THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points 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…
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…
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…
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…
DEBARRED PARTY CANNOT CROSS-EXAMINE AT TRIAL: WHAT ROLE CAN A DEBARRED PARTY PLAY AT TRIAL?
In Kliers v Schmerler & Anor [2018] EWHC 1350 (Ch) Mr M H Rosen QC (sitting as a Deputy High Court Judge) refused the defendant’s application that it be allowed to cross-examine the claimant even after it had been debarred from…
CASE STRUCK OUT BECAUSE WITNESS EMAILED SOLICITORS AND COUNSEL & SPOKE TO THIRD PARTIES WHILST IN THE COURSE OF GIVING EVIDENCE
NB THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 In Hughes Jarvis Limited v Searle [2018] EW Misc B6 (CC) Her Honour Judge Clarke struck out the claimant’s case…
THE LIMITS OF DECLARATORY RELIEF: THE DANGERS OF APPLYING FOR IT: CLAIMANT’S ARGUMENTS (AND PLEADINGS) FAIL TO RAISE THE ROOF
I am grateful to my colleague John de Waal QC at Hardwicke for bringing my attention to the judgment of Mrs Justice O’Farrell in Office Depot International (UK) Ltd v UBS Asset Management (UK) Ltd & Ors [2018] EWHC 1494 (TCC). It…
COURT FEES AND STRIKING OUT: CROSS -v- BLACK BULL: PERMISSION TO APPEAL REFUSED
In January this year I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) 072 – Cross v Black Bull – Judgment.Where HH Judge Robinson allowed an appeal where the District Judge had struck out a case…
STRUCK OUT FOR FAILURE TO PAY THE TRIAL FEE? WELL YOU MAY NOT BE: COURT ORDERS THAT MAY NOT COMPLY WITH COURT RULES
When the rules committee re-introduced the concept of “automatic striking out” into the rules it was always going to cause problems. A case can be automatically struck out for failure to pay the trial fee in time. However some Court…
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…
SPEAKING TO YOUR WITNESS IN THE COURSE OF THEIR EVIDENCE: STRIKE OUT DECISION UPHELD ON APPEAL
An earlier post reported on the decision of the Employment Tribunal in Chidzoy -v- BBC (available here). It illustrates the dangers of a witness talking to anyone in the course of their evidence. This case emphasises the importance of witnesses not…
APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT
On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It…
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…
THE PROBLEM IN OBTAINING AN ORDER YOU HAVEN’T ASKED FOR:AN APPLICATION UNDER CPR 3.4 WILL NOT BE TREATED AS AN APPLICATION UNDER PART 24
The judgment of Chief Master Marsh in Saeed & Anor v Ibrahim & Ors [2018] EWHC 3 (Ch) contains several important observations in relation to making applications. The Master refused to treat an application, ostensibly made under CPR 3.4, as an…
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….
UNDOUBTED FLAWS IN THE WAY WITNESS STATEMENTS WERE DRAFTED: LEADS TO A WASTE OF TIME AND COSTS
There are many reasons litigators should read the judgment of Lady Justice Thirwall in Marsh -v- Ministry of Justice [2017] EWHC 1040 (QB, Here I want to concentrate upon the witness statements, in particular the defendant’s witness statements. It is another…
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…
WISEMAN -V- MARSTON: COURT FEES CASE: TRANSCRIPT NOW AVAILABLE
The transcript of the judgment in the Wiseman -v- Marston case is now available. I have included it as an attachment to the previous posts on the case. The links are also available here. THE JUDGMENT AND COURT OF APPEAL…
WISEMAN -V- MARSTON: THE UNDERPAYMENT OF COURT FEES: DEFENDANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
In December last year I reported on the decision in Wiseman -v- Marston’s PLC (Sheffield County Court 21st December 2016). His Honour Judge Robinson allowed the claimant’s appeal in a case relating to payment of court fees. The defendant applied for…
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…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES WHEN ITS DEFENCE IS STRUCK OUT? NOTHING
What is the position of a defendant whose action has been struck out? This was the question considered by Mr Justice Soole in Michael -v- Phillips [2017] EWHC 1984 (QB). The short answer is the defendant cannot dispute any aspect…
ISSUING PROCEEDINGS BEFORE LETTERS OF ADMINISTRATION ARE TAKEN OUT: A FATAL ERROR FROM THE OUTSET
In Qunintana -v- Surrey and Sussex Healthcare NHS Trust 28/03/2017 Master Cook upheld the established principle that an action cannot be brought by administrators of an estate before the letters of administration are taken out. Proceedings cannot later be amended…
A WITNESS IN THE COURSE OF GIVING EVIDENCE IS IN PURDAH: THE ROLE OF THE LAWYER
The Employment Tribunal decision in Chidzoy -v- BBC (available here) contains an important lesson to lawyers and litigants alike. A witness in the course of giving evidence is in “purdah” – in that they should not discuss the case with…
HIGH COURT WRITES AN OPEN LETTER TO LITIGANTS IN PERSON: STRIKING OUT CAN BE A BENEFIT NOT A BURDEN
There are aspects of the judgment of Mr Justice Walker in Chambers -v- Rooney [2017] EWHC 285 (QB) that amount to an open letter from the High Court to litigants in person. Some of the observations are aimed at everyone…
RASTIN RESURRECTED: DO THE NEW RULES RE-INTRODUCE AUTOMATIC STRIKING OUT?
