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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.
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DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS

DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS

April 9, 2021 · by gexall · in Amendment, Fundamental Dishonesty, Statements of Case

In  Mustard v Flower & Ors [2021] EWHC 846 (QB) Master Davison refused a defendant’s application to amend its defence to plead fundamental dishonesty on a “contingent” basis.  The judgment deals with important issues as to how a defendant must…

JUDGE STRIKES OUT CLAIMS OF CLAIMANTS JOINED INTO ACTION AFTER CLAIM FORM WAS ISSUED: WHEN AMENDED PLEADINGS START TO RESEMBLE A RAINBOW

JUDGE STRIKES OUT CLAIMS OF CLAIMANTS JOINED INTO ACTION AFTER CLAIM FORM WAS ISSUED: WHEN AMENDED PLEADINGS START TO RESEMBLE A RAINBOW

March 15, 2021 · by gexall · in Applications, Civil Procedure, Limitation

The case of  Various Claimants v G4S Plc [2021] EWHC 524 (Ch)is one that bristles with procedural issues.  Here we look at one issue – the judge striking out the claimants that were added after issue of the claim form…

YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM

YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM

February 16, 2021 · by gexall · in Amendment, Applications, Statements of Case, Striking out

About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …

CLAIMANTS SUED THE WRONG (NON-EXISTENT) DEFENDANT -  AND THE LIMITATION PERIOD HAD EXPIRED: DON'T START BREAKING THE CROCKERY JUST YET

CLAIMANTS SUED THE WRONG (NON-EXISTENT) DEFENDANT – AND THE LIMITATION PERIOD HAD EXPIRED: DON’T START BREAKING THE CROCKERY JUST YET

January 18, 2021 · by gexall · in Amendment, Applications, Civil Procedure, Limitation

In The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor [2021] EWHC 17 (TCC) District Judge Baldwin considered an application to substitute a defendant after the primary limitation period had expired.  The judge, if anything,…

AMENDING YOUR CASE AND PAYING THE COSTS: JUDGE ORDERS CLAIMANT TO PAY £100,000 ON ACCOUNT OF COSTS

AMENDING YOUR CASE AND PAYING THE COSTS: JUDGE ORDERS CLAIMANT TO PAY £100,000 ON ACCOUNT OF COSTS

December 18, 2020 · by gexall · in Amendment, Costs, Interim Payments

The judgment of Mr Justice Pepperall in R.G. Carter Projects Ltd v CUA Property Ltd [2020] EWHC 3417 (TCC) is interesting for a number of reasons.  Firstly it encapsulates the principle that a party amending their pleadings must normally pay…

LETTER STATING THAT THE DEFENDANT CONSENTED TO SOME AMENDMENTS DID NOT OUST COURT'S JURISDICTION: TRY TO AMEND AT YOUR PERIL

LETTER STATING THAT THE DEFENDANT CONSENTED TO SOME AMENDMENTS DID NOT OUST COURT’S JURISDICTION: TRY TO AMEND AT YOUR PERIL

September 3, 2020 · by gexall · in Amendment, Applications, Case Management, Civil Procedure

In  Scott & Ors v Singh [2020] EWHC 1714 (Comm) HHJ Eyre QC rejected an argument that a letter stating that the defendants agreed to some proposed amendments by the claimant meant that the court had no jurisdiction to prevent…

AMENDING PLEADINGS? HAVE A DRAFT AT COURT: JUDGE CONSIDERS "CIRCULAR ARGUMENTS" AND A "PARTICULARLY UNFORTUNATE PROCEDURAL LITIGATION HISTORY"

AMENDING PLEADINGS? HAVE A DRAFT AT COURT: JUDGE CONSIDERS “CIRCULAR ARGUMENTS” AND A “PARTICULARLY UNFORTUNATE PROCEDURAL LITIGATION HISTORY”

July 31, 2020 · by gexall · in Amendment, Applications

The judgment of HHJ Gore QC (sitting as a High Court judge) in  Sivaji v Ministry of Defence [2020] EWHC 2006 (QB) makes interesting reading. It is an object lesson in the need to have an amended pleading to hand…

PLEADING (STATEMENTS OF CASE) FOR PERSONAL INJURY LAWYERS (LIVE WEBINAR) 3rd SEPTEMBER 2020

July 15, 2020 · by gexall · in Case Management, Civil Procedure, Statements of Case, Webinar

The discussion of statements of case yesterday in the case of  Tejani v Fitzroy Place Residential Ltd & Anor [2020] EWHC 1856 (TCC) has led, almost directly, to a webinar on statements of case.   I am giving a webinar on the…

APPLYING TO SUBSTITUTE A PARTY AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE STATUTE AND THE RULES CONSIDERED

APPLYING TO SUBSTITUTE A PARTY AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE STATUTE AND THE RULES CONSIDERED

July 8, 2020 · by gexall · in Amendment, Applications, Limitation

The rules relating to substituting a defendant after expiry of the limitation period are always a little intimidating. Particularly  when trying to persuade a court to apply them. They were considered in detail in the judgment of Master Shuman in…

PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A DENIAL AND A NON-ADMISSION: HIGH COURT GOES BACK TO BASIC PRINCIPLES

PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A DENIAL AND A NON-ADMISSION: HIGH COURT GOES BACK TO BASIC PRINCIPLES

March 9, 2020 · by gexall · in Amendment, Statements of Case

There are some interesting observations about statements of case in the judgment of Mr Justice Warby in  Aven & Ors v Orbis Business Intelligence Ltd [2020] EWHC 523 (QB).  This case emphasises the difference between a non-admission and a denial…

