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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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ANOTHER CASE OF DISCLOSURE OF AN EMBARGOED COURT OF APPEAL JUDGMENT: LIABILITY FOR CONTEMPT MAY BE STRICT, BUT IN THIS CASE NEED GO NO FURTHER

ANOTHER CASE OF DISCLOSURE OF AN EMBARGOED COURT OF APPEAL JUDGMENT: LIABILITY FOR CONTEMPT MAY BE STRICT, BUT IN THIS CASE NEED GO NO FURTHER

January 30, 2023 · by gexall · in Appeals, Committal proceedings, Conduct

In Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57 the Court of Appeal considered another case where the results a draft embargoed judgment was disclosed (although not the judgment itself).   Liability for the…

"INTERROGATION" OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY

“INTERROGATION” OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY

January 26, 2023 · by gexall · in Appeals, Civil Procedure

We have seen many cases relating to issues arising following the sending out of draft judgments.  Another example can be viewed in the Court of Appeal judgment today in C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38…

COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL

COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL

January 25, 2023 · by gexall · in Appeals, Case Management, Costs

In Wilkins v Serco Ltd [2023] EWHC 61 (KB) Mrs Justice Heather Williams rejected the defendant’s appeal in relation to allocation of a case for false imprisonment. She upheld a finding that the case would have been allocated to the…

COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT'S APPLICATION FOR PERMISSION TO APPEAL REFUSED

COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED

January 20, 2023 · by gexall · in Appeals, Applications, Assessment of Costs, Conduct, Costs

The judgment of Mr Justice Murray  in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…

COURT OF APPEAL JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH "MIXED" CLAIMS?

COURT OF APPEAL JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS?

January 20, 2023 · by gexall · in Appeals, Damages, Personal Injury

In the judgment today in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 the Court of Appeal (by a majority view) decided that the Civil Liability Act 2018 did not impact on the assessment of damages for…

PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS

PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS

January 18, 2023 · by gexall · in Appeals, Civil evidence, Statements of Truth, Witness statements

We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…

COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM

COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM

January 18, 2023 · by gexall · in Appeals, Civil Procedure, QOCS

In  Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”).  The claimant discontinued the action…

NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT'S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY

NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY

January 11, 2023 · by gexall · in Appeals, Conduct, Costs, Expert evidence, Experts

I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …

COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?

COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?

January 11, 2023 · by gexall · in Appeals, Assessment of Costs, Costs, Part 36

We are returning to the judgment of Mrs Justice Stacey in TRX v Southampton Football Club [2022] EWHC 3392 (KB).  The judge made some observations in relation to the costs of the assessment process.  In particular the interplay of CPR 47.20…

COST BITES 43: CLAIMANT'S COSTS INCURRED BEFORE CFA SIGNED WERE RECOVERABLE

COST BITES 43: CLAIMANT’S COSTS INCURRED BEFORE CFA SIGNED WERE RECOVERABLE

January 10, 2023 · by gexall · in Appeals, Assessment of Costs, Costs

In TRX v Southampton Football Club [2022] EWHC 3392 (KB) Mrs Justice Stacey considered a number of issues relating to costs.  One of those was the question of whether pre-CFA costs were recoverable. This required a close consideration of the…

A CLIENT DOES NOT OWE A "DUTY OF GOOD FAITH" TO A SOLICITOR ACTING UNDER A CONDITIONAL FEE AGREEMENT

A CLIENT DOES NOT OWE A “DUTY OF GOOD FAITH” TO A SOLICITOR ACTING UNDER A CONDITIONAL FEE AGREEMENT

August 10, 2022 · by gexall · in Appeals, Conditional Fee Agreements, Costs

In Candey Ltd v Bosheh & Anor [2022] EWCA Civ 1103 Lord Justice Coulson rejected an argument that a client, who has entered into a conditional fee agreement with a solicitor, owed a duty of good faith to that solicitor. …

A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON

A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON

August 10, 2022 · by gexall · in Abuse of Process, Appeals, Committal proceedings

In Nambiar v Solitair Ltd [2022] EWCA Civ 1135 the Court of Appeal held that an appeal against a committal order should be struck out as an abuse of process.  Prior to sentencing the appellant had issued an earlier, identical,…

"KAFKAESQUE" PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A "TANGLE" AND A "MUDDLE"

“KAFKAESQUE” PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A “TANGLE” AND A “MUDDLE”

