ADJOURNMENT OF TRIAL ON THE GROUNDS OF ILL-HEALTH: COURT OF APPEAL OVERTURNS DECISION THAT HEARING SHOULD GO AHEAD: A TRIAL SHOULD BE “FAIR IN ALL THE CIRCUMSTANCES”
“Applying for an adjournment on the grounds of ill health” is a common (indeed one of the most common) search terms that leads people to this blog. It is unusual to see a Court of Appeal decision on this issue….
USING PART 8 PROCEEDINGS INSTEAD OF APPEALING IS AN ABUSE OF PROCESS: A TAXING ISSUE OF SOME INTEREST
In Revenue And Customs v MCX Dunlin (UK) Ltd [2021] EWCA Civ 186 the Court of Appeal held that the use of Part 8 proceedings, rather than a statutory route of appeal was an abuse of process. “… it seems…
WHEN A SOLICITOR SAYS “BURN IT” IN RELATION TO DOCUMENTS THIS GIVES RISE TO A PRIMA FACIE ISSUE OF CONTEMPT OF COURT: COURT OF APPEAL DECISION TODAY
In the judgment today in Ocado Group PLC & Anr v McKeeve [2021] EWCA Civ 145 the Court of Appeal overturned a decision that the court should not allow an application for contempt of court against a solicitor to proceed….
IF A DEFENDANT IS BEING SUED FOR TOO MUCH MONEY THEN IT SHOULD USE PART 36: COURT OF APPEAL OVERTURN DECISION THAT THERE SHOULD BE NO ORDER FOR COSTS
In Global Energy Horizons Corporation v Gray [2021] EWCA Civ 123 the Court of Appeal overturned a decision that there be no order for costs. The fact that the claimant had succeeded on a fraction of its claim was not…
TAKING APPROPRIATE STEPS WHEN A DEFENDANT DOES NOT HAVE CAPACITY: AN IMPORTANT WARNING
A real and profound warning about the dangers of issuing against someone without capacity is given in the judgment of HHJ Hodge QC sitting as a judge of the High Court in Kumar v Hellard [2021] EWHC 181 (Ch). …
BLOATED DRAFT GROUNDS OF APPEAL AND RELENTLESS DOCUMENTARY ATTRITION: NOT A GOOD START WHEN SEEKING PERMISSION TO APPEAL
The judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC) sets out the judge’s concerns in relation to the over-lengthy documents filed in support of an application for…
SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN’T “WAIT AND SEE”
There is an interesting history in the judgment of Mr Justice Saini in in Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB). It is a case that is an object lesson in the stringent requirements…
AN INTERESTING CASE IN THE COURT OF APPEAL: NO INTEREST AWARDED ON DAMAGES FOR MALICIOUS PROSECUTION AND FALSE IMPRISONMENT
In Rees v Commissioner of Police of the Metropolis [2021] EWCA Civ 49 the Court of Appeal upheld a decision not to award interest on damages for damages for malicious prosecution and misfeasance in public office. THE CASE The claimant…
PROVING THINGS 201: THE WHITE LION HOTEL CASE AND PROVING BREACH OF DUTY BY AN OCCUPIER
In the judgment in The White Lion Hotel (A Partnership) v James [2021] EWCA Civ 31 the Court of Appeal set out some importance principles in relation to claims based on the Occupiers’ Liability Act 1957. The court upheld a…
LAWFULNESS OF DAMAGES BASED AGREEMENTS UPHELD BY THE COURT OF APPEAL
In a judgment given today the Court of Appeal upheld the decision at first instance in the judgment of HHJ Parfitt (sitting as a High Court Judge in Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch). THE COURT OF APPEAL JUDGMENT In…
PROVING THINGS 194: PROVING CAUSATION IS AN ESSENTIAL ELEMENT OF A CLAIM IN NEGLIGENCE
The judgment of Mrs Justice Foster in Norfolk County Council v Durrant [2020] EWHC 3590 (QB) illustrates how it is essential for a claimant to prove causation in a case based on negligence. It also highlights the need to consider,…
MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION
In IC v RC [2020] EWHC 2997 (Fam) Mrs Justice Knowles had to consider the Denton criteria and the slip rule. It also serves as an important warning to anyone undertaking the task of drafting a court order. “I…
THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL’S JUDGMENT IN O’CONNELL
Draft judgments are often sent to parties in advance, but sent out on an “embargoed” basis – not to be disclosed until after the date they are formally handed down. Recent comments on Twitter leads me to think that this…
UNSUCCESSFUL APPEAL AGAINST JUDGE’S DISCRETION TO EXERCISE S.33 DISCRETION IN FAVOUR OF A CLAIMANT: DECISION TODAY
In Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) Mr Justice Saini dismissed a defendant’s appeal when a trial judge had allowed the claimant’s application under Section 33 of the Limitation Act 1980. This judgment highlights…
CHALLENGING FINDINGS OF FACT NOT APPEALING TO THE COURT OF APPEAL: PROPOSED RESPONDENT MAY BE ABLE TO HAVE A SAY IN AN APPLICATION FOR PERMISSION TO APPEAL BASED ON FINDINGS OF FACT
In Gray v Global Energy Horizons Corporation [2020] EWCA Civ 1668 the Court of Appeal expressed severe reservations about permission to appeal findings of fact having been granted. The judgment indicates that, where findings of fact are challenged, the responding…
CIVIL PROCEDURE ROUND UP: BLOG AND ARTICLES ROUND UP: NOVEMBER 2020
This round up covers specific posts and articles in relation to civil procedure from November 2020. COSTS ACL – Lacuna identified in criminal legal aid rules for civil committal proceedings ACL – QOCS does not apply to pre-issue applications, court rules ACL…
HOURLY RATES ALLOWED SHOULD BE INCREASED, AT LEAST, BY INFLATION: APPEAL AGAINST SUMMARY ASSESSMENT OF COSTS ALLOWED.
