COST LAWYERS – SHOW THEM SOME RESPECT: OBSERVATIONS FROM THE HIGH COURT
There is a footnote to the judgment of Master Leonard yesterday in Allen v Brethertons LLP [2018] EWHC B15 (Costs) that is worth reading for anyone involved in costs litigation. “Ms Moore, when acting as a Costs Lawyer with a right…
AVOIDING PROBLEMS WITH LIMITATION AND THE EFFECTIVE USE SECTION 33 (WEBINAR): 7th NOVEMBER 2018
On the 7th November 2018 I am presenting a webinar for APIL on issues in relation to limitation in personal injury case. It looks at the most common causes of difficulty with limitation periods, avoiding problems with limitation and then…
RELIEF FROM SANCTIONS REQUIRED WHEN RESPONDENT’S NOTICE SERVED LATE: DENTON CONSIDERED
In Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB) Mr Justice Dingemans considered the issue of relief from sanctions when a Respondent’s Notice was served late. It is a useful reminder of the importance of serving a respondent’s notice and…
YOU’RE FIRED: A LITIGATION LAWYER ON THE APPRENTICE 1: PRECEDENTS: “THAT IS NOT A SKELETON”
This year sees a litigation lawyer featuring as a candidate in the Apprentice, together with a law graduate. Is there anything we litigators can learn from seeing lawyers on the apprentice? After a challenge was issued I decided to follow…
DENTON DECISIONS – AN INVALUABLE RESOURCE: RELIEF FROM SANCTIONS – A THEMATIC GUIDE UPDATED
I have written before about the invaluable resource provided by The Denton Resource. This has now been updated and is available following the link here. Congratulations to barrister Rachel Segal who took on this painstaking task. The Resource is a…
ADVISING YOUR CLIENT ON LITIGATION RISKS 2 & 3 : RISKING IT ALL ON A RECOLLECTION OF A MEETING & THE WITNESS WHO GIVES A WHOLLY NEW ACCOUNT FROM THE WITNESS BOX
The judgment in Slade (t/a Richard Slade And Co) v Abbhi [2018] EWHC 2039 (Comm) (24 September 2018) illustrates another risk of litigation. The risk of a witness giving a wholly new account whilst giving evidence at trial. THE CASE The…
A POSSIBLE SOLUTION WHEN A DEFENDANT IN A PI CASE WILL NOT PAY: LOOK AT YOUR OWN CLIENT’S HOME INSURANCE POLICY
I am repeating something that has appeared in this blog twice already. However it is a topic that that has featured in recent legal discussions on Twitter. That is the use of your own client’s home insurance policy to recover damages…
THE MOTOR INSURERS BUREAU IS AN EMANATION OF THE STATE: IT IS LIABLE TO INDEMNIFY CLAIMANT INJURED BY AN “OFF ROAD” VEHICLE
I am grateful to David Gauler of Thompsons, solicitors, for sending me a copy of the judgment of Mr Justice Soole in Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), a copy of which is available…
HELPING THE BEREAVED CLIENT II: WHERE TO LOOK FOR HELP
Another matter being dealt with at the forthcoming courses on fatal accidents is where you can send a client for help. Again this is an issue that covers a wide range of lawyers. As a companion to the first piece…
DEALING WITH THE BEREAVED CLIENT: HELP FOR CLIENTS (AND HELP FOR YOU)
I am in the midst of preparing the APIL course on Fatal Accidents along with solicitor Hilary Wetherell. The useful thing about working with other people is that you get good ideas. In developing the course, and alongside learning about…
BACK TO BASICS 16: COSTS BUDGETING: THE GUIDANCE NOTES ON PRECEDENT H
There is much written about the process of costs budgeting. There is much to be said, when preparing for a hearing – and often at the hearing itself, looking at the Practice Direction and Guidance Notes. THE PRACTICE DIRECTION The…
“EFFICIENCY” AND THE COURT SYSTEM 3: WANT TO BE A LAWYER? BUY YOURSELF A SELFIE STICK
In the third (and I suspect not the last) I want to set out a series of tweets which arose from the earlier posts on this topic. There were a series of tweets about the problems caused by courts losing…
ADVISING ON LITIGATION RISKS 1: YOU CAN BE BELIEVED AS A WITNESS AND STILL LOSE YOUR CASE
Earlier posts have looked at the concept of “litigation risks”. This is something we are all aware of as practising lawyers. We advise on those risks on a daily basis. However very little is written about this. This is the…
