PLEADINGS, THE STATEMENT OF TRUTH & CONTEMPT OF COURT: USEFUL GUIDANCE FROM RPC SOLICITORS
Hot on the heels of the discussion of witness statements and the statement of truth yesterday is an article by RPC solicitors about the importance of the statement of truth and pleadings. In particular there is a useful summary of…
DRAFTING WITNESS STATEMENTS : THE QUESTIONS YOU ASK WILL DETERMINE THE ANSWERS YOU GET: EIGHT CRUCIAL POINTS ON EVIDENCE
Earlier posts on witness statements have dealt with the manner of drafting and presentation. However one overlooked aspect is the way that witnesses are questioned. The questions asked, and the way questions are asked, will determine the evidence that goes…
MITCHELL AND ABUSE OF PROCESS: ANOTHER EXAMPLE OF A CASE STRUCK OUT
Mitchell, in terms of the importance of case management, was mentioned in the High Court case of Vaughan –v-London Borough of Lewisham. The facts were unusual, but the reference to case management powers and the importance of the economy and…
THE IMPORTANCE OF TRIAL BUNDLES AGAIN: READ LEGAL ORANGE
The earlier post on trial bundles received several comments. It is clearly a matter of interest, and some controversy. Legal Orange has written a post on Trial Bundles from the point of view of a litigator. LEGAL ORANGE The post…
JUDICIAL GUIDANCE ON THE USE OF VIDEO CONFERENCING AT TRIAL: READ THE RULES!
Video conferencing is a useful took and can save costs enormously. Particularly if it prevents a witness from having to travel from abroad. In Haider -v- Syed[2013] EWHC 4079 (Ch) Barling J expressed concern that the appropriate procedure was not…
DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES: A CHECKLIST TOO IMPORTANT TO IGNORE
The earlier post on witness statements had a large number of hits. That post set out the basic techniques when drafting witness statements. However it just as important is that you ensure that the statements you draft comply with the…
MITCHELL AND INDEMNITY INSURERS: A WORRYING TIME
One obvious concern about the Mitchell fallout is the position of Indemnity insurers. This is reflected in a piece by Hill Dickinson. The observations need to be noted. HILL DICKINSON’S POST There is a succinct summary of the decisions in…
MORE ON LEGAL WRITING: STRAIGHT FROM THE BENCH
The earlier post on written advocacy has led me to a blog written by an American Judge. The blog “Hercules and the Empire” is written by Federal Judge Richard Kopf and has proven to be popular in America (425,000 page…
DRAFTING SKELETON ARGUMENTS AND NOTICES OF APPEAL: EXAMPLES ON LINE
The skeleton arguments and Notices of Appeal in a case are rarely seen. David Price Solicitors have put their Skeleton and Notice of Appeal on line in a case. THE CASE The case is a defamation case where the solicitors…
DRAFTING WITNESS STATEMENTS AND THE GENIUS OF JOHN MUNKMAN
The skill and effort involved in drafting a proper and appropriate witness statement are often overlooked. Mistakes are often made. Witness statements are either to cursory and brief; too opinionated and argumentative or over-elaborate and lacking credibility. Curiously enough most…
ON-LINE GUIDANCE ON COSTS BUDGETING AND FILLING OUT FORM H: UPDATED
Form H (Precedent H) is now a central part of the litigation process. It was the delay in lodging the Form H that led to sanctions being imposed in the Mitchell case. Many people are facing completion of the form…
NO INTEREST AWARDED ON PRE-JUDGMENT COSTS FOR SUCCESSFUL DEFENDANT
Should a successful party have an award of interest on costs paid to their solicitors. In the case of Schuman -v- Veale Wasborough [2013] EWHC 4070 (QB) Dingemans J considered an application by successful defendants that they be awarded interest on their…
DO YOU NEED TO APPLY FOR RELIEF FROM SANCTIONS OR AN EXTENSION OF TIME? ANOTHER KEY ISSUE PRACTITIONERS SHOULD BE CERTAIN ABOUT
There was an interesting debate on twitter on Friday evening about whether Mitchell was being cited too widely. It was reported that, in some cases district judges had rejected the argument that when parties were applying for extension of time…
SECOND ACTION STRUCK OUT AS AN ABUSE OF PROCESS: REPORT OF FIRST INSTANCE DECISION
Searches for “abuse of process and section action” formed more than half of the search terms that brought people to this blog earlier in the week. It is clear that this is going to be a major subject of litigation…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES IF THE CLAIMANT HAS JUDGMENT OR THE DEFENCE HAS BEEN STRUCK OUT?
