COVID REPEATS 12: THINGS LAWYERS DO TO ANNOY JUDGES: “EVERY PIECE OF PAPER THAT LEAVES YOUR OFFICE IS AN ADVERTISEMENT FOR YOU AND YOUR LAW FIRM”
Here we are looking again at the advice given by the Canadian judge Mr Justice Joseph W. Quinn A Judge’s View: Things Lawyers Do to Annoy Judges; Things They Do to Impress Judges“.* This whole talk is worth reading, for…
THE INNS OF COURT COLLEGE OF ADVOCACY: PRINCIPLES FOR REMOTE ADVOCACY
In an extremely short amount of time the Inns of Court College of Advocacy has produced a remarkable guide “Principles for Remote Advocacy”. The document has entered the public domain today, with no restrictions on its use, it is available…
INNOVATIVE APPROACH WHEN PROPOSED APPELLANT UNABLE TO ATTEND COURT
In [2020] EWHC 735 (QB) Mrs Justice Tipples took an innovative approach to the problems caused by a claimant’s inability to attend court because of the coronavirus problems. The submissions were made by email. THE CASE The judge was…
ATTEMPTING TO GIVE EVIDENCE IN SUBMISSIONS AND SUBMISSIONS IN EVIDENCE: SHOULD THE TWAIN EVER MEET?
The recent post on the Post Office case and the defendant’s attempts to introduce new evidence at the submissions stage has caused me to revisit a post from several years ago. This was, in turn, caused by a recollection of…
PROVING THINGS 170: YOU CAN’T GIVE EVIDENCE BY WAY OF SUBMISSIONS (HONESTLY, YOU CAN’T)
One important aspect of the judgment in Bates & Ors v the Post Office Ltd (No 6: Horizon Issues) [2019] EWHC 3408 (QB) is the judge’s criticism of the defendant’s attempt to give “evidence” at the stage of closing submissions….
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
DRAFTING SKELETON ARGUMENTS: ROUNDING UP THE POSTS
Here we look at some guidance, and some previous posts on this blog, about drafting skeleton arguments. “Sir James Hunt has told us of the (unattributed) judicial reaction on receiving a 35 page document which was to the effect…
REALISTIC TIME ESTIMATES: THE IMPORTANCE OF GETTING THIS RIGHT
There is a short passage in Barrowfen Properties Ltd v Hambros Investments Ltd & Anor [2019] EWHC 2548 (Ch) where Chief Insolvency and Companies Court Judge Briggs makes it clear that an application had been given an inadequate time estimate….
“WHAT’S THE DIFFERENCE BETWEEN A SKELETON ARGUMENT AND A WITNESS STATEMENT?” NOW THERE’S A QUESTION…
That very question “the difference between a skeleton argument and a witness statement” appeared in a search that led someone to this blog today. It may be worrying that someone has to ask. The important distinction is often ignored. Day…
ADVOCACY THE JUDGE’S VIEW SERIES 4: PART 1: THE DEADLY SINS OF ORAL ADVOCATES: DON’T BE CONFUSING OR BORING (PLUS A RECAP OF THE PREVIOUS SERIES)
After a break of eight months I am starting a new series featuring the guidance the judges give to advocates. Here I am encouraging you to read The deadly sins of oral advocates: Part One, in the Lawyers Weekly. A…
ADVOCATES, ROAD MAPS AND DEPARTING FROM THE STRUCTURE OF WRITTEN SUBMISSIONS
There is an interesting passage in the judgment of Turner J in Court Enforcement Services Ltd v Burlington Credit Ltd [2019] EWHC 1920 (QB) relating to written submissions and advocacy. “… there appears to me to be a growing trend…
CIVIL PROCEDURE BACK TO BASICS 49: THE CASE SUMMARY: THE RULES, SOME GUIDANCE AND AN EXAMPLE
A search term arrived on this blog today “how do I prepare a case summary for a civil litigation case”. A Case Summary should be prepared in virtually every Multi Track case. Very little is written about it. THE RULES…
HOW TO DRAFT A SKELETON ARGUMENT: GUIDANCE AND LINKS REVISITED
