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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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OBJECTING TO EVIDENCE BEING ADMITTED CAUSES PROBLEMS ON APPEAL : CLAIMANT GETS BITTEN BY ITS OWN HORSE

OBJECTING TO EVIDENCE BEING ADMITTED CAUSES PROBLEMS ON APPEAL : CLAIMANT GETS BITTEN BY ITS OWN HORSE

May 10, 2021 · by gexall · in Appeals, Civil evidence, Civil Procedure, Damages

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

JUDGE WAS CORRECT TO STRIKE OUT ACTION AGAINST NON-EXISTENT COMPANY: ALSO GUIDANCE FOR INSURERS ON MOST PRUDENT COURSE OF ACTION

February 25, 2020 · by gexall · in Appeals, Applications, Striking out

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 SELF INFLICTED WOUNDS OF A “TRUSTED BRAND”/”CAPRICIOUS MID-VICTORIAN FACTORY-OWNER”: THE DANGERS OF PUTTING YOUR CASE TOO HIGH

November 23, 2019 · by gexall · in Appeals, Applications, Civil evidence, Civil Procedure

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

THE “BAD SINGING” CASE GETS TWO ENCORES: JUDGE FAILED TO MAKE FINDINGS OF FACT ON KEY ISSUES

October 15, 2019 · by gexall · in Appeals, Civil evidence, Witness statements

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

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

July 25, 2019 · by gexall · in Appeals

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"

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”

June 7, 2019 · by gexall · in Appeals, Civil evidence, Witness statements

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

“VERY UNFORTUNATELY, ON TWO OCCASIONS… THE … JUDGE FELL ASLEEP”: APPEAL ALLOWED

May 31, 2019 · by gexall · in Access to justice, Appeals

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"

DRAFT JUDGMENTS “ARE NOT AN INVITATION TO TREAT”: COURT OF APPEAL SEEKS TO PUT AN END TO REQUEST THAT ARE “CONFRONTATIONAL AND DISRESPECTFUL”

May 31, 2019 · by gexall · in Appeals

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

PERMISSION TO APPEAL: THE RELEVANT TEST: NO REQUIREMENT THAT SUCCESS BE PROBABLE OR MORE LIKELY THAN NOT

May 28, 2019 · by gexall · in Appeals

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

APPELLANT’S COSTS OF APPEAL WERE “MANIFESTLY UNREASONABLE” : COURT OF APPEAL REDUCES £71,072 SCHEDULE TO £13,000

May 24, 2019 · by gexall · in Appeals, Costs

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"

DECISION OVERTURNED BECAUSE OF UNFAIR JUDICIAL TREATMENT: “TAKING UP THE CUDGELS OF CROSS-EXAMINATION”

May 17, 2019 · by gexall · in Advocacy, Appeals, Case Management

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

APPEALING FINDINGS OF FACT: THE UPHILL BATTLE

May 14, 2019 · by gexall · in Appeals, Civil Procedure

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

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

May 12, 2019 · by gexall · in Appeals, Applications

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

AGENCY FEES ALLOWED ON APPEAL: FULL COPY OF JUDGMENT AVAILABLE

March 4, 2019 · by gexall · in Appeals, Costs

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

PROVING THINGS 141: CREDIBILITY WAS IMPORTANT IN CLAIM FOR DAMAGES AGAINST SOLICITORS: SUPREME COURT RESTORES DECISION OF TRIAL JUDGE

February 13, 2019 · by gexall · in Appeals, Damages, Professional negligence,, Witness statements

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

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

January 16, 2019 · by gexall · in Appeals, Applications, Extensions of time, Relief from sanctions

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

TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS

October 29, 2018 · by gexall · in Appeals, Applications, Civil evidence, Expert evidence, Experts

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

COSTS & PROPORTIONALITY: ITS NOT ALL ABOUT THE MONEY: DEFENDANT’S COSTS WERE NOT DISPROPORTIONAL

July 10, 2018 · by gexall · in Assessment of Costs, Conduct, Costs, Proportionality

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

CLAIM FORM CASE IN THE COURT OF APPEAL: BAD LEGAL ADVICE NOT A GOOD REASON TO ALLOW SERVICE BY AN ALTERNATIVE METHOD

May 15, 2018 · by gexall · in Appeals, Service of the claim form, Serving documents

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

APPEALS, TIME, SERVICE, VENUE: A REAL PROCEDURAL HOTCHPOTCH – EVEN BEFORE THE MAIN ISSUE IS CONSIDERED

May 23, 2017 · by gexall · in Appeals, Applications, Relief from sanctions, Serving documents

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…

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