EXPERTS, NEW EVIDENCE AND APPEALS: COURT OF APPEAL DOUBT THE RELIABILITY OF AN EXPERT REPORT
The Court of Appeal decision in T (Fresh Evidence on Appeal) [2024] EWCA Civ 1384 is an appeal in a family court case. It contains important observations in relation to attempts to adduce new evidence at the appeal stage. Equally…
THE COURT SHOULD HAVE GRANTED AN ADJOURNMENT: APPEAL ALLOWED WHEN NO REASONS GIVEN FOR REFUSING APPLICATION
In EB Pension Fund & Ors v Froggatt [2024] EWHC 2721 (Ch) Mr Nicholas Thompsell (sitting as a Deputy Judge of the High Court) allowed an appeal where there had been a refusal to allow an adjournment. He held that…
ADVOCACY THE JUDGE’S VIEW 7: WITNESS STATEMENTS “ACCURACY AND NOT LEGAL ARGUMENT IS THE KEY TO ENSURING A WITNESS STATEMENT IS AS EFFECTIVE AS IT CAN BE”
In terms of preparation of client’s case, and prospects of success, witness statements are crucial. The rules only allow the witness to give additional evidence in exceptional circumstances. Many cases that go to trial are, in essence, about the credibility…
CLAIM AGAINST ALLEGEDLY DISHONEST EXPERT NOT STRUCK OUT: THESE ISSUES SHOULD BE DETERMINED AT TRIAL
In EUI Ltd (t/a Admiral) v Smith [2024] EWHC 2803 (KB) Mr Justice Griffiths refused an expert’s application to strike out the case against him. He upheld the decision of the Circuit Judge and stated that the issues should go…
COST BITES 189: COSTS OF OVER £1 MILLION FOR ARGUING ABOUT WHETHER THERE SHOULD BE A TRIAL OF A PRELIMINARY ISSUE
There are a number of important observations in the judgment of HHJ Pelling KC, sitting as a High Court Judge, in Viegas & Ors v Cutrale & Ors [2024] EWHC 2778 (Comm). In particular the reminder to commercial litigants that…
MENTIONING WITHOUT PREJUDICE MEETINGS IN WITNESS STATEMENTS: PART OF THE WITNESS STATEMENTS WERE STRUCK OUT
In Bond & Anor v Webster & Ors [2024] EWHC 989 (Ch) Master Bowles (sitting in retirement) granted an application to strike out parts of a witness statement that referred to an offer made at a without prejudice meeting. The…
CALCULATION OF TIME UNDER THE CIVIL PROCEDURE RULES: A RECAP
The case we looked at yesterday Corfield v Howard [2024] EWHC 2727 (Comm) provides an important reminder of a basic principle of the computation of time. A hearing was taking place on a Monday. The skeleton arguments were ordered to be…
LATE SKELETON ARGUMENTS DO NOT A HAPPY JUDGE MAKE II: THE COURT MAY IMPOSE SANCTIONS IN APPROPRIATE CASES
In Corfield v Howard [2024] EWHC 2727 (Comm) HH Judge Davis-White KC (sitting as a Judge of the King’s Bench Division) reminded practitioners of the need for skeleton arguments to be filed in time accordance with court orders. …
COST BITES 188: MAKING A PEREMPTORY ORDER FOLLOWING A FAILURE TO PAY INTERLOCUTORY COSTS: THE NEED FOR THE RESPONDENT TO PROVIDE EVIDENCE
In Ahmad v Ouajjou & Anor [2024] EWHC 2213 (Comm) HHJ Pelling KC found it was appropriate to make a peremptory order following the defendants’ failure to pay interlocutory costs orders. (This decision was considered in Ahmad v Ouajjou & Anor…
WEBINAR ON NON-PARTY COSTS ORDERS: 5th NOVEMBER 2024
My colleagues Steven Turner and Andrew Hogan are presenting a free webinar on the 5th November on Non-Party Costs Orders. Booking details are available here. The webinar considers the law practice and procedure relating to non-party costs orders in the context…
WHEN THE CLAIMANT HAS TO CHANGE JOBS, EARNS MORE THAN BEFORE – BUT THERE IS A SUBSTANTIAL AWARD FOR LOSS OF EARNINGS: THE VERY REAL VALUE OF “FRINGE BENEFITS”
A webinar on the 5th November looks at loss of earnings from the point of view of loss of benefits and pension claims. It is important that the very real value of “fringe” benefits is not overlooked when looking at…
