FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…
OBTAIN AN INJUNCTION: PAY TENS OF MILLIONS IN COMPENSATION: ANOTHER WARNING LESSON
This blog has looked several times at the dangers of obtaining injunctions. A particular danger is the undertaking in damages that has to be given when obtaining an injunction to freeze assets. The judgment of Mr Justice Males in Fiona…
NON-SOLICITOR LITIGATION ENTITIES AND WASTED COSTS: WANT TO BE £102,000 OUT OF POCKET?
An earlier post looked at the issues relating to litigation being conducted by an non-authorised entity. In M A Lloyd & Son Ltd -v- PPC International Limited [2016] EWHC 2162 (QB) issues of wasted costs arose in relation to a…
STATING THAT YOU ARE NOT WAIVING PRIVILEGE IN A WITNESS STATEMENT IS FAR FROM CONCLUSIVE
There are several reasons litigators should read the judgment of Master Matthews in Coral Reef Limited -v- Silverbond Enterprise Limited [2016] EWHC 874 Ch. For the discussion of whether a Master is bound by the decision of a High Court…
A BLUEPRINT FOR TROUBLE? A CAUTIONARY TALE FOR ANYONE CONSIDERING "ALTERNATIVES" TO SOLICITORS IN LITIGATION
The judgment of Master Matthews in Lyons -v-Kerr-Robinson [2016] EWHC 2137 (Ch) contains a cautionary tale for anyone proposing to use an alternative to solicitors to conduct their litigation. The defendant in this case used licensed conveyancers. Their charges were…
THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED
The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change. There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court. Coincidentally…
ANOTHER ROUND IN THE CFA ASSIGNMENT BATTLE: CFA CAN BE ASSIGNED
In Azim -v- Tradwise Insurance Services Limited [2016] EWHC B20 (Costs) Master Leonard found that a conditional fee agreement could properly be assigned. KEY POINTS An assignment of a CFA between solicitors was valid. The validity of an assignment did…
AN EXPERT DISPLAYING ZEALOTRY IS NO HELP AT ALL (AND USUALLY HARMFUL)
In the Matter of F (a Minor) EWHC 2149 (Fam)Mr Justice Hayden had to consider whether an expert report should be admitted in a family case. The comments on the expert evidence are of general relevance. “The overall impression is…
PAYING THE CORRECT COURT FEE: ACTION STAYED: SANITY IS BREAKING OUT
There are several interesting issues arising out of the judgment of Master Clark in Lifestyles Equities C.V. -v- Sportsdirect.Com Retail Limited [2016] EWHC 2092. In particular the fact that the decision in Richard Lewis & Others -v- Ward Hadaway [2015]…
COSTS BUDGETING IS APPROPRIATE AND NECESSARY IN A HIGH VALUE CASE : BUT IT WAS NOT APPROPRIATE TO ORDER A SPLIT TRIAL
In Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) Chief Master Marsh considered two issues relating to case management: whether costs budgeting should apply and whether a split trial was appropriate. KEY POINTS Costs budgeting A…
REVISITING WHITEHOUSE -v- JORDAN 2: ON THE LAWYERS DRAFTING THE EXPERTS' REPORTS
The first post in this series on the judgments in Whitehouse -v- Jordan in the Court of Appeal and House of Lords looked at the point that, at the appeal stage, the courts were only concerned with whether they could…
WHAT CAN A DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 3: A NUANCED APPROACH
We have looked several times before at the question of what a defendant can argue in relation to damages after judgment has been entered*. The recent decision of Master Matthews in Merito Financial Services Limited -v- David Yelloly [2016] EWHC…
ADVOCACY – THE JUDGE’S VIEW V: TO PERSUADE A JUDGE THINK LIKE A JUDGE
This series looks at the views from judges around the world and the advice they give to advocates. Here we look at the article from J. Frederic Voros, jr for the Utah State Bar: To Persuade a Judge, Think Like…
APPLICATION TO DISCLOSE THIRD PARTY FUNDER REFUSED
The opening passages of the judgment of H.H. Judge Keyser Q.C. in Dawnus Sierra Leone Limited -v- Timis Mining Corporation Limited [2016] EWHC B19 (TCC) deal with the issue of disclosure of details of third party funding. KEY POINTS A…
TOO LATE AND TOO LONG: OCEANS APART BUT TWO JUDGES HAVE THE SAME VIEW ON LAWYERS' LATE & LENGTHY SUBMISSIONS
Some parts of the legal profession do not have a reputation for concision. It is interesting to see similar observations coming from two judges, in two very different jurisdictions, on the same day. “Sly lawyers take advantage of this institutional…
BILLING YOUR OWN CLIENT: FIVE IMPORTANT LESSONS FROM THE HIGH COURT
There are number of important lessons to be drawn from the judgment yesterday of Master Gordon-Saker in Rahimian -v- Allan Janes LLP [2016] EWHC B18 (Costs). THE CASE The claimant sought an order that the defendant firm of solicitors deliver…
DELAY AND SETTING ASIDE DEFAULT JUDGMENT: BALD ASSERTIONS IN AN EXPERT'S REPORT