There have been comments on Twitter, and now in the Gazette, that “automatic striking out” is being introduced by the rules coming into force on the 6th April 2017. This is true, however it is important that the rules are…
ADVERSE DECISION IN ARBITRATION PROCEEDINGS DID NOT RENDER AN ACTION AN ABUSE OF PROCESS: COURT OF APPEAL REVERSED STRIKING OUT DECISION
In Michael Wilson & Partners -v- Sinclair [2017] EWCA Civ 3 the Court of Appeal overturned a decision to strike out the claimant’s case. The fact that there had been earlier arbitration proceedings did not, in this case, render a second…
DELAY AND NON-COMPLIANCE: ACTION STRUCK OUT: A "GAME CHANGER"
The judgment of Master Matthew in Phelps -v- Button [2016] EWHC 3185 (Ch) emphasises the dangers of delay and non compliance. “…I will observe that the Court ethos has changed enormously since the days of Lord Denning and the two…
PAYING THE CORRECT COURT FEE, AMENDMENT & STRIKING OUT: ANOTHER DECISION
There have been a number of cases in relation to the consequences for a claimant when the correct court fee has not been paid upon issue. This issue was considered by His Honour Judge Robinson this week in an appeal…
THE DEAD CAN'T SUE: AN IMPORTANT REMINDER
In Kimathi & Ors -v- The Foreign & Commonwealth Office [2016] EWHC 3005 (QB) Mr Justice Stewart reviewed the principles in relation to bringing an action on behalf of a deceased party. It is an important reminder of some very…
PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley [2016] EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object…
TWO PROCEDURAL POINTS: A SECOND ACTION IS NOT ALWAYS AN ABUSE OF PROCESS & A BANKRUPT CANNOT BRING PROCEEDINGS
The judgment of Master Bowles in Khan -v- Khan & Ambala Foods Limited [2015] EWHC 2625 (Ch) contains a reminder of two important procedural points. KEY POINTS (1) The issue of a second set of proceedings is potentially an abuse…
FAILURE TO PROVIDE INFORMATION IN WITNESS STATEMENT LEADS TO APPLICATION BEING STRUCK OUT: HIGH COURT DECISION TODAY
Chief Master Marsh has had a busy day. This is the second decision today I am writing about. In Wave Lending Ltd -v- Batra and SFM Legal Services Ltd [2016] EWHC 2238 (Ch) he considered whether a witness statement complied…
YOU ARE PAYING YOUR WITNESSES BY RESULTS: WE WANT TO STRIKE YOU OUT
The judgment of Mr Justice Fraser in EnergySolutions EU Limited -v- Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC) is a highly technical analysis of procurement legislation in an action that had already had a somewhat tortuous procedural history. However I…
"SECOND" ACTION FOR CLINICAL NEGLIGENCE NOT STRUCK OUT AS AN ABUSE OF PROCESS
In the judgment today in Wright -v- Barts Health NHS Trust [2016] EWHC 1834 (QB) Mr Justice Edis refused the defendant’s application to strike out the claim or for summary judgment on the grounds that the claimant had settled an…
PAYING THE "CORRECT" COURT FEE AND AMENDMENT: AN IMPORTANT CASE REVIEWING THE PRINCIPLES
This blog has looked several times* at the cases and principles that have followed the decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch). Applications around allegations of failure to pay the correct court fee have become a new battleground…
STRIKING OUT A PLEADING WHEN IT DOES NOT COMPLY WITH THE RULES
In Jones -v- Longley [2016] EWHC 1309 (Ch) Master Matthews considered the criteria for striking out a pleading, in this case a counterclaim. There are important observations on the needs for pleadings to comply with the rules; on the fact…
FAILURE TO PAY THE CORRECT COURT FEE DOES NOT LEAD TO STRIKING OUT OF AN ACTION
The decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch) has led to considerable interest (and it has to be said) some hyperbole and opportunistic applications. The case is often misunderstood. In Bhatti -v- Ashghar [2016] EWHC 1049 (QB)…
