NEW RULES COMING INTO FORCE: PLEADING SPECIFIC ISSUES IN RELATION TO THE HIRE OF A REPLACEMENT VEHICLE
The 113th update to Practice Direction Amendments comes into force on the 6th April 2020. It introduces new, and quite specific, obligations on a claimant claiming the cost of a replacement hire vehicle. THE NEW RULE There is a new Paragraph…
PLEADINGS: CLAIMANTS – TELL THE DEFENDANT THE CASE THAT IT IS GOING TO BE PUT AGAINST THEM
There are some interesting observations as to how a claimant should plead their case in the judgment in Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB). “If, as in this case, the Claimant produces only at trial…
RELIEF FROM SANCTIONS REFUSED WHEN DEFENDANT FILES AN INADEQUATE PLEADING
The Denton principles were considered in an unusual context by Mr Justice Julian Knowles in Oliver v Shaikh [2019] EWHC 3389 (QB). THE CASE The claimant is a Circuit Judge. He brought an action for harassment against the defendant….
COUNTER-SCHEDULES: WORDS OF WISDOM FROM TWITTER
Twitter this afternoon gave rise to a number of interesting discussions about the role of the counter-schedule. I got permission to share some of the contributions. THE START It started with Sarah Pritchard QC looking for ideas for a talk…
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
LATE SERVICE OF A REPLY: RELIEF FROM SANCTIONS WOULD HAVE BEEN GRANTED – IF IT HAD MATTERED
In Sports Mantra India Private Ltd & Anor v Force India Formula One Team Ltd [2019] EWHC 2514 (Ch) Deputy High Court Judge Lance Ashworth QC considered the question of whether relief from sanctions should be granted when a Reply…
POINTS HAVE TO BE PLEADED: APPLICATION TO AMEND AT TRIAL CORRECTLY DISALLOWED: PLEADINGS ARE THERE TO ENSURE THAT THE ESSENTIAL ELEMENT OF EACH PARTY’S CASE ARE KNOWN
In Kensington Mortgage Company Ltd v Mallon & Ors [2019] EWHC 2512 (Ch) Sir Gerald Barling, sitting as a Judge of the High Court, dismissed an appeal against a judge’s refusal to consider a point that was not pleaded. The…
CIVIL PROCEDURE BACK TO BASICS 54: SCHEDULES OF DAMAGES SHOULD NOT BE WORKS OF FICTION
Anyone drafting anything in the litigation process must remain acutely aware that there is real possibility that the document they are drafting will one day be read by a judge. This is even more likely in relation to a schedule…
CIVIL PROCEDURE BACK TO BASICS 52: THE REPLY AND DEFENCE TO COUNTERCLAIM: TO REPLY OR NOT TO REPLY – THAT IS THE QUESTION
Here we take a quick look at the rules and practice directions in relation to filing a Reply and Defence to a Counterclaim. In particular claimants should be very aware of the fact that a defendant can apply to enter…
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…
A REFRESHER COURSE (1): THE STATEMENT OF TRUTH : “NOT AN IRRELEVANT MANTRA OR MERE VERBIAGE”
The previous post on this blog was about the importance of giving the source of information or belief and first hand witness evidence. However whenever a lawyer signs a document with a statement of truth they are taking their career…
SIGNATURES, ELECTRONIC SIGNATURES AND STATEMENTS OF TRUTH: A BRIEF REFRESHER
One aspect of the decision in Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 that may be unique is the fact that the court will be considering the statement of truth certified by an electronic signature. That case emphasises, if…
PROVING THINGS 149: A JUDGE CAN FIND DISHONESTY ON THE FACTS BEFORE THEM EVEN IF IT IS NOT PLEADED
We are staying with the decision of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC). The claimant in that case had not pleaded fraud. The judge rejected the argument that the absence…
DEFENDANT CAN ONLY RESPOND TO THE CASE AS PLEADED: COURT REJECTS CLAIMANTS’ ATTEMPTS TO INTRODUCE NEW ISSUES
There are two judgments on BAILLI this morning in the Glaxosmithkline case where the judge has resisted the claimants’ attempts to widen the scope of their case beyond the pleaded case and the issues set out in a Group Litigation…
CIVIL PROCEDURE BACK TO BASICS 38: THE DEFENCE TO COUNTERCLAIM
The previous post was about the “reply”. The rules relating to a Defence to Counterclaim are different. Very importantly the timing of the defence to counterclaim is different. There is an obligation on a claimant to properly and fully plead…
CIVIL PROCEDURE BACK TO BASICS 37: THE EVER SO HUMBLE REPLY: CANNOT BE USED TO BRING A NEW CLAIM
The closing passages of the judgment in Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) dealt with the Claimant’s reply. It is worthwhile looking at the rules and case law relating to this aspect of civil procedure. …
FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT’S LATE APPLICATION TO RE-CAST ITS CASE
In Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) Martin Griffiths QC, sitting as a High Court judge, disallowed a late application to amend. It is another example of an application being made shortly before trial,…
NOT COMPLYING WITH DIRECTIONS OR REPLYING TO CORRESPONDENCE – AND THEN BLAMING THE OTHER SIDE: IT DOES YOU NO CREDIT
There are several matters of general interest in the judgment of Mrs Justice Pepperall in Essex County Council v UBB Waste (Essex) Ltd [2019] EWHC 819 (TCC) (02 April 2019). Here we look at the dangers of simply failing to…
“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”
In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action. There are two particular aspects of the judgment of general interest. Firstly…
STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can…
JUDGE ALLOWS CLAIMANT TO RELY ON MATTERS THAT TOOK PLACE AFTER TRIAL: VERY, VERY LATE AMENDMENT ALLOWED
There are several interesting procedural issues that arise in the judgment of HHJ Halliwell (sitting as a High Court Judge) in Currie v Thornley & Anor [2019] EWHC. 172 (Ch). One of which is the judge’s decision to allow the claimant…
THE SPI NORTH (NON-ADMISSION IN PLEADING CASE) IN THE COURT OF APPEAL: THE SECOND POINT: COMPELLING EVIDENCE NEEDED AND NO SATELLITE LITIGATION PLEASE
Yesterday’s post on SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 concentrated upon the Court of Appeal guidance in relation to the drafting of a pleading. However the second point on which the claimant’s appeal …
A WHOLE COURT OF APPEAL CASE ABOUT WHETHER IT IS APPROPRIATE TO DRAFT A “NON-ADMISSION”: NO DUTY ON A DEFENDANT TO SEEK OUT INFORMATION FROM A THIRD PARTY WHEN DRAFTING A DEFENCE
In the judgment today in SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 the Court of Appeal carried out a close analysis of the rules relating to pleading a defence. In particular the…
THE STATEMENT OF TRUTH AND WITNESSES WITH POOR ENGLISH: PRACTICE DIRECTION 22
The post earlier today about witness statements in a foreign language led (almost immediately) to a telephone enquiry as to what happens when a party cannot read or understand the statement of truth in a statement of case. The answer…
CIVIL PROCEDURE BACK TO BASICS 22: WHEN THE CLAIMANT ADOPTS ALLEGATIONS OF CONTRIBUTORY NEGLIGENCE: HOIST ON YOUR OWN PETARD
This post follows on from the previous post in relation to pleading the Defendant’s case in the alternative. Here we are looking at cases where a defendant pleads allegations of negligence and the claimant uses those allegations as allegations against the…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
THE DANGERS OF PLEADING DISHONESTY: PART OF REPLY TO DEFENCE STRUCK OUT
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2018] EWHC 1376 (Ch) Master Shuman provides an succinct summary of the principles relating to pleading dishonesty. Part of a Reply that alleged dishonesty was struck out. THE CASE The claimant…
LET US JUST IGNORE THE PLEADED CASE (MY PLEADED CASE ANYWAY): WHEN THE PARTIES COULDN’T EVEN AGREE ON A STATEMENT OF ISSUES
There is an interesting passage in the judgment of HHJ Klein (sitting as a judge of the High Court) in UK Learning Academy Ltd v The Secretary of State for Education [2018] EWHC 2915 (Comm). It relates to the statements of…
SIX YEARS ON: YOU SHOULD KNOW THE CASE YOU WANT TO PLEAD: CLAIMANT’S ACTION STRUCK OUT BECAUSE OF INABILITY TO PARTICULARISE CASE
The judgment of HHJ Platts in Wrightson -v- Flor Projects Limited [2018] EWHC 3036 (QB) provides, amongst other things, an important warning on the need to plead and particularise a case properly. The case shows that when a claimant has…
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…
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…
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…
CIVIL PROCEDURE BACK TO BASICS 12: THE DIFFERENCE BETWEEN A NON-ADMISSION AND A DENIAL
Some defences adopt a scattergun approach of “denying” everything. Some are more selective – they “put the Claimant to strict proof”. Many defences ignore the important distinction between a non-admission and a denial. THE DIFFERENCE IN A NUTSHELL If you…
PLEADING AND ARGUING FUNDAMENTAL DISHONESTY: THE CLAIMANT KNEW WHAT WAS COMING (ON THIS OCCASION)
We have already looked at the factual findings in Pinkus v Direct Line [2018] EWHC 1671. Of equal interest is that part of the judgment where the judge considered the claimant’s argument that the defendant should not be allowed to argue fundamental…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
LATE APPLICATION TO AMEND DEFENCE RIGHTFULLY REFUSED: LATE APPLICATION TO AMEND NOTICE OF APPEAL ALSO GOT THE BARNSLEY CHOP
