THE CLAIMANTS FILED A NOTICE OF APPEAL OUT OF TIME: COURT REFUSES AN EXTENSION: SOME IMPORTANT LESSONS HERE: OUT OF TIME MEANS OUT OF COURT…
One thing anyone considering an appeal should know, with absolute certainty, is the date the appeal has to be lodged. This, in turn, involves knowing the date on which the period starts running. Here we see a case where the…
COST BITES 324: COURT REFUSES TO REDUCE SUCCESSFUL DEFENDANT’S COSTS BECAUSE OF REFUSAL TO ENGAGE IN MEDIATION
A party liable to pay the costs of a successful opponent is always keen to reduce that liability, not least by arguing that they should have a reduction in costs because of their opponent’s conduct. We see such an argument…
PROVING THINGS 263: “IT IS A FUNDAMENTAL PRINCIPLE OF LITIGATION THAT A CLAIMANT MUST PROVE THEIR LOSS… THEY MUST ALSO SATISFY THE COURT AS TO THE AMOUNT OF ANY LOSS WHICH THEY HAVE SUFFERED”
This series has now covered hundreds of examples where litigants have failed to prove their case. We are looking at another example here where a counterclaiming defendant adduced no substantive evidence of a claim said to be worth nearly £500,000. …
“A TRAP FOR THE UNWARY”: WHEN DOES TIME FOR APPEALING START TO RUN WHEN A JUDGMENT IS SENT OUT? CLARITY IS ESSENTIAL
The judgment of Mr Justice Hayden in F (A Minor) (Permission To Appeal) [2025] EWHC 638 (Fam) highlights a trap for those seeking permission to appeal. The time for appealing runs from the date that the order was announced and…
JUDGE OVERTURNS NON-PARTY COSTS ORDER AGAINST CLAIMS MANAGEMENT COMPANY: ANOTHER (EXPENSIVE) BATTLE IN THE “NEVER-ENDING WAR”
I am grateful to Navid Hakimmaani, Consultant Solicitor at Collins Benson Goldhill LLP, for sending me a copy of the judgment of HHJ Mark Gargan in Smith -v- AXA Insurance UK PlC & Spectra Drive Limited (24th December 2024), a…
AN INTERESTING JUDGMENT ON LIMITATION: CHEQUES, PAYMENT AND DEMAND: SECOND DEMAND DOES NOT RE-OPEN THE LIMITATION PERIOD
In Agia v Skipton Building Society [2024] EW Misc 14 (CC) HHJ Malek considered a novel point relating to limitation. A limitation period cannot be “re-opened” by a customer making a demand on a bank many decades after a cheque…
MR BATES AND THE POST OFFICE: LOOKING BACK TO THE CASE OF THE YEAR 2019
Yesterday I noticed that a post I had written in 2019 was suddenly gaining a lot of readers. I suspect that this was due to the power of television. Not that the blog was being advertised, but that the series…
PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM
The judgment of Deputy District Judge Batstone in Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC) illustrates the care that needs to be taken when attempting to call a witness who is giving evidence remotely…
OBJECTING TO EVIDENCE BEING ADMITTED CAUSES PROBLEMS ON APPEAL : CLAIMANT GETS BITTEN BY ITS OWN HORSE
In Lifestyle Equities C.V. & Anor v Ahmed & Anor [2021] EWCA Civ 675 the Court of Appeal allowed, in part, an assessment against the assessment of damages. What is interesting here is the point that the claimants objection to…
JUDGE WAS CORRECT TO STRIKE OUT ACTION AGAINST NON-EXISTENT COMPANY: ALSO GUIDANCE FOR INSURERS ON MOST PRUDENT COURSE OF ACTION
In the judgment in Cowley v LW Carlisle & Company Ltd [2020] EWCA Civ 227 today the Court of Appeal dismissed the claimant’s appeal against an order striking out his claim against one defendant. At the time the striking out…
THE SELF INFLICTED WOUNDS OF A “TRUSTED BRAND”/”CAPRICIOUS MID-VICTORIAN FACTORY-OWNER”: THE DANGERS OF PUTTING YOUR CASE TOO HIGH
The judgment of Lord Justice Coulson rejecting the Post Office’s application for permission to appeal is available on “Post Office Trial”, a case that has already been looked at several times on this blog. Here we have a critical appraisal…
THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES
I wrote about the first instance decision in Kogan v Martin & Ors [2019] EWCA Civ 1645 here. The Court of Appeal have ordered a retrial in the case. There are important observations about the role of the judge in…