DEFENDANT CAN ONLY RESPOND TO THE CASE AS PLEADED: COURT REJECTS CLAIMANTS' ATTEMPTS TO INTRODUCE NEW ISSUES

DEFENDANT CAN ONLY RESPOND TO THE CASE AS PLEADED: COURT REJECTS CLAIMANTS’ ATTEMPTS TO INTRODUCE NEW ISSUES

May 14, 2019 · by gexall · in Amendment, Applications, Statements of Case

There are two judgments on BAILLI this morning in the Glaxosmithkline case where the judge has resisted the claimants’ attempts to widen the scope of their case beyond the pleaded case and the issues set out in a Group Litigation…

FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT'S LATE APPLICATION TO RE-CAST ITS CASE

FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT’S LATE APPLICATION TO RE-CAST ITS CASE

April 24, 2019 · by gexall · in Amendment, Applications, Statements of Case

In  Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) Martin Griffiths QC, sitting as a High Court judge, disallowed a late application to amend.  It is another example of an application being made shortly before trial,…

NOT COMPLYING WITH DIRECTIONS OR REPLYING TO CORRESPONDENCE - AND THEN BLAMING THE OTHER SIDE: IT DOES YOU NO CREDIT

NOT COMPLYING WITH DIRECTIONS OR REPLYING TO CORRESPONDENCE – AND THEN BLAMING THE OTHER SIDE: IT DOES YOU NO CREDIT

April 2, 2019 · by gexall · in Amendment, Applications, Conduct, Statements of Case

There are several matters of general interest in the judgment of Mrs Justice Pepperall in Essex County Council v UBB Waste (Essex) Ltd [2019] EWHC 819 (TCC) (02 April 2019).  Here we look at the dangers of simply failing to…

"PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY": "THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH"

“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”

March 26, 2019 · by gexall · in Amendment, Applications, Costs, Statements of Case

In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action.  There are two particular aspects of the judgment of general interest. Firstly…

PERMISSION TO AMEND PLEADINGS TO PLEAD NEW CASE AFTER EXPIRY OF LIMITATION PERIOD REFUSED: COURT OF APPEAL DECISION: STICK TO THE PLEADINGS

PERMISSION TO AMEND PLEADINGS TO PLEAD NEW CASE AFTER EXPIRY OF LIMITATION PERIOD REFUSED: COURT OF APPEAL DECISION: STICK TO THE PLEADINGS

March 17, 2019 · by gexall · in Amendment, Appeals, Applications, Limitation

In Samba Financial Group v Byers & Anor [2019] EWCA Civ 416 the Court of Appeal overturned an order allowing the claimant permission to amend its case.  In essence the Court of Appeal decided that where a court was considering an…

LATE APPLICATION TO AMEND  DEFENCE RIGHTFULLY REFUSED: LATE APPLICATION TO AMEND NOTICE OF APPEAL ALSO GOT THE BARNSLEY CHOP

LATE APPLICATION TO AMEND DEFENCE RIGHTFULLY REFUSED: LATE APPLICATION TO AMEND NOTICE OF APPEAL ALSO GOT THE BARNSLEY CHOP

June 20, 2018 · by gexall · in Amendment, Appeals, Statements of Case

In First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 the Court of Appeal upheld a decision by the trial judge to refuse a late amendment to the defence.  An application to amend the Notice…

WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: "SHEER  INCOMPETENCE" DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION

WHEN THE LIMITATION ACT IS NOT YOUR BEST FRIEND: “SHEER INCOMPETENCE” DOES NOT PERSUADE A COURT TO EXERCISE ITS DISCRETION

April 18, 2018 · by gexall · in Abuse of Process, Amendment, Appeals, Applications, Avoiding negligence claims, Limitation, Statements of Case, Statements of Truth, Striking out

CPR 17.(4) is always one of the most “challenging” sections of the Limitation Act in practice. Amending the name of a party after the expiry of the limitation period is not always easy.  The judgment in Best Friends Group & Anor…

LATE AMENDMENT: COURT OF APPEAL DECISION

LATE AMENDMENT: COURT OF APPEAL DECISION

February 22, 2018 · by gexall · in Amendment, Appeals, Applications, Statements of Case

We looked at the decision in  Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16) in an earlier post.  The defendant appealed to the Court of Appeal  Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018]…

SUING THE WRONG DEFENDANT? SHOULD HAVE GONE TO SPECSAVERS?

SUING THE WRONG DEFENDANT? SHOULD HAVE GONE TO SPECSAVERS?

November 13, 2017 · by gexall · in Amendment, Civil Procedure, Parties to actions

It is always embarrassing to find out you are suing the wrong defendant and have to apply for substitution (although we have looked at cases in which the wrong claimant has issued proceedings).  This issue was considered by Mr Justice…

LATE (BUT NOT VERY LATE) AMENDMENTS ALLOWED:  LIMITATION DEFENCE WAS NOT "MUCKING AROUND AT THE LAST MOMENT"

LATE (BUT NOT VERY LATE) AMENDMENTS ALLOWED: LIMITATION DEFENCE WAS NOT “MUCKING AROUND AT THE LAST MOMENT”

August 11, 2017 · by gexall · in Amendment, Civil Procedure, Limitation, Statements of Case

In Vilca & Ors v XSTRATA Ltd & Anor [2017] EWHC 2096 (QB) Mr Justice Stuart Smith allowed a late, but not “very late” application by the defendant to allow it to plead limitation. “To my mind…  all of the…

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