ROUTE OF APPEAL FROM COMMITTAL DECISIONS IN THE DIVISIONAL COURT: GO TO THE SUPREME COURT DIRECTLY
The observations at the end of the Divisional Court judgment in National Highways Ltd v Buse & Ors [2021] EWHC 3404 (QB) are of some interest. The Court held that the appropriate route to appeal committal decisions made in the…
THE SOLICITORS DISCIPLINARY TRIBUNAL CAN AWARD COSTS ON THE INDEMNITY BASIS: APPEAL ON THIS ISSUE COMPROMISED
In October 2020 I wrote about the case of SRA -v- Ahmud where the Solicitors Disciplinary Tribunal were highly critical of the steps taken by the SRA in investigating and bringing a claim alleging dishonesty. That case has a short coda in…
A DEFENDANT CAN RARELY (IF EVER) COMPEL A CLAIMANT TO JOIN OTHER DEFENDANTS TO AN ACTION: COURT OF APPEAL EXTRACTS CLAIMANT FROM A DIFFICULT SITUATION
In Pawley v Whitecross Dental Care Ltd & Anor [2021] EWCA Civ 1827 the Court of Appeal overturned an order that allowed a defendant to add additional defendants to a claim. Making such an order exposed the claimant to the…
SKELETON ARGUMENTS: NOT TOO LONG, NOT TOO SHORT: MISSIVE FROM THE HIGH COURT: THE IMPORTANCE OF GETTING THEM “JUST RIGHT”
In Overd & Ors v The Chief Constable of Avon And Somerset Constabulary [2021] EWHC 3100 (QB) Mr Justice Linden reminded advocates of the guidance relating to skeleton arguments. One was too long, the other too short. THE…
TRIALS ON PRELIMINARY ISSUES, CALDERBANK OFFERS AND COSTS: COURT OF APPEAL REJECT SUBMISSION THAT “WOULD REPRESENT THE ANTITHESIS OF GOOD POLICY” & “REWARD BAD BEHAVIOUR”
In the judgment in McKeown v Langer [2021] EWCA Civ 1792 the Court of Appeal rejected an argument that a Calderbank offer had the same effect as a Part 36 offer when a court was considering the issue of costs…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: “MAINTAINING THE LIE ALL THE WAY TO THE COURT OF APPEAL”
The Court of Appeal judgment in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766 contains an important discussion of the circumstances in which it is possible to bring a second action to set aside…
COURT OF APPEAL OVERTURNS DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS: COMMITTAL APPLICATIONS ARE NOT SUBJECT TO ANY SPECIAL RULES
In Loveridge & Anor v Loveridge [2021] EWCA Civ 1697 the Court of Appeal overturned a decision that should be no order for costs following the withdrawal of committal proceedings. The Court also allowed costs on the indemnity basis from…
MODERN SLAVERY AND THE LIABILITY OF AN INSURER: COURT REJECTS ARGUMENT THAT INSURERS ARE LIABLE TO INDEMNIFY “EMPLOYERS” IN MODERN SLAVERY CASE
In the decision today in Komives & Anor v Hick Lane Bedding Ltd & Anor [2021] EWHC 3139 (QB) Mrs Justice May refused the claimants’ appeal on the issue of whether an insurer was entitled to avoid an employer’s liability…
DENTON PRINCIPLES CONSIDERED IN APPLICATION TO APPEAL OUT OF TIME : PERMISSION GRANTED
In Kumar v Secretary of State for Business, Energy and Industrial Strategy & Anor [2021] EWHC 2965 (Ch) ICC Judge Barber considered the Denton principles in an application for permission to appeal out of time. The appellant’s application was granted….
