“INTERROGATION” OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY
We have seen many cases relating to issues arising following the sending out of draft judgments. Another example can be viewed in the Court of Appeal judgment today in C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38…
COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL
In Wilkins v Serco Ltd [2023] EWHC 61 (KB) Mrs Justice Heather Williams rejected the defendant’s appeal in relation to allocation of a case for false imprisonment. She upheld a finding that the case would have been allocated to the…
COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
The judgment of Mr Justice Murray in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…
COURT OF APPEAL JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS?
In the judgment today in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 the Court of Appeal (by a majority view) decided that the Civil Liability Act 2018 did not impact on the assessment of damages for…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …
COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?
We are returning to the judgment of Mrs Justice Stacey in TRX v Southampton Football Club [2022] EWHC 3392 (KB). The judge made some observations in relation to the costs of the assessment process. In particular the interplay of CPR 47.20…
COST BITES 43: CLAIMANT’S COSTS INCURRED BEFORE CFA SIGNED WERE RECOVERABLE
In TRX v Southampton Football Club [2022] EWHC 3392 (KB) Mrs Justice Stacey considered a number of issues relating to costs. One of those was the question of whether pre-CFA costs were recoverable. This required a close consideration of the…
A CLIENT DOES NOT OWE A “DUTY OF GOOD FAITH” TO A SOLICITOR ACTING UNDER A CONDITIONAL FEE AGREEMENT
In Candey Ltd v Bosheh & Anor [2022] EWCA Civ 1103 Lord Justice Coulson rejected an argument that a client, who has entered into a conditional fee agreement with a solicitor, owed a duty of good faith to that solicitor. …
A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON
In Nambiar v Solitair Ltd [2022] EWCA Civ 1135 the Court of Appeal held that an appeal against a committal order should be struck out as an abuse of process. Prior to sentencing the appellant had issued an earlier, identical,…
“KAFKAESQUE” PROCEDURAL ISSUE RESOLVED BY THE COURT OF APPEAL: A “TANGLE” AND A “MUDDLE”
In Anwer v Central Bridging Loans Ltd [2022] EWCA Civ 201 the Court of Appeal resolved procedural issues which it described as a “muddle” and “kafkaesque”. The issue was a simple one of whether a litigant was entitled to transcripts…
PERSUADING THE JUDGE TO CHANGE THEIR MIND AFTER JUDGMENT CAN BE AN EXPENSIVE STEP: COURT OF APPEAL DECISION
We have looked, many times, at issues relating to procedure after the handing down of a draft judgment. The Court of Appeal judgment in George v Cannell & Anor [2022] EWCA Civ 1067 highlights one of the difficulties that arise. …
THERE IS NO OBLIGATION ON A CLAIMANT TO FILE A REPLY: THE BURDEN OF PROOF REMAINS WITH THE DEFENDANT
In Pistachios In the Park Ltd & Anor v Sharn Panesar Ltd [2022] EWHC 2088 (QB) Mr Justice Freedman pointed out that the appellant’s argument in relation to pleading and burden of proof ran contrary to the rules. There is…
CLAIMANT FAILS TO GET AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: IN A CASE WHERE THE COURT HAD LOST THE FILE AND NOT SENT OUT A SEALED CLAIM FORM WITHIN THE FOUR MONTH PERIOD
NB THIS DECISION WAS OVERTURNED BY THE COURT OF APPEAL. SEE THE BLOG POST ABOUT THE APPEAL DECISION HERE. The judgment of Robin Vos (sitting as a Deputy Judge of the High Court) in Walton v Pickerings Solicitors & Anor…
COST BITES 12: A DEFENDANT WHO IS NOT A PARTY TO AN APPEAL CAN STILL BE ORDERED TO PAY THE COSTS OF THAT APPEAL
In Turner & Ors v Thomas & Anor (Costs) [2022] EWHC 1944 (Ch) Mr Justice Zacaroli considered the appropriate principles to be applied as to costs when a defendant was not a party to an appeal made by a co-defendant….
THE IMPORTANT DIFFERENCE BETWEEN A PROSPECTIVE AND RETROSPECTIVE APPLICATION TO SERVE A CLAIM FORM: “CLEAR WATER” BETWEEN THE TWO TESTS: COURT OF APPEAL OVERTURNS ORDER SETTING ASIDE A PROSPECTIVE APPLICATION FOR SERVICE
In ST v BAI (SA) Trading As Brittany Ferries [2022] EWCA Civ 1037 the Court of Appeal overturned a decision, itself made on appeal, where a prospective application to extend time for service of the claim form was set aside….