“EFFICIENCY” AND THE COURT SYSTEM 2: A COMEDY OF ERRORS – YOU BE THE JUDGE
Yesterday I did a short post on court errors. I have been given permission to post another one. Again I will let the facts speak for themselves. A series of tweets from Mairead @m417ead 10 repeated with their permission. A SAD SAGA Trial 1…
ARE THE COURTS MANAGED IN A COMPETENT MANNER? YOU BE THE JUDGE…
A post earlier this week emphasised the need not to make pejorative statements in litigation, an American judge stated “the better practice is usually to lay out the facts and let the court reach its own conclusions.” That is all…
QOCS PROTECTION COVERS A COUNTER-CLAIMING DEFENDANT: SOMETHING TO THINK ABOUT
I am grateful to barrister Andrew Lyons for sending me a copy of the judgment of HHJ Freedman in Ketchion -v- McEwan (28th June 2018), a copy of which is available here, 1061737_Ketchion v McEwan_Judgment for Approval_26 6 18. It is…
STATEMENTS OF CASE: KEEP THEM SIMPLE: NO NEED TO PLEAD A REFERENCE TO SIR CHRISTOPHER WREN IN A CASE ALLEGING BREACH OF CONTRACT
In Portland Stone Firms Ltd & Ors v Barclays Bank Plc & Ors [2018] EWHC 2341 (QB) Mr Justice Stuart-Smith had some telling observations about the way in which statements of case should be drafted. “The applications before the Court have…
THERE ARE GOOD REASONS NOT TO CALL AN OPPONENT’S ‘RIDICULOUS’ : PARTICULARLY IF THEY ARE, IN FACT, CORRECT
This blog has looked at issues relating to written submissions many times. Included in this has been the need to avoid hyperbole, which often backfires. A good example, borrowed from the United States, is the judgment in Bennett -v- Start…
EXPERTS ACTING ON A CONDITIONAL FEE BASIS: A MAJOR PROBLEM AREA: DETAILED CONSIDERATION FROM THE UPPER TRIBUNAL
I am grateful to Graham Hain for pointing out the decision of the Upper Tribunal (Lands) Chamber in Gardiner & Theobald LLP v Jackson (VO) (RATING – procedure) [2018] UKUT 253 (LC). This specifically relates to experts in the Lands Chamber,…
WHY DO CRIMINAL LAWYERS HAVE ALL THE BEST STORIES? A REVIEW OF “UNDER THE WIG”
The bookshops appear to be awash with books by lawyers, fiction and non-fiction. Virtually all of these are by criminal lawyers. We civil lawyers clearly have far less interesting stories to tell. When I was sent “Under the Wig” by…
SECOND ACTION NOT STRUCK OUT AS AN ABUSE OF PROCESS: CLAIM IN DECEIT CAN CONTINUE AFTER CLAIM IN NEGLIGENCE FAILED: THE CLAIMANT NEED NOT HAVE GAMBLED ON FRAUD CLAIM FIRST TIME AROUND
In Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025 the Court of Appeal overturned a ruling that an action in deceit was an abuse of process. The claimant’s action in negligence failed because there was…
WHY SOLICITORS’ ATTENDANCE NOTES CAN BE IMPORTANT: CONSTRUING A CONSENT ORDER: DICTIONARIES AND REASONABLENESS
In Hague v British Telcommunications Plc (Immunotherapy : Reasonableness of Treatment : Private Dictionary Principle) [2018] EWHC 2227 (QB) Master Thornett had to construe the terms of a consent order. It is a case that emphasises the importance of attendance notes. …
BACK TO BASICS 15: CHALLENGING THE AUTHENTICITY OF DOCUMENTS: A PRIMER
In the 10th post in this series I looked at the importance of serving a notice of non-admittance of the authenticity of documents promptly. Here we look at the basics of the rule. Put bluntly if you do not serve…
DENTON PRINCIPLES MEANS THAT APPEAL BITES THE DUST: CONFUSION AND BEING “LOST IN THE FOREST” ARE NOT GOOD GROUNDS FOR AN EXTENSION OF TIME
The Denton principles are considered in detail in the judgment of Edward Murray (sitting as a High Court Judge) in Sabesan v London Borough of Waltham Forest [2018] EWHC 2373 (Admin). The judgment confirms that the Denton principles are applicable to…
ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE
A recent decision by the Bar Standards Board held that a barrister had not acted with reasonable competence when he failed to inform his client in relation to the risks of bringing a private prosecution. This decision highlights the need…