"INAPPROPRIATE TECHNICAL GAMES": ANOTHER CASE ABOUT SERVICE OF THE CLAIM FORM: DEFENDANT SNAPPED INTO SHAPE
The judgment of His Honour Judge Hacon in Abbott -v-Econowall Ltd [2016] EWHC 660 (IPEC) contains some important observations about the conduct expected in litigation. Also some important lessons in relation to agreeing extensions of time for service. “…parties to…
REVISITING COMPLIANCE WITH A PEREMPTORY ORDER AFTER TRIAL: LIES ARE FOUND OUT AND ACTION DISMISSED
I am grateful to Jeff Turton of Weightmans for sending me a copy of the transcript in the case of Anward -v- Severn Trent Water Ltd (13th July 2015). Abid Anwar – Full Judgment It raises an interesting and important point…
THE GAME MUST BE WORTH THE CANDLE: ACTION STOPPED IN ITS TRACKS BECAUSE THE CLAIMANT HAD NOTHING TO GAIN
In IG Index Ltd -v- Cloete [2015] EWHC 3698 (QB) HHJ Richard Parkes QC (sitting as a judge of the High Court) struck out an action on the grounds that the claimant had nothing to gain. KEY POINTS The court…
STRIKING OUT FOR LACK OF JURISDICTION (OR HADRIAN'S WALL IS THERE FOR A PURPOSE YOU KNOW)
The Court of Appeal decision in Cook -v- Virgin Media Limited [2015] EWCA Civ 1287 is one that needs to be read very carefully. It is one of those cases that could lead to a whole new branch of satellite…
STRIKING OUT FOR DELAY: SOLLAND UPHELD ON APPEAL
We have looked before at the decision of Master Bowles in Solland International Ltd -v- Clifford Harris & Co [2015] EWHC 2018 (Ch) where the claimant’s action was struck out because of their failure to progress the action for 31…
ISSUING WITHOUT AUTHORITY: THE DANGERS OF SOLICITORS SIGNING STATEMENTS OF TRUTH: ACTION STRUCK OUT AS AN ABUSE OF PROCESS
This blog has looked, several times, at the dangers of solicitors signing documents which contain a statement of truth. The risks are clearly set out in the decision of Mrs Justice Rose today in Bao Xiang International Garment Centre -v-…
STRIKING OUT AT TRIAL BECAUSE THE CASE WAS A MESS: A WARNING FOR THOSE WHO WANT LIFE WITHOUT LAWYERS
On a day when the Lord Chief Justice has stated that the legal system must adapt to life without lawyers. It is interesting to read this report of the problems caused by litigants in person. It has kindly been provided…
CASE STRUCK OUT FOR FAILURE TO GIVE DISCLOSURE IN RELATION TO LATER ACCIDENT: RELIEF FROM SANCTIONS REFUSED
In Ali -v- CIS General Insurance 2015 WL 5037781 His Honour Judge Cryan upheld a decision striking out a claim for failure to comply with disclosure. “The failure to comply with the order for disclosure was a serious failure to…
"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 -…
WHAT A DIFFERENCE A DAY MAKES: APPLYING AHEAD OF TIME AVOIDS DENTON PRINCIPLES
In Peak Hotels & Resorts Ltd -v- Tarek Investments* (Ch D 12/03/15) Hildyard J made an order extending time for providing security for costs. The case highlights (a) the importance of applying before the date for compliance has expired and…
SHOULD A SECOND ACTION BE STRUCK OUT AS AN ABUSE OF PROCESS? AN ISSUE COMING TO THE COURT OF APPEAL SOON
There is an important note in the news section of Hardwicke Chambers website. The Court of Appeal has granted permission to appeal in a case where the judge refused to strike out a second action issued after a first action…
FOR TWO DOLLARS MORE: THE DANGERS OF NOT SENDING THE CORRECT COURT FEE
I am grateful to Gerard McDermott QC for sending me details from the American Bar Association Journal of a £2.5 million case in Powhattan Circuit Court where a $2.5 million dollar action failed because the court fee was incorrect by…
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