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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.

Browse: Page 249

QUOCS IN THE COURT OF APPEAL: FOUR IMPORTANT ISSUES: WAGENAAR CONSIDERED

July 31, 2014 · by gexall · in Civil Procedure, Costs

The decision of the Court of Appeal in Wagenaar -v- Weekend Travel Ltd [2014] EWCA Civ 1105 was reported today. It contains important observations  and decisions on qualified one way costs shifting, something that is likely to become a major…

PRINCIPLES OF MITIGATION OF LOSS & THE CREDIBILITY OF EXPERT WITNESSES: A HIGH COURT DECISION CONSIDERED

July 31, 2014 · by gexall · in Civil evidence, Expert evidence, Liability

The case of Hirtenstein -v- Hill Dickinson LLP [2014]  EWHC 2711 (Comm) where judgment was given today contains many interesting lessons for those involved in professional negligence litigation in particular.   Here I just want to concentrate upon two: (i)…

DRAFTING WITNESS STATEMENTS: "4 GOLDEN RULES" DIRECTLY FROM THE JUDGES WHO HEAR THE CASES

July 28, 2014 · by gexall · in Civil Procedure, Witness statements

 I have recommended before that litigators read the guidance for litigants in person. It provides useful insights for most litigators and covers most aspects of civil procedure. It is written by six Circuit Judges so it can be safely assumed…

GUIDELINES ON HOURLY RATES: NOT MUCH HAS CHANGED: NEED FOR MORE RESEARCH

July 28, 2014 · by gexall · in Costs, Useful links

The long awaited (and long delayed) guidance on hourly rates has been published. The Courts and Tribunals Judiciary commentary and guidance can be found here. The Committee’s letter to the Master of the Rolls is here The response of the…

LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE

July 26, 2014 · by gexall · in Appeals, Applications, Avoiding negligence claims, Civil Procedure, Costs, Costs budgeting, Part 36, Relief from sanctions, Service of the claim form, Serving documents, Useful links, Witness statements

In August last year I wrote Litigation after Jackson a  10 point Survival Guide.  All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…

DENTON APPLIED IN THE TAX TRIBUNAL: NO PERMISSION TO APPEAL THREE YEARS LATE

July 25, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions

The Mitchell and Denton cases were reviewed by Judge John Brooks in Meah -v- The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 708 (TC).  The proposed appellant was three years late.  The refusal of permission to appeal out of…

WHAT CAN THE DEFENDANT ARGUE ABOUT DAMAGES AFTER A DEFAULT JUDGMENT 2: A CLINICAL NEGLIGENCE CASE

July 23, 2014 · by gexall · in Appeals, Applications, Civil Procedure, Damages

We have looked before at the question of what a defendant can argue in relation to damages after a judgment has been entered. A case reported today examines this issue in relation to judgment in a clinical negligence action. SYMES -V-…

POST DENTON RELIEF FROM SANCTIONS APPEAL IN THE HIGH COURT: RELIEF FROM SANCTIONS GRANTED: "UNREASONABLE" DEFENDANT ORDERED TO PAY COSTS

July 23, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions, Witness statements

I am grateful to Ashley Pratt of St James Chambers for his note of the decision of Mr Justice King in Johnson -v- Bourne Leisure on the 21st July 2014. King J granted relief from sanctions and allowed an appeal from the…

CLAIM FORMS: DECLARATION THAT STEPS TAKEN CONSTITUTE GOOD SERVICE: NEW HIGH COURT CASE CONSIDERED

July 23, 2014 · by gexall · in Applications, Civil Procedure, Service of the claim form

There is a brief report on Lawtel of the decision in Tanweer T/A the Auto Service Centre -v- UK Insurance  & National Insurance & Guarantee Corp (Judge Mackie QC) QBD Merc 18/07/2014.  The case is briefly reported and I hope…

THERE ARE DANGERS IF YOU ARE LEAVING THE ISSUE OF COSTS TO THE JUDGE: IN ANY EVENT BE QUICK AND BE CHEAP!