A simple search term arrived on the blog today “How do I draft a skeleton argument?” I wondered what level of practitioner would google this, however someone pointed out this has all the flavour of a desperate litigant in person…
TOO MANY DOCUMENTS, TOO MANY AUTHORITIES: A REMINDER OF AN OLD FASHIONED REMEDY: BEWARE YE, BEWARE YE
When commenting on a recent case about committal in the Court of Appeal Professor Dominic Regan made the point that the first part of the hearing had been marked by judicial comments about the size of the bundles and number…
PROVING THINGS 144: THAT TEMPTATION TO PUT MATTERS IN THE SKELETON THAT AREN’T ESTABLISHED BY THE EVIDENCE: ALSO – THE POWER OF LISTS
We have looked before at attempts to use a skeleton argument to introduce evidence (often made in desperation to be fair). An example of this can be seen in a short passage in the judgment in Schettini v Silvestri & Ors…
LITIGATORS AND THE ART OF PERSUASION: USEFUL GUIDES (1): MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is, involved in the art of persuasion. Litigation is fundamentally about the art of persuasion. Persuasion is a litigator’s daily task: in correspondence, on the phone, with opponents. It is wrong to confine the consideration of this essential skill…
ADVOCACY: THE JUDGE’S VIEW: SERIES 3: PART 9: “DON’T BITCHSLAP YOUR OPPONENT”: GUIDANCE FROM A CRANKY JUDGE
Here we are going to the USA and looking at guidance given by Federal Judge Richard G Kopf in his blog Hercules and the Umpire. As every the aim here is to get you to read the original (follow the…
SKELETON ARGUMENTS: BE SUCCINCT AND TO THE POINT: “THE ISSUE WAS ALL BUT LOST IN THE PLETHORA OF PAPER”: COURT OF APPEAL FIRES WARNING SHOT
Now that Lord Justice Jackson has retired someone needs to take his place to provide the (more or less quarterly) reminder to practitioners to keep skeleton arguments short and to the point. Step in Lord Justice Hickinbottom in Harverye v The…
ADVOCACY THE JUDGE’S VIEW SERIES 3: PART 8: BREVITY
In this post I am encouraging you to read the speech of Lady Justice Rafferty to the Criminal Law Review Conference earlier this month. Much of the speech concerns issues in criminal law. However one passage is, in essence, about…
EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS
There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts. There are a number of central…
GOOD IDEAS FROM WESTERN AUSTRALIA: WITNESS STATEMENTS, COMMUNICATIONS AND CONFINING THE ISSUES IN DISPUTE IN CIVIL LITIGATION
A while back I wrote a post pointing out guidance on drafting witness statements given by the Western Australian Bar Association. I am grateful to Australian barrister David Laws for pointing out the new site where this guidance can be…
LITIGATOR’S HALLOWEEN SPECTRES OF 2018: THAT STUFF YOU GET FROM “THE OTHER SIDE”
Last year we looked at those things that caused litigators stress and fear. This year we are looking at annoying things from “the other side”. That can mean from beyond the grave, or those people who are instructed to represent…
USING A SKELETON ARGUMENT TO TRY TO FILL GAPS IN THE EVIDENCE THIS IS NOT GOING TO END WELL…
The judgment today in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) makes interesting reading. The appeal concerned criticisms of the conduct of a trial by a circuit judge. The main difficulty was that the…
THERE ARE GOOD REASONS NOT TO CALL AN OPPONENT’S ‘RIDICULOUS’ : PARTICULARLY IF THEY ARE, IN FACT, CORRECT
This blog has looked at issues relating to written submissions many times. Included in this has been the need to avoid hyperbole, which often backfires. A good example, borrowed from the United States, is the judgment in Bennett -v- Start…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
