MEMBER NEWS: “ON DEMAND” CIVIL LITIGATION BRIEF WEBINARS AVAILABLE TO WATCH AT A TIME AND PLACE TO SUIT YOU: WITH DISCOUNTS FOR CLB MEMBERS
Last week we looked at webinars coming up which may be of interest to CLB readers. CLB members can obtain a discount on these webinars. The same discount applies to webinars which are now available “on demand”. These webinars are…
MEMBER NEWS: HONING IN ON THE INTERNAL RESEARCH FACILITY ON THIS SITE: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION – SOME GUIDANCE
Yesterday I had an enquiry about the internal search function on this site. In particular whether it used Boolean operators. It doesn’t but there is a “work around” discussed below. On a separate issue I also recorded a webinar on…
WHICH EXPERT WITNESS IS GOING TO BE PREFERRED? ONE EXPERT TOOK AN “UNREALISTIC APPROACH”
Knowing the reasons why a judge may prefer the evidence of one expert over another is an important part of a litigator’s skill. Each case is, of course, fact specific, but there are clear trends that can be discerned. Here…
ADVISING ON THE RISKS OF LITIGATION: A RECAP: “CLIENTS WANT TWO INCONSISTENT THINGS”
Continuing with the look back at previous years we are looking at a post written in July 2019 about advising on the risks of litigation. “The difficulties facing those giving advice about litigation is summed up in a…
PROVING THINGS 252: THE SOLICITORS WERE NEGLIGENT BUT THERE WAS NO LOSS: CLAIM DISMISSED
Many a salutary lesson can be learnt from the judgment of Mrs Justice Bacon in Cutlers Holdings Ltd & Anor v Shepherd And Wedderburn LLP [2023] EWHC 720 (Ch). It was a case about negligence in the conduct of litigation….
COST BITES 35: SOLICITOR AND OWN CLIENT SUCCESS FEES CONSIDERED IN DETAIL: 20% REDUCED TO 15% BY COSTS JUDGE
The judgment of Costs Judge Brown in MNO v HKC & Anor [2022] EWHC 2919 (SCCO) considers the question of an appropriate success fee between solicitor and client in a personal injury case. The judge did not accept the argument…
A SERIES OF WEBINARS ON “STAYING SAFE” IN PERSONAL INJURY PRACTICE: BRIGHTEN UP YOUR NEW YEAR
To help 2021 run smoothly for litigators I am presenting a series of webinars in February and March on the theme of “staying safe” in the running of personal injury cases. The webinars look at key areas of practice and…
COSTS ISSUES IN A CASE WHERE THE CLAIMANTS HAVE TO PAY £30 MILLION: WHY IT IS UNWISE TO BANK ON WINNING
A reminder of the sheer size, and major dangers, of group litigation can be seen in the judgment today in Sharp & Ors v Blank & Ors [2020] EWHC 1870 (Ch). The judgment relates to the costs of the action…
WEBINARS ON LAW, PROCEDURE AND DAMAGES: READ ALL ABOUT THEM…
Since lockdown has made giving live presentations impossible I have been involved in presenting a number of webinars. This would seem a good time to set them out. Those that have been given earlier this year are still available on…
CLAIMANT’S LATE ACCEPTANCE OF PART 36 OFFER: UNCERTAINTY OF FUTURE OUTCOME NOT GROUNDS FOR MAKING A DIFFERENT COSTS ORDER
The judgment of Mrs Justice Lambert in Campbell -v- Ministry of Defence [2019] EWHC 2121 (QB) emphasises the difficulties for a claimant who has accepted a Part 36 offer late. The claimant had to bear the usual costs consequences and…
QOCS IN “MIXED “CASES: THE COURT OF APPEAL SPEAKS
In the judgment today in Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 the Court of Appeal considered the issue of QOCS in “mixed cases”. The judgment requires careful reading. Generally speaking all personal…
CIVIL PROCEDURE BACK TO BASICS 56: ADVISING ON THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”
The difficulties facing those giving advice about litigation is summed up in a judgment of Sedley LJ “Clients, I know, want two inconsistent things. They want confident advice on which they can act, and they want cautionary advice about the…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
SIXTH ANNIVERSARY OF CIVIL LITIGATION BRIEF (AS A BLOG): A REVIEW OF ADVICE RECEIVED FROM ACROSS THE PROFESSION AND ACROSS THE WORLD
Today marks the 6th anniversary of the blog. Last year I did a detailed review of many of the series and key points over the previous years. To celebrate this year I am concentrating on the contributions made by others….
