WHEN HAS A PARTY CONSENTED TO SERVICE OF DOCUMENTS BY EMAIL? IS A FAILURE TO OBTAIN SPECIFIC CONSENT IN ADVANCE FATAL TO VALID SERVICE?
We are carrying on with the review of the appeal judgment that considered key issues in relation to service by electronic means. Here the judge considered whether the claimant’s failure to obtain the defendant’s specific consent prior to service rendered…
WHAT TIME IS SERVICE BY EMAIL DEEMED TO ARRIVE ON “THE SAME WORKING DAY”? AN ISSUE THAT HAD IMPORTANT CONSEQUENCES IN THIS CASE
We are returning to look again at the case considered in the previous post. This time honing in on the error that was made initially in relation to the time for service of a notice of discontinuance. The District Judge…
A FASCINATING AND IMPORTANT JUDGMENT: WHEN CAN A NOTICE BE SERVED BY EMAIL? AT WHAT TIME CAN IT BE SERVED? ALSO – SOMETHING ABOUT NOTICES OF DISCONTINUANCE AND QOCS
I have been sent a case that is important and interesting on many levels. Firstly in relation to when it is permissible to serve documents by email; secondly in relation to the latest time in the working day that documents…
YOU CANNOT USE A REQUEST FOR EDITORIAL CORRECTIONS OF A DRAFT JUDGMENT TO SEEK TO RE-OPEN THE WHOLE CASE: THERE’S NO VCR HERE…
There is an interesting postscript to the case we looked at earlier this morning. It is another example of a party attempting to use a request for “corrections” of a draft judgment as an opportunity to re-open the whole case. …
RELIEF FROM SANCTIONS GRANTED AFTER CLAIMANTS BREACHED PEREMPTORY ORDER: RETIRED FOOTBALLERS ALLOWED TO STAY ON THE FIELD…
We are looking today at a case with an unusual, if not extraordinary, procedural history. The Master observed that the claimants had been very poorly represented in the past: “It is abundantly clear from the succession of retainers and instructions…
THE CURRENT IMPORTANCE OF PLEADINGS 30: WHEN A LAWYER DEFENDANT TRIES TO ARGUE A POINT DIRECTLY CONTRADICTORY TO ITS PLEADED CASE: THIS “FLIES IN THE FACE OF THE PLEADED ADMISSION”
We are continuing to look at the interesting inter-lawyer dispute considered in the previous post. This time at the defendant’s pleaded case and its attempt to resile from a clear admission and put an alternative case in its place. (You…
PROVING THINGS 268: LAW FIRM DEFENDANT FAILS TO ADDUCE EVIDENCE TO PROVE ITS ASSERTIONS – IT WAS BOUND BY ITS OWN “BAD BARGAIN”
Here we have an interesting dispute between two firms of lawyers. The claimant sued the defendant under a contractual agreement following the transfer of files. What is particularly interesting here is the judge’s observations on the lack of evidence brought…
COST BITES 274: IN CONSIDERING WHETHER TO AWARD INDEMNITY COSTS HOW RELEVANT IS A DEFENDANT’S WITHDRAWN PART 36 OFFER? (THE CLAIMANT THAT TURNED DOWN $50 MILLION DOLLARS – AND THEN LOST AT TRIAL…
Here we look at a short judgment on costs. The judge considered whether an indemnity costs should be made and the date from which the indemnity costs order should take effect. There were several factors specific to this case, however…
ALLOCATION IN HOUSING DISREPAIR CASES 2: CLAIMANT’S APPEAL ON ALLOCATION SUCCESSFUL: DISTRICT JUDGE WAS WRONG IN THEIR VIEW OF LIKELY AWARD OF DAMAGES
This is the second case on allocation in housing cases we are looking at today. The result was the same – the judge allowed the claimant’s appeal against allocation to the Small Claims Track. However the route to success was…
ALLOCATION IN HOUSING DISREPAIR CASES: AN APPEAL JUDGMENT OVERTURNING REFERENCE TO THE SMALL CLAIMS TRACK
Here we look at a judgment where a decision to allocate a housing disrepair case to the Small Claims Track was overturned on appeal. (This is the first of two cases we will look at today). The judgment is useful…
