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….
NEW PRACTICE DIRECTION: RIGHT TO BUY CLAIMS
The Master of the Rolls has issued a Practice Direction dealing specifically with “right to buy” claims. That is negligence actions against solicitors in relation to mortgage broking. Those claims are now allocated to a specific Master. Any existing claims…
BIFFA WASTE SERVICES: RELIEF FROM SANCTIONS: FULL TRANSCRIPT NOW AVAILABLE
Biffa Waste Services Ltd –v- Ali Dinler [2013] is a case where the judge, on appeal, overturned an earlier order granting relief from sanctions. The full transcript is now available and is notable for its detailed consideration of the principles…
AVOIDING NEGLIGENCE CLAIMS 6: COMMUNICATIONS WITH THE CLIENT
Procter -v- Raleys Previous posts in this series have concentrated upon limitation issues. This post looks at the recent decision of Judge Gosnell in Procter –v- Raleys (Leeds County Court 6/11/2013). In particular what it demonstrates about the need to…
DO YOU HAVE TO FILE FORM H IN PART 8 PROCEEDINGS? SOMETHING YOU SHOULD BE SURE ABOUT
All litigators know (or should know) the central importance of Form H in civil procedure. If you don’t file the form in time then you don’t get paid. A colleague today asked me whether it was necessary to file a…
“AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED.”
It may be thought that commentary on issues of procedural default is in abeyance until the Mitchell decision from the Court of Appeal. However, as recent posts have shown, cases are still coming through thick and fast. When a judge…
DEFAULT, DELAY AND EXPERT EVIDENCE: COURT OF APPEAL LAYS DOWN THE LAW
The case of Boyle –v- Commissioner of Police for the Metropolis provides another example of the problems caused by late service of evidence. The Court of Appeal set down clear guidance of the new culture of intolerance to delay. THE…
UNDERSTANDING AND REDUCING THE COSTS OF LITIGATION: EDUCATING YOUR CLIENT
The previous post considered the case of Vitol Bahrain where the costs of the successful party on a one day application were reduced from £165,241.80 to £75,000. The amount of this shortfall highlights the need for the modern litigator to…
PROPORTIONALITY AND COSTS: IT APPLIES TO BIG CASES AS WELL
The short judgment of Mr Justice Males in the case of Vitol Bahrain –v- Nasdec General Trading LLC makes it clear that the issue of proportionality in costs impacts upon cases of every size, even the most major multi-million dollar…
INTERESTING FIRST INSTANCE DECISION ON STRIKING OUT SPECIAL DAMAGES BECAUSE OF DILATORY CONDUCT BY THE CLAIMANT
The 9sjs website has an interesting report of a decision in the Bow County Court where the judge struck out a claim for £220,000 on the grounds that the claimant had not complied with directions. See the report at http://www.9sjs.com/assets/Uploads/ozbay.pdf It…
CHANGES TO PRACTICE DIRECTIONS GOVERNING APPEALS TO THE SUPREME COURT
Appealing to the Supreme Court is likely to an extremely rare event for most practitioners. The Supreme Court has its own specific rules. “The Supreme Court has its own Directions which replace the Civil, Criminal and Taxation Practice directions and…
WHAT CAN YOU DO IF THE PROPOSED DEFENDANT IS DEAD AND THERE IS NO GRANT OF PROBATE OR ADMINISTRATION?
