FULL QOCS PROTECTION DOES NOT EXTEND TO “MIXED CLAIMS”: THE COURT HAS A DISCRETION: JUDGMENT ON APPEAL
In The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin) Mrs Justice Whipple held that a claim against the police for misuse of data, misfeasance in public office and misuse of private information, did not give rise…
COURT OF APPEAL DECISION ON CONSTRUCTION OF PART 36: IT IS NOT A PART 36 OFFER JUST BECAUSE THE PARTIES SAY SO: OFFERS CAN ONLY BE ASSESSED BY REFERENCE TO THE PLEADINGS
In Hertel & Anor v Saunders & Anor [2018] EWCA Civ 1831 the Court of Appeal upheld a decision that an offer made was not a valid Part 36 offer. It was held that a Part 36 offer had to be…
APPEALS, QOCS AND SET OFF: MORE ON THE DECISION IN CARTWRIGHT -V- VENDUCT: COURT OF APPEAL ALLOWED SET OFF OF APPEAL COSTS
I am grateful to Gary Brankin and Jeremy Rae of BC Legal for providing more information about the decision in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654, the court of Appeal decision on QOCS considered yesterday. This is a point on…
TOMLIN ORDER PREVENTS “SUCCESSFUL” DEFENDANT RECOVERING COSTS FROM CLAIMANT’S DAMAGES IN A QOCS CASE: BUT CHOOSE YOUR DEFENDANTS CAREFULLY
In Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 the Court of Appeal considered issues relating to the recoverability of costs in multi-defendant cases where the claimant would normally have the protection of qualified one-way costs shifting. The case provides…
PROVING THINGS 117: A DISHONEST POLICE OFFICER IS “MALICIOUS”: PROVING A CASE FOR MALICIOUS PROSECUTION AND MISFEASANCE IN PUBLIC OFFICE
In the judgment in Rees & Ors v Commissioner of Police for the Metropolis [2018] EWCA Civ 1587 the Court of Appeal overturned a finding that a police force was not liable for malicious prosecution and misfeasance in public office because…
“CHANGE IN THE LAW” JUSTIFIES EXTENSION OF TIME: DENTON CONSIDERED IN THE COURT OF APPEAL
The Denton principles were considered by the Court of Appeal in QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413. The fact that a subsequent judgment of the Supreme…
BRIEF FEE NOT TO BE ABATED BECAUSE OF VERY LATE SETTLEMENT: HIGH COURT DECISION TODAY
In Hugh Cartwright & Amin v Devoy-Williams & Anor [2018] EWHC 1692 (QB) Mrs Justice Nicola Davies MBE (sitting with an assessor) overturned a decision of a Master where counsel’s brief fee was reduced because the matter had settled the afternoon…
ERRORS BY YOUR OWN EXPERT ARE NOT GOING TO LEAD TO A WIN ON APPEAL: A KNOTTY SITUATION
In Network Rail Infrastructure Ltd v Williams & Anor [2018] EWCA Civ 1514 the Court of Appeal considered a “rather obscure” argument that an error by the appellant’s expert should lead to damages being reconsidered. “It would be quite wrong…
WHEN YOU THINK THE JUDGE HAS GIVEN INADEQUATE REASONS – BEST ASK THE TRIAL JUDGE BEFORE APPEALING
In Drury v Rafique & Anor [2018] EWHC 1527 (Ch) Mr Justice Birss gave important guidance to those thinking of appealing a judgment on the basis of inadequate reasons. It is dangerous for an appellant to appeal on this grounds without…
THE ASSESSMENT OF COSTS: LIABILITY FOR COSTS LAWYER’S ACTS: THE COURT OF APPEAL DECISION IN GEMPRIDE -v- BAMRAH
Yesterday I gave a short summary of the decision in Gempride Ltd v Bamrah & Anor [2018] EWCA Civ 1367. This is a case worth looking at in detail. The substantive case settled for £50,000 shortly after issue. The question of…
LATE APPLICATION TO AMEND DEFENCE RIGHTFULLY REFUSED: LATE APPLICATION TO AMEND NOTICE OF APPEAL ALSO GOT THE BARNSLEY CHOP
In First Tower Trustees Ltd & Anor v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 the Court of Appeal upheld a decision by the trial judge to refuse a late amendment to the defence. An application to amend the Notice…