SKELETON ARGUMENTS: A ROUND UP: GUIDANCE ON DRAFTING: JUDICIAL COMPLAINTS (& THERE ARE PLENTY): EXAMPLES ONLINE & SANCTIONS FOR LATE SERVICE
Recent online discussions about skeleton arguments started with a search term that led to this blog “how long should a skeleton argument be?” This was probably a good time to provide a review highlighting all the posts about skeleton arguments…
SETTING JUDGMENT ASIDE: LIMITATION, SECTION 33 AND DENTON: CARDS ON THE TABLE PLEASE – THIS IS THE CPR
In TPE v Franks [2018] EWHC 1765 (QB) Mr Justice Julian Knowles set aside a default judgment. The case contains some important observations as to how the courts should consider an application to set aside a default judgment – considering…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
LATE SKELETON ARGUMENTS AND LATE EVIDENCE: THE GOVERNMENT SHOULD DO BETTER: DIVISIONAL COURT DECISION: A TEXTBOOK EXAMPLE OF WHAT NOT TO SAY AND DO
In The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor (Procedural Matters) [2018] HC 976 (Admin) the Divisional Court took care to file a supplemental judgment that dealt…
ADVOCACY: THE JUDGE’S VIEW SERIES 3: PART 1: THERE IS A SPECIAL RING IN HELL FOR A CERTAIN TYPE OF ADVOCATE (& YOU KNOW WHO YOU ARE)
I had no plans for a further series on judge’s advice advocacy. However my hand was forced. I had to share the talk given by Lord Justice Irwin given to the Professional Negligence Bar Association on the 17th April. It…
ADVOCACY: THE JUDGE’S VIEW SERIES 2 PART 10: EDITED HIGHLIGHTS: AROUND THE WORLD IN 147 DAYS
I never planned to write a second series on advice from judges on advocacy. It started with an article from Master Cook and developed from there.This led us to garner advice from judges around the world. Here are the edited…
“PERSUASION”: APPLICATIONS & EVIDENCE: ATTEND A COURSE AND SUPPORT CHILDREN’S LITERACY: 18th APRIL 2018 – LINCOLN’S INN
On the 18th April 2018 I am involved in a talk at Hardwicke, in Lincoln’s Inn. With a number of my colleagues we are talking on “Persuasion” Applications and Evidence for Defendants and Insurers”. All proceeds go directly to a…
ADVOCACY THE JUDGE’S VIEW: SERIES 2 PART 8: EFFECTIVE WRITTEN SUBMISSIONS: “FIRST IMPRESSIONS COUNT” & THE “CHUNKIFICATION” OF ARGUMENTS
This series certainly takes us around the globe. Here I am looking at a paper written by Justice Susan Glazebrook, a judge of the Supreme Court of New Zealand. Her paper on “Effective written submissions” written in 2014. As always…
SKELETON ARGUMENTS: GET THE FONT SIZE RIGHT, AND THE LENGTH CORRECT: OR IT COULD COST YOU
The Administrative Court Clerks Users Group has sent out an email to many chambers in relation to the format of skeleton arguments. If you did not receive this it is worth reading. THE EMAIL: SIZE AND FONTS OF SKELETON ARGUMENTS…
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 7: HOW TO WIN YOUR CASE: GUIDANCE FROM SCOTLAND
This series looks at guidance on advocacy given by judges. We have looked at advice given from judges around the globe. Today we go to Scotland. The Lord President’s address to the Faculty of Advocates in an event to mark…
PARTIES MUST OBTAIN AN ORDER FOR A HEARING OF A PRELIMINARY ISSUE: (MORE ON LENGTHY SKELETON ARGUMENTS)
In Bokova v Associated Newspapers Ltd [2018] EWHC 320 (QB) Mr Justice Dingemans considered several important issues of procedure. Firstly the need for parties to obtain an order for a hearing on a preliminary issue rather than simply turning up on…
SIR RUPERT JACKSON ON THE DAY OF HIS RETIREMENT: A REVIEW OF SOME JUDGMENTS ON PROCEDURE
It is well known that Sir Rupert Jackson retires on the 7th March. There are several reviews of the work Sir Rupert has done in re-shaping civil procedure. Here I want to look at a few of his judgments that…
