EXPERT EVIDENCE AS TO EARNINGS NOT NECESSARY (THOUGH NOT A CIVIL CASE): ASSESSMENT OF EVIDENCE IS THE JUDGE’S JOB NOT THE EXPERTS
I am trespassing into the area of family law to look at decision of Mr Justice Moor in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam). It is of general interest to civil lawyers because it involves the court considering whether expert…
STATUTORY INTEREST: THE AIM IS TO COMPENSATE NOT TO PUNISH
In Carrasco v Johnson [2018] EWCA Civ 87 the Court of Appeal considered the appropriate rate for statutory interest. It reiterates important principles in relation to the court’s discretion in deciding the appropriate rate for the award of interest. “… interest…
ACCEPT A PART 36 OFFER LATE AND PAY THE CONSEQUENCES: LITIGATION CAN BE A HARSH WORLD
I have been waiting for a while to see the transcript of the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ), some people have even written enquiring whether I have covered it. It is a…
COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD
The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts. It was the only time the claimants were successful. It involved an important procedural…
COURT OF APPEAL STATES INDEMNITY COSTS SHOULD HAVE BEEN AWARDED: SHOULD HAVE BEEN MORE BULLISH IN BRADFORD…
It is unusual for the Court of Appeal to interfere with a discretionary order in relation to costs. It is even more unusual for the court to replace an order for costs on the standard basis with indemnity costs. This…
AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
COST BUDGETING: THE CASES AND POSTS IN ONE PLACE
There is a specific section on relief from sanctions on this blog which links to all the posts and related cases on CPR 3.9. Here I am starting to do the same for costs budgeting. Here, however, I aim to…
SUMMARY JUDGMENT FOR THE DEFENDANT IN A FATAL ACCIDENT CASE: DODD -V- RAEBARN IN THE COURT OF APPEAL
I am grateful to my colleague Colm Nugent for supplying me with a copy of the judgment in Dodd -v- Raeburn [2017] EWCA Civ 439 *given today the Court of Appeal upheld an order giving summary judgment in a fatal…
GLADWIN & SANCTIONS – AN ANALYSIS 3: AN ADJOURNMENT SHOULD NOT HAVE BEEN GRANTED: A BLAMELESS CLIENT IS NOT A GET OUT OF JAIL FREE CARD
In Gladwin -v- Bogescu [2017] EWHC 1287 (QB) Mr Justice Turner overturned an order giving the claimant relief from sanctions following late service of the witness statement. In the third of the series looking at the case more closely we…
CHANGING FROM LEGAL AID TO CFA: THE COURT OF APPEAL DECISION
This blog has followed the cases that arose out of decisions to switch from public funding to legal aid. In Hyde -v- Milton Keynes NHS Foundation Trust [2017] EWCA Civ 399 the Court of Appeal has given a judgment that…
DAMAGES, COSTS AND MEDIATION: COURT OF APPEAL CONSIDERS THE BOUNDARIES
In the judgment today Gore -v- Naheed [2017] EWCA 369 the Court of Appeal considered the issue of damages being awarded (when they had not been claimed) and where costs should lie when a party – reasonably – declined to…
COURT OF APPEAL OVERTURNS FINDINGS OF FACT & CONSIDERS THE IMPORTANT ROLE OF THE SINGLE JOINT EXPERT
We have already looked at the decision in Perry -v- Raleys Solicitors [2017] EWCA Civ 314 in the context of the award of interest. The decision also contains important observations about evidence and the way in which the courts approach…
APPLICATIONS TO AMEND APPEAL NOTICE AND PARTICULARS AT A LATE STAGE NOT ALLOWED BY THE COURT OF APPEAL
I am grateful to Jill Greenfield from Field Fisher for sending me a copy of the Court of Appeal transcript in Howe -v- Motor Insurers Bureau (CA 8th February 2017). This is a judgment refusing permission to amend and for…
JUDICIAL INTERVENTION, INTERRUPTIONS AND HOT TUBBING: JUDICIAL LATITUDE IS NOT UNLIMITED
In Shaw -v- Grouby [2017] EWCA Civ 233 the Court of Appeal made some observations about the dangers of a judge getting too inquisitorial in the course of a trial, particularly in the course of cross-examination. “The judge intervened in…
RELIEF FROM SANCTIONS: COURT OF APPEAL ALLOWS APPEAL AND GRANTS RELIEF WHEN THE ORIGINAL ORDER WAS PRE-DENTON
It is surprising, perhaps embarrassing, that the Court of Appeal is still hearing appeals where the judge at first instance applied the pre-Denton approach to relief from sanctions. However a judgment today involved just that*. In Patterson -v- Spencer [2017]…
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…
