THE (NOT SO) LONELY LITIGATOR’S CLUB 11: MORAYO FAGBORUN BENNETT
The next member of our club is Morayo Fagborun Bennett a barrister at Hardwicke. She recently lost her home office as it became a bedroom for her youngest child. This couldn’t have happened at a better time… Where are…
THE (NOT SO) LONELY LITIGATOR’S CLUB 9: SUE JAMES
I am taking advantage of this series to both make new friends and catch up with old ones*. I have known Sue James since we were at university together (a year or two ago now). We were both involved in…
JOHN COLLINS: BARRISTER, SCHOLAR AND THE KINDEST PERSON YOU ARE EVER LIKELY TO MEET
Earlier this evening Richard Wright, the leader of North-Eastern Circuit announced the death of barrister John Collins, of Park Square, Barristers, Leeds. “Today the @ne_circuit lost one of its finest. John Collins called to the Bar 1956 and working to…
LIVERPOOL CIVIL COURT HAS OPENED A TWITTER ACCOUNT: JUST WHEN WE NEED A LITTLE HELP FROM OUR FRIENDS…
Liverpool Civil Court has opened its own Twitter Account. @court_civil THE ACCOUNT The account opened today has the byline “Judges and staff at Liverpool civil courts engaging with court users, at times of Covid 19 and hopefully beyond” THE…
NOTICE FROM THE DCJ IN MANCHESTER: ALL FACE TO FACE HEARINGS UP TO THE 31ST MARCH ARE ADJOURNED
The DCJ in Manchester has issued the following notice. “NOTICE TO COURT USERS All face-to-face hearings due to take place today and up to and including Tuesday 31 March 2020 are hereby adjourned. Further directions will be issued in…
TERMINATING A CFA WITH GOOD REASON: SOLICITORS ARE ENTITLED TO THEIR COSTS FROM THE CLIENT: DECISION UPHELD BY THE COURT OF APPEAL
In Butler v Bankside Commercial Ltd [2020] EWCA Civ 203 the Court of Appeal upheld Turner J’s decision that the wording of a conditional fee agreement on offers of settlement applies just as much to advice given by the lawyer…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – FEBRUARY 2020
Links and articles to blog posts and articles available online in February 2020 Costs Herbert Smith Freehills Court of Appeal decision highlights indemnity costs risk where claimant pursues speculative claims and unreasonably refuses Part 36 offer Law Society Gazette PI lawyers alive…
UPDATED EDITION OF THE “DENTON RESOURCE”: THE CRUCIAL CASES
For a number of years the Sanctions Case Watch section of this blog has contained a link to the highly useful “Denton Resource”. A new edition has been published by Rachel Segal of St John’s Chambers and is available here….
FIRST CLAIM FORM CASE OF THE YEAR: SERVICE WITHOUT A SEAL IS NOT GOOD SERVICE BUT CPR 3.10 SAVED THE CLAIMANT
NB THE USE OF CPR 3.10 IS MOST PROBABLY NOT AN EFFECTIVE STRATEGY FOLLOWING THE COURT OF APPEAL JUDGMENT IN Ideal Shopping Direct Ltd & Ors v Mastercard Incorporated & Ors [2022] EWCA Civ 14. It took until the 31st January…
QOCS CONTINUE TO APPLY IN THE COURT OF APPEAL: DECISION TODAY: CLAIMANT STILL HAS THE SHIELD OF QOCS PROTECTION
I am grateful to barrister Sarah Robson for sending me a copy of the Court of Appeal judgment today in Wickes -v- Blair (No 2) Costs [2020] EWCA Civ 17. The Court of Appeal held that QOCS protection continues to…
CIVIL PROCEDURE BACK TO BASICS 71: TIME FOR SERVING THE PARTICULARS OF CLAIM: SERVE WITHIN THE FOUR MONTH PERIOD
In Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) Chief Master Marsh stated. “The requirement in CPR 7.4(2) that particulars of claim must be served no later than the latest time for service of the claim form has been…
SERVICE OF THE PARTICULARS OF CLAIM AND THE “TRAP FOR THE UNWARY CLAIMANT”: THE TRAP OPERATED AND RELIEF FROM SANCTIONS NOT GRANTED
The judgment of Chief Master Marsh today in Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) is a prime example of difficulties being caused because of a mistake in relation to the rules relating to service. It…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – OCTOBER 2019
Here we have links to blogs and articles about civil procedure and costs from October 2019. (If you have written a blog post or article that you think should have been included in this round up please contact me and…
CIVIL PROCEDURE BACK TO BASICS 68: THE FORMAL REQUIREMENTS OF A WITNESS STATEMENT (AGAIN)
I am returning to the issue of the basic and mandatory requirements of a witness statement. Here we are looking at the very basic rules as to what should appear on the first page of a witness statement. WHY YOU SHOULD…
STAYING SANE AS A LITIGATOR 3: SLEEP
I imagine that every single medical practitioner agrees on the importance of sleep in an individual’s health. It affects both physical and mental well being. Yet lawyers are ranked second amongst the most sleep deprived professions. Studies indicate that lawyers…
CLAIMS FOR DAMAGES: WHY JUDGES GO “BACK TO BASICS”: A REMINDER FOR LITIGATORS
This is the first of a series of posts designed (to be frank) to remind people that the next edition of “Damages for Personal Injury and Death” will be published later this year. One interesting aspect of writing a book,…
SERVICE OF THE CLAIM FORM: FAILURE TO SERVE ANY DEFENDANTS WHEN APPLYING FOR AN INJUNCTION: THE GOOSE IS NOT PROPERLY COOKED…
In Canada Goose UK Retail Ltd v Persons Unknown & Anor [2019] EWHC 2459 (QB) Mr Justice Nicklin refused the claimants’ application for an injunction on several grounds. Here we look at the issues relating to service of the claim…
THE IMPACT OF FAILURE TO MITIGATE DAMAGES ON A CLAIM FOR COSTS: CLAIMANT’S COSTS CONFINED TO SMALL CLAIMS TRACK
I am grateful to Simon Fisher, Costs Lawyer at DWF Costs Ltd, for sending me a copy of the decision of District Judge Matthews in Messenger -v- Zenith Insurance (3rd July 2019). A copy of the transcript is available here….