COURT OF APPEAL GUIDANCE ON REDACTION OF DOCUMENTS: OBJECTIONS SHOULD BE MADE WELL AHEAD OF TRIAL
In Promontoria (Oak) Ltd v Emanuel & Ors [2021] EWCA Civ 1682 the Court of Appeal set out some guidance in relation to the approach of the courts when documents are redacted. In particular issues relating to redaction should not…
THE COURT OF APPEAL AND FAILURE TO PAY THE TRIAL FEE: RELIEF FROM SANCTIONS GRANTED EVEN THOUGH NO FORMAL APPLICATION WAS BEFORE THE COURT
In the judgment in Boodia v Yatsyna [2021] EWCA Civ 1705 the Court of Appeal allowed a decision that a Circuit Judge had made with a heavy heart. The judgment reviews the cases in relation to non-payment, or late payment,…
THE INTOXICATED PASSENGER AND ESTABLISHING CONTRIBUTORY NEGLIGENCE: COURT OF APPEAL DECISION
In Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 the Court of Appeal upheld a finding that a claimant could be contributory negligent even when drunk. However it is important that the facts of this case are looked…
SOLICITOR SHOULD NOT HAVE BEEN COMPELLED TO ATTEND COURT TO GIVE EVIDENCE IN A WASTED COSTS APPLICATION
In Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 the Court of Appeal overturned a decision that a solicitor should be compelled to attend court to give evidence in a wasted costs application. “Any requirement for a solicitor…
EXCEPTIONS TO THE FIXED COSTS REGIME: DEFENDANT’S APPEAL DISALLOWED: JUDGE ENTITLED TO FIND THAT EXCEPTIONAL CIRCUMSTANCES APPLIED
A case, newly arrived on BAILII today relates to whether a District Judge was correct to award costs outside the fixed costs regime. In Lloyd 2 Sisters Poultry Ltd (Costs) [2019] EW Misc 18 HHJ Howells refused a defendant’s appeal…
COURT OF APPEAL UPHOLDS DECISION NOT TO EXTEND TIME FOR COMPLIANCE WITH COURT ORDER: 28,000 CLAIMS BITE THE DUST
In the decision today in Jalla & Anor v Shell International Trading And Shipping Co. Ltd & Anor (Appeal 3: Refusal to Extend Time)[2021] EWCA Civ 1559 the Court of Appeal upheld a decision not to grant extensions of time…
INTERPRETERS, REMOTE HEARINGS AND A FAIR TRIAL: HIGH COURT APPEAL DECISION
In Gholizadeh v Sarfraz [2021] EWHC 2814 (Ch) Mr Justice Miles considered the issue of fairness when witnesses, giving evidence remotely, did not use a translator. We have a situation where the defendant’s representatives stated, openly, prior to trial that…
APPEAL WAS OUT OF TIME DUE TO FAILURE TO USE EFILING: A POINT TO WATCH
The judgment of Eason Rajah QC (sitting as a Judge of the Chancery Division)in Walker v The Official Receiver [2021] EWHC 2868 (Ch) highlights a problem with appeals in the Chancery Division. The appellant had problems because an appeal was to…
IN THE RUN UP TO HALLOWEEN: MISSIVES FROM THE BENCH: “THAT ONE’S HALF BLIND AND HALF DEAF. I CALL HIM THE COURT OF APPEAL”
In the run up to Halloween I thought I would repeat some of the “scary” posts on this blog. Here we look at a post from November 2018, a collection of Twitter comments about judicial interventions. “DJ Tynas at Macclesfield…
WHEN AT COURT MAKE SURE YOU CAN ALWAYS BE FOUND: PROMPTNESS, SETTING ASIDE AND CPR 39.3(5)
In Altaf & Ors v Close Brothers Ltd [2021] EWHC 2823 (QB) Mr Justice Fordham considered an application made by a defendant who left the court before the trial started. It highlights the importance of every litigant, once they arrive…
WHEN CAN A COURT TAKE ADDITIONAL LIABILITIES UNDER A CFA INTO ACCOUNT IN THE AWARD OF DAMAGES?