COST BITES 273: A QUICK LOOK AT A SUMMARY ASSESSMENT: YOU CAN HAVE A ROLLS ROYCE SERVICE, BUT YOU CAN’T EXPECT THE OTHER SIDE TO PAY FOR IT…
We are continuing with the practice of having a close look at the result of a summary assessment. The judge’s observations in this case are particularly telling, about the basis of assessment, hourly rates, the use of leading counsel and…
CIVIL PROCEDURE BACK TO BASICS 105: AN ADVOCATE SHOULD NOT GIVE EVIDENCE (NOR TRY TO SLIP IT INTO A SKELETON ARGUMENT)
This post follows the comments of the judge in a case we looked at last week that “counsel cannot give evidence”. We have seen many examples on this site of judicial criticism that witness evidence is, in fact, commentary, submissions…
KEY ISSUES TO BE CONSIDERED WHEN A PARTY WANTS AN INJUNCTION: COURT OF APPEAL UPHOLDS JUDGE’S DECISION NOT TO DELIVER…
This is a Court of Appeal decision that anyone applying for, or resisting, an application for an injunction would benefit from reading. It deals with some of the key issues in relation to injunctions. There was a “serious issue to…
COST BITES 272: CLAIMANTS ORDERED TO PAY SOME OF A DEFENDANT’S COSTS IMMEDIATELY, PRIOR TO JUDGMENT BECAUSE OF THE WAY IN WHICH THE TRIAL WAS CONDUCTED
Last week we had a judge discussing the “pay as you go” principle in litigation. Here we have a slight extension of that principle with the judge deciding that the claimants’ conduct of the the trial meant that they should…
APPLICATION TO ENFORCE A TRIBUNAL AWARD WAS MADE TO THE WRONG COURT AND WAS SET ASIDE: CPR 3.10 DID NOT ASSIST WHEN THERE WAS A FUNDAMENTAL ERROR GOING TO JURISDICTION
Here we have a case where the claimant was found to have made a fundamental error of procedure when seeking to enforce an Employment Tribunal award. An application was made to the wrong court. The County Court was the only court…
COST BITES 271: THE INABILITY TO RECOVER COSTS DOES NOT REPRESENT A BREACH OF HUMAN RIGHTS: THE POWER TO AWARD COSTS HAS TO BE GIVEN BY STATUTE
We are looking at costs issues in a slightly unusual context. A decision of the Administrative Court on the issue of whether Parliament had given a body the jurisdiction to make a costs order. The judgment also considers some significant…
COST (MEGA) BITES 370 : WE WANT AN INTERIM PAYMENT ON COSTS OF £3.75 MILLION – BUT WE DON’T WANT TO GIVE A DETAILED BREAKOWN OF WHY: COURT OF APPEAL CONSIDERS THE ISSUES
It is rare for the Court of Appeal to give a detailed judgment on costs. It is even rarer for it to consider the principles relating to interim payments on account of costs. This is what we are looking at…
THE CURRENT IMPORTANCE OF PLEADINGS 29: THE DUTIES INVOLVED WHEN PLEADING FRAUD: CLAIMANT’S ALLEGATIONS THAT WERE “MORE CONSISTENT WITH HONESTY” ON THE PART OF THE DEFENDANT
Here we are looking at a case where the claimant applied for permission to amend its Particulars so it could plead fraud. The application was refused. It is a reminder of the onerous duties on a party when proposing to…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 2025 (1): LIMITATION IN PERSONAL INJURY CLAIMS – HOW DOES ANYONE MISS A THREE YEAR LIMITATION PERIOD?
In an ideal world all personal injury limitation periods would be three years, and all other action six. However we do not live in an ideal world. The first, and most obvious, place to look at avoiding negligence claims is…
SERVICE POINTS 2: CLAIM FORM WAS VALIDLY SERVED AT AN ADDRESS WHERE THE DEFENDANT NO LONGER LIVED: THERE WAS NO APPLICATION TO DISPUTE THE JURISDICTION IN ANY EVENT
For the second in this series we are looking at a case where the question of whether the claim form had been properly served was raised by the defendant at trial. There were numerous reasons why the defendant’s argument on…
SERVICE POINTS 1: HOW DO YOU SERVE ON “PERSONS UNKNOWN”?