LAWYERS, DEADLINES AND PROCRASTINATION: HOW DO YOU DEAL WITH IT? (“A DEADLINE… THAT IS ALL”)
Many of the cases that appear on this blog, particularly those dealing with sanctions and service, arise because things are left to the very last minute. We have looked before at lawyers and procrastination. I thought that perhaps this is…
AN “UNFORTUNATE CHANGE OF VIEW” BY AN EXPERT: ANOTHER EXAMPLE OF A REPORT NOT BEING ROBUST AND CAUSING DIFFICULTY FOR LITIGANTS
There have been several posts this month about experts, particularly valuation experts. There are short passages in the judgment of Chief Master Marsh in Bakrania & Anor v Shah & Ors [2019] EWHC 949 (Ch) which provide another example. THE…
EXTENSIVE WITNESS EVIDENCE THAT WAS OF NO USE: A COMMON FINDING
We have already looked at the judgment of Mrs Justice Cockerill in Recovery Partners GP Ltd & Anor v Rukhadze & Ors [2018] EWHC 2918 (Comm). It is worth looking at what the judge had to say about the witness evidence before…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
ADVISING YOUR CLIENT ON LITIGATION RISKS 4: THE SCOPE OF THE SOLICITOR’S RETAINER: TURN DOWN AN OFFER OF £500,000 AND LOSE – THREE TIMES
In Lyons v Fox Williams LLP [2018] EWCA Civ 2347 the Court of Appeal turned down the claimant’s appeal. The claimant had been unsuccessful in an action for professional negligence against a firm of solicitors. He was equally unsuccessful on appeal….
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…
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…
TOMLIN ORDER PREVENTS “SUCCESSFUL” DEFENDANT RECOVERING COSTS FROM CLAIMANT’S DAMAGES IN A QOCS CASE: BUT CHOOSE YOUR DEFENDANTS CAREFULLY
In Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 the Court of Appeal considered issues relating to the recoverability of costs in multi-defendant cases where the claimant would normally have the protection of qualified one-way costs shifting. The case provides…
PROVING THINGS 86: CLAIMANTS PROVE THE FACTS BUT FAIL TO PROVE CAUSATION: A SALUTARY TALE
The decision of His Honour Judge Simpkiss in O’Neill -v- Bull & Bull* (Canterbury County Court 5th February 2018) is an almost classical example of the need to prove things. It also provides a warning to non-contentious lawyers on the…
STRIKING OUT THE CLAIM FOR NON-PAYMENT OF TRIAL FEE: THIS IS ALWAYS A POINT TO WATCH
In April this year the rules were amended to introduce a concept of “automatic striking out”. Put simply if a claimant does not pay the court fee by the relevant date. I have seen occasions where this has had effect….