HIGH COURT WRITES AN OPEN LETTER TO LITIGANTS IN PERSON: STRIKING OUT CAN BE A BENEFIT NOT A BURDEN
There are aspects of the judgment of Mr Justice Walker in Chambers -v- Rooney [2017] EWHC 285 (QB) that amount to an open letter from the High Court to litigants in person. Some of the observations are aimed at everyone…
MERRIX ON APPEAL TO THE HIGH COURT JUDGE: COSTS BUDGETING IS AS DEFINITIVE FOR PAYING PARTY AS IT IS FOR RECEIVING PARTY: JUDGMENT TODAY
In the judgment today in Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) Mrs Justice Carr allowed an appeal about the significance of costs budgeting when it comes to assessment. “In my judgment, the answer to…
SEXUAL ABUSE AND SECTION 33 OF THE LIMITATION ACT: COURT OF APPEAL OVERTURNS JUDGE’S ORDER
In Archbishop Michael George Bowen -v- JL [2017] EWCA Civ 82 the Court of Appeal overturned a judge’s decision under section 33 of the Limitation Act 1980. The judge had exercised the discretion in favour of the claimant. On appeal…
TRIAL JUDGE’S REJECTION OF EXPERT WITNESS CREDIBILITY UPHELD BY THE COURT OF APPEAL: IF AN EXPERT KNOWS A PARTY THEY SHOULD SAY SO
In EXP -v- Barker [2017] EWCA Civ 63 the Court of Appeal upheld the trial judge’s rejection of the evidence of an expert witness. “the starting point is to identify what the judge decided. He considered that the witness 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…
APPEALS, COUNTER-SCHEDULES AND A RESERVE POSITION: NOT MANNA FOR THE DEFENDANTS
We will be looking at the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 twice today. Here I want to look at the difficulties the defendant had in arguing a point in…
CIVIL COMMITTAL PROCEEDINGS: STILL A MATTER FOR GRAVE CONCERN
I have written several times about the problems in obtaining representation and funding for civil committal proceedings. The judgement of the Court of Appeal yesterday in Devon County Council -v- Kirk [2016] EWCA Civ 1221 exemplifies the difficulties and…
FUNDAMENTAL DISHONESTY FINDING SET ASIDE ON APPEAL
The judgment of His Honour Judge Hodge QC in Meadows -v- La Tasca Restaurants Limited [2016]EW Misc B28 (CC) (16 June 2016) is now available on Bailli. It contains some important observations about findings of fundamental dishonesty. “In my judgment,…
PROPORTIONATE COSTS IN A FAMILY CASE: £33,813 REDUCED TO £3,737.50
In K -v- K [2016] EWHC 2002 (Fam) Mr Justice Macdonald reduced the costs of a successful party to an appeal in a family case. “The stringent test of proportionality in relation to costs incurred applies with equal force in…
THAT JUDGE IS BIASED AGAINST ME, WE CAN'T GO ON: THE APPROPRIATE RESPONSE
As we have seen many times in this blog trial judges sometimes have to make robust findings of fact about the credibility of witnesses. In Howe -v- Gossop [2016] EWHC 2169 (Ch) His Honour Judge Behrens (sitting as a High…
QOCS & DISCONTINUANCE: ANOTHER CASE (WHERE THE CLAIMANT WAS SUCCESSFUL)
I am grateful to barrister James Bentley for drawing my attention to the judgment of Mr Recorder Berkley in Magon -v- Royal & Sun Alliance Insurance PLC (26th February 2016). Another decision in relation to QOCS and discontinuance. The District Judge…
FAILING TO FILE A COST BUDGET AND REFUSAL TO GRANT RELIEF FROM SANCTIONS: A HARSH LESSON
If a litigation solicitor is ever given the job of designing wallpaper here are the three key things that should form the recurring motif. The costs budget is due 21 days before the first case management conference. Where the claim…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
SWITCHING FROM LEGAL AID TO CFA: THE SUCCESSFUL APPEAL
The saga relating to the assessment of costs where a claimant changed from public funding to a conditional fee agreement has been dealt with many times on this blog*. All of these issues are now dealt with in the judgment…
PROVING THINGS 22: DAMAGES, MITIGATION , PART 36 (AND EVEN SOMETHING ABOUT BUNDLES)
The Court of Appeal decision today in Pawar -v- JSD Haulage Ltd [2016] EWCA Civ 551 contains some important lessons in relation to proving damages, mitigation of loss and Part 36 offers. “The fact that a claimant does not mitigate…
EXTENSION OF THE CLAIM FORM: A RARE SUCCESS FOR A CLAIMANT (BUT IT HAS GOT A LOT TO DO WITH CONDUCT)
Most cases relating to extensions of time for service for the claim form end badly for the claimant. The decision of Mr Justice Roth in The Khan Partnership LLP -v- Infinity Distribution Limited [2016] EWHC 1390 (Ch) is an exception….