I am grateful to Sean Linley for drawing my attention to the judgment of HHJ Hodge QC in Cohen v Fine & Ors [2020] EWHC 3278 (Ch).That judgment has some interesting things to say in relation to current hourly rates…
“WHEN MUST AN UNSUCCESSFUL LITIGANT ACCEPT “NO” FOR AN ANSWER?”: COURT OF APPEAL DECISION
In Wingfield, R (on the application of) v Canterbury City Council & Anor [2020] EWCA Civ 1588 the Court of Appeal considered the provisions of CPR 52.30 which provide an extremely limited chance of persuading a court to reconsider a…
PROVING THINGS 188: PROVING A WARNING WOULD HAVE MADE A DIFFERENCE: PEDESTRIAN HIT BY CRICKET BALL LOSES CASE ON APPEAL
In Lewis v Wandsworth London Borough Council [2020] EWHC 3205 (QB) Mr Justice Stewart overturned a decision in favour of claimant who had been struck by a cricket ball whilst walking near a cricket pitch. “… the defendant was…
PROVING THINGS 187: THE CAMERA MAY LIE: THE IMPORTANCE OF DATES ON PHOTOGRAPHS
Today we are journeying into the Family Court to look at the judgment of Mrs Justice Judd in K v G [2020] EWHC 3209 (Fam). It shows the importance of obtaining metadata in relation to documents. In this case the…
APPEALS, ISSUES OF FACT AND SAILING IN DIFFERENT OCEANS IN THE COURT OF APPEAL: CLINICAL NEGLIGENCE DECISION TODAY
In Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors [2020] EWCA Civ 1523 the Court of Appeal reiterated the difficulties faced by an appellant attempting to argue that the judge had erred in relation to findings of the…
CLAIMANT’S CASE STRUCK OUT BECAUSE IT SAID TWO CONTRADICTORY THINGS: “JANUS-FACED” PLEADINGS NOT ALLOWED
The judgment of Mr Justice Marcus Smith in Betesh Partnership -v- Evans [2020] EWHC 1589 (QB) contains interesting observations on the need for a claimant to plead a case that is not inconsistent. I am working and citing from the…
FUNDAMENTAL DISHONESTY, APPEALS AND RELIEF FROM SANCTIONS: CLAIMANT’S PROPOSED APPEAL COMES TO GRIEF
The judgment of Mr Justice Lavender in Kamara v Builder Depot Ltd [2020] EWHC 3046 (QB) contains a catalogue of material in relation to procedural issues and appeals. However, here, I want to concentrate upon the issues relating to fundamental…
COURT OF APPEAL CONSIDERS AWARD FOR AS TO COSTS ON ACCOUNT: WHAT IS A “REASONABLE SUM”? (£325,000 IN THIS CASE)
In Mousavi-Khalkali v Abrishamchi & Anor [2020] EWCA Civ 1493 we have a rare case of the Court of Appeal considering an appeal on an order that a party pay a sum on account of costs. THE CASE The Court…
SWIFT -v- CARPENTER: THE SUBSEQUENT COSTS JUDGMENT: AN ADDITIONAL £65,095.65; INDEMNITY COSTS & INCREASED INTERESTS: THE WISDOM OF MAKING A PART 36 OFFER WHEN APPEALING
On the day when it is announced that the Court of Appeal refused permission to appeal in the case of Swift -v- Carpenter it is interesting to look at the subsequent judgment on costs given today in Swift v Carpenter…
THE DANGERS OF APPLYING FOR NON-PARTY COSTS ORDERS: THE APPLICANT HAS TO PAY THE PRICE: COURT OF APPEAL DECISION TODAY
In the judgment today in Deepchand & Anor v Sooben [2020] EWCA Civ 1409 the Court of Appeal overturned a decision that there be no order for costs when a party made an unsuccessful application for a non-party costs order. …
PART 36: JUDGE WAS WRONG NOT TO ALLOW ENHANCED INTEREST WHEN CLAIMANT BEAT ITS OWN OFFER: COURT OF APPEAL DECISION
In the judgment today in Telefonica UK Ltd v The Office of Communications [2020] EWCA Civ 1374 the Court of Appeal overturned the decision of the trial judge not to award additional interest on damages and costs in a case…
SOLICITOR’S FEES NOT RECOVERABLE AFTER THEY HAD TERMINATED THE CONDITIONAL FEE AGREEMENT: HIGH COURT DECISION
In Toms (t/a Goldbergs Solicitors) v Brannan [2020] EWHC 2866 (QB) Mr Justice Griffiths dismissed a solicitor’s appeal against a decision that he was not able to recover costs from a client after a conditional fee agreement had been terminated….
