DUTY TO DRAW ADVERSE AUTHORITIES TO THE ATTENTION OF THE COURT: HOW FAR DOES IT GO?
The duty to draw the court’s attention to authorities that do not support your case is an important one. In Weir -v- Hildson [2017] EWHC 983 (Ch) Mr Justice Nugee discusses the extent of this duty. THE CASE The applicant…
THE PERILS OF LEAVING ISSUE TO THE LAST MINUTE: CLAIM AGAINST SOLICITORS WAS STATUTE BARRED – AMENDMENT DISALLOWED: ADDITION IS NOT A SUBSTITUTION
The judgment of the Court of Appeal yesterday in Godfrey Morgan Solicitors (a firm) -v- Armes [2017] EWCA Civ 323 illustrates the danger of late issue of proceedings. Issue was left until the last day. An additional defendant was added…
MERRIX NOT BEING APPEALED (BUT HARRISON IS – WATCH THIS SPACE)
The decision in Merrix -v- Heart of England NHS Foundation Trust [2017] EWHC 346 (QB) is not being appealed by the defendant. The rationale is, apparently, that the defendant did not want to risk losing the listing of the appeal in Harrison…
MEDIATION AND LITIGATION: ANOTHER EXAMPLE OF THE DANGERS OF IGNORING OFFERS TO MEDIATE
This blog reports regularly on cases where the courts have highlighted the advantages of mediation and the dangers of rejecting an offer to mediate. The latest note of cautious comes from the judgment of Lord Justice Jackson in Thakkar -v-…
DELAY, DENTON, APPEALS AND CROSS-APPEALS: EXTENSION OF TIME WOULD HAVE BEEN GRANTED
In Pinisetty -v-Manikonda [2017] EWHC 838 (QB) Mr Justice Langstaff considered an issue relating to an appeal (and cross-appeal) being out of time. Although the judgment on this issue is largely academic (the appeal failed in any event), it contains…
RELIEF FROM SANCTIONS GRANTED TO DEFENDANT WHO APPEARED BY COUNSEL: A “SURPRISING STATE OF AFFAIRS” PUT RIGHT
There may well be a term for the process by which a number of decisions, which appeared sensible at the time they were made, lead to a ridiculous result. This principle may well apply to what happened in Falmouth House…
THE TRIAL JUDGE AND FINDINGS OF FACT: COURT OF APPEAL DID NOT OVERTURN FINDINGS OF TRIAL JUDGE
A disappointed insurer failed in its attempt to overturn findings of a trial judge in Hamid -v- Khalid [2017] EWCA Civ 201. “The task of a trial judge is difficult enough without having to deal expressly with every single piece…
INTERIM PAYMENTS ON ACCOUNT OF COSTS: READ (AND CITE) THE CORRECT CHAPTER OF COOK ON COSTS
I am grateful to John McQuater for sending me a copy of an order from HH Judge Robinson, It relates to an application on account of costs. The appeal was (for obvious reasons) compromised. However the robust terms of the…
A JUDGE CANNOT GIVE PERMISSION TO APPEAL AFTER THE HEARING: MONROE -v- HOPKINS – SECOND ROUND
The case of Monroe -v- Hopkins [2017] EWHC 645 (QB) is the second judgment on the case. The judgment today related solely to the defendant’s application for permission to appeal. The judge ruled that he did not have jurisdiction to…
RELIEF FROM SANCTIONS GRANTED AFTER SECRETARY OF STATE RELIED UPON AN OUTDATED REFERENCE IN THE WHITE BOOK
In AM (Pakistan) -v- Secretary of State for the Home Department [2017] EWCA Civ 180 the Court of Appeal granted relief after an appeal was filed late. The appellant had relied upon an out of date commentary in the white…
ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS
In Dove -v- London Borough of Havering [2017] EWCA Civ 156 the Court of Appeal considered a number of procedural issues prior to giving judgment on the substantive point. The defendants argued that they should have been granted an adjournment of…
APPEAL JUDGE OVERTURNS FINDINGS OF KNOWLEDGE IN AN ACTION AGAINST THE MIB
In Whyatt -v- Powell & the Motor Insurers Bureau [2017] EWHC 484 (QB) Mr Justice Lewis overturned the findings of the trial judge that three claimants had knowledge that a driver was not insured. The judgment considers what inferences a…
LATE SKELETON ARGUMENTS, ADJOURNMENTS AND THE OVERRIDING OBJECTIVE
In Owgilo -v- The General Medical Council [2017] EWHC 419(Admin) Mr Justice Dove considered the situation when a witness statement was served late and the applicant requested an adjournment. The overriding objective played a prominent part in the decisions made….