A recent post looked at the problems of issuing proceedings before letters of administration are taken out. Here we consider the problems when a proposed defendant has died and there are no executors or administrators. THE PROBLEM Probate is not…
DRAFTING WITNESS STATEMENTS: ESSENTIAL GUIDANCE FROM AN AUTHORITATIVE SOURCE THAT EVERY LITIGATOR SHOULD READ
The dangers of drafting argumentative and adversarial witness statements have been discussed several times on this blog. A working example of the dangers of this, together with commentary on the results, can be found in the statement of Peter Smith…
MITCHELL -v- NEWS GROUP NEWSPAPERS: OUTLINE OF DEFENDANT'S SUBMISSIONS
These notes come with same caveat as the Claimant’s notes in the previous post. They are from handwritten notes taken in court today. They do not purport to be a transcript. All that can be done is to give a…
MITCHELL -v- NEWS GROUP NEWSPAPERS: OUTLINE OF CLAIMANT'S SUBMISSIONS
There appeal in the Mitchell case was heard in the Court of Appeal case earlier today. Judgment was reserved. I have a note of the arguments on behalf of the Claimant/Appellant. The Defendant’s arguments will be posted later. I…
WITNESS STATEMENTS & COMPLYING WITH THE RULES 2: THE GROUNDS FOR THE WITNESSES’ KNOWLEDGE OR BELIEF
The previous post at http://civillitigationbrief.wordpress.com/2013/11/04/the-importance-of-drafting-witness-statements-that-comply-with-the-rules/ discussed a case where the problems about the witnesses giving information as to source of belief and hearsay evidence. The problems were avoi… Enjoying this post? Become a Civil Litigation Brief member to read…
THE IMPORTANCE OF DRAFTING WITNESS STATEMENTS THAT COMPLY WITH THE RULES
The Civil Procedure Rules set out rigorous requirements for the structure and layout of witness statements. The editors of the White Book note (at 32.4.5 of the latest supplement that) “Unfortunately, rules, practice directions and guidance as to the contents…
NEW GUIDE TO CHANCERY PROCEDURE: "COMMON LAWYERS" DON'T SWITCH OFF
HM Courts and Tribunal Service has provided a new Chancery Guide. It is available at http://www.chba.org.uk/for-members/library/practice-directions-court-notices/chancery-guide-updated-october-2013 It is worthwhile reading for non-Chancery lawyers. The book contains invaluable advice about disclosu… Enjoying this post? Become a Civil Litigation Brief member to read…
RELIEF FROM SANCTIONS AND CPR 3.9: TWO CASES WHERE RELIEF FROM SANCTIONS WAS GRANTED
The issues caused by the new CPR 3.9 have featured many times on this blog. Here we look at two High Court decisions where relief from sanctions was granted. Kesabo –v- African Barrick Gold Plc and (because the full transcript…
EXTENSIONS OF TIME WHEN THERE IS A MINOR BREACH: FULL TRANSCRIPT IN RAYYAN AL IRAQ CO LTD NOW AVAILABLE
The case of Raayan Al Iraq Co. Ltd –v- Trans Victory Machine Inc [2013] EWHC 2696 (Comm) was mentioned in an earlier post. The full transcript is now available and provides useful reading for those applying for retrospective extensions of…
COSTS CONSEQUENCES OF PART 36 OFFERS: ANOTHER INTERESTING EXAMPLE
Following the earlier post on Part 36 offers I am grateful to Marcus Davies from DWF for pointing me in the direction of the decision of Mrs Justice Andrews in Davison –v- Leitch [2013] EWHC 3092 (QB). This provides another…
THE COSTS CONSEQUENCES OF PART 36 OFFERS: DO THEY ALWAYS APPLY? THE CASES IN DETAIL
The costs consequences when a claimant fails to beat a Part 36 from the defendant are well known and long established. The advantages for a claimant who now beats their own offer were examined in a previous post. Here we…
COURTS AND TRIBUNALS FEE REMISSIONS ORDER 2013
This Order came into force on the 7th October 2013. The aim is to put forward a standard fee remission system across a whole range of tribunals as well as the civil courts. It is always prudent, when issuing…
MEDIATE OR ELSE? THE COSTS CONSEQUENCES OF REFUSING TO MEDIATE
A recent post looked at the Court of Appeal mediation scheme and examined the potential penalties for a party refusing to mediate. In PGF II SA –v- OMES Company I Limited [2013] EWCA CIV 1288 the Court of Appeal looked…
HANDBOOK FOR LITIGANTS IN PERSON: FIND IT AND USE IT!