CLAIMANT IN LOW-VALUE PERSONAL INJURY CASE NOT ENTITLED TO RELY ON EXPERT REPORTS WHEN PROTOCOL NOT COMPLIED WITH: JUDGMENT ON APPEAL
In Mason -v- Laing (Bradford County Court 20th January 2020 Mason v Laing) HHJ Gosnell held that a claimant that failed to comply with the requirements as to instructing experts prior to a Stage 3 hearing could not rely on…
IF YOU FIGHT AN “ALL OR NOTHING CASE” THEN YOU CAN’T COMPLAIN IF YOU GET NOTHING
In Amin v Amin & Ors [2020] EWHC 2675 (Ch) Mr Justice Nugee made an important observation about the way in which parties present their case. It may benefit some litigants to put their case on an alternative basis. THE…
THE CARPENTER DECISION: THE BASIC PRINCIPLES: FAIR DAMAGES “NOT A PENNY MORE BUT NOT A PENNY LESS”
I have written before about how judges regularly go back to the basic principles of damages when faced with challenging issues in relation to personal injury damages. To a large extent this happened in the Court of Appeal decision in Swift…
TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADDUCE LATE WITNESS STATEMENT
In Bromford Housing Association Ltd v Nightingale [2020] EWHC 2648 Mr Justice Cavangh upheld a decision not to allow a claimant in possession proceedings to adduce evidence late. In a “rolled up” hearing he dismissed the claimant’s application for permission…
WE LOST, BUT WE STILL WANT 90% OF OUR COSTS: CLAIMANT’S UNSUCCESSFUL APPEAL: A DEVELOPING FIELD OF LAW?
The judgment of Mr Justice Miles in Terracorp Ltd v Mistry & Ors (Rev 1) [2020] EWHC 2623 (Ch) contains an interesting review of the principles relating to costs where a party has failed on a number of issues. It…
EMPLOYER’S LIABILITY AND THE PRACTICAL JOKER: THE “LOWEST FORM OF HUMOUR” DOES NOT LEAD TO VICARIOUS LIABILITY
In Chell v Tarmac Cement And Lime Ltd [2020] EWHC 2613 (QB) Mr Justice Martin Spencer upheld a decision that an employer was not vicariously liable for a practical joke in the workplace. “The practical joke must be the lowest…
“A MOST UNUSUAL CASE”: “A JUDGE’S DRAFT JUDGMENT IS NOT AN INVITATION TO TREAT”
In FS v RS and JS [2020] EWFC 63 Sir James Munby warned against trying to re-open cases after judgment has been given. There were several attempts to re-open the judgment after it was given. It is the only judgment…
FUNDAMENTAL DISHONESTY AND WASTED COSTS AGAINST A SOLICITOR: THE BURDEN IS ON THE APPLICANT TO PROVE CAUSATION
The judgment of Mrs Justice Lambert in Razaq v Iqbal & Ors [2019] EWHC 3924 (QB) provides an interesting example of a failure to prove causation in a wasted costs application. A solicitor had been negligent in failing to pass…
VIDEO EVIDENCE NOT ALLOWED AT TRIAL: APPEAL AGAINST REFUSAL DISMISSED: A “STORM IN A TEACUP”
In Wilcox v King’s College Hospital NHS Foundation Trust [2020] EWHC 2555 (QB) Mrs Justice Lambert dismissed an appeal against a refusal by a defendant to allow video evidence to be adduced at trial. The evidence was not relevant and…
FATAL ACCIDENT: LEGAL COSTS OF ATTENDING INQUEST WERE RECOVERABLE: THE DANGERS TO DEFENDANTS OF MAKING AN EQUIVOCAL “ADMISSION”
In the judgment today in Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) HHJ Pearce upheld a decision that the legal costs incurred in attending an inquest were recoverable as costs in a subsequent action for…
THE DIFFICULTY IN APPEALING A DENTON TYPE DECISION
The second issue in judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) was whether the appellant was able to appeal the District Judge’s refusal to grant relief…
UNSUCCESSFUL APPEAL “TO ESTABLISH THE LIBERTY OF INEBRIATED ENGLISH SUBJECTS TO BE ALLOWED TO LIE UNDISTURBED IN THEIR OWN VOMIT SOAKED CLOTHING”
In Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB) Mr Justice Turner dismissed the claimant’s appeal. The claimant complained that police officers had removed her outer clothing and provided her with dry clothing at a time when…
JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADJOURN AND NOT TO ALLOW SINGLE WITNESS IN PLACE OF JOINT WITNESS: HIGH COURT DECISION TODAY
In Hinson v Hare Realizations Ltd (2) [2020] EWHC 2386 (QB) Mr Justice Martin Spencer refused a claimant’s appeal where it was argued that a trial judge should have adjourned a trial and given the claimant permission to rely on…
THE TREATMENT OF EXPERT EVIDENCE AND APPEALS: ANOTHER CASE WHERE A JUDGMENT IN FAVOUR OF A DEFENDANT IS OVERTURNED
There has been much online discussion about the impact that the decision in Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) will have in relation to food poisoning cases and more generally. That case related specifically to the treatment of…
WHEN SHOULD A LITIGATION FRIEND BE LIABLE FOR COSTS? INTERESTING COURT OF APPEAL DECISION
In Glover v Barker & Ors [2020] EWCA Civ 1112 the Court of Appeal overturned a decision where costs were awarded against a litigation friend. It is a particularly important judgment for those acting as litigation friends for defendants. THE…
LEXLAW -v- ZUBERI: PERMISSION TO APPEAL GRANTED
I wrote in July about the decision in Lexlaw Ltd v Zuberi [2020] EWHC 1855 (Ch) (10 July 2020) in relation to the validity of a damages based agreement. Practitioners may like to know that permission to appeal has been granted by…
EXPERT EVIDENCE UNDER THE MICROSCOPE: THE TRIAL JUDGE CANNOT OVERTURN CONCLUSIONS OF A “UNCONTROVERTED” EXPERT: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED BY THE COURT OF APPEAL. THE COURT OF APPEAL JUDGMENT IS CONSIDERED HERE. In Griffiths v TUI UK Ltd [2020] EWHC 2268 (QB) Mr Justice Martin Spencer considered the question of the approach of…
PROVING THINGS 181: THE ART GALLERY, THE MILKMAN AND THE 1992 REGULATIONS…
It is rare for this blog to look at Scottish cases. However the judgment of the Sheriff Appeal Court in APPEAL BY ANDREW WRIGHT v NATIONAL GALLERIES OF SCOTLAND [2020] ScotSAC Civ 6 raises an issue that is common to…
PROVING THINGS 178: PROVING PREJUDICE: THE NEED FOR SPECIFIC EVIDENCE
There is another aspect of the Court of Appeal decision in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 that justifies closer examination. That is the court’s observations on the judge’s finding of prejudice. The Court of Appeal…
RELIEF FROM SANCTIONS ALLOWED WHEN JUDGE HAD RESERVATIONS AS TO WHETHER STRIKING OUT ORDER SHOULD EVER HAVE BEEN MADE
In Barakat v Greycourt Ltd [2020] EWHC 643 (Ch) Mr Justice Fancourt granted relief from sanctions to an appellant whose appeal had been struck out without notice. One thing of note in this judgment is the order striking out the…
HIGH COURT JUDGE OVERTURNS FINDING THAT THERE WAS NO FUNDAMENTAL DISHONESTY: CLAIMANT HAS TO PAY DEFENDANT’S COSTS
In Pegg v Webb & Anor [2020] EWHC 2095 (QB) tMr Justice Spencer overturned a finding of a trial judge that a claimant had not been fundamentally dishonest. The claimant had been dishonest in the failures to give full disclosure…
USING RTA PROTOCOL AND PART 8 PROCEDURE INAPPROPRIATELY DID NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
The Court of Appeal today gave judgment in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 and overturned the decision to strike out an action because it had been issued inappropriately using the portal and Part 8…
You must be logged in to post a comment.