COST BITES 10: COURT OF APPEAL UNHAPPY AT £730,000 BILL FOR ONE DAY APPEAL: HOURLY RATES ABOVE GUIDELINES HAVE TO BE JUSTIFIED, COUNSEL’S FEES MUST BE REASONABLE AND PROPORTIONATE
In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See (Costs) [2022] EWCA Civ 1061 the Court of Appeal were concerned about the level of costs being claimed in a one day appeal. The…
COST BITES 9: FARES FAIR: IN JUDICIAL REVIEW PROCEEDINGS YOU CAN HAVE A “SCORE DRAW” AND EACH SIDE GETS NO COSTS
In United Trade Action Group Ltd, R (On the Application Of) v Transport for London & Anor [2022] EWCA Civ 1026 the Court of Appeal upheld a decision that there be no order for costs between the parties in judicial…
CLAIMANT FOUND TO BE FUNDAMENTALLY DISHONEST WHEN GIVING EVIDENCE ABOUT A BICYCLE
My attention has recently been drawn to the judgment of HHJ Ralton in Darnley -v- Cornish 2021 WL 04760420. The judge, on appeal, overturned a finding that a claimant, who had misled the court as to ownership of a bicycle…
COURT OF APPEAL REJECTS INGENIOUS ARGUMENT THAT PERMISSION GROUNDS SHOULD BE RE-OPENED – AFTER THE APPEAL
I have written more about applications for permission to appeal in the past few weeks than in the previous nine years. The Court of Appeal judgment in Ingenious Games LLP & Ors v Commissioners for Her Majesty’s Revenue and Customs…
APPLICATION FOR PERMISSION TO APPEAL WAS MADE OUT OF TIME: THE TRIAL JUDGE HAD NO JURISDICTION TO HEAR THE APPLICATION
There is another aspect of the judgment in Omya UK Ltd v Andrews Excavations Ltd & Anor [2022] EWHC 1882 (TCC) that is worth considering. The unsuccessful defendants applied for permission to appeal to the trial judge at the hearing…
A DEFENDANT WHO DOES NOT ATTEND TRIAL CANNOT SIMPLY TURN THE CLOCK BACK: COURT OF APPEAL REFUSES APPLICATION UNDER CPR 39.3
In Mabrouk v Murray [2022] EWCA Civ 960 the Court of Appeal refused the defendant’s application for permission to appeal in a case where the defendant failed to attend the trial. The Court of Appeal dismissed the application under CPR…
COURT OF APPEAL OVERTURNS DECISION TO STRIKE OUT “UNMANAGEABLE” COURT PROCEEDINGS
In Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 the Court of Appeal overturned a decision to strike out a claim. The Court doubted whether an action could ever be described…
RESPONDENTS TO AN APPLICATION FOR PERMISSION TO APPEAL: YOU SHOULD HAVE SIMPLY WRITTEN A LETTER AND SAVED YOURSELVES £67,000
In over three decades of writing about civil procedure I cannot recall any cases about costs following a permission to appeal hearing. There are now two cases this week. In Kerseviciene v Quadri & Anor (Costs) [2022] EWHC 1757 (QB)…
FIXED COSTS OUSTED WHEN THE PARTIES AGREE COSTS ARE TO BE THE SUBJECT OF A DETAILED ASSESSMENT: COURT OF APPEAL DECISION TODAY
In the judgment today in Doyle -v- M&D Foundations & Building Services Limited [2022] EWCA CIV 927 the Court of Appeal found that it was possible for parties to contract out of the fixed costs provisions of the protocols. THE…
ANOTHER CLAIM FORM CASE: ANOTHER CLAIMANT COMES TO GRIEF OVER SERVICE OF AN UNSEALED CLAIM FORM: DEFENDANT,HOWEVER, SAVED BY CPR 3.10.