WHAT A DIFFERENCE A DAY MAKES: ACTION BROUGHT IN TIME: COURT’S EARLIER REFUSAL TO EXTEND DISCRETION TO EXTEND TIME OVERTURNED
The judgment of the Court of Appeal in Otuo -v- Watchtower Bible and Tract Society of Britain [2017] EWCA Civ 136 shows the importance of calculating time periods for limitation. It shows what a difference a day makes KEY POINTS…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
ORAL CLOSING SUBMISSIONS ARE IMPORTANT: USE OF WRITTEN SUBMISSIONS IS “UNSATISFACTORY”
In Pimlico Plumbers Ltd -v- Smith [2017] EWCA Civ 51 the Court of Appeal stated that oral closing submissions are important. Relying on written submissions alone represents a “considerable risk”. THE CASE The Court of Appeal was considering an appeal…
A COUNTERCLAIM IS SUBJECT TO THE SAME RULES AS LIMITATION AS A CLAIM: SECTION 35 OF THE LIMITATION ACT CONSIDERED BY THE COURT OF APPEAL
In the judgment today in Al-Rawas -v- Hassan Khan (A Firm) [2017] EWCA Civ 42 the Court of Appeal held that a counterclaim did not have any special status under the Limitation Act. It was subject to the same principles as…
IF YOU DECIDE NOT TO TURN UP FOR COURT DON’T EXPECT MUCH SYMPATHY: COUNCIL TOLD TO GET ON ITS BIKE
The judgment of the Court of Appeal in Camden Borough Council -v- Humphreys [2017] EWCA Civ 24 illustrates the danger of a party deciding not to attend a hearing. THE CASE A recipient of a parking ticket, Mr Humphreys, had…
INDEMNITY COSTS ORDER AGAINST DEFENDANT UPHELD BY COURT OF APPEAL: OFFERS AND CONDUCT: MANNA II
The second post on the Court of Appeal decision in Manna -v- Central Manchester Hospitals NHS Trust [2017] EWCA Civ 12 relates to the Court’s upholding of the trial judge’s award of indemnity costs. “A judge should in my view be…
"UNNECESSARY, UNHELPFUL & UNACCEPTABLE" : OVER-LONG SKELETON ARGUMENTS – AGAIN.
There have been a series of judgments in the civil courts, notably from Jackson L.J., commenting on the length of skeleton arguments. The criminal courts are not immune. In R -v- Brandford [2016] EWCA Crim 1749 the Court of Appeal…
QADER 2: REMAINING PROBLEMS AND ISSUES: THE CONTINUING DEBATE
The post yesterday on the Qader decision has led to a large number of comments. These are easy to overlook. I have placed the comments here since these outline the issues that remain unresolved. I have added some sub-headings, but…
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
TALES FROM COSTS LAW CONFERENCE III: SATELLITE NAVIGATION, MERRIX AND COSTS BUDGETING
One issue discussed at the Association of Costs Lawyers in Manchester on the 24th October was the decision in Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB). The question of whether a detailed assessment is needed…
SERVING WITNESS STATEMENTS LATE: THERE IS NO CLEARWAY BACK
In Clearway Drainage Systems Ltd -v- Miles Smith Ltd (08/11/2016) the Court of Appeal upheld a decision not to grant the claimant relief from sanctions when witness statements were served late. Here we look at the first instance decision in…
PROPORTIONALITY AND COSTS: A JUDGMENT ON APPEAL
In the judgment today in Tui UK Ltd -v- Tickell & Others [2016] EWHC 2741 (QB) Mrs Justice Elisabeth Laing DBE (sitting with Master Leonard as an assessor) dismissed an appeal by the defendants on an argument that the costs…
DESTINATION OF APPEALS: THE NEW RULES
The Access to Justice Act 1999 (Destination of Appeals) Order 2016 makes some important changes to the destination of appeals. It “simplifies” the appeals process so that, as far as possible, an appeal lies to the next level of judge….