The Judiciary have published a Handbook for Litigants in Person. It can be found here. WHY YOU SHOULD READ IT I suggest every litigator has a look at it. 1. You should ensure it is sent to every litigant in…
THEVARAJAH –V- RIORDAN NOW FULLY REPORTED: SECOND BITE OF CHERRY IN RELATION TO RELIEF FROM SANCTIONS
The case of Thevarajah –v- Riordan has been discussed before. Initially relief from sanctions was refused, however it was then granted at a second application. Here we look at the decision in more detail, in particular the CPR 3.9…
THE DANGERS OF GETTING THE COURT FEES WRONG: IF THE FEES ARE NOT RIGHT – YOU HAVEN'T ISSUED
If proceedings are being issued at the last moment then it is imperative that the correct fee is lodged at court. A failure to send the correct fee will mean that proceedings are not properly issued. This post looks at…
TEN MYTHS ABOUT LIMITATION THAT EVERY PERSONAL INJURY LITIGATOR SHOULD KNOW.
There are a surprising number of “myths” that prevail in personal injury litigation. In particular in relation to limitation. Here, as part of the “avoiding negligence” series we look at 10 of these myths. Myth 1: In a breach of…
RELIEF FROM SANCTIONS GRANTED SECOND TIME AROUND: QUITE A TWIST TO THIS TALE?
The case of Thevarajah –v-Riordan has been reported before at http://civillitigationbrief.wordpress.com/2013/08/13/relief-from-sanctions-a-case-where-relief-was-refused/ when the court refused to grant relief from sanctions where the defendant had failed to comply with disclosure obligations. H… Enjoying this post? Become a Civil Litigation Brief member…
MEDIATION IN THE COURT OF APPEAL
The Court of Appeal can recommend that appeals be referred to mediation. This blog looks at the process and some of the case law. THE GUIDANCE A Lord/Lady Justice considering an application for permission to appeal is expressly required…
STRIKING OUT FOR ABUSE OF PROCESS: THE NEED TO ADVISE CLIENTS TO PRESERVE EVIDENCE
An action can be struck out if a party fails to preserve evidence. Matthews –v- Collins is a fatal case where evidence was destroyed by the coroner . The defendant applied to strike out the action as an abuse of…
RELIEF FROM SANCTIONS ORDER OVERTURNED ON APPEAL: ANOTHER CASE GOES TO WASTE
In Biffa Waste Services Ltd –v- Ali Dinler (QBD 10/10/13) Swift J overturned an order granting relief from sanctions. THE FACTS Biffa was a personal injury case. The claimant failed to file a pre-trial checklist in time or to…
ANOTHER FAILED APPLICATION FOR RELIEF FROM SANCTIONS: MORE LESSONS TO LEARN
The decision in Michael –v- Middleton [2013] EWHC 2881 (Ch) provides another example of the difficulties that arise in making an application for relief from sanctions. However close examination of the judgment also provides some interesting lessons in conducting litigation and…
SEX & SUMMARY JUDGMENT: WHERE DOES THE BURDEN OF PROOF LIE IN ESTABLISHING A “COMPELLING REASON” WHEN DEFENDING A SUMMARY JUDGMENT APPLICATION?
The case of Sargespace –v- Eustace had a highly unusual set of facts. However it raises an interesting question of where the burden of proof lies in an application for summary judgment where a respondent to the application wishes to…
NEW SENIOR COURT OFFICE COSTS GUIDE
The Senior Courts Costs Office has produced a comprehensive guide to costs. At 182 pages it probably contains all the procedural points you need to know. https://www.dropbox.com/s/65gbezzxz7l2zpk/SCCO%20Guide%20October%202013.pdf… Enjoying this post? Become a Civil Litigation Brief member to read full articles and…
HAVE YOU COMPLIED WITH AN "UNLESS ORDER"? GUIDANCE IN THE CONTEXT OF E-DISCLOSURE
A hearing on the question of whether a party has complied with an unless order is always a fraught one. The stakes are high, particularly for the party alleged to be in breach. Here we look at compliance in relation…
THE DUTY TO RISK ASSESS AND NEGLIGENCE AFTER THE 1ST OCTOBER 2013: A DETAILED EXAMINATION OF THE LAW AND CASES
The link to this post is at http://accidentsatworkaftertheerra.wordpress.com/2013/10/01/the-duty-to-risk-assess-and-common-law-duty-after-1st-october-2013/… 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 in below Username or E-mail Password Remember Me…