LAWYERS – GOING ON HOLIDAY AND AVOIDING EXTRA STRESS: ADVICE FROM TWITTER
Since we are in the middle of the holiday season I have noticed how some people are reporting that going on, and coming back, from holidays is a stressful experience. I asked the lawyers (and others) on Twitter to give…
A SOLICITOR WHO FILES AN ACKNOWLEDGMENT OF SERVICE STAYS ON THE RECORD UNTIL A NOTICE OF CHANGE OR THEY MAKE AN APPLICATION TO BE REMOVED
In Ashley & Anor v Jimenez [2019] EWHC 1806 (Ch) Chief Master Marsh rejected an argument that service on a solicitor who given their address for service in the acknowledgement of service was not good service of an application. For…
RIGHTS OF AUDIENCE IN CHAMBERS: A RESPONSE: WHAT IS MEANT BY “IN CHAMBERS”?
Last month I reported on a decision in relation to rights of audience in “chambers”, in particular what was meant by chambers. That led to a lot of (sometimes heated) discussion on Twitter and a response from “Elderly Cost Nerd”…
PROVING THINGS 160: DELAY MUST BE EXPLAINED: COURT CAN DIRECT THAT EXTRA EVIDENCE BE FILED
In Hendry v Hendry & Ors [2019] EWHC 1976 (Ch) Master Shuman refused the claimant’s application for an extension of time to bring proceedings under the Inheritance (Provision for Family and Dependants) Act 1975. THE CASE The claimant was married…
PROVING THINGS 159: A FORMULAIC APPROACH TO EVIDENCE WHICH LEADS TO CONFIRMATION BIAS: THE DANGERS OF PRO FORMA EVIDENCE GATHERING
This blog has looked, several times, at the way in which the family courts look at both expert and lay witness evidence. The judgments of the family courts contain many examples of issues that arise throughout civil litigation. We see…
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
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL IN Ho v Adelekun [2019] EWCA Civ 1988, see the discussion here. I am grateful to Sam Hayman and Tom Jenkinson from Bolt Burdon Kemp for sending me a copy…
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…
PROVING THINGS 70: CAUSATION HAS TO BE ESTABLISHED AND WILL NOT BE INFERRED: PRIVY COUNCIL DECISION
Most of the cases looked at in the Proving Things series have, inevitably, been first instance decisions. To mark the 70th in the series we are looking at a Privy Council decision, Petroleum Company of Trinidad and Tobago Ltd v Ryan…
INFERENCES TO BE DRAWN FROM ABSENT WITNESSES: RIVA PROPERTIES -v- FOSTER AGAIN
I am returning (and not for the last time) to the judgment of Mr Justice Fraser in Riva Properties Ltd & Ors v Foster + Partners Ltd [2017] EWHC 2574 (TCC). This time on the issue of the inferences that the…
MYTHS ABOUT LIMITATION 9: DISABILITY DOES NOT SUSPEND THE LIMITATION PERIOD: ONCE THE GENIE IS OUT OF THE BOTTLE IT CAN’T GET BACK IN
I wrote about this issue recently. It makes sense to include it in this series. This myth considered here is that disability “suspends” a limitation period. This is a safe assumption if a claimant has never had capacity since the…
EXPERT EVIDENCE: WHEN PART OF THE EVIDENCE IS “ABSURD” – THIS IS NO SMALL BEER
I am grateful to barrister Simon Mills for sending me a copy of the judgment of Judge Waksman QC (sitting as a judge of the High Court) in BHL -v- Leumi ABL Limited [2017] EWHC 1871 (QB). Here I look at…
YOU OFFERED ME £100,000: I’VE ACCEPTED £15,000- OH AND I WANT MY COSTS: THE DANGERS OF NOT NEGOTIATING AND WHY THE CLAIMANT HAD TO PAY INDEMNITY COSTS
I tried to summarise the judgment of Mr Justice Mann in Jordan -v- MGN Limited [2017] EWHC 1937 (Ch) and I found it difficult. Every word of the judgment is important. It shows, at least, a very insouciant, approach by the…
WITNESS STATEMENTS: SAYING “I AGREE WITH HIM” IS HARDLY GOOD PRACTICE
Large number of litigants pay large amounts of money to their lawyers to draft witness statements. This blog often documents the problems caused by witness statements that are simply inadequate. The issues of inadequate witness statements is seen again in…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
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