BACK TO BASICS MONDAY: THE PROBLEMS THAT CAN OCCUR WITH THE CONTENTS OF THE CLAIM FORM: TEN KEY POINTS
Earlier this morning we looked at the revised form N1 and the problems that could be caused now there is an option to put the defendant’s email address on the form. This gives rise to an opportunity to look at…
PROVING THINGS 304 : FUNDAMENTAL DISHONESTY ESTABLISHED IN A £7 MILLION CLAIM: “THE WASTE OF PUBLIC RESOURCES CAUSED BY THE CLAIMANT’S DISHONESTY IS SCANDALOUS”
There are some cases that are on the “extreme” end of fundamental dishonesty litigation. This may well be one of them. The claimant brought a claim for £7 million in damages. However there was evidence that he had largely recovered…
TRYING TO RE-OPEN THE CASE AFTER BEING SENT A DRAFT JUDGMENT: “IT IS NOT INTENDED TO PROVIDE AN OPPORTUNITY TO ANY PARTY … TO REOPEN OR REARGUE THE CASE”
For the second time in a fortnight we are looking at an attempt to persuade a judge to re-open their decision after a draft judgment has been sent out. This approach had the same result as the previous case. “This…
THROWBACK FRIDAY “AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED” (WITH THE ADDED BONUS OF AN OBJECT LESSON IN HOW NOT TO DRAW UP A COURT ORDER): NOVEMBER 2013
This case provides two object lessons. Firstly in how not to conduct litigation; secondly in how not to draw up a court order. Both points are important. The second issue is a remarkable attempt by a part to “re-write” a…
PROVING THINGS 303: PROVING POSTAL SERVICE: “A MERE ASSERTION OF NON-RECEIPT DOES NOT SUFFICE TO REBUT THE PRESUMPTION”
Even in this day and age disputes arise as to whether something has been posted or received. We have a consideration of the issues in this First-tier tribunal judgment. The respondent established service of some documents, but not others. Further…
COST BITES 453: COSTS AWARD TO A LITIGANT IN PERSON: “… THESE ASSESSMENTS ARE MADE WITH A FAIRLY BROAD BRUSH”: THESE ARE NOT NOMINAL AMOUNTS
There are relatively few cases where the court assesses the costs of litigant in person. We have an example here. It is a useful reminder of the “upper limit” the rules apply to costs claimed and the factors the courts…
COST BITES 452: COURT DOES NOT SET ASIDE PREVIOUS COSTS ORDERS MADE IN PROCEEDINGS WHERE THE DEFENDANTS WERE ULTIMATELY SUCCESSFUL
A litigant can win a case at trial but still be liable for interlocutory costs orders made against it. This is highly frustrating for the litigant in question. Here we look at an attempt to overturn a costs order made…
THE COURT REFUSES DEFENDANT’S APPLICATION FOR AN ORDER THAT THE CLAIMANT’S SOLICITORS CEASE TO ACT FOR HER: THERE IS NO AUTOMATIC CONFLICT AND EVIDENCE IS REQUIRED
It is not at all unusual for solicitors to move firms. It is often the case that the new firm will be engaged in cases which involve the solicitor’s previous firm. Is the “new” firm conflicted thereafter and must it…
WITNESS EVIDENCE WEDNESDAY: DOUBLE HEARSAY IS STILL EVIDENCE: COURT OF APPEAL OVERTURNS BANKRUPTCY ORDER AFTER WITNESS EVIDENCE WAS WRONGLY DISCOUNTED
For many litigators the way in which the courts approach written evidence is just as (arguably more) important than the way witness evidence is considered at trial. A working knowledge of the way in which the court treats evidence in…
ANOTHER CASE ABOUT SETTLEMENT: “FULL AND FINAL SETTLEMENT” OF WHAT? THE IMPORTANCE OF KNOWING PRECISELY WHAT HAS BEEN SETTLED
Issues relating to the settlement of cases have been a theme this week. Here we look at a case where the defendant argued that the action against it should be struck out because it had been resolved in an earlier…
MORE HALLUCINATION POINTS TO WATCH: AI CAN SIMPLY MAKE THINGS UP (ANOTHER WARNING FROM THE COURTS): THE MATERIAL PRODUCED CAN BE “PLAUSIBLE BUT INACCURATE”
We are looking at another case where the use of Artificial Intelligence has led to a litigant having problems. We have many examples of AI hallucinating cases. Here AI simply added words to legislation. Those words did not exist… …
WHICH CITY IS BEST FOR THE TRIAL? A JUDGMENT FROM THE USA AND ITS (IMAGINED) ENGLISH EQUIVALENT: “THE COURT CAN FURTHER REASSURE VISITING PRACTITIONERS THAT THE COURTHOUSE HAS ELECTRIC LIGHTING, INDOOR PLUMBING AND DOORS WHICH OPEN WITHOUT THE ASSISTANCE OF A WHIPPET.”