PROVING THINGS 127: WRITTEN CONTRACT – WHAT WRITTEN CONTRACT? APPLICATION FOR AN INJUNCTION FAILS WHEN CLAIMANT CANNOT PROVE A CONTRACT WAS EVER SIGNED
The judgment of HHJ Neil Bidder QC in Tenon FM Ltd v Cawley & Ors [2018] EWHC 1972 (QB) shows a failure by a claimant to prove the most basic of issues. The claimant could not establish that a defendant had…
THE ELECTRONIC BILL OF COSTS: UPDATE TO LINKS, INCLUDING GUIDANCE ON THE ENTIRE PROCESS
There has been much recent comment on the “success” (or otherwise) of the electronic bill of costs. This is a guide time to update the links to commentary and guidance on the process. RECENT COMMENTARY The New Law Journal…
PROVING THINGS 126: FAILURE TO PROVE DISHONESTY
The judgment in Autogas (Europe) Ltd v Ochocki & Ors [2018] EWHC 2345 (Ch) highlights the difficulties for a claimant who has to prove fraud as an essential element of their claim. The judgment also emphasises the needs to plead allegations…
THE FACT THAT A DEFENDANT CANNOT PAY A JUDGMENT DOES NOT MAKE THE ACTION AN ABUSE OF PROCESS: CLAIMANT GRANTED SUMMARY JUDGMENT
In Caribonum Pension Trustee Ltd & Anor v Pelikan Hardcopy Production AG [2018] EWHC 2321 (Ch) Master Clark rejected an argument that the fact that a defendant was never going to be able to pay a judgment meant that the action…
IF YOU WANT A NON-PARTY COSTS ORDER YOU NEED TO “SHOUT” OUT IN ADVANCE: “YOU NEVER GIVE ME YOUR MONEY…”
In Sony/ATV Music Publishing LLC & Anor v WPMC Ltd & Anor [2018] EWCA Civ 2005 the Court of Appeal overturned a ruling that a director of a company should pay pay a company’s costs. The absence of warning was a…
APPLYING FOR AN EXTENSION OF TIME FOR FILING A DEFENCE – AFTER THE DEFENCE IS DUE: DENTON PRINCIPLES APPLIED: FULL TRANSCRIPT NOW AVAILABLE
The judgment of Deputy Master Pickering in Billington v Davies & Anor [2016] EWHC 1919 (Ch) has only recently appeared on BAILLI. It raises an interesting issue of how the courts should approach the question of a late application to extend…
INDEMNITY COSTS AGAINST CLAIMANTS IN GROUP LITIGATION ORDER: INDEMNITY COSTS APPROPRIATE: AN EXHAUSTING READ
The judgment of Master Fontaine in The VW NOx Emissions Group Litigation [2018] EWHC 2308 (QB) is a warning to any litigator thinking of applying for a Group Litigation Order (“GLO”). The rule is clear basically – get your case in…
DEALING WITH PROCRASTINATION: A POST I HAVE FINALLY GOT AROUND TO…
Every litigator, indeed every living being, has problems with procrastination. In civil litigation this can lead to major problems and is, if truth be known, responsible for a large number of procedural issues. Here we look at practical solutions to…
CIVIL PROCEDURE BACK TO BASICS 13: WHAT IS MEANT BY WITNESS “CREDIBILITY”? WHY THIS IS OFTEN CENTRAL TO A LITIGATOR’S WORK
Many civil cases turn on witness credibility, yet very little training and education is given to lawyers about assessing credibility. Every litigator has to be able to make an assessment of this when taking a case on; before issuing proceedings…
SERVICE AT THE LAST KNOWN ADDRESS, CPR 6.15 AND IS THE ISSUE OF A “SECOND ACTION” AN ABUSE OF PROCESS?
I am grateful to Anthony Okuma of Duncan Lewis solicitors to for sending me a copy of the judgment of HHJ Richard Roberts in Sajid -v- Nuur (Central London County court 30/7/18). This covers two separate issues. Firstly a claimant’s…
AN EXPERT’S IMPARTIALITY CAN ONLY BE STRETCHED SO FAR: THE COURTS HAVE SAID THIS TYNE AND TYNE AGAIN
I am grateful to barrister Charles Holland for sending me a copy of the decision of District Judge Meek in Endless Stretch -v- Newcastle County Council. A copy can be found in the link on this page. This case is…
COSTS IN THE COURT OF PROTECTION: “ARROGANCE” AND “PETULANCE” LEADS TO AN AWARD OF COSTS AGAINST A LOCAL AUTHORITY
In London Borough of Lambeth v MCS & Anor [2018] EWCOP 20 Mr Justice Newton did not follow the normal practice in Court of Protection cases. He ordered costs to be paid against the Local Authority and the Lambeth Commissioning Group….
