burden of proof can find it in the judgment of His Honour Judge Butler (sitting as a High Court judge) in GB -v- Stoke City…
PROVING THINGS BY EVIDENCE: SUCH A QUAINT, OLD FASHIONED CONCEPT
The judgment of the Court of Appeal in One Money Mail Ltd -v- RIA Financial Services [2015] EWCA Civ 1084 highlights a surprisingly common theme in many judgments. A party wants damages but has simply failed to adduce the evidence…
APPLICATION FOR INDEMNITY COSTS REFUSED: A HIGH COURT DECISION
In the judgment today in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2015] EWHC 3050 (TCC) Mr Justice Coulson refused an application for indemnity costs and reduced the sum claimed from £51,787.50 to £35,000. THE CASE The claimant made a…
LIMITATION :"STANDSTILL AGREEMENT" HAS WIDE SCOPE & COVERS CLAIM IN DECEIT: COURT OF APPEAL DECISION
In Mortgage Express -v- Countrywide Surveyors Limited [2015] EWCA Civ 1110 the Court of Appeal construed a limitation “standstill” agreement. It is, possibly, the first time a “standstill” agreement has been construed on appeal. Given that these agreements are now…
CPR 3.10 STOPS A CLAIM FROM SINKING: USING THE WRONG FORM NOT FATAL TO AN ACTION
In LD Commodities Rice Merchandising LLC -v- The Owners and/or Charterers of the Vessel Styliani Z [2015 ] EWHC 3060 (Admlty) Mr Justice Teare considered a case where the claimant used the wrong form to issue an action, this could…
LATE APPLICATIONS TO ADJOURN: ABSENT WITNESSES AND CPR 33.4 WHEN A WITNESS IS UNWILLING TO ATTEND
Mrs Justice Whipple had to consider several preliminary applications in the case of American Express Services Europe Ltd -v- Al-Shabrakah [2015] EWHC 3004 (QB). There are several important observations in relation to applications to adjourn and witness evidence where a…
ISSUING WITHOUT AUTHORITY: THE DANGERS OF SOLICITORS SIGNING STATEMENTS OF TRUTH: ACTION STRUCK OUT AS AN ABUSE OF PROCESS
This blog has looked, several times, at the dangers of solicitors signing documents which contain a statement of truth. The risks are clearly set out in the decision of Mrs Justice Rose today in Bao Xiang International Garment Centre -v-…
AN OFFER IS NOT AN ADMISSION: HIGH COURT REJECTS APPLICATION FOR JUDGMENT ON ADMISSIONS
The previous post looked at the decision Mr Justice Coulson in The Dorchester Group Ltd -v- Kier Construction Limited [2015] EWHC 3051 (TCC) in relation to disclosure. Here we look at the decision in relation to the claimant’s application for…
BUDGETS , PROPORTIONALITY AND DISCLOSURE: THE RELEVANT TEST APPLIED WHEN A PARTY "GOES AWRY"
The judgment of Mr Justice Coulson in The Dorchester Group Ltd -v- Kier Construction Limited [2015] EWHC 3051 (TCC) contains much of interest in relation to admissions and procedure. However there are also interesting observations in relation to the way…
BIAS IN COURT AND WITNESS EVIDENCE: HOUSES OF PARLIAMENT NOTE: CREDIBILITY AND WITNESSES IN THE CIVIL COURTS
The Houses of Parliament have produced a note on Unintentional Bias in Court which deals with the issue of how assumptions, stereotypes and “contextual information” can influence judgement unintentionally. The note concentrates upon the impact in criminal proceedings. However it is…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
THE DATE OF KNOWLEDGE AND SECTION 33: A CASE THAT CLINICAL AND PROFESSIONAL NEGLIGENCE LAWYERS PROBABLY NEED TO READ
In Rayner -v- Wolferstans & Medway NHS Foundation Trust [2015] EWHC 2957 (QB) Mr Justice Wilkie carried out a comprehensive review of the law relating to date of knowledge and Section 33 of the Limitation Action 1980. It also touches…