Cases and issues relating to service of proceedings are a regular feature on this site. For ease of reference going forward posts about service will now be in this series of “Service Points”. Here we look at a case that…
ANOTHER BATTLE IN THE MEDICAL AGENCY/BREAKDOWN OF COSTS WAR: SHOULD THE COURT ORDER A BREAKDOWN PRIOR TO ANY ASSESSMENT?
There have been numerous cases on the issue of whether there is a requirement to provide a breakdown of the invoice when an expert report has been provided via an agency. Here we another another judgment that considers the issue. …
PERSONAL INJURY POINTS 10: WAS THIS CLAIM STATUTE BARRED?IF SO SHOULD THE COURT EXERCISE ITS DISCRETION UNDER SECTION 33 OF THE LIMITATION ACT 1980?
Here we look at a decision in relation to limitation. The trial judge had to determine whether the claimant’s action was statute barred. If it was she then had to consider whether it was appropriate to exercise the court’s discretion…
PAYING BACK DAMAGES AND COSTS AFTER A SUCCESSFUL APPEAL: WHAT IS THE APPROPRIATE RATE OF INTEREST?
It is extremely painful, when a party has won at trial, to have to pay damages back after a successful appeal. The lawyers find it equally painful to have to repay costs. To rub salt into the wounds the successful…
COST BITES 269: CAN PRE-ALLOCATION COSTS BE AWARDED WHEN A CASE IS LATER TRANSFERRED TO THE SMALL CLAIMS TRACK? A CASE THAT CONSIDERS THE ISSUE
I am grateful to barrister Ethan Riley for sending me a copy of the transcript of the judgment we are looking at today. This relates to whether the court has power to award a party pre-allocation costs that are occurred…
COST BITES 269: WHAT COSTS ORDERS SHOULD BE MADE WHEN THE CLAIMANTS AVOID STRIKING OUT BY AMENDING THEIR PLEADINGS, BUT THE DEFENDANT OPPOSED THE APPLICATION TO AMEND? LITIGATION ON A “PAY AS YOU GO” BASIS
If ever a judgment showed how difficult litigation can be it is the costs decision we are looking at here. A defendant made an application to strike out a case on the grounds of inadequate pleadings. That application would, without…
CHANGES TO PRACTICE DIRECTION ON THE DAMAGES CLAIMS PILOT: PUBLISHED LAST TUESDAY – COMING INTO FORCE AT 11.00 TOMORROW: SOME POINTS ON ISSUE AND LIMITATION
There are changes coming into force at 11.00 tomorrow. There are changes to PD 51R and PD51ZB. (Set your alarm clocks early tomorrow – these changes come into force – at 11.00 am…) THE CHANGES TO TO THE PRACTICE DIRECTION:…
ABSENT WITNESSES AND ADVERSE INFERENCES (AGAIN): WE DON’T WANT TO PAY YOU THE US$1,911,877,385 YOU ARE CLAIMING: BUT WE WON’T GIVE EVIDENCE
We are continuing with looking at the consequences of a party failing to call witnesses, or, as in this case, give no evidence of fact at all. In this case the judge had no difficulty in stating his views as…
CLINICAL NEGLIGENCE CORNER 3: ABSENT DOCTORS AND ADVERSE INFERENCES (SOMETHING TO CONSIDER FOR ALL LITIGATORS HERE…)
Today we are looking at a case where the judge considered whether adverse inferences should be drawn when a relevant expert was not called to give evidence at trial. This issue of what matters the court can properly conclude when…
COST BITES 268: NO STAY OF AN ORDER THAT A SOLICITOR RESPOND TO PART 18 QUESTIONS: A COSTS ASSESSMENT IN ACTION
It is always interesting when we get to see “round 2” of a decision in relation to an application and appeal. It is even more interesting when we see the costs orders made and the figures involved. This case has…
ANOTHER BREACH OF EMBARGO CASE: THE MISTAKE AS TO WHAT WAS MEANT BY “PARTIES” AND HOW PROMPT STEPS MITIGATED THE BREACH
Cases about breaches of embargos on draft judgments keep appearing with surprising frequency. We have another one here. The judgment emphasises the nature of the advice the lawyer must give to the client. Not only must be draft judgment not…
APPLICANT REFUSED PERMISSION TO RELY UPON A WITNESS STATEMENT THAT WAS SERVED LATE: NON-COMPLIANCE WITH THE RULES IS EFFECTIVELY A FORM OF CHEATING
Here we are looking at a case from the family jurisdiction. Slightly different rules apply, however the overall principles are the same as in the CPR. The judge had to consider whether to grant permission to an applicant to rely…
THE CURRENT IMPORTANCE OF PLEADINGS 28: WHY THE PROPOSED AMENDED PARTICULARS DID NOT SAVE THE CLAIMANT: “MERE ASSERTION IS NOT SUFFICIENT”
We are continuing to examine the case looked at in the previous post. The claimant, faced with an application that the amended Particulars of Claim did not comply with the requirements of a court order, or the rules, made an…
THE CURRENT IMPORTANCE OF PLEADINGS 27: CLINICAL NEGLIGENCE CLAIM STRUCK OUT BECAUSE OF INADEQUATE PARTICULARS OF CLAIM: (SOME POINTS OF IMPORTANCE FOR NON CLIN-NEG LAWYERS HERE AS WELL).