The result in Gahir -v- Bansal [2016] EWHC 2041 (QB) (Sir David Eady) is perhaps surprising given the strength of the judge’s observations as to the defendant’s conduct. Despite major unjustified delay an application to set aside a default judgment…
ATTRITIONAL WARFARE; UNMERITORIOUS POINTS AND UNFOUNDED ALLEGATIONS OF BAD FAITH: SO MUCH (AND MORE) IN ONE JUDGMENT
The judgment today of Mr Justice Edis in Hayden -v- Maidstone & Tunbridge Wells NHS Trust makes for uncomfortable reading on the issue of the general attitude of the lawyers towards the conduct of the litigation. In addition to…
THE ARROYO JUDGMENT 4: DON'T MAKE ALLEGATIONS OF LYING IF YOU HAVEN'T PUT THEM TO THE WITNESS
The previous posts* on the Arroyo judgment have concentrated, for the most part, on the judge’s criticisms of the evidence of the claimant. However there is one short passage which illustrates an important principle of litigation – a party cannot…
PROVING THINGS 28: MAKE UNWARRANTED PERSONAL ATTACKS AND USE A "MUD-SLINGING" EXPERT: THAT ALWAYS ENDS WELL
The judgment of Mr Justice Fraser in Scott -v- E.A.R. Sheppard Consulting & Civil Engineering Ltd [2016] 1949 (TCC) contains some surprising observations. It also contains important lessons in relation to “conspiracy” theories in litigation and the role of the…
PROVING THINGS 27: BURDENS OF PROOF, HEARSAY EVIDENCE AND…. ATTEMPTED MURDER
In Daley -v- Bakiyev [2016] EWHC 1972 (QB) Mr Justice Supperstone dealt with issues relating to the burden of proof where there very serious allegations. The fact that a central witness for the claimant did not attend court, and his…
THE ARROYO JUDGMENT 3: WITNESSES AND CREDIBILITY
This is the third in the series of posts on the judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages; the second at the…
THE ARROYO JUDGMENT 2: EXPERTS, OH EXPERTS.
This is the second in the series of posts on the judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC. The first looked at the issues that arose from unchecked schedules of damages. Here we look…
THE ARROYO CASE WAS A BIG & COMPLEX ACTION: THE PROBLEMS WERE SIMPLE (AND COMMON) 1: UNCHECKED SCHEDULES OF DAMAGES
The judgment of Mr Justice Stuart-Smith in Arroyo -v-Equion Energia Limited [2016] EWHC 1699 TCC is 1885 paragraphs long. The trial lasted from the 15th October 2014 to the 5th March 2015, that is 62 court days. The judgment actually…
INCREASED COURT FEES FROM THE 25th July 2016: AN OVERVIEW & USEFUL LINKS
There have been requests, via twitter, that I publicise the increase in court fees that came into effect on the 25th July. These are not universal increases (they do not increase issue fees in Part 7 claims for instance -…
UNNECESSARY MATERIAL, DUPLICATION AND INFORMATION OVERLOAD: ANOTHER JUDGE'S LAMENT
The observations of Mr Justice Kerr at the end of his judgment in Kimmance -v- General Medical Council [2016] EWHC 1808 (Admin) contains some familiar themes in relation to the preparation of cases: bundles, citations and skeletons. “The parties should…
CLAIMANT ESTOPPED FROM RELYING ON QOCS: THE NEED TO BE ACCURATE
I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor & Company Limited (16th June 2016). This is the second judgment in the…
HAS A PART 36 OFFER BEEN BEATEN WHEN THE VALUE OF CURRENCY CHANGES? A HIGH COURT DECISION
The judgment of Mr Justice Leggatt today in Novus Aviation Ltd -v- Alubaf Arab International Bank BSC (c) [2016] EWHC 1937 (Comm) contains some interesting observations on Part 36 offers. KEY POINTS A claimant “beat” its own Part 36 offer…
FAILING TO FILE A COST BUDGET AND REFUSAL TO GRANT RELIEF FROM SANCTIONS: A HARSH LESSON
If a litigation solicitor is ever given the job of designing wallpaper here are the three key things that should form the recurring motif. The costs budget is due 21 days before the first case management conference. Where the claim…
"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…
REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER
Two recent posts* have highlighted the difficulties that can exist with the filing of Replies and Defence to Counterclaim. Here is a short Primer. A REPLY If the Defence does not contain a counterclaim a Reply is not mandatory. There…
IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY
A post last month highlighted a case where a defendant obtained judgment in default on a counterclaim. The judge refused to set aside the judgment and, in effect, the claimant’s entire claim failed. There is a clear and obvious need…
PROVING THINGS 26: DISTINGUISHING BETWEEN WHAT YOU CAN REMEMBER AND WHAT YOU NOW THINK YOU DID
There have been a large number of posts on this blog about witness evidence, in particular the way that the courts assess the accuracy of evidence. A surprising number of these have been in the context of clinical negligence claims….