RAISING NEW ISSUES ON APPEAL: COURT OF APPEAL CONSIDERS THE LAW: CIRCUIT JUDGE CORRECT TO ALLOW NEW ISSUE TO BE ARGUED IN RELATION TO INTEREST RATES
In Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 the Court of Appeal reviewed the principles relating to new matters being raised on appeal. “These authorities show that there is no general rule that a case…
FINDINGS OF FACT AND THE TASK OF THE TRIAL JUDGE: A REASONED DETERMINATION OF THE DISPUTE ON THE EVIDENCE AT TRIAL – NOT A SEARCH FOR “THE TRUTH”
There has been a spate of cases recently relating to appeals of findings of fact by a trial judge. There are major problems in such appeals, this is illustrated by the judgment of Mr Justice Andrew Baker in Auliffe &…
“VERY UNFORTUNATELY, ON TWO OCCASIONS… THE … JUDGE FELL ASLEEP”: APPEAL ALLOWED
In Science Museum Group v Wess [2019] UKEAT 0260 HHJ Auberach made a finding that the Employment Judge had fallen asleep. The appeal was allowed on this ground alone. “I find as a fact that, very unfortunately, on the afternoon…
DRAFT JUDGMENTS “ARE NOT AN INVITATION TO TREAT”: COURT OF APPEAL SEEKS TO PUT AN END TO REQUEST THAT ARE “CONFRONTATIONAL AND DISRESPECTFUL”
In I Children [2019] EWCA Civ 898 the Court of Appeal gave clear guidance to practitioners who write to the court seeking “clarification” of a written judgment. There are clear parameters and the parties should not use the draft judgment…
PERMISSION TO APPEAL: THE RELEVANT TEST: NO REQUIREMENT THAT SUCCESS BE PROBABLE OR MORE LIKELY THAN NOT
In R (A Child) [2019] EWCA Civ 895 the Court of Appeal set out the criteria for permission for appeal. “The test for the grant of permission to appeal on an application to the Court of Appeal or to the…
APPELLANT’S COSTS OF APPEAL WERE “MANIFESTLY UNREASONABLE” : COURT OF APPEAL REDUCES £71,072 SCHEDULE TO £13,000
A short postcript to the Court of Appeal judgment in Jofa Ltd & Anor v Benherst Finance Ltd & Anor [2019] EWCA Civ 899 makes some telling remarks about the cost of appeals. “the amount of costs claimed by the…
DECISION OVERTURNED BECAUSE OF UNFAIR JUDICIAL TREATMENT: “TAKING UP THE CUDGELS OF CROSS-EXAMINATION”
There are few cases that are overturned on the grounds of unfair judicial treatment. However this was one of grounds the appeal was allowed today in Serafin v Malkiewicz & Ors [2019] EWCA Civ 852 “On numerous occasions, the Judge…
APPEALING FINDINGS OF FACT: THE UPHILL BATTLE
In Staechelin & Ors v ACLBDD Holdings Ltd & Ors [2019] EWCA Civ 817 Lord Justice Lewison set out a “cut out and keep” guide for parties attempting to appeal findings of fact. A reminder of the uphill battle that appellants…
JUDGE REFUSES TO RECUSE HIMSELF: DEFENDANT APPEALS: APPEAL DISMISSED: ANOTHER ROUND IN THE POST OFFICE SAGA: ATTEMPTS TO HOLD THE COURT “IN TERROREM” SHOULD BE EXPLAINED
I did not blog, immediately, after the judgment in Bates & Ors v Post Office Ltd (No 4) [2019] EWHC 871 (QB because I suspected (indeed it was inevitable, given its approach to this litigation) that the Post Office would…
AGENCY FEES ALLOWED ON APPEAL: FULL COPY OF JUDGMENT AVAILABLE
I am grateful to barrister Paul Hughes for sending me a copy of the decision of HHJ Graham Wood QC in Beardmore -v- Lancashire County Council. The case considers the paying, and cost, of medical agency fees. A copy of…
PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE
In Perry v Raleys Solicitors [2019] UKSC 5 the Supreme Court restored the decision of the trial judge in relation to damages. One of the key issues was whether the Court of Appeal was correct to overturn the trial judge’s factual…
TIME FOR APPEALING: ANOTHER TRICKY POINT TO WATCH: TIME RUNS FROM THE DATE OF THE DECISION AND NOT ANY LATER DATE: A HELPFUL GUIDE TO THE PROCEDURE TO BE FOLLOWED
In McDonald v Rose & Ors [2019] EWCA Civ 4 the Court of Appeal highlighted an important point in relation to the time for appealing. Time for appealing runs from the date that the decision is given, not a later date….