In Pitalia & Anor v NHS Commissioning Board [2022] EWHC 1636_2 (QB) His Honour Judge Pearce dismissed a claimant’s appeal in a case where the claim form had not been validly served. The defendant had made an error in that…
SIMMONS -V- CASTLE 10% UPLIFT APPLIES TO DAMAGES FOR BREACH OF REPAIRING COVENTANT: COURT OF APPEAL DECISION TODAY
In Khan v Mehmood [2022] EWCA Civ 791 the Court of Appeal held that the 10% uplift in s.44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 applied to damages for breach of a repairing covenant. “……
“SUBSTANTIAL INJUSTICE” AND FUNDAMENTAL DISHONESTY: WE’LL KNOW IT WHEN WE SEE IT BUT WE DON’T SEE IT HERE: JUDGE’S DECISION NOT TO IMPOSE USUAL PENALTIES OVERTURNED ON APPEAL
In Woodger v Hallas [2022] EWHC 1561 (QB) Mr Justice Julian Knowles overturned a decision of the Circuit Judge that the usual principles of a finding of fundamental dishonesty should not apply to the claimant. The judgment involves a consideration…
APPEALS: POINTS OF LAW AND BUNDLES: LITIGANTS SHOWN THE YELLOW CARD: YOU CAN READ THE RULES HERE
In Banks v Blount [2022] EWHC 1491 (QB) Mr Justice Ritchie was critical of an appellant for failing to comply with two basic elements of the practice directions relating to appeals. The need for clarity and precision when referring to…
AN AGREEMENT TO PAY COSTS WAS TO PAY FIXED COSTS ONLY:NOT DISPLACED BY LATER “PART 36” OFFER: DEFENDANT SUCCESSFUL ON APPEAL
I am grateful to Simon Fisher from DWF for sending me a copy of the judgment of HHJ Luba QC, sitting with Costs Judge Rowley, in Soares -v- Wilson (27th May 2022). A copy of which is available Soares v Wilson…
AN INSURANCE PREMIUM WAS PROPERLY INCURRED: JUDGE, ON APPEAL, ALLOWS ATE COSTS TO BE DEDUCTED FROM CHILD’S DAMAGES
I am grateful to Express Solicitors for sending me a copy of a judgment of X -v- H&M Hennes, made by HHJ Lethem on 21st April 2022. It relates to the recoverability of an insurance premium between solicitor and client. …
“THE LADD -V- MARSHALL CRITERIA ARE CUMULATIVE”: RELIEF FROM SANCTIONS GRANTED BUT APPLICATION TO ADDUCE NEW EVIDENCE REFUSED: APPEAL ON JUDGE’S FINDINGS OF FACT FAILED
In Premier Experts London Ltd -v- Rajwani [2022] EWHC 1188 (QB) Sir Andrew Nicol refused the defendant’s application for permission to appeal. Relief was granted when new evidence was served late, however that evidence failed to satisfy the Ladd -v-…
PAYING PARTY REFUSED PERMISSION TO RELY ON LATE POINTS OF DISPUTE IN ASSESSMENT: DECISION UPHELD ON APPEAL
In Celtic Bioenergy Ltd v Knowles Ltd [2022] EWHC 1223 (QB) Mrs Justice Foster refused the defendant’s appeal in a case where a very late addition to the points of dispute had been refused by Master Campbell. The issues that…
PROVING THINGS 232: “THE RULES OF THE GAME OF ASSOCIATION FOOTBALL HAVE NOT BEEN DRAFTED WITH CIVIL LIABILITY IN MIND”: APPEAL LEADS TO OVERTURNING OF JUDGMENT ON FOOTBALLER’S NEGLIGENCE: A REMATCH IS ORDERED
In Fulham Football Club v Jones [2022] EWHC 1108 (QB) Mr Justice Lane allowed an appeal in a case where a footballer had found to be negligent when tackling an opponent. The judgment considers the issue of liability in the…
HOW COSTS HAVE CHANGED SINCE THE WORLD WAS YOUNG: SOLICITOR’S APPEAL AGAINST A REFUSAL TO ORDER A STAY AND SECURITY FOR COSTS DISMISSED: APPEAL FOR AN ORDER THAT SOLICITORS REPLY TO PART 18 QUESTIONS ALLOWED
In the judgment today in Edwards (& others) -v- Slater and Gordon UK Limited [2022] EWHC 1091 (QB) Mr Justice Ritchie disallowed the defendant’s appeal in relation to issues relating to disclosure, funding and security for costs. He allowed the…
PROVING THINGS 230: NEGLIGENCE AND BREACH MUST STILL BE PROVEN WHEN BRINGING CONTRIBUTION PROCEEDINGS
In Percy v White & Anor [2022] EWCA Civ 493 the Court of Appeal overturned a decision based on a contribution notice. This case makes it clear that a party bringing contribution proceedings still has to establish breach and causation…
COURT OF APPEAL ALLOW APPEAL AGAINST AN ORDER STRIKING OUT AN ACTION: A CASE WITH “A NUMBER OF EXTRAORDINARY FEATURES”, NOT LEAST THAT THE DEFENDANT’S EVIDENCE WAS UNRELIABLE
In Storey v British Telecommunications Plc [2022] EWCA Civ 616 the Court of Appeal allowed an appeal against an order striking out an personal injury action. The court was fairly critical about the evidence that had been placed before it…