ANOTHER CLAIM FORM CASE: WHY IT CAN BE DANGEROUS FOR A DEFENDANT TO TAKE TECHNICAL POINTS
The decision of Master Mathews in DB UK Bank Limited -v- Sinclair Solicitors [2015] EWHC B29 (Ch) has today been reported on Bailli. It is a case that shows the dangers of taking technical points as to service. “if I…
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
YOU CAN BE A TOUGH NEGOTIATOR- YOU CAN ALSO FALL FLAT ON YOUR FACE: HIGH COURT CASE EXAMINED
The law of privilege prevents a close study of the negotiation process in most cases. That is why everyone involved in litigation could benefit from reading the judgment today of Mrs Justice Slade in FPH Law -v- Brown [2016] EWHC…
PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)
There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…
COSTS BUDGETING – THE KEY DATES: A QUICK REMINDER TO AVOID A SHARP (BUT NOT NECESSARILY SHORT) SHOCK
You would think that everyone involved in litigation would know that new rules as to cost budgeting came into force on the 6th April 2016. However, judging from some of the blank (and worried) looks I have seen recently when…
WANT TO WORK HARD, WIN AND STILL NOT GET PAID? WHEN THE CFAS DID NOT COVER THE COSTS: BAD NEWS FOR SOLICITORS AND COUNSEL
The judgment today of Mr Justice Warby in Radford -v- Frade [2016] EWHC 1600 (QB) contains an important warning in relation to the construction of CFAs both for solicitors and counsel. KEY POINTS A solicitor entered into a CFA with…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
NEW RULES ON COSTS CAPPING
New rules (The Civil Procedure (Amendment No.2) Rules 2016 were passed yesterday which amend CPR Part 3 in relation to costs capping. They are of relatively limited ambit, applying only to Judicial Review applications. They replace protective costs orders in…
SWITCHING FROM LEGAL AID TO CFA: THE SUCCESSFUL APPEAL
The saga relating to the assessment of costs where a claimant changed from public funding to a conditional fee agreement has been dealt with many times on this blog*. All of these issues are now dealt with in the judgment…
CLAIMANT'S PART 36 OFFERS: WHEN HAS THE CLAIMANT BEATEN ITS OWN OFFER? AN INTERESTING QUESTION
The judgment of HH Judge Pelling QC in Purrunsing -v- A’Court & Co (a firm) [2016] EWHC 1582 (Ch) considers the impact of interest on a claimant’s Part 36 offer. Should the court simply compare the offer with the sum…
DEFAULT JUDGMENT ON COUNTERCLAIM NOT SET ASIDE – AN OBJECT LESSON IN STAYING AWAKE IN LITIGATION
The decision of Master Matthews today in Goldcrest Distribution Ltd -v- McCole [2016] EWHC 1571 (Ch) provides an object lesson in the need to stay awake to procedural issues throughout litigation. The claimant had a default judgment on a counterclaim…
COSTS BUDGETING & DAVID -v- GOLIATH: DOES IT GIVE THE "LITTLE GUY" A CHANCE?
Costs budgeting remains highly controversial. One question that is open to debate is – is it useful? Its utility may be most apparent in cases where the sizes and resources of the litigants are vastly disparate. (Many personal injury lawyers…
PROVING THINGS 23: SERVING IMPORTANT EVIDENCE LATE
It is surprising how many posts there are on this blog which deal with the late service of witness evidence. This is an issue that occurs across the whole spectrum of civil procedure. The question arose again in the judgment…
PART 36: ADDITIONAL AMOUNTS AND INTEREST
In Bolt Burdon -v- Tariq [2016] EWHC 1507 (QB) Mr Justice Spencer considered the appropriate approach to additional liabilities where a claimant beats its own Part 36 offer and interest was awarded on a contractual basis. However the judgment appears…
BREXIT: THE LEGAL CONSEQUENCES: USEFUL LINKS
The vote to leave the EU has legal consequences across a wide range of practice areas. Here I aim to provide links to useful posts and articles that discuss those issues. This post is updated regularly. THE INDIVIDUAL SECTIONS There…
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