Another aspect of the Court of Appeal judgment in Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 was the Court of Appeal’s consideration of whether it was appropriate for the judge to take into account liabilities for costs under a…
WHY THE CIVIL PROCEDURE RULES COMMITTEE IS MORE APPROPRIATE THAN THE SUPREME COURT (FROM THE SUPREME COURT)
There is one passage in the Supreme Court judgment in Ho -v- Adelkun [2021] UKSC 43 that makes for interesting reading. The Supreme Court made it quite clear that, in procedural issues, the Civil Procedure Rules Committee is often a more…
THE CONSEQUENCES OF FAILING TO FILE AN ACKNOWLEDGMENT OF SERVICE: NO INJUSTICE WHEN A DEBARRED PARTY ATTENDED A TRIAL BY SKYPE: COURT OF APPEAL DECISION
In Hirachand v Hirachand & Anor [2021] EWCA Civ 1498 the Court of Appeal rejected an argument that a defendant, who had not filed an acknowledgement of service and had been debarred from taking part in the action, suffered injustice…
PROVING THINGS 217: WHEN AN ACCIDENT IS UNEXPLAINED: RES IPSA LOQUITUR CANNOT ASSIST
The problems of establishing liability when its cause is not certain are set out in the judgment of Mr Justice Robin Knowles in Savigar v Ainscough Crane Hire Ltd [2021] EWHC 2707 (QB). THE CASE The claimant suffered serious…
GRIFFITHS -V- TUI IN THE COURT OF APPEAL 3: THE CLAIMANT DID NOT HAVE A FAIR TRIAL: THE COURTS SHOULD NOT ALLOW LITIGATION BY AMBUSH: THE DISSENTING JUDGMENT
NB THE DECISION IN THIS CASE WAS OVERTURNED BY THE SUPREME COURT. THE SUPREME COURT ESSENTIALLY AGREEING WITH THE DISSENTING JUDGMENT OF BEAN LJ CONSIDERED IN THIS POST. THE SUPREME COURT DECISION IS DISCUSSED HERE. This is the third post…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL 2: THE OTHER GROUNDS OF APPEAL: AN EXPERT’S REPORT WITHOUT REASONING IS “ALL BUT WORTHLESS”
NB THE COURT OF APPEAL DECISION WAS SUBSEQUENTLY OVERTURNED BY THE SUPREME COURT – SEE THE DECISION HERE. This is the second post about the Court of Appeal decision in Griffiths v Tui (UK) Ltd [2021] EWCA Civ 1442. Here we…
GRIFFITHS -v- TUI IN THE COURT OF APPEAL (1): JUDGES AND EXPERTS: THE COURT IS NOT A RUBBER STAMP
NB THE COURT OF APPEAL DECISION IN GRIFFITHS WAS OVERTURNED BY THE SUPREME COURT, SEE THE DISCUSSION HERE. This is the first of a series of posts that consider the Court of Appeal judgment in Griffiths v Tui (UK) Ltd…
ASSESSING BILLS OF COSTS: GIVE DETAILS OF THE SIGNATORY AND OF THE FEE EARNERS OR YOUR BILL WILL STRUCK OUT: “AN OUNCE OF OPENNESS IS CHEAPER THAN ANY ARGUMENT”
I am grateful to solicitor Benjamin T Petrecz for drawing my decision to the judgment in Barking, Havering & Redbridge University Hospitals NHS Trust v AKC [2021] EWHC 2607 (QB) Mrs Justice Steyn (sitting with an assessor Master Brown) allowed…
INTERIM PAYMENTS WHEN THERE ARE A NUMBER OF DEFENDANTS: THE PRINCIPLES CONSIDERED BY THE COURT OF APPEAL
I am grateful to barrister Michael Lemmy for sending me a copy of the Court of Appeal judgment today in Buttar Construction Ltd -v- Arshdeep [2021] EWCA Civ 1408. The Court considered arguments about whether an interim payment should have…
MISSING WITNESSES: THE SUPREME COURT SAYS IT IS REALLY A MATTER OF COMMON SENSE
This blog has looked, many times, at the inferences that courts draw when witnesses do not give evidence at court. In Royal Mail Group Ltd v Efobi [2021] UKSC 33 the Supreme Court made it clear that the principles involved…
PEREMEPTORY ORDERS IN THE COURT OF APPEAL 2: MAKING CONCESSIONS AND PUTTING ALL YOUR EGGS IN ONE BASKET