Anyone drafting, or contemplating drafting, a pleading in a clinical negligence claim (indeed any type of claim) would be best advised to read, in detail, the judgment we are considering today. The judge went through an amended Particulars of Claim…
COST BITES 267: WHAT IS THE COURT’S APPROACH WHEN IT DETERMINES THAT A RECEIVING PARTY SHOULD NOT HAVE INSTRUCTED LEADING COUNSEL?
Here we have a consideration of what the court’s approach on summary assessment when it considers that leading counsel should not have been instructed. (Silk worms at work. They did not weave their magic when it came to the assessment…
COST BITES 266: WHAT DOES THE COURT DO IF THE COSTS ARE DISPROPORTIONAL AFTER A LINE BY LINE ASSESSMENT? A WORKING EXAMPLE
Here we look at a judgment relation to proportionality and the assessment of costs. The claimant’s costs had been substantially reduced after a three day assessment but the judge found that the total sum was still disproportional. The judge could…
EXPERT WATCH 9: FAILURES TO COMPLY WITH THE PRE-ACTION PROTOCOL AND TO INFORM THE EXPERTS OF THE DEFENDANT’S CASE COULD RENDER THE EVIDENCE “USELESS”: AN EXPENSIVE DAY OUT FOR THE CLAIMANTS’ SOLICITORS…
Here we look at a decision not about the conduct of experts but the way in which the experts were instructed and failure to comply with pre-action protocols. On the face of it this is a decision of major importance…
IF YOU ARE GOING TO HAVE LONG SKELETON ARGUMENTS – THEN GIVE THE JUDGE AN INDEX OR LIST OF CONTENTS: A CHANCE TO REVIEW CASES, LINKS AND GUIDANCE ON DRAFTING SKELETONS
There are limits on the length of skeleton arguments. These are often exceeded. Here the judge observes that if skeletons are going to be lengthy then the advocates should assist the court by providing an index or list of contents. …
COST BITES 266: THE DEFENDANT WHO OBTAINED AN ORDER FOR INDEMNITY COSTS IN HER FAVOUR AND STILL ENDED UP CONSIDERABLY OUT OF POCKET: PART 36 OFFERS IN THE ASSESSMENT PROCESS: PLUS – “COSTS CAPPING” CONSIDERED – AND REFUSED
We are looking at a case where a defendant successfully defended an application to commit, was awarded indemnity costs and yet ended up considerably out of pocket. It shows the importance of a well judged Part 36 offer by the…
COST BITES 265: THE PERILS OF WORKING UNDER A CFA: THE COSTS JUDGE CORRECTLY ASSESSED COSTS AT NIL: THE DEFENDANT WAS ENTITLED TO TAKE A POINT THAT WAS NOT TAKEN AT AN EARLIER HEARING: THEY WERE SIMPLY FOLLOWING THE COURT’S ORDERS
Here we have a case that could well bring tears to the eyes of any litigator who works on a conditional fee basis. For the second time, on appeal, the claimant solicitor’s costs have been unsuccessful. The defendant former client…
HOW NOT TO APPLY TO SET ASIDE A JUDGMENT WHICH IS ALLEGED TO HAVE BEEN OBTAINED BY FRAUD: THE JUDGE MARKED THE “ILL CONSIDERED AND POOR MANNER IN WHICH THE APPLICATION HAS BEEN PREPARED AND PROSECUTED”
It is possible to apply to set aside a previous judgment when the applicant’s case is that that judgment was obtained by fraud. However here we look at an almost textbook example of how not to go about this. The court…
STARTING THE WEEK WITH ANOTHER CLAIM FORM CASE: IT IS NOT QUITE – BUT NIGH ON – IMPOSSIBLE TO OBTAIN A RETROSPECTIVE ORDER ALLOWING A CLAIM FORM TO BE SERVED LATE