August 5, 2022 · by gexall · in Access to justice, Appeals, Civil Procedure

In Anwer v Central Bridging Loans Ltd [2022] EWCA Civ 201 the Court of Appeal resolved procedural issues which it described as a “muddle” and “kafkaesque”.  The issue was a simple one of whether a litigant was entitled to transcripts…

PERSUADING THE JUDGE TO CHANGE THEIR MIND AFTER JUDGMENT CAN BE AN EXPENSIVE STEP: COURT OF APPEAL DECISION

PERSUADING THE JUDGE TO CHANGE THEIR MIND AFTER JUDGMENT CAN BE AN EXPENSIVE STEP: COURT OF APPEAL DECISION

August 4, 2022 · by gexall · in Appeals, Civil Procedure

We have looked, many times, at issues relating to procedure after the handing down of a draft judgment. The Court of Appeal judgment in George v Cannell & Anor [2022] EWCA Civ 1067 highlights one of the difficulties that arise. …

THERE IS NO OBLIGATION ON A CLAIMANT TO FILE A REPLY: THE BURDEN OF PROOF REMAINS WITH THE DEFENDANT

THERE IS NO OBLIGATION ON A CLAIMANT TO FILE A REPLY: THE BURDEN OF PROOF REMAINS WITH THE DEFENDANT

August 4, 2022 · by gexall · in Appeals, Civil evidence, Civil Procedure, Statements of Case

In Pistachios In the Park Ltd & Anor v Sharn Panesar Ltd [2022] EWHC 2088 (QB) Mr Justice Freedman pointed out that the appellant’s argument in relation to pleading and burden of proof ran contrary to the rules.  There is…

CLAIMANT FAILS TO GET AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: IN A CASE WHERE THE COURT HAD LOST THE FILE AND NOT SENT OUT A SEALED CLAIM FORM WITHIN THE FOUR MONTH PERIOD

CLAIMANT FAILS TO GET AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: IN A CASE WHERE THE COURT HAD LOST THE FILE AND NOT SENT OUT A SEALED CLAIM FORM WITHIN THE FOUR MONTH PERIOD

August 3, 2022 · by gexall · in Appeals, Service of the claim form

The judgment of Robin Vos (sitting as a Deputy Judge of the High Court) in Walton v Pickerings Solicitors & Anor [2022] EWHC 2073 (Ch), shows how strict the rules as to service of the claim form are.   The claimant…

COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL

COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL

July 29, 2022 · by gexall · in Appeals, Costs

In Turner & Ors v Thomas & Anor (Costs) [2022] EWHC 1944 (Ch) Mr Justice Zacaroli considered the appropriate principles to be applied as to costs when a defendant was not a party to an appeal made by a co-defendant….

THE IMPORTANT DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION TO SERVE A CLAIM FORM: "CLEAR WATER" BETWEEN THE TWO TESTS: COURT OF APPEAL OVERTURNS ORDER SETTING ASIDE A PROSPECTIVE APPLICATION FOR SERVICE

THE IMPORTANT DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION TO SERVE A CLAIM FORM: “CLEAR WATER” BETWEEN THE TWO TESTS: COURT OF APPEAL OVERTURNS ORDER SETTING ASIDE A PROSPECTIVE APPLICATION FOR SERVICE

July 27, 2022 · by gexall · in Appeals, Extensions of time, Service of the claim form

In ST v BAI (SA) Trading As Brittany Ferries [2022] EWCA Civ 1037  the Court of Appeal overturned a decision, itself made on appeal, where a prospective application to extend time for service of the claim form was set aside….

COST BITES 10:  COURT OF APPEAL UNHAPPY AT £730,000 BILL FOR ONE DAY APPEAL: HOURLY RATES ABOVE GUIDELINES HAVE TO BE JUSTIFIED, COUNSEL'S FEES MUST BE REASONABLE AND PROPORTIONATE

COST BITES 10: COURT OF APPEAL UNHAPPY AT £730,000 BILL FOR ONE DAY APPEAL: HOURLY RATES ABOVE GUIDELINES HAVE TO BE JUSTIFIED, COUNSEL’S FEES MUST BE REASONABLE AND PROPORTIONATE

July 26, 2022 · by gexall · in Appeals, Costs

In  Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061 the Court of Appeal were concerned about the level of costs being claimed in a one day appeal.  The…

COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A "SCORE DRAW" AND EACH SIDE GETS NO COSTS

COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A “SCORE DRAW” AND EACH SIDE GETS NO COSTS

July 25, 2022 · by gexall · in Appeals, Costs

In  United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor [2022] EWCA Civ 1026 the Court of  Appeal upheld a decision that there be no order for costs between the parties in judicial…

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