We have looked many times at decisions as to which particular city is most appropriate for a case to be heard. Someone recently brought my attention to the judgment of District Judge Kent set out below. This is a judgment…
COST BITES 451: THE IMPACT OF A STATUTORY REQUIREMENT ON A COSTS BUDGET: THE STATUTE TAKES PRECEDENCE OVER THE CPR: THE DIFFERENCE TO A BUDGET WHEN THE COURT IS COMPELLED TO TAKE THE FINANCIAL POSITION OF THE PARTIES INTO ACCOUNT
The Court of Appeal considered an unusual aspect of costs budgeting. Does a statutory requirement that the courts take into account the financial position of the parties when considering costs have any impact on the budgeting process? If it does…
WHAT YOU SAY (OR DON’T SAY) IN A MEDIATION, AND AFTERWARDS, CAN BE OF CRITICAL IMPORTANCE: COURT SETS ASIDE A SETTLEMENT AGREEMENT AND ORDERS REPAYMENT
This is an unusual case in which the claimant successfully set aside an agreed settlement. It argued that there had been fraudulent misrepresentation. Even more unusually it obtained an order for repayment and recission on a summary judgment application. “In…
BACK TO BASICS MONDAY: WHEN A SOLICITOR APPLIES TO COME OFF THE RECORD: THE NEED FOR EVIDENCE, NOTICE AND PROOF OF SERVICE
Here we are using a recent judgment to look at some basic points about a solicitor’s application to come off the court record. There are nine basic points here. There is also a reminder that the fact that a solicitor…
SERVICE POINTS 58: ACCIDENT IN ENGLAND, CLAIMANTS LIVING IN AUSTRALIA: DEFENDANT’S APPLICATION TO CHALLENGE JURISDICTION REFUSED
This post comes within the “Service Points” series because the defendant here made an application to set aside the claim form and its service coupled with seeking a declaration that the court had no jurisdiction to try the claim. It…
EXPERT WATCH 81: EXPERT EVIDENCE ON APPEAL: COMPANY PERMITTED TO RELY ON IT EXPERT TO EXPLAIN WHY ITS DIRECTORS THOUGHT A REGULATOR’S EMAIL WAS A PHISHING ATTEMPT
Here we have a consideration of whether an appellant should be allowed to adduce expert evidence for the first time at the appeal stage. This appeal was subject to specific rules and should not be taken as an indication that…
THE DEFENDANT SHOULD NOT PICK AND CHOOSE THE EVIDENCE IT PUTS BEFORE THE COURT: A WITNESS STATEMENT BREACHED THE DUTY OF CANDOUR OWED: WHAT YOU LEAVE OUT CAN SOMETIMES BE MORE IMPORTANT THAT WHAT YOU PUT IN…
In this case the judge was critical of the defendant’s phrasing of a witness statement. A party to judicial review proceedings owes a duty of candour to the court. A statement by a council employee that “no substantive response” had…
“THIS IS NOT THE MANNER IN WHICH AN APPLICATION SHOULD BE MADE”: EMAILS TO THE COURT CANNOT TAKE THE PLACE OF APPLICATIONS
We have seen a large number of cases where a party, or a proposed party, writes directly to the court to seek an order in their favour. Here we have a case where this course of action was adopted. The…
NON-COMPLIANT CLAIMANTS ARE IN THE LAST CHANCE SALOON (AND THERE ARE 5,000 OF THEM): BUT PARTICULARS MUST BE SERVED AND ADVERSE COSTS STILL PAID
