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…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: A STARK REMINDER FROM THE COUNTY COURT ONLINE PILOT PRACTICE DIRECTION
I have looked before at the issues that arise when the legal representative signs a statement of truth on behalf of a client. These issues are shown in stark terms in the Practice Direction 51S – The County Court Online…
THROWING EVERYTHING IN AT TRIAL- INCLUDING THE KITCHEN CABINET: YOU HAVE TO PUT YOUR CASE (AND PLEAD IT)
There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial. An attempt to introduce a…
SOMETIMES YOU DON’T HAVE TO SIGN STATEMENTS OF CASE WITH A STATEMENT OF TRUTH: HIGH COURT DECISION ON AMENDING PARTICULARS OF CLAIM
The case of Kimathi v Foreign and Commonwealth Office [2017] EWHC 2145 (QB) promises to be a legal epic. As I understand it the trial is not even half way through. It was opened in April 2017. It is unlikely…
LATE (BUT NOT VERY LATE) AMENDMENTS ALLOWED: LIMITATION DEFENCE WAS NOT “MUCKING AROUND AT THE LAST MOMENT”
In Vilca & Ors v XSTRATA Ltd & Anor [2017] EWHC 2096 (QB) Mr Justice Stuart Smith allowed a late, but not “very late” application by the defendant to allow it to plead limitation. “To my mind… all of the…
INTERLOCUTORY APPEALS AND THE TIME FACTOR: DENTON, WITNESS STATEMENTS AND AMENDMENT: A HEARING WHEN SEVEN TIMES MORE TIME WAS NEEDED
The judgment of Mrs Justice May DBE in Myall -v- Ministry of Defence [2017] EWHC 1752 (QB) emphasises the point that many interlocutory appeals come about not so much because of judicial error but because of the lack of time…
INADEQUATE DISCLOSURE LEADS TO DEFENCE BEING STRUCK OUT – EVENTUALLY: CASE THAT WAS NOT A WALK IN THE PARK
There is a brief report on Lawtel today of the case of Powell -v- Watford Borough Council, a decision made yesterday by Mr Justice Jay (10th July 2017) in the Royal Courts of Justice . This post is based in…
FAILURE TO RESPOND TO PART 18 REQUESTS PROPERLY LEADS TO STRIKE OUT: NO SECOND BITE OF THE CHERRY IN RELATION TO RELIEF FROM SANCTIONS
There are relatively few reported cases about Part 18 questions. The decision of the Court of Appeal today in Griffith -v- Gourgey [2017] EWCA Civ 926 shows the dangers of failing to respond fully and properly. “This shows the necessity…
AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce [2017] EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended…
A “DEFENCE STRAIGHT OUT OF THE 1970S”: DEFENDANT’S PLEADINGS 40 YEARS OUT OF DATE
Some defences are inadequate. Some are (rightly) struck out. Some do not recognise the essential difference between a non-admission and a denial. A series of denials is, the case law makes clear, an inappropriate and archaic way of proceeding. “Churchill’s…
PARTICULARS OF CLAIM MUST BE IN A FORM THAT THE DEFENDANT CAN RESPOND TO: PLEADINGS STRUCK OUT ALTHOUGH THE CLAIM WAS NOT
In Kaplan -v- Super PCS LLP [2017] EWHC 1165 (Ch) Mrs Justice Rose struck out the particulars of claim because it was impossible for the defendants to respond to it. It is an object lesson that, even in a complex…
PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT”
There is an interesting discussion of the purpose of pleadings and expert evidence in the judgment of HH Parkes QC in PP -v- The Home Office [2017] EWHC 663 (QB). The fact that an expert report is referred to in…
PROVING THINGS 59: TO GET SPECIAL DAMAGES YOU HAVE TO PLEAD THEM AND PROVE THEM (EVEN IN DEFAMATION CASES)
In Lisle-Mainwaring -v- Associated Newspapers Ltd [2017] EWHC 543 (QB) Judge Parkes QC (sitting as a Deputy Judge of the High Court) declined to award the claimant special damages for financial outlay on the grounds that they were never properly…
AMENDMENT PROVIDES A BRIDGE OVER TROUBLED WATERS: PERMISSION TO AMEND TO CLARIFY POSITION OF PARTY PERMITTED
Decisions on amendment and limitation arguments are cropping up at the moment. Here we look at the judgment of Master Kay QC in Highways England Company Limited -v- B.G. Rodwell Limited[2017] EWHC 118(QB). The defendant raised issues under Section 35…
APPEALS, COUNTER-SCHEDULES AND A RESERVE POSITION: NOT MANNA FOR THE DEFENDANTS
We will be looking at the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 twice today. Here I want to look at the difficulties the defendant had in arguing a point in…
COURT FEES AND STRIKING OUT: ANOTHER CASE
There is a brief report on Browne Jacobson Insurance Law about a case that struck out because of a failure to pay the correct fees. THE REPORT The report is brief and does not give the date of the judgment…
TOO LONG OR TOO SHORT: SCHEDULES and COUNTER-SCHEDULES: THE "CINDERELLAS" OF THE LITIGATION PROCESS
One important, but often overlooked, element of procedure and legal drafting is the preparation of the schedule of damages and the counter-schedule. The rules relating to these documents are sparse. However these are important documents, often impacting upon the credibility…
"SECOND HAND" SIGNATURES WILL NOT DO -"PRE-SIGNING" THE STATEMENT OF TRUTH? – NOT A GOOD IDEA
This blog has covered the importance of the statement of truth on many occasions. However the issues revealed in the Solicitors Disciplinary hearing in SRA -v- Jackson reveals a remarkably insouciant approach to the statement of truth. THE CASE The…
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