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,…
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…
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…
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…
ADVOCACY – THE JUDGE’S VIEW IV: "AVOID BULLSHIT, SMOKE AND MIRRORS" (OH AND BEWARE OF "WELL PADDED VANITY")
In the fourth in this series we are returning to Australia and looking at the guidance given by the Hon Chief Justice Pat Keane in his keynote address to the Australian Lawyers Alliance Queensland State Conference in February 2013. Remember…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
THINGS LAWYERS DO TO ANNOY JUDGES: EDITED HIGHLIGHTS
Regular readers of this blog will be familiar with the judgment of Mr Justice Joseph W. Quinn in the case of The Hearing Clinic (Niagara Falls) -v- Ontario Ltd, 2014 ONAC 5831 where he was more than blunt in his…
A CASE YOU MUST READ IF YOU THINK PLEADINGS ARE NOT IMPORTANT
The opening paragraphs of the Court of Appeal decision today in The Prudential Assurance Company Limited -v- Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 376 should be compulsory reading for anyone who considers that pleadings can be…
ANOTHER COMMENT ON BUNDLES: TOO MUCH AND TOO BIG
I do not scour the law reports for complaints about trial bundles, they just keep occurring and I keep commenting. It is a matter that has a surprisingly large readership: the post on how to prepare a trial bundle has…
ANOTHER ASSESSMENT OF WITNESS CREDIBILITY
A regular theme of this blog has been how important witness credibility is to the outcome of many civil actions. The assessment of credibility is often one of the key tasks of the trial judge at. It is an issue…
PROVING THINGS 6:"THAT'S WHAT I ALWAYS DO" & PROVING CAUSATION
We have looked before at the view that a judge takes of a witness who, honestly, states that they have no recollection of an event but recounts their normal practice. In Long -v- Wester Sussex Hospitals NHS Trust [2016] EWHC…
THIS IS A SORRY TALE OF WOE:SPECULATIVE SKELETON ARGUMENTS ARE OF NO ASSISTANCE
In Lokhova -v- Tymula [2016] EWHC 225(QB) Mr Justice Dingemans set out a sorry tale of procedural issues in relation to applications in a defamation action. There are important observations in relation to co-operation; service of witness evidence and the…
PROVING THINGS 5: WITNESS STATEMENTS AND FAILING ON CAUSATION
The judgment of the Court of Appeal in Abdel-Khalek -v- Qazi Ali [2016] EWCA Civ 80 demonstrates both the difficulties of compounding lay and “expert” evidence and how a case can fail on causation. KEY POINTS The burden was on…
PROVING THINGS 2: EVIDENCE TO SUPPORT A CLAIM FOR DAMAGES MUST BE PITCH PERFECT
Another example of the need to prove damages can be seen in the Court of Appeal decision in Gartell & Son (a firm) -v- Yeovil Town Football & Athletic Club Limited [2016] EWCA Civ 62. It is another case that…
PICKING UP BAD CITATIONS: & SKELETON ARGUMENTS – STILL TOO LONG:
In an afternote to his judgement in Commercial Management (Investments) Ltd -v- Mitchell Design and Construct Ltd [2016] EWHC 76 (TCC) Mr Justice Edwards-Stuart added his voice to the many judges who have commented on the excessive length of skeleton…
INADEQUATE WITNESS STATEMENTS, A "CULTURE OF NON-COMPLIANCE" AND THE SECRETARY OF STATE FOR JUSTICE
The decision of District Judge Hickman in the small claims case of Thakar -v- The Secretary of State for Justice [2015] EW Misc B44 is one that is likely to attract a lot of attention given that it was a…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
WRITTEN ADVOCACY: CANDOUR & CONCISION ESSENTIAL GUIDANCE FROM CANADA
One of the advantages of writing a blog is that you can point out useful posts and articles. Anyone involved in legal argument benefit the guidance by John L Laskin J.A. in Forget the Wind-Up and Make the Pitch Some…
MORE ON BUNDLES: THERE IS MUCH TIME & MONEY TO BE SAVED YET
I have often commented (and been surprised) by the fact that a post on preparing trial bundles is always the most popular page on this blog. Following a prompt from Dominic Regan it was interesting to watch the live feed…
UNSUCCESSFUL APPEAL AGAINST GRANT OF RELIEF FROM SANCTIONS: HOME GROUP LIMITED -v- MATREJEK
There may be a few appeals pending where a party is arguing that relief from sanctions should be granted on the grounds of the Denton criteria which “modified” the Mitchell test. The unusual aspect of the decision in Home Group…
DECIDING CASES ON PAPER: WOODLANDS, EVIDENCE & DECIDING CASES "ONLINE"
The decision in Woodland -v- Maxwell looked at in an earlier blog is interesting because it is one of the rare cases where the Court of Appeal carried out a (brief) analysis of the evidence in the case more than…
PLEADINGS MUST BE CONCISE – OR ELSE! TOO MANY COUNSEL SPOILING THE BROTH?