One important aspect of the new rules about relief from sanctions is that they apply to defendants as well. A defendant who is late in adducing evidence can be debarred from calling evidence as in the Durrant case. Here we…
CAN THE COURT CUT DOWN THE NUMBER OF WITNESS STATEMENTS? MACLENNAN –v- MORGAN SINDALL CONSIDERED.
One little noticed part of the Jackson reforms was the introduction of a new to CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now…
MORE MITCHELL MAYHEM: USE OF SQUARE BRACKETS LEADS TO COSTS BUDGET BEING DISALLOWED
A report by Tom Gibson in PI Brief Update makes worrying reading. The headline reads ” Would a district judge strike out a costs budget because it contained the phrase “[Statement of truth]”, in square brackets, rather than the full…
CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POST
Links to posts and articles on all aspects of civil procedure. Linking does not indicate approval or agreement but that all discussion on these issues is useful. RECENT POSTS AND ARTICLES 23rd June 2019 Herbert Smith Freehills Litigation Notes…
ISSUING PROCEEDINGS A SECOND TIME: NOT AN ABUSE OF PROCESS: HALL –v- MINISTRY OF DEFENCE EXAMINED
Can a claimant issue again if an action is struck because of a failure to comply with the rules and? This is likely to become a question of considerable interest given the number of cases that are failing because of…
DRAFTING WITNESS STATEMENTS AND THE LAWYER AS WITNESS
There have been several posts about drafting witness statements on this blog. Here I am referring readers to comments made by Richard Moorhead in his blog “Lawyer Watch”. The first refers to a case where the solicitor for a party…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 3: IF YOU CANNOT COMPLY WITH A RULE OR PRACTICE DIRECTION THEN MAKE AN APPLICATION BEFORE IT IS BREACHED
The Mitchell case makes it clear that applications for relief from sanctions made after breach will be granted sparingly. Here we consider the merits of making an application in advance of the date of breach. WHAT THE COURT OF APPEAL…
RELIEF FROM SANCTIONS AND SERVING NOTICE OF FUNDING: A TALE OF TWO CASES
Results of relief from sanctions applications are now being reported regularly. Here we look at two apparently contrasting applications in relation to relief from sanctions and the failure to give notice of funding. Both cases were reported today; both are…
KARBHARI: THE MITCHELL CRITERIA AND THE LATE SERVICE OF WITNESS STATEMENTS
KARBHARI -v- AHMED http://www.bailii.org/ew/cases/EWHC/QB/2013/4042.html 2013] EWHC 4042 (QB) This was a High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary…
KERRY UNDERWOOD: ABERCROMBIE AND RELIEF FROM SANCTIONS
Kerry Underwood’s blog contains an interesting discussion of the apparent differences between various divisions of the Court of Appeal on the issue of relief from sanctions. Kerry points to the decision in Abercrombie and Others v Aga Rangemaster Ltd (2013) EWCA…
GUIDANCE FROM THE BENCH ON POST JACKSON LITIGATION
HH Judge Simon Brown QC has written a series of articles on Litigation Post Jackson for the New Law Journal. See How to avoid getting into serious trouble http://www.newlawjournal.co.uk/nlj/content/how-avoid-getting-serious-trouble Costs Management Post Jackson http://www.newlawjournal.co.uk/nlj/co… Enjoying this post? Become a Civil Litigation Brief…
ANOTHER COURT OF APPEAL CASE ON RELIEF FROM SANCTIONS : DURRANT –V- CHIEF CONSTABLE OF AVON & SOMERSET CONSTABULARY
In the first relief from sanctions case to reach the Court of Appeal since Mitchell, the Court of Appeal reiterated the tough new approach which courts should taken when considering relief applications. The Claimant brought a claim against the Defendant…
AMENDMENTS TO CIVIL PROCEDURE RULES COMING INTO FORCE ON THE 1st JANUARY 2014
There are new rules coming into force on the 1st January. These mainly amend the procedure relating to defamation and the presumption of a jury trial. However there are other minor amendments. The rules and explanatory text can be found…
SERVICE OF THE CLAIM FORM: MITCHELL: RELIEF FROM SANCTIONS AND A “GOOD” REASON: AND SO TO BED: A LOOK AT THE CASE LAW
In Mitchell the Court of Appeal stated that a court should normally consider relief from sanctions in a “non-trivial” case if there were good reasons and referred to the case law relating to extending time for service of the…
TRIAL BUNDLES: TIMING, CONTENTS AND PRESENTATION : AND DO YOU KNOW SEDLEY’S LAWS?