PROVING THINGS 125: THE IMPORTANCE OF KEEPING YOUR OWN EXPERT IN THE LOOP: ALSO THE IMPORTANCE OF READING AN EXPERT’S NOTES
In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert gave a lengthy judgment in a high value personal injury case. One interesting aspect of that case is the problems caused by the defendant’s expert evidence on care. An additional…
TODAY IS LOVE LITIGATING LAWYERS DAY – SERIOUSLY
August 31st is Love Litigating Lawyers Day. In America it has been celebrated widely (well there was a lot of comment on Twitter). Clearly this is clearly something that every sensible reader of this blog wants to encourage. THE…
DISCONTINUING CLAIMANT STILL HAS TO PAY DEFENDANT’S COSTS: CLAIMANT CANNOT PASS RISKS ON TO ANOTHER DEFENDANT
In BAE Systems Pension Funds Trustees Ltd v Bowmer & Kirkland Ltd [2018] EWHC 1222 (TCC) Mrs Justice Jefford refused the claimant’s application for an order that it should not have to pay the costs of a defendant it discontinued against. …
SETTING ASIDE AN ORDER ON COURT’S OWN INITIATIVE: A REDETERMINATION OF THE MATTER AND NOT SUBJECT TO TIBBLES PRINCIPLES
There is a short passage in the judgment today of Master Clark in Massimo Osti SRL v Global Design And Innovation Ltd & Anor [2018] EWHC 2263 (Ch) that provides an important reminder of the relevant principles that apply when a…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
DRAWING ADVERSE INFERENCES WHEN WITNESSES ARE ABSENT: COURT OF APPEAL DECISION TODAY: COURT HAS A DISCRETION AS TO THE INFERENCES TO BE DRAWN
I am grateful to barrister Luka Krsljanin for sending me a copy of hte Court of Appeal decision today in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. The Court rejected an argument that the trial judge…
PROVING THINGS 124: “PUT BLUNTLY: THAT EVIDENCE IS WHOLLY INADEQUATE”: DEFENDANT’S EVIDENCE ON AN INJUNCTION APPLICATION
In Jahangiri v St. George’s University Hospitals NHS Foundation Trust [2018] EWHC 2278 (QB) Mr Justice Nicklin observed that witness evidence put forward by the defendant was far from adequate. “The Court is best assisted when the evidence of someone who…
SORRY SEEMS TO BE THE HARDEST WORD: PURGING CONTEMPT OF COURT
There is a section in the Court of Appeal judgment in James v James [2018] EWCA Civ 1982 that is of some importance. It relates to the question of whether a party should appeal an order for contempt or apply to…
THE CORRECT FEE ON A PART 8 APPLICATION: DON’T LET THE COURT STAFF MAKE YOU HAND OVER MONEY FOR NOTHING
A Twitter conversation this morning came up with the old chestnut of court staff informing a solicitor that the court fee to be paid on a Part 8 application for approval was identical to that on a Part 7 claim. …
THE “CONDUCT OF LITIGATION” CONSIDERED: WHEN NON-AUTHORISED PERSONS ATTEMPT TO ELBOW IN ON LITIGATION
We are looking for the third (and final) time at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). The judge considered the meaning of “conduct of litigation” as defined by the Legal Services Act…
WHO SIGNED THE STATEMENT OF TRUTH? THIS COULD BE A VERY IMPORTANT QUESTION: TICKING A BOX IS NOT SUFFICIENT
I am looking again at the judgment in Kassam -v- Gill (13th August 2018, County Court at Birmingham available on Lawtel). Here we look at the crucial question of who signed the statement of truth. A difficult concept when a claim form…
SKELETON ARGUMENTS: A ROUND UP: GUIDANCE ON DRAFTING: JUDICIAL COMPLAINTS (& THERE ARE PLENTY): EXAMPLES ONLINE & SANCTIONS FOR LATE SERVICE
Recent online discussions about skeleton arguments started with a search term that led to this blog “how long should a skeleton argument be?” This was probably a good time to provide a review highlighting all the posts about skeleton arguments…
SHOULD PROCEEDINGS BE STRUCK OUT WHEN THEY ARE ISSUED AND SERVED BY AN UNAUTHORISED ENTITY? TWO CASES THAT AID THE CLAIMANT
The judgment of HHJ Worster In Kassam -v- Gill (13th August 2018, County Court at Birmingham) is available on Lawtel. There are several procedural aspects of that case that are of general interest and which I will look at over…
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