CFA IS STILL VALID EVEN IF IT NAMES THE WRONG DEFENDANT: COURT OF APPEAL DECISION
In Malone v Birmingham Community NHS Trust [2018] EWCA Civ 1376 the Court of Appeal held that a Conditional Fee Agreement was valid even though it named the wrong defendant. The judgment contains important observations on how conditional fee agreements should…
ORDER FOR COSTS TO BE ASSESSED DOES NOT OUST FIXED COSTS: CIRCUIT JUDGE DECISION
I am grateful to Matthew Hoe of Taylor-Rose for sending me a copy of the decision of His Honour Judge Yelton in Bratek -v-Clark-Drain Limited (County Court at Cambridge 30th April 2018). A copy is available here Bratek v Clark-Drain Ltd…
INSURANCE COMPANY ENTITLED TO EXEMPLARY DAMAGES AGAINST FRAUDSTERS: COURT OF APPEAL DECISION TODAY
In Axa Insurance UK Plc v Financial Claims Solutions Ltd & Ors [2018] EWCA Civ 1330 the Court of Appeal held that an insurance company was entitled to exemplary damages against parties who had attempted to defraud it. “the present case…
AVOIDING THE TERMS OF A CONSENT ORDER: A CASE THAT HAS A LOT OF LESSONS FOR SOLICITORS: WHY A CONSENT ORDER MAY NOT BE WORTH THE PAPER ITS WRITTEN ON
The judgment in Riordan & Ors v Moon Beevor Solicitors (a firm) [2018] EWHC 1452 (QB) gives an interesting insight into the fallout from litigation – where the disgruntled client blames the solicitors. There are important lessons here about the drafting…
COURT HAS A DISCRETION AS TO COSTS TO AWARD WHEN CLAIMANTS UNREASONABLY EXIT THE PORTAL: CPR 36.20 IS NOT DECISIVE
I am grateful to solicitor Matthew Hoe of Taylor Rose TTKW for sending me a copy of the transcript in Ansell & Evans -v- A.T & T (GB) Holdings Ltd (County Court at Oxford 14/12/2017 HHJ Clarke). A copy is…
THE DANGER (FOR CLAIMANTS) OF LEAVING PART 36 OFFERS OPEN: CLAIM £125,000, GET £950
It is worthwhile for every litigator (and insurer) to take a quick read of the report on Hogg -v- Newton (Teeside County Court 18th May 2018) which is reported on DAC Beachroft’s website.* It shows the importance, to a claimant…
APPLICATION TO ADDUCE NEW EVIDENCE: COURT OF APPEAL WOULD NOT BE MOVED
In The National Guild of Removers & Storers Ltd v Bee Moved Ltd & Ors [2018] EWCA Civ 1302 the Court of Appeal refused the appellant’s application to adduce new evidence. It is a a case that highlights the difficulties of…
APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE
A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique. This was emphasised in the judgment of Miss Penelpe Reed QC in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018]…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
DEFENDANT NOT ENTITLED TO INDEMNITY COSTS IF PART 36 OFFER NOT BEATEN: SUCCESS ON COSTS APPEAL HAS MINUSCULE IMPACT ON OVERALL COSTS OF APPEAL
In Shalaby v London North West Healthcare NHS Trust [2018] EWCA Civ 1323 the Court of Appeal upheld the principle that a defendant is not entitled to indemnity costs simply because a claimant has not beaten a Part 36 offer. It…
PROVING THINGS 111: CAUSATION IN CLINICAL NEGLIGENCE CASES WHERE THERE IS A FAILURE TO WARN: BURDEN OF PROOF REMAINS ON THE CLAIMANT
The judgment of the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 deals with a number of matters. Here I want to look at the question of proving causation in a case where the…
PROVING THINGS 110: ASSESSING DAMAGES: “BEGIN WITH FIRST PRINCIPLES”: PROVING AND ASSESSING LOSS IN A CLAIM FOR PROFESSIONAL NEGLIGENCE
In Edwards v Hugh James Ford Simey (a firm) [2018] EWCA Civ 1299 the Court of Appeal overturned a finding that the claimant had not established causation for damages in a professional negligence action. When assessing damages the court should begin…