Here we look at a case where the claimant spent a lot of time money and effort obtaining a world wide freezing order but failed to notice that the time for service of the claim form had expired. This led…
EXPERT WATCH 8: “SCIENCE DOES NOT CHANGE” : EVIDENCE THAT WAS “UNIMPRESSIVE IN PARTS AND OF LITTLE ASSISTANCE TO THE COURT”
To end the week I am looking at another decision about expert witnesses (it has been a theme this week). This time we are looking at accident reconstruction experts. One expert was found wanting, the judge favoured the other. The…
EXPERT WATCH 7: “THIS CASE IS NOT SHORT OF ADVOCATES”: AN EXPERT REPORTING FOR THE CLAIMANT SHOULD NOT HAVE BEEN ONE OF THEM: FURTHER THEY SHOULD HAVE DISCLOSED THAT THEY HAD “COPIED” THEIR REPORT
Yesterday I imposed a 24 hour respite on this series “unless something really interesting comes up”. I have broken that promise, it lasted 22 hours. However the cases on experts keep coming in and, I think, readers need to know…
PART 36: SHOULD THE NORMAL PART 36 CONSEQUENCES APPLY WHEN A CLAIMANT HAD, EFFECTIVELY, OFFERED “NIL” ON A COUNTERCLAIM (THAT FAILED)?
Here we are looking at some interesting arguments on Part 36 put forward by an, obviously disappointed, defendant. The claimant had beaten its own Part 36 offer and defeated the defendant’s counterclaim totally. Nevertheless, the defendant argued, this was not…
COST BITES 264: WHEN SHOULD A CASE BE REFERRED TO DETAILED AS OPPOSED TO SUMMARY ASSESSMENT? PERHAPS WHEN THE SOLICITORS ARE SEEKING £1,345.50 AN HOUR…
It is rare to see costs issues, initially suitable for summary assessment, referred for detailed assessment. We have such a case here. The judge decided that the issues, and in particular the hourly rate for solicitors sought by the receiving…
EXPERT WATCH 6: THE DEFENDANT’S EXPERT IS FAR BETTER QUALIFIED THAN THE CLAIMANT’S EXPERT: AN EXPERT WHO, IN PART, WAS ACTING AS AN ADVOCATE FOR THE CLAIMANT
I feel almost bound to apologise for adding another post to this series today. I am not going looking for cases on experts – they just keep coming up. Here we have a judgment given today in a clinical negligence…
EXPERT WATCH 5: AN EXPERT SHOULD DISCLOSE PREVIOUS CRITICISMS MADE BY JUDGES: PARTICULARLY WHEN THEY HAVE BEEN WARNED ABOUT THIS BEFORE…
We have seen a trend in a number of recent cases of advocates cross examining experts and referring to judicial criticism made in previous cases that experts have been involved in. The judgment here goes one further and indicates that…
EXPERT WATCH 4: THE EXPERT SHOULD INFORM THE COURT IF MEMBERSHIP OF A PROFESSIONAL ORGANISATION HAD CEASED, PARTICULARLY IF THIS IS LINKED TO DISCIPLINARY PROCEEDINGS AGAINST THEM
We are returning (and not for the last time) to a recent decision where the court considered the expert evidence in detail. Here we look at the judgment in relation to an expert who failed, until prompted, to inform the…
EXPERT WATCH 3: EVIDENCE FROM EXPERTS ON FOREIGN LAW: SOME OF THE EXPERTS FOUND WANTING
Here we are looking at a judge’s assessment of witnesses who gave evidence as to foreign law. Some of the witnesses were found to be less then helpful. (This case appears to have taken up several months of court time….
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