We have looked before at problems caused by over-lengthy pleadings. In Vincent Aziz Tchenguiz -v- Grant Thornton UK LLP [2015] EWHC 405 (Comm) Mr Justice Leggatt provides a virtual “cut out and keep” set of warnings of the dangers of not complying…
LENGTHY BUNDLES AND INTERIM COSTS: OBSERVATIONS FROM THE TECHNOLOGY & CONSTRUCTION COURT
The two judgments of Mr Justice Akenhead in the Secretary of State for the Home Environment -v- Raythean Systems Limited [2014] EWHC 4375 (TCC) and [2015] EWHC 311 (TCC) contain some familiar motifs in relation to the size of bundles,…
PROVING MATTERS BY EVIDENCE: A LESSON FROM THE FAMILY COURT
It is certain that most lawyers involved in childcare matters will read the decision of Sir James Munby in Darlington Borough Council -v- M [2015] EWFC 11. However there are points made in that judgment of general relevance to all…
WHEN WILL INDEMNITY COSTS BE ORDERED? A HIGH COURT DECISION CONSIDERED
Indemnity costs now carry extra weight in that, on assessment, the court is not bound by the principle of proportionality. In Siegel -v- Pummell [2015] EWHC 195 (QB) Mr Justice Wilkie reviewed the relevant principles in relation to indemnity costs….
EARLY CONTENDERS FOR WORST PUNS ON CIVIL CASES 2015: YOU JUDGE THE STANDARD
In the annual review of civil litigation of 2014 there was an easy winner for the case that gave rise to the most, and worst, puns. There is an early contender for this award in 2015. Since this competition is…
GET BUNDLES AND SKELETON ARGUMENTS TO COURT – OR ELSE: CHIEF CONSTABLE COPS IT
There is a brief report on Lawtel today of the case of Marsh -v- Ministry of Justice (QB Phillips J 20/01/2015)*. It provides an object lesson on the need for all parties (and non-parties) to lodge – or re-lodge -…
CIVIL LITIGATION: REVIEW OF 2014: PROLIXITY, SANCTIONS, CREATIVE WRITING AND MUCH MORE
It is coming to that time of the year where everyone does an annual review. We civil litigators cannot be left out. Here is an annual review for the past 12 months. If people want to make additional suggestions in…
MORE ON SKELETON ARGUMENTS: DO THEM PROPERLY OR YOU DON'T GET PAID (THE TRIQUEL)
For the third time in the past few months Jackson L.J. has spoken out against over-lengthy skeleton arguments. The costs of preparing those skeletons have been disallowed on each occasion. This is what happened in Inplayer Ltd -v- Thorogood [2014]…
WHICH WITNESS IS GOING TO BE BELIEVED? A HIGH COURT DECISION ASSESSING THE CREDIBILITY OF WITNESSES
It is essential that litigators have a keen understanding of how witness evidence is likely to be assessed at trial. Many trials take place precisely because there is a conflict of evidence between the witnesses. An example of a close…
RESPONDING TO A COMMITTAL APPLICATION: A POINT TO WATCH
The brief report in Lawtel of Royal & Sun Alliance -v- Fahad (QBD Spencer J 17/10/14) brings home an important procedural point in relation to committal applications. THE FACTS The applicant was seeking to commit the respondent for making false…
EVIDENCE: PROVING DAMAGES AND INTEREST ON DAMAGES: YOU CAN'T SUGAR THE PILL AND HAVE TO PROVE THE LOSS
The final paragraphs of the judgment of Mr Justice Eder in Sugar Hut Group -v- AJ Insurance [2014] EWHC 3352 (Comm) has some important lessons on the need to adduce evidence to prove losses. It also contains a discussion of…
CHALLENGING THE AUTHENTICITY OF DOCUMENTS: THE IMPORTANCE OF KNOWING THE RULES & A FEW POINTS FROM THE CASES
The earlier post on Redstone Mortgages Ltd -v- B Legal Ltd[2014]EWHC 3390 (Ch)contained some important observations from the judge on the steps to be taken if a party wishes to challenge the authenticity of a document. Here we look at this…
DRAFTING A SKELETON OR WANT TO SERVE AN ADDITIONAL SKELETON ARGUMENT? THEN YOU HAD BETTER READ THIS
We have looked before at judicial complaints about the length and extent of skeleton arguments. Similar grievances can be seen in the judgment of the Court of Appeal earlier this week in Tchenguiz -v- Director of the Serious Fraud Office…
THE DUTIES OWED TO THE COURT ON A WITHOUT NOTICE APPLICATION: A VERY HIGH STANDARD
