DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
SKELETON ARGUMENTS: BE SUCCINCT AND TO THE POINT: “THE ISSUE WAS ALL BUT LOST IN THE PLETHORA OF PAPER”: COURT OF APPEAL FIRES WARNING SHOT
Now that Lord Justice Jackson has retired someone needs to take his place to provide the (more or less quarterly) reminder to practitioners to keep skeleton arguments short and to the point. Step in Lord Justice Hickinbottom in Harverye v The…
CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR
Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s…
ADJOURNING A HEARING BECAUSE OF A SICK NOTE: COURT OF APPEAL DECISION: MEDICAL EVIDENCE HAS TO ESTABLISH UNFITNESS TO ATTEND HEARING
There have been a number of cases recently relating to applications of hearings on health grounds, in particular the adequacy of the evidence. The relevant principles were reviewed by the Court of Appeal today in General Medical Council v Hayat [2018]…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
THE ASSIGNMENT (OR NOVATION) OF CFAS: BOXING PROMOTER’S APPEAL SUFFERS KNOCKOUT BLOW BEFORE A PUNCH WAS THROWN
In Warren v Hill Dickinson LLP [2018] EWHC 3322 (QB) the proposed appellant did not get permission to appeal against a decision that an assigned (or novated) CFA remained valid. THE CASE The claimant argued that conditional fee agreements he had…
CROSS-EXAMINATION: THE DUTY TO PUT A CASE: A GEM OF A DECISION
In W Nagel (A Firm) v Pluczenik Diamond Company NV [2018] EWCA Civ 2640 the Court of Appeal made an important observation about the duty of a cross-examiner to put their client’s case to an opposing witness. This provides an opportunity…
CIVIL EVIDENCE AND LITIGANTS IN PERSON : THE DANGERS OF A JUDGE ASKING LEADING QUESTIONS
In Global Corporate Ltd v Hale [2018] EWCA Civ 2618 the Court of Appeal emphasised the dangers of a judge asking leading questions of a witness. It is a case that highlights the difficulties of trials involving litigants in person. THE…
COST BUDGETING: THE PARTIES MUST KNOW WHERE THEY STAND: LEAVING HOURLY RATES “OPEN” IS INAPPROPRIATE
I am grateful Sam Hayman from Bolt Burdon Kemp to for sending me a copy of the decision of Mr Justice Jacobs in Yirenki -v- Ministry of Defence [2018] EWHC 3102 (QB). The judge allowed an appeal against a cost budgeting…
ANOTHER CASE OF SERVICE OF THE CLAIM FORM GOING AWRY: GO ON – DICE WITH PROCEDURAL DEATH: WHAT COULD POSSIBLY GO WRONG?
When lecturing at the Zenith Chambers personal injury course this Thursday I only offered one prediction for civil procedure: “I’ll be here next year talking about claim form cases reported over the previous 12 months where things have gone wrong.” …
ACTION SHOULD NOT HAVE BEEN STRUCK OUT: DENTON PRINCIPLES NOT ENGAGED IN FAILING TO SERVE PARTICULARS OF CLAIM AND MEDICAL REPORT
In the judgment today in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB) Mr Justice Martin Spencer allowed an appeal against an action being struck out. The case has many procedural complexities. Here we look at…
YOU CANNOT ARGUE A “NEW” CASE AT THE APPEAL STAGE: “RACING” DRIVERS NOT INVOLVED IN A CRIMINAL JOINT ENTERPRISE: FATAL ACCIDENT ACT DAMAGES AWARDED
In Wallett & Ors v Vickers [2018] EWHC 3088 (QB) Mr Justice Males overturned a decision in favour of the defendant and awarded damages to the estate of a deceased driver. The important procedural issue is that the defendant were not…
LIVE COURT OF APPEAL STREAMING – GIVES YOU A GRANDSTAND SEAT
The Court of Appeal pilot scheme for live streaming will start on Thursday, details are available on the Court and Tribunals Judiciary website. THE FIRST MATCH… The first case to be heard with live streaming concerns West Ham United football…
PROVING THINGS 132: BUNDLES, BURDENS OF PROOF AND GO-KARTS: CLAIMANT MANAGES TO CROSS THE WINNING LINE ON APPEAL
The judgment in Cowley Property Investment Ltd v Oxford Karting Ltd [2018] EWHC 2824 (Ch) contains a consideration of the rule that documents in an agreed trial bundle are admissible. It is a case all about proving things without calling evidence….
RESPONDENTS ALLOWED TO COMMENT AT HEARING : NEVERTHELESS SURVIVES A COSTS ORDER ON APPEAL
In Bhogal & Anor v Knight [2018] EWHC 2952 (Ch) the appellants failed in their appeal following an order that the respondent pay the costs of their initial application. The procedure described in the judgment is instructive. It was yet another…
ADVISING YOUR CLIENT ON LITIGATION RISKS 5: IF YOU DON’T PAY COSTS BEFORE ISSUE IT COULD BE VERY EXPENSIVE AFTERWARDS
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the High Court decision in Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). It is one of those cases that illustrate…
TRYING TO APPEAL FINDINGS OF FACT AND EXPERT EVIDENCE: IT IS VERY DIFFICULT – AND THE TCC IS NO DIFFERENT TO OTHER COURTS
Lord Justice Coulson used the judgment in Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2018] EWCA Civ 2403 to remind (some) litigators of some key principles in relation to appeals on findings of fact. He emphasised that the Technology…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
ADVISING YOUR CLIENT ON LITIGATION RISKS 4: THE SCOPE OF THE SOLICITOR’S RETAINER: TURN DOWN AN OFFER OF £500,000 AND LOSE – THREE TIMES
In Lyons v Fox Williams LLP [2018] EWCA Civ 2347 the Court of Appeal turned down the claimant’s appeal. The claimant had been unsuccessful in an action for professional negligence against a firm of solicitors. He was equally unsuccessful on appeal….
WITNESS STATEMENTS AND WITNESS EVIDENCE: DO YOU KNOW ABOUT CPR 32.5(4): “LATE EVIDENCE” SHOULD BE HARD TO ADDUCE
In the judgment today in The Catholic Child Welfare Society (Diocese of Middlesbrough) & Ors v CD [2018] EWCA Civ 2342 the Court of Appeal allowed an appeal against a claimant being successful in a Section 33 application. There is an…