HOW RELEVANT ARE PART 36 OFFERS TO ISSUE BASED ORDERS? A SALUTARY WARNING ABOUT THE RISKS OF LITIGATION
The making of an “issue based” costs order is now a common aspect of litigation. However how relevant is a Part 36 offer when a court is considering making an “issue based” costs order? A recent case contains discussion of…
WITNESS STATEMENTS IN A SPECIFIC CONTEXT: ACCIDENTS AT WORK AFTER 1st OCTOBER 2013
A fundamental change in the law relating to breach of statutory duties and civil liability means that greater consideration will need to be given to drafting witness statements. I have prepared an article on this at http://accidentsatworkaftertheerra.wordpress.com/2013/09/30/witness-statements-and… Enjoying this post?…
NEW BLOG ON ACCIDENTS AT WORK AFTER 1st OCTOBER 2013
I have started a new blog on the effect of effects on accidents on work after the Enterprise and Regulatory Reform Act 2013. The Act abolishes civil liability for breach of statutory duty (with one limited exception). The blog is not…
RELIEF FROM SANCTIONS AND COSTS BUDGETING: THE JUDGMENT IN MITCHELL -v- NEWS GROUP NEWSPAPERS IN FULL
The full transcript of the decision of Master McCloud in Andrew Mitchell MP –v- Express Group Newspapers [2013] EWHC 2355 (QB) is now available. The case was discussed, in outline in an earlier post, http://civillitigationbrief.wordpress.com/2013/08/11/litigatorswant-to-work-for-nothing-then-don… Enjoying this post? Become a…
ACCIDENTS ABROAD AND THE FOREIGN LIMITATION PERIODS ACT: AVOIDING NEGLIGENCE CLAIMS 5
It is easy to assume that every jurisdiction has a limitation period of three years. However when an accident happens abroad the Foreign Limitation Periods Act 1984 provides that the relevant limitation period is the period that prevails in…
TROUBLE AT SEA: LIMITATION PERIODS AND WATER TRAVEL: AVOIDING NEGLIGENCE 4
We continue the examination of limitation periods that are not necessarily three years. Accidents that happen at sea, or on water generally, can be subject to different limitation periods and, normally, a two year limitation period applies. TWO YEAR PERIODS…
DO YOU NEED LETTERS OF ADMINISTRATION TO ISSUE ON BEHALF OF AN ESTATE?
A recent e-mail enquiry has led to my considering the issue of the right to issue proceedings on behalf of the estate of someone who died intestate. The solicitor wanted to bring an action for personal injury on behalf of…
AVIATION AND LIMITATION: 10 QUESTIONS EVERY PERSONAL INJURY LITIGATOR SHOULD ASK
A tweet on the 8th October 2013 read: “PI Claim struck out because Montreal Convention pleaded instead of Warsaw Convention.” (The case in question is reported in detail by Jasmine Murphy on the Hardwicke Chambers website.) This reiterates the points…
EXTENDING TIME FOR SERVICE OF PART 20 CLAIMS: WHAT IS THE RELEVANT TEST?
Applying to extend time for service of the claim form is a practice fraught with danger, even if done prospectively. In Haskew –v- Pannone LLP (and others) the Court of Appeal considered the relevant criteria for granting an extension when…
ADMISSIONS AND THE PORTAL: HOW WILL THE COURTS CONSTRUE PROCEDURAL ISSUES ARISING UNDER THE RTA PROTOCOL?
How significant are admissions made under the MOJ portal and what is their practical significance? A close look at the case of Ullah –v- Jon and its significance in relation to construction of the RTA Protocol. I am grateful…
SANCTIONS AND DEFAULT: THE NEW APPROACH IN PRACTICE. THE FULL TRANSCRIPT OF BAKER -v- HALLAM ESTATES
The post yesterday looked at the duties owed by an applicant making a without notice application. The full transcript of the case is now available and contains some salutary observations. Baker –v- Hallam Estates Baker -v- Hallam Estates [2013]…
THE DANGERS OF WITHOUT NOTICE APPLICATIONS: THE WHOLE TRUTH IS THE ONLY OPTION
Since the advent of CPR 3.3 and CPR 23.8 and 9 there appears to have been a growth in the number of applications made without notice. Two recent cases highlight the very onerous duty on a party making such an…
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