RELIEF FROM SANCTIONS: NOT ALL BAD REASONS FOR DEFAULT ARE EQUALLY BAD: A PARTY CANNOT ASSERT PREJUDICE BY BEING SILENT
In EXN v East Lancashire Hospitals NHS Trust & Anor [2022] EWHC 872 (QB) Mr Justice Turner allowed an appeal where a District Judge had refused to grant relief from sanctions. The judgment is particularly interesting in that it notes…
COURT OF APPEAL UPHOLDS RELIEF FROM SANCTIONS GRANTED WHEN A PARTY HAD NOT MADE A FORMAL APPLICATION
In Park v Hadi & Anor [2022] EWCA Civ 581 the Court of Appeal upheld a decision granting a claimant relief from sanctions. The initial application had been made informally, during the course of an application, the defendant’s appeal against…
EXCESSIVE COSTS INCURRED IN ARGUING ABOUT COSTS: A PARTY OBTAINING RELIEF FROM SANCTIONS WAS CORRECTLY ORDERED TO PAY THE COSTS OF THE APPLICATION: “RULES EXIST FOR A REASON”
In Swivel UK Ltd v Tecnolumen GmbH & Anor [2022] EWHC 825 (Ch) Mr Justice Marcus Smith upheld the decision of a Master that a party that had obtained relief from sanctions should pay the costs of the application. It…
APPEALING FACTS IN THE COURT OF APPEAL: “ISLAND HOPPING” IS HARD TO DO
In Volpi & Anor v Volpi [2022] EWCA Civ 464 the Court of Appeal highlighted the difficulties an appellant faces when seeking to appeal findings of fact. Such appeals are not always unsuccessful, however the appellant faces a very difficult…
LEADING COUNSEL MAY HAVE BEEN IN CONTEMPT OF COURT: “LAWYERS INVOLVED IN CASES OF THIS KIND HAVE A PROFESSIONAL RESPONSIBILITY TO INFORM THEMSELVES ABOUT THE RULES AND ABIDE BY THEM”
There has been a number of judgments recently concerning the disclosure of embargoed judgments. The Court of Appeal decision in Griffiths v Tickle & Ors (Re Disclosure by Counsel for Appellant and Application by First Respondent) [2022] EWCA Civ 465…
IF YOU WANT HOURLY RATES HIGHER THAN THE GUIDELINE FIGURES YOU HAVE TO PROVIDE “A CLEAR AND COMPELLING JUSTIFICATION”: COURT OF APPEAL DECISION TODAY
In Samsung Electronics Co. Ltd & Ors v LG Display Co. Ltd & Anor (Costs) [2022] EWCA Civ 466 the Court of Appeal sent out a clear message that if a party wants hourly rates outside the guideline rates then…
COURT OF APPEAL UPHOLDS DECISION SETTING ASIDE AN EXTENSION OF TIME FOR SERVICE OF THE CLAIM FORM: CASE ON HEAD OF ALEXANDER THE GREAT GOES BUST
In Qatar Investment and Project Development Holding Company & Anor v Phoenix Ancient Art SA (Rev1) [2022] EWCA Civ 422 the Court of Appeal upheld a decision setting aside an order granting an extension of time for service of the…
COURT OF APPEAL UPHOLDS AN ORDER THAT NO COSTS BE ORDERED ON AN APPEAL
In South Lodge Flats Limited v Malik [2022] EWCA Civ 411 the Court of Appeal upheld a decision that no order for costs be made on an appeal. The defendants had succeeded in the appeal but required the indulgence of…
COURT OF APPEAL DISMISSES APPEAL WHEN CLAIM FORM SERVED ONE DAY LATE: “RELIANCE ON NON-COMPLIANT SERVICE IS NOT ONE OF THE INSTANCES OF OPPORTUNISM DEPRECATED BY THE COURTS”
In The Good Law Project, R (On the Application Of) v The Secretary of State for Health And Social Care [2022] EWCA Civ 35 the Court of Appeal dismissed the claimant’s appeal against a a decision not granting any relief…
PROVING THINGS 227: FAILURE TO PROVE A DEBT CLAIM: “THE PROOF REQUIRED TO DEMONSTRATE THAT THE CLAIMANT IS ENTITLED TO THE SUMS WHICH IT CLAIMS IS SADLY LACKING”
The judgment of Mr Justice Turner in Emery Planning Partnership Ltd v Bevan [2022] EWHC 494 (QB) illustrates a failure by a claimant to prove a debt claim. It is (yet another) object lesson that facts and evidence are needed…
ANOTHER CASE OF A JUDGMENT EMBARGO BEING BREACHED: ALL RECIPIENTS NEED TO UNDERSTAND THE IMPORTANCE AND BREADTH OF THE EMBARGO ON DRAFT JUDGMENTS
In The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 368 the Court of Appeal considered yet another case of breach of an embargoed judgment. There was clearly a breach (somewhere) which…
SOLICITORS, AIRLINES AND LIENS: SUPREME COURT DECISION
In Bott & Co Solicitors Ltd v Ryanair DAC [2022] UKSC 8 the Supreme Court allowed an appeal from the Court of Appeal. The Court of Appeal had held that the solicitors were not providing a litigation service in the…
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