The problem with large scale litigation is that when problems occur there tend to lead to large scale difficulties. We have an example here. Some 5,000 claimants missed a key deadline. As a result they are now outside the terms…
CLAIMANT’S CLAIM AGAINST INSURER FAILS: COURT OF APPEAL UPHOLD DECISION THAT THE INSURED’S FAILURE TO NOTIFY WAS A CONDITION PRECEDENT
The question “Will and Insurer Pay for this?” is a crucial one for most personal injury litigants in particular. In this case the Court of Appeal upheld a decision that an insurer was not liable to pay an injured claimant…
THE CURRENT IMPORTANCE OF PLEADINGS 102: THE CLAIMANTS FAILURE TO PLEAD A COUNTERFACTUAL PROPERLY MEANS THE PARTICULARS NEED SUBSTANTIAL AMENDMENT
This is not the first time we have looked at a claimant that has difficulty in pleading a “counterfactual”. That is what they would have done and what would have happened if the defendant had not (allegedly) breached the duties…
WITNESS EVIDENCE WEDNESDAY: INTERMEDIARIES IN CIVIL PROCEEDINGS: DEFENDANT WITH ADHD ENTITLED TO ASSISTANCE WHEN GIVING EVIDENCE, BUT NOT THROUGHOUT THE TRIAL
There are relatively few cases where the courts have considered the use of intermediaries in civil cases. Here we have a detailed consideration of whether a defendant required an intermediary. The judge did not accept that an intermediary was…
BACK TO BASICS MONDAY: SOME KEY POINTS ABOUT WITNESS SUMMARIES
The post this morning on witness summaries provides an opportunity to revisit the rules about witness summaries. It is notable that many of the cases relating to this topic also deal with applications for relief from sanctions when the summaries…
SERVICE POINTS 56 : PERSONAL SERVICE NOT EFFECTED: COURT RETROSPECTIVELY APPROVES ALTERNATIVE SERVICE OF DOCUMENTS IN CONTEMPT PROCEEDINGS
There are very particular issues relating to service of committal proceedings. Normally an application has to be served personally. Sometimes, however, this is not easy. In this case the judge retrospectively authorised service of a committal application by an alternative…
DID YOU KNOW THAT YOU COULD BE MADE BANKRUPT (OSTENSIBLY ON YOUR OWN APPLICATION), NOT KNOW ANYTHING ABOUT IT – AND THEN HAVE TO PAY THE TRUSTEE’S COSTS? THE IMPORTANCE OF GETTING KEY EVIDENCE BEFORE THE COURT
This is an unusual case. The appellant here had been made bankrupt, ostensibly on her own petition. She knew nothing about it. Despite this the court would not annul the bankruptcy until provision was made for payment of the Trustee’s…
“LITIGATION SHOULD BE CONDUCTED BY APPLICATIONS AND ORDERS”: “THESE EPISTOLARY COMMUNICATIONS WERE LESS THAN SATISFACTORY…”
There is one brief observation in this judgment which is of some importance in relation to the way that litigators communicate with the court. Attempting to manage a case by correspondence is usually not satisfactory. “Court systems are not well…
PROVING THINGS 301 : CAN AN APPLICANT IN COMMITTAL PROCEEDINGS RELY UPON A JUDGMENT GIVEN AT TRIAL? WHAT WEIGHT SHOULD BE GIVEN TO IT?