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
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 REFUSAL TO SET ASIDE JUDGMENT AFTER DEFENDANT FAILED TO ATTEND TRIAL
Given the many strictures relating to the sanctity of the trial date the decision of the Court of Appeal in TBO Investments Ltd -v- Mohun-Smith [2016] EWCA Civ 403 may be viewed as a surprising one. The defendant failed to…
COSTS SHOULD NOT NORMALLY BE REDUCED WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: COURT OF APPEAL DECISION
|n Webb -v-Liverpool Women’s NHS Foundation Trust [2016]EWCA Civ 365 the Court of Appeal overturned an “issue based” decision on costs in a case where a claimant had beaten there own Part 36 offer. “It is a sad fact that…
COSTS BUDGET SERVED LATE: RELIEF FROM SANCTIONS ALLOWED ON APPEAL
In a judgment given today His Honour Judge Peter Gregory allowed an appeal against a decision to confine a claimant’s costs budget to court fees following late service of the costs budget. The case indicates that a more nuanced approach…
APPEAL COSTS ARE PAYABLE IMMEDIATELY: HIGH COURT DECISION
In Khaira -v- Shergill [2016] EWHC 628 (Ch) Richard Spearman QC (sitting as a Deputy Judge) held that costs ordered by the Supreme Court were payable forthwith and an assessment should not be stayed until the end of the case….
JUDICIAL BIAS AND THE ADVOCATE STANDING UP FOR THE CLIENT: AN INTERESTING EXAMPLE
There are some passages in the judgment of Mr Justice Singh in the Employment Appeal Tribunal decision of Nawaz -v- Docklands Buses Ltd Appeal No. UKEAT/0104/15/DM that go beyond the ambit of employment law and are of general application. “…he was,…
DISCLOSURE OF DEFENDANT'S SOLVENCY: ADVERSE ASSUMPTIONS CAN BE MADE IN THE ABSENCE OF EVIDENCE
The case of Sarpd Oil International Limited -v- Addax Energy SA [2016] EWCA Civ 120 related to the practice of awarding security for costs by an overseas company which did not have to file accounts. The case raises other points…
MONEY JUDGMENT SHOULD NOT HAVE BEEN GIVEN AFTER BREACH OF PEREMPTORY ORDER
In Rubin -v- Parsons [2016] EWHC 237 (Ch) Mr Justice Peter Smith considered the effect of breach of peremptory order in a case where the applicants were claiming much more complex relief. It shows that a much more calibrated approach…
THE JUDGE MUST GIVE REASONS FOR ADVERSE FINDINGS (PLUS A QUICK LOOK AT ALLEGED BIAS)
The previous post looked at a Court of Appeal decision where a judgment at first instance was set aside because of a failure to give reasons for disbelieving solicitors. Similar principles applied in the case of The Gulf Agencies Limited…
ALLEGATIONS OF DISHONESTY AGAINST SOLICITORS: CLEAR FINDINGS OF FACT MUST BE MADE
There have been two cases in the past few days where the Court of Appeal have overturned judgments because of a failure to give reasons for findings against solicitors. In Clydesdale Bank PLC -v- Workman [2016] EWCA Civ 73 findings…
SERVICE OF PROCEEDINGS WHEN THEY ARE PUT IN THE BIN: A HIGH COURT DECISION
In Morby -v- Gate Gourmet Luxembourg IV SARL [2016] EWHC 74 (Ch) Edward Murray (sitting as a Deputy Judge of the Chancery Division) considered an issue relating to personal service. “If facts are in dispute, absent special situations, it would…
VARYING JUDGMENT ENTERED BY CONSENT: CAUSATION, APPEALS AND "NEW" EVIDENCE
In Atkins -v- The Co-operative Group [2016] EWHC 80 (QB) Mr Justice Supperstone varied a consent order giving judgment for the claimant on liability. The appeal against the order was not made until six months after the judgment was entered….
SENDING THE FEE WITH THE APPLICATION: FAILURE CAN BE FATAL
I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor Limited (Birmingham County Court 2nd October 2015). “… there [are] numerous authorities…
CLARIFICATION OF A PART 36 OFFER HAS A MAJOR EFFECT ON COSTS
CPR 36.8 STATES “(1) The offeree may, within 7 days of a Part 36 offer being made, request the offeror to clarify the offer”. In Bailes -v- Bloom (23/11/2015, Simler J QBD)* the fact that clarification had been provided had…
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)…
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