Amidst the Mitchell Mayhem and the high glamour and glitz of Civil Litigation at the moment I am writing a post on the mundane subject of trial bundles. Mundane but important. The significance of bundles was highlighted in the recent…
FULL COPY OF TRANSCRIPT OF ALDINGTON -v- ELS
I am grateful to Gordon Wignall of No 5 Chambers for sending me a copy of the full transcript of Aldington -v- ELS where a claimant was granted relief from sanctions. (The transcript is upside down – click rotate clockwise…
WEBINAR ON "SURVIVING MITCHELL":29th JANUARY 2014
I am broadcasting a Webinar for CLT on “Surviving Mitchell” on the 29th January 2014 at 13.00. The link for subscribing can be found at http://www.clt.co.uk/webinar.aspx?crseidcode=1695882 “This webinar which is presented by Gordon Exall, will explain exactly what went wrong for…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE 2: ASSUME EVERY ORDER OF THE COURT IS A PEREMPTORY ORDER.
Some of the cases on sanctions reported this week have been highly disturbing; with cases being struck out on the morning of the trial because the bundles were not lodged three days earlier. As a result the only safe assumption…
POST MITCHELL MAYHEM 2: A CASE WHERE RELIEF FROM SANCTIONS WAS GRANTED
Litigation Futures carries a report of a High Court case where relief from sanctions was granted. The link is at http://www.litigationfutures.com/news/exclusive-high-court-grants-first-post-mitchell-relief-sanctions Details will be added to the Mitchell Case Watch later today…. Enjoying this post? Become a Civil Litigation Brief member…
SANCTIONS: CASE WATCH
This section looks at decisions in relation to relief from sanctions and the general principles of CPR 3.9. Often there are links to the decisions themselves, together with links to posts on this blog. CASES IN CHRONOLOGICAL ORDER 2026 February…
MORE MITCHELL MAYHEM: CASE STRUCK OUT AT TRIAL FOR BUNDLE BEING DELIVERED LATE
Stories abound in relation to the court’s attitude to matters after Mitchell. Below is an e-mail kindly copied to me by David Kirkham, from a London Barrister. It highlights the very real risks involved. The story tells itself. “I was…
CAN A STRUCK OUT CLAIMANT ISSUE AGAIN? EXERCISE OF THE SECTION 33 DISCRETION AFTER A FIRST ACTION HAS BEEN DISMISSED.