It is always interesting to see the sequel of cases we have looked at earlier. We have an example here. We looked at this case in the context of a finding of fundamental d dishonesty. Different issues arise in relation…
THE CURRENT IMPORTANCE OF PLEADINGS 101: PUTTING A FIGURE IN THE PARTICULARS OF CLAIM DOES NOT NECESSARILY ENTITLE A CLAIMANT TO DEFAULT JUDGMENT FOR THAT SUM
Does the fact that a specific sum is claimed in the Particulars entitle a claimant to enter default judgment in that sum? Sometimes the answer to that question is no. That was the issue being considered in in this case. …
SERVICE POINTS 55: THE SOLICITORS DISCIPLINARY TRIBUNAL FINDS THAT A SOLICITOR WAS TELLING LIES ABOUT SERVICE: SOLICITOR STRUCK OFF (DON’T LET THIS HAPPEN TO YOU…)
We have looked many times at issues relating to non or mis-service of the claim form. Here we have a case where a solicitor’s evidence as to service was disbelieved by a Circuit Judge. The case shows many familiar mistakes…
LIMITATION: WHEN DID BLACK CAB DRIVERS HAVE “THE KNOWLEDGE”? CLAIM AGAINST UBER WAS STATUTE BARRED
This is a judgment about s.32 of the Limitation Act. In particular about the date of knowledge. The claimants were not successful. The judge held that they had the relevant knowledge more than six years prior to issue. It was…
CONDITIONAL FEE AGREEMENTS, CHANGE OF SOLICITORS AND RATIFICATION AND INFORMED ADVICE: IT IS NOT SO EASY TO SIMPLY RECOMMEND A CHANGE OF SOLICITORS…
It is not unknown for a client to wish to change solicitors part way through a case. Where the matter is being conducted on a conditional fee agreement this can lead to complex problems. We see this here. The key…
THIRD PARTY DISCLOSURE SHORTLY BEFORE TRIAL: “WHAT ONE PERSON REGARDS AS OPPORTUNISM MIGHT EQUALLY WELL BE ANOTHER PERSON’S CREATIVE LAWYERING”
This is a case about a late application for third party disclosure. The order was granted despite the trial date being imminent. The respondents complained of “opportunism” the judge observed that this may well be described as “creative lawyering”. “…litigation…
COST BITES 465 : WITHOUT PREJUDICE COSTS BREAKDOWNS REMAINED PRIVILEGED: A LOWER BILL DID NOT ESTABLISH “UNAMBIGUOUS IMPROPRIETY”
This judgment given today highlights some dangers in sending “without prejudice” bills of costs at an early stage. The paying party can (understandably) be suspicious when a later bill comes at a lower figure. The reasons for this need not…
COST BITES 464 : THE IMPORTANCE OF MAKING A PROPER APPLICATION TO VARY A COSTS CAP: TICKING A BOX IS NOT ENOUGH: THE COURT APPLIES THE £5,000 AARHUS LIMIT: SOMETHING TO CHEW THE CUD OVER
It is not often we get to consider the issue of costs and cattle. Here the issue is considered in relation to costs limits imposed by the Aarhus Cap and delay by the defendants in challenging the application of the…
COST BITES 461: “LOSING PARTY” SHOULD PAY COSTS AT THE END OF HEARING, DESPITE HAVING BEEN GRANTED PERMISSION TO APPEAL
This case emphasises the importance of the “pay as you go” principle in civil litigation. The applicants had failed at an interlocutory application. They were equally unsuccessful in their attempts to persuade the judge that they should not pay the…
THE CURRENT IMPORTANCE OF PLEADINGS 99: ONCE AGAIN – A BARE DENIAL WILL NOT DO: DEFENCE STRUCK OUT: “THIS RULE IS NOT A MATTER OF FORMALITY”
This is far from the first time that we have looked at cases that have shown how a bare denial in a pleading is inadequate. Here Chief Master Shuman emphasised the real danger of pleading a bare denial. The defence…
WITNESS EVIDENCE WEDNESDAY (1): THE ABSENCE OF FIRST-HAND EVIDENCE LEADS TO THE CLAIMANT’S APPLICATION FOR AN INJUNCTION BEING REFUSED
There have been numerous cases over the years which highlight the dangers of first hand evidence not being made available to the court. It is often the case that statements are provided by those who have no first hand knowledge…
HOUSING CASES AND ALLOCATION TO THE FAST TRACK: THE FACT THAT THE CLAIM WAS BASED ON AN EARLIER COMPROMISE DID NOT MEAN THAT THIS WAS A SMALL CLAIMS TRACK MATTER
Here we have an interesting decision on whether a dispute about a settlement agreement in a housing disrepair case should be allocated to the Small Claims Track. I am grateful to Steve Cornforth for sending me a copy of this…
THE DANGERS OF DELAY: A CASE WHERE THE COURT CRITICISES LATE SERVICE: IT IS IMPLICIT THAT COURT ORDERS SHOULD BE SERVED IN A “TIMELY MANNER”
This is the third case of the day about delay. Here there was a delay of eleven months in serving an order on named defendants. The judge found it unsatisfactory that the claimant council had not served the order in…
LEAVING FILING UNTIL THE LAST MINUTE IS “COURTING DISASTER”: ONE DAY OUT AND NO EXTENSION OF TIME GRANTED
The previous post mentioned that a theme of today is the importance of complying with rules and directions. This case demonstrates that point clearly. The appellant was one day out in compliance and still no extension of time was given….
