PROVING THINGS 155: WITNESS EVIDENCE THAT GOES WRONG: HOTEL PROPRIETOR NOT LIABLE TO GUEST FOR ASSAULT BY TRESPASSER
In Al-Najar & Ors v The Cumberland Hotel (London) Ltd [2019] EWHC 1593 (QB) Mr Justice Dingemans found that proprietors of a hotel had not been in breach of duty when some of their guests had been assaulted by a…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
TALES FROM THE APIL CONFERENCE 2: SOCIAL MEDIA NORTH OF THE BORDER: “HE WAS ONE OF A GROUP OF MEN SIMILARLY DRESSED EXCEPT FOR THE TARTAN OF THEIR KILT”
This year sees the first APIL President from Scotland, Gordon Dalyell. As soon as I sent out the previous post on social media a a Scottish Sheriff, Sheriff Cubie, sent me an example of the use of social media in…
CIVIL PROCEDURE BACK TO BASICS 43: CROSS EXAMINING EXPERTS: USEFUL GUIDES AND LINKS
Cross-examining experts is possibly one of the most daunting aspects of advocacy. If an advocate gets into a “debate” with an expert then the advocate normally loses. If the advocate is too brutal the cross-examination can backfire, too supine and…
tWENTY YEARS OF THE CIVIL PROCEDURE RULES: ALL THAT TIME AND THEY HAVE MADE FEW FRIENDS
I have already done a post on the 20th anniversary of the Civil Procedure Rules on the 26th April. In an effort to find supporters I tried again. The Civil Procedure Rules, it appears, has very few friends… …
MORE ON THE GREAT BUNDLE TAKEAWAY DEBACLE: A “DIFFICULT” QUESTION OF STATUTORY CONSTRUCTION FOR FAMILY LAWYERS
There has been a large amount of comments on the previous posts in relation to taking away of bundles after trial. For family lawyers there is an even greater problem. The “joint notice” from HMCTS endorsed by the Bar Council…
A TINY BIT MORE ON BUNDLES AND THE TAKEAWAY CONDUNDRUM
The earlier post set out HMCTS guidance in relation to the taking away of documents after a hearing. At the same time as HMCTS prepared the Joint Notice the Bar Council issued an explanatory note “Many of you will be…
ADVICE FOR THE ASPIRANT OR TYRO LAWYER: WHEN TWITTER CAN BE YOUR FRIEND (IN FACT YOU CAN HAVE DOZENS OF FRIENDS GIVING YOU ADVICE)
This is a post started almost by accident. It started with a tweet when a barrister was happy to be sitting on her sofa, for a change and said this is the reality of legal life. It led to dozens…
FIXED COSTS DO NOT APPLY WHEN THEY ARE INCONSISTENT WITH THE TERMS OF CONSENT ORDER: JUDGMENT ON APPEAL IN THE COUNTY COURT
I am grateful to Sam Hayman and Tom Jenkinson from Bolt Burdon Kemp for sending me a copy of the judgment of His Honour Judge Wulkwik in Miss Seyi Adelekun -v- Mrs Siu Lai Ho. (Central London County Court 18/10/2018). A…
THE CIVIL PROCEDURE BACK TO BASICS SERIES 20: A RECAP
The purpose of this series is to provide short and basic summaries of some of the key points of civil procedure. Often a post is due to an observation made in a recent case, a comment on Twitter or a…
COSTS WHERE A PARTY SUES A NUMBER OF DEFENDANTS: DEFENDANTS ORDERED TO PAY SUCCESSFUL DEFENDANT’S COSTS: HIGH COURT APPEAL
I am grateful to Thomas Riis-Bristow, Associate Solicitor at Irwin Mitchell, for sending me a copy of the judgment of Mr Justice Lavender in McDermott -v- Inhealth Limited (19/07/2018), This deals with the issue of the appropriate costs order when…
COURT STEPS OUTSIDE THE FIXED COSTS REGIME: DEFENDANT’S CONDUCT AMOUNTED TO AN ABUSE
The Intellectual Property Enterprise Court (IPEC) guards its fixed costs regime very jealously. Prior to the decision in Link Up Mitaka Ltd (t/a Thebigword) v Language Empire Ltd & Anor [2018] EWHC 2728 there appears to have only been one previous…
THE JUDGE’S ROLE WHEN A PARTY DOES NOT ATTEND TRIAL: SECTION 33 APPLICATION ALLOWED WHEN PROCEEDINGS ISSUED 22 YEARS AFTER ASSAULTS
In the judgment today in LXA & Anor v Willcox [2018] EWHC 2256 (QB) His Honour Judge Robinson (sitting as a Judge of the High Court) had to consider two issues: (i) the appropriate role of the judge when a…
COURT OF APPEAL DECISION ON CONSTRUCTION OF PART 36: IT IS NOT A PART 36 OFFER JUST BECAUSE THE PARTIES SAY SO: OFFERS CAN ONLY BE ASSESSED BY REFERENCE TO THE PLEADINGS
In Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831 the Court of Appeal upheld a decision that an offer made was not a valid Part 36 offer. It was held that a Part 36 offer had to be…
WITNESSES, SEARCHES, CREDIBILITY AND… BEDS: AN AVERAGE DAY IN THE INTELLECTUAL PROPERTY ENTERPRISE COURT: NAILING JELLY TO THE WALL
The judgment in Birlea Furniture Ltd v Platinum Enterprise (UK) Ltd & Anor [2018] EWHC 26 (IPEC) has some interesting lessons for all litigators. Not least the need to be on guard in relation to search terms and search criteria. …
SEEKING AN EXTENSION OF TIME – WHEN YOU ARE 9 1/2 YEARS LATE: THE IMPORTANCE OF A SOLICITOR KEEPING A RECORD
Section 4 of the Inheritance (Provision for Family and Dependants) Act 1975 provides that a claim under the Act should normally be brought within six months of the date on which representation is taken out. An action brought at a…
PROVING THINGS 78: AN ABSENT WITNESS IS NEVER GOING TO HELP: DEFENDANT’S FAILURE TO TAKE CONTEMPORARY STATEMENTS LEADS TO ADVERSE INFERENCES
In a talk today to a group of clinical negligence lawyers I discussed the issue of evidence, and “missing” documents and witnesses. In particular the relevance of Keefe v Isle of Man Steam Packet Co Ltd [2010] EWCA Civ 683 on the…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 3: SKELETON ARGUMENTS, PREPARATION AND PRESENTATION: AN ABSOLUTE GOLDMINE
This blog has many posts that record cases where judges have been critical of the contents (and usually length) of skeleton arguments. A remedy for most of these issues has been available since 2004. Gray’s Inn prepared a paper “Skeleton…
ADVOCACY: THE JUDGE’S VIEW: THAT DIFFICULT SECOND SERIES 1: LEARNING FROM THE MASTERS
Last year I wrote a series on Advocacy the Judge’s view. There were ten posts which culled guidance from judges around the world. I had no plans to write another. However I read the article by Master David Cook “Advocacy…