FUNDAMENTAL DISHONESTY ALLEGATION SHOULD HAVE GONE TO A HEARING: HIGH COURT DECISION: NO REQUIREMENT FOR EXCEPTIONAL CIRCUMSTANCES
In Alpha Insurance A/S v Roche & Anor [2018] EWHC 1342 (QB) Mrs Justice Yip found that the circuit judge should have allowed a claim of fundamental dishonesty to be heard. She allowed an appeal and held that the court should…
COURT OF APPEAL STATES THAT NO ORDER FOR COSTS IS THE APPROPRIATE ORDER: “THIS IS A MELANCHOLY TALE”
In Sirketi v Kupeli & Ors [2018] EWCA Civ 1264 the Court of Appeal overturned an order for costs in favour of the claimants with an order for no costs. It was, as Lord Justice Hickinbottom observed “a melancholy tale”. The…
PROVING THINGS 106: YOU DIDN’T COMPLY WITH YOUR OWN RISK ASSESSMENT AND YOU WANT TO APPEAL: COURT REJECTS DEFENDANT’S ARGUMENT THAT CLAIMANT FAILED TO PROVE CAUSATION
In CC v Leeds City Council [2018] EWHC 1312 (QB) Mr Justice Turner reiterates the importance of the risk assessment in personal injury litigation. On appeal the judge rejected an argument that a claimant had failed to prove causation. The defendant’s…
PROVING THINGS 105: BURDEN ON CLAIMANT TO PROVE A DEFECT: THE DIFFICULT TASK OF APPEALING FINDINGS OF FACT ON APPEAL
I am grateful to Matthew Snarr for sending me a copy of the judgment, given yesterday, in Bond -v- Tom Croft (Bolton) Ltd [2018] EWHC 1290 QB. It contains an important observation about the burden of proof in establishing that…
FINDINGS OF FUNDAMENTAL DISHONESTY SHOULD HAVE BEEN MADE BY TRIAL JUDGE: DEFENDANT’S APPEAL ALLOWED
The previous post dealt with a judgment of Mr Justice Martin Spencer overturning a judgment in favour of the claimant. The judgment in Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB) is in similar terms. Only on…
CLAIMANTS WERE NOT CREDIBLE: DEFENDANT’S APPEAL SUCCESSFUL: “THE DEFENDANT PRESENTED AN ANSWERABLE CASE THAT THE CLAIMANTS FAILED TO PROVE THEIR CASE”
In Richards & Anor v Morris [2018] EWHC 1289 (QB) the defendant was successful in appealing on the grounds that the trial judge should have made more robust findings from the lack of credibility on the part of the claimants. There…
COURT FEES AND STRIKING OUT: CROSS -v- BLACK BULL: PERMISSION TO APPEAL REFUSED
In January this year I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) 072 – Cross v Black Bull – Judgment.Where HH Judge Robinson allowed an appeal where the District Judge had struck out a case…
PROVING THINGS 103: CAUSATION WHEN THE CLAIMANT TRIED TO ESCAPE FROM A BALCONY: A TALE OF TWO JUDGMENTS
There is an interesting consideration of causation in the Court of Appeal judgment today in Clay v TUI UK Ltd [2018] EWCA Civ 1177. This has the flavour of a case that may go further. There is an interesting dissenting judgment…
I’M NOT TAKING A PLEADING POINT – BUT: FAILURE TO PUT A POINT IN CROSS-EXAMINATION NOT FATAL TO CLAIMANT’S CASE
The judgment in Auckland v Khan & Anor [2018] EWCA Civ 1148 is in short form. However it does illustrate the difficulties of appealing on “pleading points” and findings of fact. “There are certainly cases in which the failure to put…
PROVING THINGS 93: PROVING A WILL: THERE ARE SPECIFIC RULES THAT THE PARTIES SHOULD FOLLOW
I cannot remember the last time I read a case where the Court of Appeal heard evidence from witnesses (who had not been heard below) and made a request that it have sight of original documents. This is what happened…
IDENTIFYING THE SUCCESSFUL PARTY AND MAKING A COSTS ORDER: PARTIALLY SUCCESSFUL CLAIMANT’S APPEAL ALLOWED: DEFENDANT ORDERED TO PAY 60% OF THE COSTS.