In Standard Bank -v- Just Oil LLC [2014] EWHC 2687 (Comm) the Hon Mr Justice Walker considered the duties owed when a party makes an without notice application to the court. Strong words are said. THE FACTS The claimant had…
WRITTEN SUBMISSIONS: STATEMENTS OF ISSUES; PLEADING AND PROOF
The decision of Mr Justice Walker in Burrows -v- Northumbrian Walker Ltd [2014] EWHC 3305(QB) considers the need for clarity in written submission and for the issues the judge is asked to determine to be clearly defined. It also considers…
TRIAL PREPARATION, BUNDLES & WITNESS STATEMENTS: THE JUDGE'S LAMENT
The earlier post on the decision in Weathford -v- Hydropath concentrated upon the application for a non-party costs order. However in the primary judgment on liability the judge made some all too common criticisms in relation to trial preparation, skeleton…
ROBUST DECISIONS, CASE MANAGEMENT AND WITNESS EVIDENCE: AVOIDING REVERSE MACROCOSM
In Tindall Cobham 1 Ltd -v- Adda Hotel [2014] EWHC 2637 (Ch) Peter Smith J made robust orders to ensure that an application would be heard within days rather than months. He also made some telling observations in relation to…
SORTING MAJOR PROBLEMS OUT IN THE MIDDLE OF A TRIAL: SCHEDULES AND STATEMENT OF ISSUES SHOULD BE PREPARED IN ADVANCE NOT DURING A TRIAL
The major purpose of case management is to ensure that when a matter reaches trial the parties, and the judge, know precisely what the issues are in Redd Factors -v- Bombadier Transportation [2014] EWCH 3138 (QB) this process clearly went…
PLEADING AND PROVING ALLEGATIONS OF FRAUD OR DISHONESTY: MULLARKE -v- BROAD: USEFUL LINKS AND GUIDANCE
Great care needs to be taken in pleading allegations of fraud or dishonesty. In particular the pleader needs to be sure that there is sufficient evidence to justify the pleading. This was considered in some detail by Lewison J in…
MAKING AN APPLICATION IN THE CHANCERY DIVISION AFTER THE 1ST OCTOBER 2014: NO BUNDLE NO HEARING
The Chancery Division has introduced strict new provisions which apply from 1st October 2014. No bundle no hearing. Here we look at the essential elements of the guidance and application bundles. THE PRACTICE NOTE The Practice Note states: “Old and…
TAKING EVIDENCE; WITNESS STATEMENTS AND NOT MISLEADING THE COURT: BRETT -v- THE SRA CONSIDERED
The question of the duties owed by a lawyer to not mislead the court was at the forefront of the decision yesterday in Brett -v- The Solicitors Regulatory Authority [2014] EWHC 2974 (Admin). This case has obvious and very wide…
E-BUNDLE PRACTICE DIRECTION FROM BIRMINGHAM MERCANTILE COURT: THE SHAPE OF THINGS TO COME
I posted yesterday on the new procedure for e-bundles in the House of Lords and Privy Council. HH Simon Brown QC has sent me a cop of the e-court direction that applies in the Birmingham Mercantile Court. It probably reflects…
WITNESS STATEMENTS AND COMPLYING WITH THE RULES: WHY WITNESS STATEMENTS CAN COME TO GRIEF
The case of Kaupthing Singer & Friedlander Ltd (in administration) v. UBS AG [2014] EWHC 2450 (Comm) contains yet another example of the very real dangers of using a witness statement to argue a case. It is usually unhelpful and often…
MORE ABOUT TRIAL BUNDLES: MOST OF THE STUFF IN THEM IS USELESS (APPARENTLY)
The decision discussed earlier today of Dowdall -v- William Kenyon & Sons Ltd [2014] EWHC 2822 (QB) contained an interesting observation that I wanted to deal with separately. It concerns the “usefulness” of trial bundles. OBSERVATIONS ON THE BUNDLES The Claimant has…
WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS
I have written before of the dangers involved in making without notice applications, particularly for freezing orders (“nuclear weapons that can blow up in your face”). There is an extremely high duty on the applicant to disclose all relevant matters…
BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?
The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case. The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…
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