One of the “open” questions following the Mitchell decision is whether a claimant refused relief from sanctions can issue again. That is an open question (which will be considered at another time). Here we look at the court’s approach to…
SG DG PETROL: A (HIGH COURT) POST-MITCHELL DECISION ON RELIEF FROM SANCTIONS
There is a High Court decision on relief from sanctions at http://www.bailii.org/ew/cases/EWHC/Comm/2013/3920.html An application for relief from sanctions was dismissed. The judge went on to make general observations about how applications for relief from sanctions should be conducted. In SG DG Pet……
PROPOSED REFORMS TO COURT FEES
The Ministry of Justice document on proposed reforms to Court fees can be found at http://www.official-documents.gov.uk/document/cm87/8751/8751.pdf… Enjoying this post? Become a Civil Litigation Brief member to read full articles and access all premium content. Become a member Already a member? Log…
SURVIVING MITCHELL A PRACTITIONER’S GUIDE : 1 KNOW WHAT HAPPENED IN MITCHELL AND HOW IT COULD HAVE BEEN AVOIDED
The decision in Mitchell is already having a major impact on day to day litigation. This is the first of a series of posts which looks at the Mitchell decision and deals with the practical steps that practitioner’s must take…
THE AFTERMATH FROM MITCHELL: THIS IS GETTING REALLY, REALLY, SERIOUS
I have been in discussions today with one barrister who estimates that, in his own practice alone, he has already represented claimants where a total of £1 million pounds of damages have been lost as a result of a decision…
THE "JACKSON CORNER": A USEFUL PLACE TO LOOK
Zenith Chambers provides a useful facility at “the Jackson Corner” which can be found, directly, at http://www.zenithchambers.co.uk/site/the_jackson_corner/ It has useful articles, links and guidance on key documents. You can receive e-mail notifications of updates by contacting the e-mail address a… Enjoying…
PRE-ACTION DISCLOSURE: THE APPROPRIATE TEST CONSIDERED BY THE COURT OF APPEAL
In Smith –v- Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585 the Court of Appeal stress that applications for pre-action disclosure should not become “mini trials” and set out the appropriate test for the courts to consider….
CAN MR MITCHELL STILL GET HIS COSTS? A PROFESSOR'S OPINION
The comments section is at the bottom right hand side of this blog and a comment from Professor Hibbert made earlier this week may have been missed by many. I set it out below. No doubt this will give rise to…
RELIEF FROM SANCTIONS: DECISION OF THE HIGH COURT: THE LETTER OF THE LAW
The case of Forstator -v- Python (Monty) Pictures Ltd [2013] EWHC 3759 is a case where the Court granted relief from sanctions. It was heard before the Mitchell decision but judgment was given afterwards. The judge did not hear submissions…
TIBBLES BITES AGAIN: THE PROBLEMS OF ATTEMPTING TO VARY A COURT ORDER
Hot on the heels of the previous post in relation to variation of court orders that a party dislikes comes another report highlighting the difficulties facing a party seeking to vary an order, Apex Global Management –v- Global Torch Ltd…
I NEVER LIKED THAT ORDER ANYWAY – CAN I SET IT ASIDE NOW? CONSIDERATION OF THE TIBBLES CRITERIA IN APPLICATIONS FOR RELIEF FROM SANCTIONS”.
In the Mitchell case the claimant made an attempt to challenge and set aside one of the orders made by the Master which had been breaches. The Court gave clear guidance as to the steps to be taken if a…
DECISION OF THE COUNTY COURT FOLOWING MITCHELL: ROMANO –v-K PAPERS (BLACKBURN) LTD
The courts now have a clear basis upon which to consider applications for reinstatement following the decision in Mitchell. The case of Romano –v- K Papers (Blackburn) Ltd an appeal heard at Manchester County Court today (29th November 2013) provides…
THE MITCHELL CRITERIA FOR RELIEF FROM SANCTIONS: A DETAILED EXAMINATION
There has been much comment about the effect of the Court of Appeal decision in Mitchell on litigation and litigators. Here we look, in considerable detail, at the guidance given in relation to relief from sanctions and associated case law….
MITCHELL: THE COMMENTARY CONTINUES
The commentary on the fallout of the Mitchell decision continues apace. One of the most interesting comments, however, comes from Sir Henry Brooke, former Lord Justice who tweets at @HenryBrooke1. Here we look at those observations and other links to…
MITCHELL: 20 KEY POINTS OF JUDGMENT
The Court of Appeal gave judgment in Mitchell -v- News Group Newspapers [2013] EWCA Civ 1537 today. The case has been much covered. The Claimant’s application for relief from sanctions was refused. The key points of general importance are: 1….
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