In First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 the Court of Appeal upheld a decision by the trial judge to refuse a late amendment to the defence. An application to amend the Notice…
I’M NOT TAKING A PLEADING POINT – BUT: FAILURE TO PUT A POINT IN CROSS-EXAMINATION NOT FATAL TO CLAIMANT’S CASE
The judgment in Auckland v Khan & Anor [2018] EWCA Civ 1148 is in short form. However it does illustrate the difficulties of appealing on “pleading points” and findings of fact. “There are certainly cases in which the failure to put…
YOUR CLAIM FORM IS, WELL, PRETTY DAMN HOPELESS – AND WITNESS EVIDENCE CAN’T PUT IT RIGHT
The observations made by Mr Justice Andrew Baker in Orascom Tmt Investments SARL v Veon Ltd [2018] EWHC 985 (Comm) are of general interest. They highlight the need for statements of case to be properly particularised and also highlight the dangerous…
JUDICIALLY REVIEWING THE COUNTY COURT: PROCEDURAL CONFUSION, UNPLEADED POINTS AND THE HIGH STANDARD TO BE MET WHEN ATTEMPTING TO JUDICIALLY REVIEW A COUNTY COURT DECISION
There are many matters of interest in the short judgment of Mr Justice Turner in Watkins, R (On the Application Of) v Newcastle Upon Tyne County Court [2018] EWHC 1029, a rare example of a party trying to judicially review a…
WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: “SHEER INCOMPETENCE” DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION
CPR 17.(4) is always one of the most “challenging” sections of the Limitation Act in practice. Amending the name of a party after the expiry of the limitation period is not always easy. The judgment in Best Friends Group & Anor…
CIVIL PROCEDURE BACK TO BASICS 5: SCHEDULES AND COUNTER-SCHEDULES: NOT A NUMBER-CRUNCHING EXERCISE
If there is anything that suffers from being taken for granted it is the basic schedule and counter-schedule. This is demonstrated in the judgment available today in Wright v Satellite Information Services Ltd [2018] EWHC 812 (QB) Mrs Justice Yip. The appeal…
ATTEMPTING TO RELY ON MATTERS WHERE PERMISSION TO AMEND HAD BEEN REFUSED: A BRIDGE TOO FAR
In Cleveland Bridge UK Ltd v Sarens (UK) Ltd [2018] EWHC 751 (TCC) the court rejected an attempt by a party to argue a case which had not been pleaded. The defendant had been refused permission to amend its defence and counterclaim…
STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”
In Brown & Anor (t/a Maple Hayes Hall School) v AB [2018] EWHC 623 (QB) Mr Edward Pepperall QC (sitting as a Deputy High Court Judge) struck out a defence that was . In giving the defendant another chance he made…
LATE AMENDMENT: COURT OF APPEAL DECISION
We looked at the decision in Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16) in an earlier post. The defendant appealed to the Court of Appeal Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018]…
DENTON CONSIDERED: ADDITIONAL ALLEGATIONS MADE IN RELATION TO A SOLICITOR FORGING A WITNESS STATEMENT
The Denton criteria were considered by Mr Justice Sweeney in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 94 (QB). These were considered in an an unusual context. There are allegations (and it must be stressed that these…
WHEN THE PLEADINGS APPEAR TO HAVE BEEN PUT IN THE PAPER BIN AT TRIAL (SHADES OF THE OFFICE)
The judgment in Premier Paper Group Ltd v Buchanan McPherson Ltd [2018] EWCA Civ 15 contains some interesting observations about the way in which the parties departed from their pleadings. Although the claim succeeded this case how important it is that…
ALLEGING AND FINDING FUNDAMENTAL DISHONESTY, PLEADING AND EVIDENCE: COURT OF APPEAL JUDGMENT TODAY
I am grateful to barrister Tom Vonberg for sending me a copy of the Court of Appeal decision today in Howlett -v- Ageas [2017] EWCA Civ 1696. Howlett & anr v Davies & anr- jt Final-1. Tom acted for the…
SEARCHING FOR “THE GOLDEN RULE OF PLEADING”: BREVITY, BRER RABBIT AND – GOING TO HELL
It is interesting to note the search term that leads people to this blog. Today I commented on one that led many, many practitioners to a search for the golden rule of pleading. Be warned not all of these replies…
WHEN THE PLEADINGS SHOULD NOT NAME SOMEONE: HIGH COURT OBSERVATIONS
In Huda v Wells & Ors [2017] EWHC 2553 (QB) Mr Justice Nicklin made some observations that make it clear that it may be prudent for statements of case not to name vulnerable individuals. THE CASE The defendants set aside an…
YOU CAN’T APPEAL ON A POINT THAT YOU HAVEN’T PLEADED: DEFENDANT’S ARGUMENTS GO DOWN THE PAN
There are periodic reminders from the court as to how important the statement of case is. This can be seen in the judgment today in Watt v Dignan & Ors [2017] EWCA Civ 1390. “I do not agree that a…
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