THE SHORTER TRIAL SCHEME: PROCEDURAL WRANGLING AND PROBLEMATIC EXPERT EVIDENCE: IT CAN’T BE BRUSHED ASIDE
In the judgment today in L’Oréal Société Anonyme RN Ventures Ltd [2018] EWHC 173 (Pat) Mr Justice Henry Carr set out his concerns on aspects of the procedure and expert evidence before the court. The judgment contains some lessons for litigators…
WHEN AN APPEAL MISSES THE POINT: APPELLANT FAILED TO IDENTIFY THE ISSUES ON APPEAL
There are some surprising observations in the judgment in The Bar Standards Board (BSB) v Crawford [2017] EWHC 3101 (Admin). Not the least that the appellant’s documents did not deal with central issues in the appeal. “The grounds of appeal in…
LEGAL AWARDS: HOW TO COME SECOND: A PRACTITIONER’S GUIDE: 10 KEY POINTS
If you play the mandolin then, by law, you have to learn a tune known as ’O sole mio. This is a tune made famous, to a certain generation, as “Just one Cornetto”. It was even a hit for Elvis Presley,…
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: SERIES 2, PART 2: BEING PERSUASIVE: “CONVOLUTED ARGUMENTS ARE SLEEPING PILLS ON PAPER”
The second post in this series takes us to Washington. A detailed article by Judge Stephen J. Dwyer, Leonard J. Feldman & Ryan P. McBridet called “How to Write, Edit, and Review Persuasive Briefs: Seven Guidelines from One Judge and Two…
BUNDLES TOO BIG, SKELETON ARGUMENTS TOO LONG – THEN THE COURT MAY SIMPLY REFUSE TO ACCEPT THEM: PREPARATION FOR HEARING GOES OFF THE TRACKS
The problems caused by over-lengthy skeleton arguments and voluminous bundles feature regularly on this blog. They are, in fact, some of the most widely read posts on the blog. I do not have to go looking for cases on these…
COUNSEL’S OPINION OF NO VALUE AT ALL: (ON THIS OCCASION ANYWAY)
I am returning for the fourth time (and still not the last time) to the decision of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC). The parties had exchanged written opinions of leading counsel…
SKELETON ARGUMENTS TOO LONG & AMOUNT OF DOCUMENTS “ABSURD”: A JUSTIFIABLE JUDICIAL COMPLAINT
In ICAP Management Services Limited -v- Berry [2017] EWHC 1321 (QB) Mr Justice Garnham added his voice to those judges who have protested about the length of skeleton arguments and written submissions and the burden of unnecessary documents. “It is…
FILE A SKELETON ARGUMENT – IT IS MANDATORY
Many of the posts about skeleton arguments on this blog have been about content (usually length), The surprising aspect of R -v- Secretary of State for the Home Department [2017] EWHC 639 (Admin) is that both sides decided not to file…
LATE SKELETON ARGUMENTS, ADJOURNMENTS AND THE OVERRIDING OBJECTIVE
In Owgilo -v- The General Medical Council [2017] EWHC 419(Admin) Mr Justice Dove considered the situation when a witness statement was served late and the applicant requested an adjournment. The overriding objective played a prominent part in the decisions made….
ORAL CLOSING SUBMISSIONS ARE IMPORTANT: USE OF WRITTEN SUBMISSIONS IS “UNSATISFACTORY”
In Pimlico Plumbers Ltd -v- Smith [2017] EWCA Civ 51 the Court of Appeal stated that oral closing submissions are important. Relying on written submissions alone represents a “considerable risk”. THE CASE The Court of Appeal was considering an appeal…
BOOKS ABOUT ADVOCACY: MUNKMAN ON THE TECHNIQUE OF ADVOCACY
Every litigator is an advocate, whether they know it or not. Litigation is fundamentally about the art of persuasion. This is a litigator’s daily task: in correspondence, on the phone, with the court. This is best done by the careful…
MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY
In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,…
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