ANOTHER CLAIM FORM NOT SERVED PROPERLY: SERVICE ABROAD AND SERVICE ON A SOLICITOR
In Transportes Viana E Fernandes LDA -v- Baban & others (Brighton County Court, 15th January 2015)* His Honour Judge Simkiss overturned the order of the District Judge in circumstances where the claim form had not been served properly. The claim…
SUCCESSFUL PART 36 OFFER BY CLAIMANT ATTRACTS INDEMNITY COSTS ONLY FROM THE DATE OF EXPIRY OF THE OFFER: A HIGH COURT CASE
In RXDX -v- Northampton Borough Council [2015] EWHC 2938 (QB) Sir Colin Mackay revised an order in relation to indemnity costs following a Part 36 offer. THE CASE On the 12th March 2015 the claimant offered to settle the issue…
THE HUMBLE CASE SUMMARY: A NEGLECTED ART: I'M ON THE LOOKOUT FOR EXAMPLES OF BEST PRACTICE
The New Law Journal last month carried an important article from District Judge Nigel Law about his experience with case summaries in the county court. The case summaries he found were too long and rarely useful. This set me looking…
WITNESS TRAINING: BLUNTS THE EFFECTIVENESS OF TRIAL AND IS RELEVANT TO AN ASSESSMENT OF CREDIBILITY
Issues relating to “witness training” are bound to be controversial. The advocates of witness training (often, surprisingly, those who provide the training) state it is a good thing. However it is clear that trial judges often have their reservations as…
ADJOURNMENTS AND DISCRETION: DECISION NOT TO ADJOURN BANKRUPTCY PETITION UPHELD BY THE COURT OF APPEAL
In Edginton -v- Sekhon [2015] EWCA Civ 816 the Court of Appeal refused to overturn the judge’s decision not to adjourn a bankruptcy petition. “Delay is inimical to all forms of litigation and especially so in a collective enforcement process…
EXPERT WITNESSES GOING BEYOND THE BOUNDARIES OF EXPERT EVIDENCE: IT INCREASES COSTS AND IS COUNTER-PRODUCTIVE
In Johnston -v- TAG Farnborough Airport Limited [2015] UKUT 0534 Martin Rodger QC (Deputy President of the Upper Tribunal Land Chamber) had some telling observations about the role of the expert witnesses in that case. “The willingness of the experts…
DO FIXED COSTS APPLY TO PORTAL CASES ALLOCATED TO THE MULTI TRACK? A COUNTY COURT DECISION – THAT SAYS THAT THEY DO
In Quader -v- Esure Services Limited (Birmingham County Court 15th October 2015) His Honour Judge David Grant considered the issue of whether fixed costs applied to a portal case that was transferred to the Multi Track. THE CASE The judge…
THE ACCRUAL OF THE LIMITATION PERIOD FOR LOSS OF EARNINGS: A CLAIM "JUST" IN TIME
The previous post looked at the decision in relation to interest in Oyesanya -v- Mid-Yorkshire Hospital Trust [2015] EWCA Civ 1049. Here we look at the procedural points. “I cannot leave this case without making three observations. First, I am surprised…
INTEREST WHERE THE CLAIM WAS OVER A PROLONGED PERIOD:JUDGMENT ACT RATE NO LONGER APPROPRIATE
There were many procedural issues in the Court of Appeal decision in Oyesanya -v- Mid-Yorkshire Hospital Trust [2015] EWCA Civ 1049. Some of them will be looked at in later posts. Here we look at the appropriate approach of the…
SUING OR DEFENDING ON BEHALF OF AN ESTATE OR TRUST FUND: DID YOU KNOW YOUR COSTS BUDGETS MUST BE FILED WITH THE PLEADINGS?
A solicitor has pointed out to me the surprise provisions of Practice Direction 3F – on Costs Capping. The title of the Practice Directions is deceptive. There are also mandatory provisions in relation to the filing of costs budgets at…