THE COURT OF APPEAL THRESHOLD: LOOKING AT CASES WHERE PERMISSION TO APPEAL WAS REFUSED
The Law Society Gazette today reported that the threshold for appealing to the Court of Appeal is not to change. There is, however, a removal of the automatic right to an oral hearing when seeking permission from the court. Coincidentally…
INDEMNITY COSTS ON APPEAL AFTER PART 36 OFFER
For the second time today I express my thanks to John McQuater. This time for drawing my attention to the Court of Appeal decision on costs in Summers -v- Bundy (11/02/2016)* This case shows the importance of making Part 36…
QOCS CONTINUE TO APPLY ON APPEAL: HIGH COURT DECISION
In Parker -v- Butler [2016] EWHC 1251 (QB) Mr Justice Edis decided that QOCS protection continued to apply when a claimant appealed. “To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in…
FAILING TO PLEAD CASE FULLY CAN LEAD TO YOUR ACTION GOING DOWN THE DRAIN
The Court of Appeal decision today in the case of Court -v- Van Dijk [2016] EWCA Civ 438 is the third case within a month where the courts have considered the adequacy of statements of case. It is also has…
EXTENDING TIME FOR SERVICE OF A CLAIM FORM: PROSECCO MAY HELP
There have been numerous cases relating to extension of the claim form on this blog. I can’t remember one which ended well for the claimant. However the claimant was successful in the Instone -v- Prosecco (Leeds) LImited [2016] EW Misc…
ASSIGNMENT OF CFAS: ROUND 2: ASSIGNMENT CAN TAKE PLACE
In the judgment today in Jones -v- Spire Healthcare Ltd His Honour Graham Wood QC had to determine the issue of whether a CFA can be assigned. The full judgment is an attachment to this post and is available here…
EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM SET ASIDE: A CASE ALL CLAIMANTS SHOULD KNOW
A really easy way for a claimant lawyer to get sued is to hold onto the claim form. Cases relating to late or mis-service of the claim form are a regular feature of this blog. It is equally dangerous for…
LATE SERVICE OF NOTICE OF APPEAL: COUNSEL'S ERROR DOES NOT AMOUNT TO A GOOD REASON
In the judgment today in Turner -v- South Cambridgeshire District Council [2016] EWHC 1017(Admin)Mr Justice Warby considered the Denton guidance in relation to an application to appeal out of time. Among other factors he rejected the idea that an error…
WHAT IS MEANT BY A "SIGNIFICANT DEVELOPMENT"? AMENDING THE COSTS BUDGET WHEN CLAIM DOUBLES IN SIZE: CLAIMANT GETS THE BOOT
I am grateful to barrister Colm Nugent for his notes of the decision of Mr Justice Picken in Churchill -v- Boot (22/04/2016) in relation to costs budgeting (a summary of this case is also available on Lawtel). KEY POINTS A…
THERE IS NO SPECIAL RULE FOR PUBLIC AUTHORITIES: SECRETARY OF STATE NOT GRANTED PERMISSION TO APPEAL OUT OF TIME
The previous post emphasised the point that state agencies have no preferred status when it comes to compliance with rules and relief from sanctions. This point was made clear again by the Court of Appeal judgment in The Secretary of…
RELIEF FROM SANCTIONS REFUSED: NO PERMISSION TO SERVE RESPONDENT'S NOTICE LATE
In Pipe -v- Spicerhaart Estate Agents Ltd [2016] EWHC 61 QB Mr Justice Sweeney refused permission to serve a Respondent’s notice late. “Against the background that this is a small claims case, the conduct of the Respondent in relation to…
DENTON: EXTENSIONS OF TIME AND COSTS: OPPOSITION TO APPLICATIONS IS NOT ALWAYS UNREASONABLE