There are twp other aspects of the Court of Appeal judgment in Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 that merit consideration. Firstly the claimant’s decision to make one application; the second related to concessions made…
CONSTRUING PEREMPTORY ORDERS: THE DATE FOR COMPLIANCE IS THE DATE FOR COMPLIANCE: COURT OF APPEAL DECISION
In Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 the Court of Appeal considered the construction of an “unless” order. It was held that the date for compliance on the order had to be construed as the…
JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK
In Elias & Anor v Blemain Finance Ltd [2021] EW Misc 15 (CC) HHJ Keyser QC overturned a decision allocation an action to the small claims track. The matter was re-allocated to the fast track. “… it seems to me…
DISCUSSIONS TO SELL LAND WERE WITHOUT PREJUDICE AND COULD NOT BE RELIED UPON AT HEARING: THE WITHOUT PREJUDICE RULE EXAMINED
In Windmill Holdings SPV Ltd v Adams & Anor (LAND REGISTRATION – ADVERSE POSSESSION – evidence) [2021] UKUT 228 (LC) The Upper Tribunal (Lands Chamber), Judge Elizabeth Cooke, upheld the decision of the First-tier tribunal excluding certain evidence on the…
NEW RULES COMING INTO FORCE ON THE 1ST OCTOBER 3: PERMISSION TO APPEAL FROM FIRST INSTANCE JUDGEAFTER ADJOURNMENT
The rules currently provide that application for permission to appeal to the judge who made the decision must be made to the lower court at the hearing at which the decision to be appealed was made. If an application is…
FATAL ACCIDENT DAMAGES: COURT OF APPEAL UPHOLDS WIDOW’S CLAIM TO DAMAGES BASED ON “PRACTICAL REALITY”
In Paramount Shopfitting Company Ltd v Rix [2021] EWCA Civ 1172 the Court of Appeal rejected a defendant’s appeal in relation to the assessment of damages awarded to a widow. The widow’s husband had run a successful business. The fact that…
RELIEF FROM SANCTIONS GRANTED ON APPEAL WHERE A PARTY FAILED TO PAY THE COURT FEE
In Silber v London Borough of Barnet (HOUSING – CIVIL PENALTY – case struck out by FTT for failure to pay the hearing fee – criteria for relief from sanctions) [2021] UKUT 206 (LC) the Upper Tribunal allowed an appeal…
“… THE JUDGE COULD NOT UNDERSTAND WHY EITHER SIDE WAS PROPOSING TO SPEND LARGE SUMS ON LITIGATION THAT APPEARED BOTH FUTILE TO BRING AND SENSELESS TO DEFEND”: COURT OF APPEAL DECISION ON SECURITY FOR COSTS
The decision of the Court of Appeal in Heathfield International LLC v Axiom Stone (London) Ltd & Anor [2021] EWCA Civ 1242 is about security for costs. The “mysteries” as to why the action was being brought and defended, played…
JUDGE ENTITLED TO FIND A CLAIMANT WAS NOT DISHONEST: IT MAY BE MORE BENEFICIAL TO DIRECT ATTENTION TO SOLICITOR RATHER THAN THE “HAPLESS CLIENT”
In Michael v I E & D Hurford Ltd (t/a Rainbow) [2021] EWHC 2318 (QB) Mrs Justice Stacey refused the defendant’s appeal in a case where the trial judge had found the claimant not to be fundamentally dishonest. The claimant…
MASTER WAS RIGHT TO SET ASIDE AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: ANOTHER CLAIMANT’S ACTION BITES THE DUST
The judgment of Mr Justice William Davis in Qatar Investment And Projects Holding Co & Anor v Phoenix Ancient Art S.A. [2021] EWHC 2243 (QB) adds to the many, many, cases on this blog that deal with the dangers relating…
EXTENSIONS OF TIME AND THE DENTON CRITERIA: WHEN IT IS UNSATISFACTORY FOR AN APPELLANT TO GO HUNTING
In Secretary of State for Work and Pensions & Anor v Hughes & Ors [2021] EWCA Civ 1093 the Court of Appeal were, shall we say, slightly unimpressed by an argument that a judge should have applied the Denton test…