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … OPPOSING APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS AND A BONUS POINT ABOUT LISTS OF ISSUES
A blog about civil procedure has to have balance. The previous post considered applications to amend from the applicant’s perspective. Here we consider the position of those opposing an application. Litigators are as likely to be opposing an application as…
STRIKING OUT AND ABUSE OF PROCESS: WHEN EARLIER ARBITRATION PROCEEDINGS DO NOT PREVENT A SUBSEQUENT CLAIM: AND YOU CANNOT SIMPLY BYPASS CPR PART 24
There are some cases that have the flavour of a legal question posed by a law lecturer who is anxious to stretch their students to the limit. This is one of those cases, involving (alleged) abuse of process, separate corporate…
WHAT HAS CIVIL LITIGATION BRIEF DONE ABOUT … APPLICATIONS TO AMEND STATEMENTS OF CASE? TEN KEY POINTS FOR APPLICANTS (PLUS A “BONUS POINT” AND USEFUL LINKS…).)
The posts earlier this morning highlighted the major obstacles facing a litigant who wants to amend their pleadings at a very late stage. This is a good time to look at previous posts on amendments, together with links to the…
THE CURRENT IMPORTANCE OF PLEADINGS 98 : THE COURT REJECTS A LATE APPLICATION TO AMEND: THE CLAIMANT DID NOT HAVE A STRONG CASE
We have already look at this case in relation to the claimant’s application for relief from sanctions. The claimant was granted relief in relation to late service of the proposed amendments. However that did not, in fact, get the claimant…
THE CURRENT IMPORTANCE OF PLEADINGS 97 : CLAIMANT GIVEN LEAVE TO APPLY TO AMEND PLEADINGS THAT WERE SERVED LATE, BUT DIDN’T GET VERY FAR (OH, AND LEADING COUNSEL BEING ON HOLIDAY IS NOT A GOOD REASON FOR A BREACH…)
This is a case we are looking at in two parts. Firstly we are looking at the claimant’s application for relief from sanctions when it served amended Particulars of Claim outside the time period ordered by the court. A second…
FORMS FOR USE IN THE BUSINESS AND PROPERTY COURTS: UPDATED GUIDANCE
HM Courts and Tribunal Service have prepared an updated list of forms to be used in the Business and Property Courts. The forms are now in one useful place. THE UPDATED COLLECTION The updated collection can be found here. THE…
WITNESS EVIDENCE WEDNESDAY: WHAT DO YOU DO IF A WITNESS FINDS A MISTAKE IN THEIR STATEMENT?
What steps should be taken if a witness has identified an error in their witness statement? Does it matter if that is an error of fact in relation to the matters described or a significant omission? Here we review the…
ARE YOU SURE WHO IS REALLY INSTRUCTING YOU? SOLICITORS DECEIVED BY A FALSE EMAIL ADDRESS IN NAOMI CAMPBELL’S CASE
We have recently been looking at a few cases that have made the headlines. However we examine them from a particular CLB point of view – that is are there any practical lessons for working litigators? There are some interesting…
COSTS BITES 461: WINNING THE CASE BUT LOSING THE MAIN BATTLE MEANS CLAIMANT RECOVERS 85% OF COSTS: DEFENDANT CANNOT SEEK THE ADVANTAGES OF PART 36 WITHOUT MAKING A PART 36 OFFER
It is wise for a party that is likely to be on the losing side of a case to make a Part 36 offer. A court is unlikely to have much sympathy for a litigant that has failed to protect…
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