WHEN THE CLAIMANT WAS REFUSED PERMISSION TO ACCEPT £300,000: WHAT HAPPENED NEXT? (THIS DOESN’T END WELL FOR SOMEONE)
Earlier this week there was a post on the case of Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) [2017] EWHC 1738 (Ch) in which a claimant was refused permission to accept an offer of £300,000 after…
COURT OF APPEAL: REFUSAL TO ENGAGE WITH AN OPEN OFFER OF SETTLEMENT IS AN ABUSE OF PROCESS
In Balk -v- Otkrite International Investment [2017] EWCA the Court of Appeal was highly critical of a litigant’s failure to respond to an open offer of settlement of appeal. The failure to engage with an open offer of settlement amounted…
ADVISING ABOUT THE RISKS OF LITIGATION: YOU DON’T PAY ME TO TELL YOU WHAT YOU WANT TO HEAR: PROFESSIONAL NEGLIGENCE ACTION AGAINST SOLICITORS DISMISSED
In Seery -v- Leathes Prior (a firm) [2016] EWHC80 (QB) Sir David Eady dismissed a claim for negligence against a firm of solicitors. One of the issues considered was whether the claimant should have been encouraged to litigate. The claim…
COSTS AT THE END OF A CASE: INDEMNITY COSTS, PAYMENTS ON ACCOUNT AND GOING BEYOND THE COSTS BUDGET
In Barkhuysen -v- Hamilton [2016] EWHC 3371 (QB) Mr Justice Warby considered matters relating to costs after a trial. The defendant’s conduct led to an order for indemnity costs being made. The judge also identified those areas in which the claimant…
YOU CAN BE A TOUGH NEGOTIATOR- YOU CAN ALSO FALL FLAT ON YOUR FACE: HIGH COURT CASE EXAMINED
The law of privilege prevents a close study of the negotiation process in most cases. That is why everyone involved in litigation could benefit from reading the judgment today of Mrs Justice Slade in FPH Law -v- Brown [2016] EWHC…
WHAT IS A TRIAL? AND WHY DOES IT MATTER?
In Pickard -v- Roberts [2016] EWHC 187 (Ch) Mr John Baldwin QC (Sitting as a Deputy Judge of the Chancery Division) had to consider whether a hearing was a “trial” and whether this had any impact upon the decision to…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
"HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE": 22nd SEPTEMBER 2015: HARDWICKE BUILDING, LONDON: RAISING FUNDS FOR THE BILLABLE HOUR
LITIGATORS: HOW TO GET SUED: MAKE A LOSS AND BE MISERABLE RAISING MONEY FOR THE BILLABLE HOUR APPEAL (ALL PROCEEDS GO TO THE APPEAL) Gordon Exall and PJ Kirby QC. Hardwicke Building, Lincoln’s Inn. TUESDAY 22nd SEPTEMBER 2015 5.30 -…
A SORRY TALE OF MODERN LITIGATION: ALL AROUND THE HOUSES
There are some cases where the “reasonable bystander” may feel that all rationality has been lost by the litigants. Read the opening paragraph of Mr Justice Akenhead’s judgment in Mears Ltd -v- Shoreline Housing Partnership Limited [2015] EWHC 1396 (TCC)….
WASTED COSTS HEARING: NOT JUSTIFIED BECAUSE OF LIKELY COSTS INVOLVED: CAVEAT LITIGATOR
In Kagalovsky -v- Balmore Invest Limited [2015] EWEHC 1337 (QB) Mr Justice Turner turned down a wasted costs application at the first stage. “A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should…
CASE PROJECT MANAGEMENT: PRESENTATION BY H.H. JUDGE SIMON BROWN QC.
Attached to this post – Case Project Management (1) – are the slides that HH Judge Brown used in his recent address on Case Project Management to the Association of Cost Lawyers. Reproduced with his permission. KEY POINTS The slides take…
"FUNDAMENTAL DISHONESTY" A ROUND UP OF CASES & COMMENTARY
The earlier post on the procedural aspects of “fundamental” dishonesty led to the most visitors to the blog in a weekend ever. Here we look at posts, articles, comments and cases in relation to the concept of fundamental dishonesty. REPORTED…
COURT CANNOT RE-OPEN "FINAL JUDGMENT": ISSUES RELATING TO DEFENDANT'S CAPACITY: EVESHAM –v- WERRETT CONSIDERED
In the judgment today in Eversham & Pershore Housing Association Ltd -v- Werrett [2015] EWHC 1060 (QB) Mr Justice Nicol held that the court could not re-open a decision because of later evidence in relation to the defendant’s capacity. THE…
WHEN YOU GET BACK TO WORK ON TUESDAY THERE ARE NEW CHANGES TO THE PRE ACTION PROTOCOLS IN FORCE: AND YOU MAY STRUGGLE TO FIND THEM
If new rules are important you would think that great time and effort would be spent in making sure that practitioners had plenty of advance notice and they were readily available for study and consideration before they came into force….