In Wall v Munday [2018] EWHC 879 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) allowed an appeal in relation to costs. The judge at first instance had ordered the claimant to pay 80% of the defendant’s costs. That…
NO LUCK WHEN REACHING FOR THE SKY: LITIGANTS SEEKING A SECOND BITE OF THE CHERRY FROM THE TRIAL JUDGE GET SHORT SHRIFT
In an earlier post about the case of P (A Child), Re [2018] EWCA Civ 720 we looked at an example where the parties (all the parties in the case) had correctly used the guidance in English v Emery Reimbold and Strick Ltd [2002]…
LEAVE TO APPEAL, APPEAL NOTICES AND THE NEED TO APPLY TO AMEND: COMPLIANCE WITH THE RULES IS CRUCIAL: KNOW THE RULES
In Hickey v The Secretary of State for Work and Pensions [2018] EWCA Civ 851 the Court of Appeal set out, in categorical terms, that parties should comply with the provisions relating to permission to appeal. In particular a party cannot…
LIEN, THE SOLICITOR AND THE INSURER: NO SAFE HAVEN FOR DEFENDANTS
The judgment of the Supreme Court this morning in Gavin Edmondson Solicitors Ltd v Haven Insurance Company Ltd [2018] UKSC 21. It confirms that solicitors are entitled to costs in cases where the defendant’s insurer, knowing of the solicitor’s involvement, settled…
MAKING UNWARRANTED ASSERTIONS LEADS TO INDEMNITY COSTS – AGAINST A SECRETARY OF STATE
There are numerous cases where the courts have considered conduct that leads to indemnity costs. In Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 the Court of Appeal found that the Home Department’s conduct of an…
WHEN FACT FINDING GOES WRONG: APPEALS TO THE COURT OF APPEAL WHEN THERE ARE DELAYS BY THE JUDGE
I am going to leave it to the family law bloggers to analyse all the implications of the judgment in P (A Child), Re [2018] EWCA Civ 720. It involves all parties in a case agreeing that the fact finding process at…
YOU APPEAL DECISIONS NOT REASONS: PERMISSION TO APPEAL REFUSED IN RELATION TO AN ARGUMENT THAT DID NOT CHANGE OUTCOME OF THE CASE
In Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt rejected the defendant’s application for permission to appeal. The proposed appeal was wholly academic in the sense that it had no impact on the outcome of the case. THE…
APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT
On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It…
A DRAFT JUDGMENT IS NOT AN OPEN INVITATION TO TAKE A SECOND BITE AT THE CHERRY: AN OVERUSED TACTIC
In Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWHC 227 (TCC) Mr Justice Fraser made it clear that draft judgments were not to be taken as an invitation to the parties to embark on a second round of submissions….
MISTAKES, APPEALS, DENTON AND LITIGANTS IN PERSON: “JUDGES DIFFER, ONE FROM ANOTHER, IN SMALL, HUMAN, WAYS”
In EDF Energy Customers Ltd v Re-Energized Ltd [2018] EWHC 652 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) carried out a comprehensive review of the authorities relating to the latitude to be afforded to litigants in person. It…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
OVER-LISTING HAS CONSEQUENCES : (SO DOES TALKING OVER YOUR OPPONENT): HEARINGS SHOULD NOT BECOME A “SHOUTING MATCH”
There is a page on this blog where I am attempting to collate problems with listing (across all jurisdictions). The judgment reported today in A v R & Anor (Appeal of Summary Determination) [2018] EWHC 521 provides a reminder that listing…
CHANGING FROM LEGAL AID TO A CFA: JUDGMENT IN THE COURT OF APPEAL: DEFENDANTS’ APPEAL ALLOWED: ADDITIONAL LIABILITIES NOT RECOVERABLE
I am grateful to Sean Linley of PIC costings for sending me a copy of the Court of Appeal judgement in Surrey -v- Barnet and Chase Farm Hospitals NHS Trust [2018] EWCA Civ 451. This is the latest in the…
SKELETON ARGUMENTS: GET THE FONT SIZE RIGHT, AND THE LENGTH CORRECT: OR IT COULD COST YOU
The Administrative Court Clerks Users Group has sent out an email to many chambers in relation to the format of skeleton arguments. If you did not receive this it is worth reading. THE EMAIL: SIZE AND FONTS OF SKELETON ARGUMENTS…
THE DENTON PRINCIPLES: CAN YOU BLAME A REPRESENTATIVE? SHOULD LITIGANTS IN PERSON BE TREATED MORE LENIENTLY?
The Denton principles were considered by the First-Tier Tribunal Tax Chamber in Clarke v Revenue and Customs (PROCEDURE : Other) [2018] UKFTT 123 (TC). Here we look at two particular parts of the judgment: (i) the relevance of reliance on an…
COURT OF APPEAL UPHOLDS REFUSAL OF EXTENSION OF TIME IN FOREIGN JUDGMENTS CASE: JUDGMENT TODAY
A post in 2015 looked at the decision in In Christofi -v- National Bank of Greece (Cyprus) Ltd [2015] EWHC 986 (QB) Mrs Justice Andrews DBE held that there were very limited grounds for extending time in an appeal against the registration of…
COSTS ON APPEAL – TWO ISSUES: COSTS AWARDED WHERE THERE WAS NO SCHEDULE BELOW: INDEMNITY COSTS WHEN A PARTY HAD MADE AN OFFER TO COMPROMISE AN APPEAL
An earlier post dealt with the substantive decision in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017). A short supplementary judgment dealt with two issues as to costs. KEY POINTS The fact that a party did not have a…
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