In The Queen on the Application of IDIRA -v- The Secretary of State for the Home Department [2015] EWCA Civ 1187 the Court of Appeal made a number of observations in relation to extensions of time, the Denton criteria, and…
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)…
WITNESS STATEMENT TOO SHORT; SKELETON ARGUMENT TOO LONG AND THE JUDGE WAS NOT NOT PERVERSE
In Royal Wolverhampton Hospitals NHS Trust -v- Evans [2015] EWCA Civ 1059 the Court of Appeal rejected an appeal by the defendant against a finding of liability. There are important observations in relation to procedure which merit examination. In…
ADJOURNMENTS AND DISCRETION: DECISION NOT TO ADJOURN BANKRUPTCY PETITION UPHELD BY THE COURT OF APPEAL
In Edginton -v- Sekhon [2015] EWCA Civ 816 the Court of Appeal refused to overturn the judge’s decision not to adjourn a bankruptcy petition. “Delay is inimical to all forms of litigation and especially so in a collective enforcement process…
THE BILLABLE HOUR APPEAL
The Lawyers Billable Hour Appeal may not need additional publicity, given the amount it has raised in so short a time (£22,470.05 and 132 donations last time I looked, against the initial target of £7,500). It is already 300% “over…
WRITTEN ADVOCACY: CANDOUR & CONCISION ESSENTIAL GUIDANCE FROM CANADA
One of the advantages of writing a blog is that you can point out useful posts and articles. Anyone involved in legal argument benefit the guidance by John L Laskin J.A. in Forget the Wind-Up and Make the Pitch Some…
PERMISSION TO APPEAL CANNOT BE OPEN-ENDED: HIGH COURT DECISION
In Ghura -v- Dalal [2015] EWHC 2385 Mr Justice Norris rejected the idea that time for appealing could be open-ended or ambiguous in its scope. KEY POINTS The Court does not have power to extend time for appealing “generally”. In…
ASSESSING WITNESS CREDIBILITY: THE CENTRAL BANK OF ECUADOR CASE REVISITED: THE OCEAN FROST APPROACH
I have already posted an article on the Privy Council decision in Central Bank of Ecuador -v- Conticort CA [2015] UKPC 11. It was a remarkable case in that the Privy Council overturned findings of fact of the trial judge. In…
POST MITCHELL PRE-DENTON RELIEF FROM SANCTIONS APPEAL: MITCHELL PRINCIPLES WERE NOT HERE TO STAY
The appeal in Michael Wilson & Partners Ltd -v- Sinclair [2015] EWCA Civ 774 involves the Court of Appeal considering the Mitchell/Denton divide. KEY POINTS The Court overturned a decision, made post-Mitchell but prior to Denton, where a judge refused…
CONDITIONAL FEE AGREEMENTS NOT SENT TO COVENTRY: KEY POINTS AND LINKS
The decision in Coventry -v- Lawrence [2015] UKSC 50 has not led to any major change in practice and procedure (in relation to a costs regime that had already ended anyway). A link to the judgment is here KEY POINTS…
SOLICITORS ARE ENTITLED TO ARGUE THEY SHOULD BE PAID AND ARE NOT LITIGANTS IN PERSON: A HIGH COURT DECISION CONSIDERED
In EMW Law LLP -v- Halborg [2015] EWHC 2005 (Ch) His Honour Judge Purle QC considered some important elements in relation to the ability of solicitors to recover their costs. The judge also found that solicitors are not “litigants in person”…
APPEALS ON ISSUES OF FACT: SPECULATION AND "OPINION" EVIDENCE FROM WITNESSES IS TO NO AVAIL
In Macleod -v- the Commission of Police for the Metropolis [2015] EWCA Civ 688 the Court of Appeal set out the criteria for appealing findings of fact. Further the case highlights the important distinction between what witnesses saw and what…
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