HAYWARD MAY HAVE BEEN WAYWARD BUT THERE WAS NO LOOKING BACKWARD: SETTLED CLAIM NOT RE-OPENED
In Hayward -v- Zurich Insurance Company PLC [2015] EWCA Civ 327 today the Court of Appeal overturned a decision that a claimant should repay a large part of a personal injury award from an earlier settled action. This decision makes…
ADJOURNMENT GRANTED WHEN MEDICAL EXPERT "UNABLE" TO ATTEND: BETTER EVIDENCE NEEDED IN FUTURE
In D -v- the Secretary of State for Health [2015] EWHC 867(QB) Mr Justice Foskett granted the claimant when an important expert was unable to attend for somewhat unusual reasons. The judgment was designed to set out clear guidance for…
"WALKING THE LINE": THE SRA ON BALANCING THE DUTIES OF LITIGATORS IN LITIGATION: A POTTED SUMMARY
For reasons that may become evident in later posts this is an apposite day to consider the duties owed by litigators. The SRA have produced “Walking the line” a consideration of the ethical duties owed by litigators. A BRIEF SUMMARY…
ANOTHER EXAMPLE OF A SUCCESSFUL DEFENDANT NOT RECOVERING ALL OF ITS COSTS (AND OF THE ADVANTAGES OF A PART 36 OFFER)
In Altus Group (UK) Limited -v- Baker Tilly [2015] EWHC 411 (Ch) HH Judge Keyser QC (sitting as a High Court Judge) made various orders in relation to the Defendant’s costs. The Defendant did not recover all their costs of…
CASE STRUCK OUT AFTER JUDGMENT BECAUSE REPEATED FAILURES TO COMPLY AMOUNTED TO AN ABUSE OF PROCESS
In Zaman -v- Paradise UK Ltd (QBD) 11/12/2014* Judge Seymour QC upheld a decision of the Master to strike out a personal injury action on the grounds of abuse of process where liability had been admitted. This is an important…
SECOND ACTION AGAINST A DIFFERENT DEFENDANT STRUCK OUT FOR ABUSE OF PROCESS: ALCOCK -v- PARK BUSINESS CENTRES LIMITED
Should a second action, issued because the first was struck out for some reason, be struck out? I am grateful to Charles Bagot of Hardwicke Chambers for sending me a copy of the transcript of a decision by District Judge…
OFFER TO SETTLE HAS MAJOR IMPACT ON COSTS OF CASE: NO SUGARING OF THIS PILL
In Sugar Hut Group Ltd -v- AJ Insurance [2014] EWHC 3775 (Comm) Mr Justice Eder held that an offer of settlement had a major impact on costs even though it was not a valid Part 36 offer and the claimant…
CASE STRUCK OUT BECAUSE DELAY WAS AN ABUSE OF PROCESS: WEARN -v- HNH CONSIDERED
In Wearn -v- HNH International Holdings Ltd [2014] EWHC 3542 (Ch) Mr Justice Barling struck out a claim for delay, holding that the claimant’s delay amounted to an abuse of process. There are also a few interesting observations about the…
INVOLUNTARY BAILMENT AND CIVIL PROCEDURE: CAMPBELL -v- REDSTONE CONSIDERED
The law as to bailment sometimes raises its head in civil procedure. It is relevant for instance when someone damages a car which is borrowed. It is more significant in relation to the duties owed in relation to goods left…
PART 36 OFFERS AND NON-MONETARY CLAIMS: A HIGH COURT CASE CONSIDERED
We have looked before at the advantages to a claimant in making an early Part offer. If the claimant matches or beats that offer at trial then there are advantages in costs and interests. There can also be a 10%…
THERE ARE DANGERS IF YOU ARE LEAVING THE ISSUE OF COSTS TO THE JUDGE: IN ANY EVENT BE QUICK AND BE CHEAP!
There are limited number of cases where the parties can agree everything except who should pay the costs. There are dangers in leaving the question of costs to the judge, as the case of Spiller -v- Derhalli [2014] 2548 (EWHC)…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
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