DEFENDANT REFUSED PERMISSION TO WITHDRAW FROM AN ADMISSION: COURT OF APPEAL UPHOLDS DECISION OF HIGH COURT JUDGE
In J v A South Wales Local Authority [2021] EWCA Civ 1102 the Court of Appeal upheld an earlier decision refusing a defendant permission to resile from an admission. “There is no doubt that the checklist at paragraph 7.2 is…
DENTON, APPLICATIONS, THE COURT OF APPEAL AND THE ADMINISTRATIVE COURT: WHEN THE COURT TELLS YOU THAT SPECIFIC APPLICATIONS ARE NEEDED IT IS A GOOD IDEA TO MAKE THEM
In Mahmud, R (On the Application Of) v Upper Tribunal (Immigration and Asylum Chamber) [2021] EWCA Civ 1004 the Court of Appeal sent out a reminder that the need to comply with the Civil Procedure Rules extends to the Administrative…
“FOR THOSE WHO BELIEVE THAT MOST CIVIL LITIGATION DOES NOT END UP BEING ABOUT THE COSTS… LOOK AWAY NOW”: COURT OF APPEAL ON NON-PARTY COSTS ORDERS
In Goknur Gida Maddeleri Enerji Imalet Ithalat Ihracat Ticaret Ve Sanayi AS v Aytacli [2021] EWCA Civ 1037 the Court of Appeal upheld a judge’s decision not to make a non-party order against a director of a litigant company. The…
ROAD TRAFFIC ACCIDENTS, FIXED COSTS, A DECEASED CLAIMANT AND THE COURT OF APPEAL
In the judgment today in West v Burton [2021] EWCA Civ 1005 the Court of Appeal held that a case pursued by the estate of a deceased person was not subject to the fixed costs provisions of Section III of…
APPEAL COURT CANNOT IMPOSE COSTS CONDITION WHEN GIVING PERMISSION TO APPEAL IN SMALL CLAIMS TRACK APPEAL
The judgment of the Court of Appeal today in Smith v The Royal Bank of Scotland Plc [2021] EWCA Civ 977 highlights the fact that the small claims track is a “no costs” regime, even when matters reach the Court…
“THE SOMETIMES HARSH, EVEN BRUTAL, DEFAULT CONSEQUENCES OF 36.17 MUST BE APPLIED IN THE PRESENT CASE”: RECOVER £10 IN DAMAGES AND STILL GET COSTS ON THE INDEMNITY BASIS
In Shah & Anor v Shah & Anor [2021] EWHC 1668 (QB) Mrs Justice Collins Rice upheld the decision of the trial judge that the defendants should bear the normal Part 36 consequences when the claimants had made a Part…
THE USE OF EXPERT WITNESSES TO CONSTRUE EUROPEAN DIRECTIVES AFTER BREXIT: HOW THE COURT WORKS WITH “ONE OR BOTH HANDS TIED BEHIND ITS BACK”
In Greenaway v Parrish & Ors [2021] EWHC 1506 (QB) Mr Justice Martin Spencer considered the “nightmare position” the courts are now in as a result of the European Union (Withdrawal) Act 2018 in relation to interpreting European Directives. This…
COURT REFUSED PERMISSION TO SERVE RESPONDENT’S NOTICE LATE: DENTON PRINCIPLES APPLIED
There is a separate aspect of the decision of Mr Justice Lavender in SGI Legal LLP v Karatysz [2021] EWHC 1608 (QB) that warrants attention, the judge’s refusal to extend time for service of a respondent’s notice. “The purpose of a…
ARGUING THAT A CONVICTION FOLLOWING A GUILTY PLEA WAS WRONG: GUIDANCE FROM THE COURT OF APPEAL
In Munir v Revenue And Customs [2021] EWCA Civ 799 the Court of Appeal considered the steps available to a litigant who wished to argue that a criminal conviction was erroneous. In particular a litigant most probably needs to waive…
APPLICATIONS BY EMAIL: JUDGES SHOULD BE ALERT AND THE PROCESS PROCEDURALLY FAIR: COURT OF APPEAL DECISION
There are some case where the parties attempt to litigate by correspondence, particularly correspondence with the court. Letters and emails proliferate, with no real structure. The rules of evidence, and the difference between “facts”, “arguments” and “submissions” are usually entirely…
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