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
COSTS & PROPORTIONALITY: ITS NOT ALL ABOUT THE MONEY: DEFENDANT’S COSTS WERE NOT DISPROPORTIONAL
Proportionality was the central issue in the judgment of Master Leonard in Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs). The Master rejected the claimant’s argument that the defendant’s costs (roughly one-third of the claimant’s costs budget) was disproportional. “In contrast to…
CLAIM FORM CASE IN THE COURT OF APPEAL: BAD LEGAL ADVICE NOT A GOOD REASON TO ALLOW SERVICE BY AN ALTERNATIVE METHOD
In Société Générale v Goldas Kuyumculuk Sanayi Ithalat Ihracat AS & Ors [2018] EWCA Civ 1093 the Court of Appeal considered a claimant’s appeal where the judge had refused to allow an alternative method of service or to dispense with service….
APPEALS, TIME, SERVICE, VENUE: A REAL PROCEDURAL HOTCHPOTCH – EVEN BEFORE THE MAIN ISSUE IS CONSIDERED
The judgment of Mr Justice Jay in Enniful -v- Motor Insurers Bureau [2017] EWHC 1086 (QB) is a procedural hotchpotch. It relates to service, delay, dates of compliance, venue for appeals and relief from sanctions. All of this occurred before…
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
COURT OF APPEAL: REFUSAL TO ENGAGE WITH AN OPEN OFFER OF SETTLEMENT IS AN ABUSE OF PROCESS
In Balk -v- Otkrite International Investment [2017] EWCA the Court of Appeal was highly critical of a litigant’s failure to respond to an open offer of settlement of appeal. The failure to engage with an open offer of settlement amounted…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
IF YOU DECIDE NOT TO TURN UP FOR COURT DON’T EXPECT MUCH SYMPATHY: COUNCIL TOLD TO GET ON ITS BIKE
The judgment of the Court of Appeal in Camden Borough Council -v- Humphreys [2017] EWCA Civ 24 illustrates the danger of a party deciding not to attend a hearing. THE CASE A recipient of a parking ticket, Mr Humphreys, had…
LIMITATION, EXTENSIONS AND THE HUMAN RIGHTS ACT: COURT OF APPEAL SAYS NO
For the second time within a week we have a case where the courts consider the discretion to extend time under s.7(5)(a) of the Human Rights Act 1998. In London Borough of Hackney -v- Williams [2017] EWCA Civ 26 the…
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…
STATEMENT THAT THE APPELLANTS WERE CROOKS DID NOT GIVE RISE TO GROUNDS FOR RE-OPENING AN APPEAL
In the judgment given today in Goldtrail Travel Limited -v- Aydin [2016] EWCA Civ 439 the Court of Appeal rejected an application under CPR 52.17 to re-open an appeal on the grounds of bias. THE CASE The Court of Appeal…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT BY THE TRIAL JUDGE
In Elliston -v- Glencore Services (UK) Ltd [2016] EWCA Civ 407 the Court of Appeal took the unusual step of overturning findings of fact by the trial judge. (It is perhaps important that I emphasise how rare this is. There…
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…
WHAT A DAY FOR CLAIM FORM CASES: DECISION IN THE COURT OF APPEAL
No sooner was the (metaphorical) ink dry on the post on the Abbott -v- Econwall case when the Court of Appeal decision in Barton -v- Wright Hassall [2016] EWCA Civ 177. In the case the judge allowed an application…