July 22, 2014 · by gexall · in Applications, Costs, Risks of litigation

There are limited number of cases where the parties can agree everything except who should pay the costs.  There are dangers in leaving the question of costs to the judge, as the case of  Spiller -v- Derhalli [2014] 2548 (EWHC)…

WITHOUT NOTICE APPLICATIONS FOR FREEZING ORDERS: THE DANGERS ABOUND: GREENWICH CASES CONTAINS SOME TIMELY LESSONS

July 21, 2014 · by gexall · in Applications, Civil Procedure, Disclosure, Risks of litigation, Witness statements, Written advocacy

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…

CASE MANAGEMENT AFTER DENTON: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"

July 20, 2014 · by gexall · in Applications, Civil Procedure, Disclosure, Expert evidence, Relief from sanctions, Witness statements

Most of the articles about the Denton case focus upon the relief from sanctions and “clarification” of the principles in Mitchell.  However the Court of Appeal made it clear that part of the focus of case management should be to…

DENTON: THE DISSENTING JUDGMENT OF JACKSON L.J. CONSIDERED

July 19, 2014 · by gexall · in Appeals, Civil Procedure, Relief from sanctions

In the hundreds of articles, blogs and commentaries on the decision in Denton the “dissenting” judgment is barely mentioned or considered.  Whilst all three members of the court were in agreement that each of the appeals should be allowed there…

PRECEDENT H AND COSTS BUDGETING: NEW LINKS AND OLD LINKS

July 18, 2014 · by gexall · in Civil Procedure, Costs, Costs budgeting

There are several posts on this blog which link to guides, articles and assistance on costs budgeting and Precedent H.  Here there are several more recent links. The Construction of a Costs Budget is particularly instructive PREVIOUS POSTS One of…

WHAT IS MEANT BY "SERIOUS AND SIGNIFICANT"? THE COURT CONCENTRATES MUCH MORE UPON THE EFFECT OF THE BREACH RATHER THAN THE BREACH ITSELF

July 18, 2014 · by gexall · in Appeals, Applications, Civil Procedure, Relief from sanctions

In Denton -v- White;  [2014] EWCA Civ 906. the Court of Appeal eschewed the use of the word “trivial” where a court is considering an application for relief from sanctions.  Instead the Court stated that the focus should be on whether…

AMENDING PLEADINGS: HAS THE LIMITATION PERIOD EXPIRED? WHERE DOES THE BURDEN OF PROOF LIE?

July 17, 2014 · by gexall · in Applications, Civil Procedure, Limitation, Statements of Case

The Court of Appeal decision today in Mercer -v- Ballinger [2014] EWCA Civ 996 may appear to be an issue of esoteric civil procedure.  However the decision is an important one with far-ranging  practical consequences for a party seeking to…

MITCHELL NOT EXTENDED TO ADMINISTRATIVE LAW: AN ISSUE FOR ANOTHER DAY

July 17, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions

In R (Abbas Mohammadi -v- Secretary of State for the Home Department [2014] EWHC 2251 (Admin)the court did not decide the issue of whether “Mitchell” principles applied to applications for judicial review. THE FACTS The applicant was seeking judicial review of…

CIVIL PROCEDURE – HOW IT SHOULD BE DONE: A DESCRIPTION OF HOW THE ASBESTOS COURT WORKS

July 15, 2014 · by gexall · in Applications, Civil Procedure, Costs budgeting

Anyone want to see a description of a civil procedure system running smoothly then read Master McCloud’s description of the “asbestos disease court” in her judgment in Yates -v- Commissioners for Her Majesty’s Revenue & Customs [2014] EWCH 2311 (QB)….

BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?

July 14, 2014 · by gexall · in Appeals, Civil evidence, Civil Procedure, Written advocacy

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…

MORE ABOUT APPEALING MITCHELL DECISIONS OUT OF TIME: RELEVANT CASE LAW

July 13, 2014 · by gexall · in Appeals, Relief from sanctions

A post yesterday considered the possibility of appealing, out of time, the unjust orders that may have been made following Mitchell and the subsequent “clarification” in Denton.  There is some law on this topic, ironically it is a result of…

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