IT'S ALL ABOUT THE COSTS (AND A LOT OF TROUBLE): COURT OF APPEAL CASE CONSIDERED
The Court of Appeal judgment today in Patience -v- Tanner [2016] EWCA Civ 158 is a classic example of the difficulties that arise when a case is, in essence, all about the costs. It shows the danger of making, and…
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…
FAILURES IN DISCLOSURE AND WITNESS EVIDENCE YET SUCCESSFUL ON APPEAL
The decision of the Court of Appeal in Sobrany -v- UAB Transtira [2016] EWCA Civ 28 gives rise to a few interesting procedural points. It is worth remarking, however, that many of the difficulties arose because of failures by the…
RELIEF FROM SANCTIONS, "MATERIALITY" & CONSIDERING THE MERITS IN A DEFAULT JUDGMENT: APPEAL AGAINST REFUSAL OF RELIEF ALLOWED
In Joshi & Welch Limited -v- Tay Foods [2015] EWHC 3905 (QB) Mr Justice Green allowed an appeal where the judge a first instance refused to grant relief from sanctions. Much centred on the definition of the word “material”. The…
DECISION NOT TO ADMIT LATE WITNESS EVIDENCE UPHELD BY THE COURT OF APPEAL
There is a brief report on Lawtel of the decision in Judges Sykes Frixous -v- Bhabra (CA 14/010/2016).* This provides another example of a party (unsuccessfully) trying to serve witness evidence late in the day. There are numerous posts on…
RELIEF FROM SANCTIONS, FRAUD AND THE CHANGING SITUATION
I must preface this post with the warning that it is not possible to cite decisions relating to permission to appeal. However the decision in Bawden -v- WM Morrison Supermarkets PLC [2015] EWCA Civ 957 is interesting in itself. The…
LATE EXPERT EVIDENCE, DENTON AND WAVING A FINGER IN THE AIR
The decision of the Court of Appeal in O’Connor -v- The Pennine Hospitals NHS Trust [2015] EWCA 1244 will receive much attention for the important observations made as to evidence, proof and “res ipsa loquitur”. However here I want…
DENTON, DELAY AND THE COURT OF APPEAL: OUT OF TIME APPEAL REFUSED
The Court of Appeal considered the Denton criteria in JA (Ghana) -v- The Secretary of State for the Home Department [2015] EWCA Civ 1031. A decision that emphasises that the criteria can be applied rigorously. “A more appropriate and (individually)…
ADJOURNMENTS AND DISCRETION: DECISION NOT TO ADJOURN BANKRUPTCY PETITION UPHELD BY THE COURT OF APPEAL
In Edginton -v- Sekhon [2015] EWCA Civ 816 the Court of Appeal refused to overturn the judge’s decision not to adjourn a bankruptcy petition. “Delay is inimical to all forms of litigation and especially so in a collective enforcement process…
BANKRUPTCY OF CLAIMANT DID NOT RENDER ACTION INVALID OR AN ABUSE OF PROCESS
In Eaton -v- Mitchells & Butler PLC (30th April 2015) (reported today on Bailli) His Honour Judge Keyser QC had to consider the effect of bankruptcy upon the validity of a claim. “It is remarkable that the case had proceeded…
PERMISSION TO APPEAL CANNOT BE OPEN-ENDED: HIGH COURT DECISION
In Ghura -v- Dalal [2015] EWHC 2385 Mr Justice Norris rejected the idea that time for appealing could be open-ended or ambiguous in its scope. KEY POINTS The Court does not have power to extend time for appealing “generally”. In…
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