PERSONAL INJURY DAMAGES: COURT OF PROTECTION RELEASES CLAIMANT FROM “PETERS” UNDERTAKING
I am grateful to my colleagues Sam Karim KC and Fay Collinson for pointing out the decision of BJB, In the Matter Of [2024] EWCOP 59 (T2). In that case HHJ Hilder granted the claimant’s application that she be released…
DEFENDANTS OBTAIN EXTRA TIME TO COMPLY WITH PEREMPTORY ORDER: CPR 3.(2)(a) CONSIDERED
In Ahmad v Ouajjou & Anor [2024] EWHC 2659 (Comm) Mr Justice Bryan granted the defendant an extension of time to comply with a peremptory order to pay costs. The application was made “ahead of time”. CPR 3.9 did not…
ANOTHER LATE CLAIM FORM CASE: COURT HAD NO POWER TO EXTEND TIME: IF IT DID THEN THE CLAIMANT’S APPLICATION WOULD HAVE BEEN REFUSED IN ANY EVENT
The case of Farnham Town Council v Secretary of State for Levelling Up Housing & Communities & Anor [2024] EWHC 2458 (Admin) (Tim Smith, sitting as a High Court Judge) is far from being the first case about service of…
STRIKING OUT AMENDED PLEADINGS, EXTENSIONS OF TIME AND THE ISSUE OF THE “IMPLIED SANCTION”: COURT OF APPEAL DECISION
For some time now the courts have been grappling with the notion of the “implied sanction” in relation to rules and orders. Some rules are subject to “implied sanctions” so that a failure to comply means that a party has…
SERVICE OF THE CLAIM FORM ON A NOMINATED SOLICITOR: SOME IMPORTANT POINTS
In the recent case of Keilaus -v- Houghton [2024] EWHC 2108 the claimant’s action failed because their solicitor failed to notice that the defendant’s solicitor had stated that they would accept service. The court had little, if any, sympathy for the…
TO ALL THOSE WHO THINK THERE MAY BE TOO MANY CASES ABOUT SERVICE OF THE CLAIM FORM ON THIS BLOG: YOU MAY BE RIGHT BUT HERE’S ANOTHER ONE…
In ETM Contractors Ltd, R (On the Application Of) v Bristol City Council [2024] EWHC 2263 (Admin) refused the claimant’s applications for relief following late issue and lateservice of the claim form. The judgment contains a detailed exposition of why…
LATE AND “HAPHAZARD” SERVICE OF TRIAL BUNDLES LEADS TO WASTED COSTS ORDER AGAINST CLAIMANT’S SOLICITORS (ON THE INDEMNITY BASIS)
There are numerous cases on this blog about trial bundles. The issues never seem to end and have not been solved by the advent of the electronic bundle. This can be seen in the judgment of Deputy High Court Judge…
THE ADMINISTRATIVE COURT JUDICIAL REVIEW COURT 2024: TIME LIMITS AND PROCEDURAL RIGOUR
The latest Administrative Court Judicial Review Guide is now available and can be found here. It is dated October 2014 but was published yesterday – well ahead of time. I am simply highlighting two aspects of the Guide. “…
PART 36: FIXED COSTS AND THE TRANSITIONAL PROVISIONS: DELAY IN ISSUING COSTS PROCEEDINGS MEANT THAT CLAIMANT’S COSTS WERE ASSESSED AT NIL
In Bi -v- Tesco Underwriting Limited HHJ Sephton KC found that the claimant’s delay in issuing costs proceedings meant that the costs were subject to the fixed costs provisions and should be assessed at nil. I am grateful to barrister…
WHEN YOU WANT A COURT ORDER BUT DON’T THINK THERE IS ANYONE TO SUE: THINK AGAIN
In Hughes Family Property Co Ltd & Anor v No Defendant [2024] EWHC 2288 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) considered a case where the claimants wanted a declaration from the court, but believed that there…
WHEN A PARTY IS BANKRUPT: WEBINAR ON THE 16th SEPTEMBER 2024: AN IMPORTANT TOPIC THAT MAY HELP FLOAT YOUR BOAT
In The Mayor And Burgesses of the London Borough of Richmond v Trotman [2024] EWHC 2145 (KB) Mr Justice Kerr was critical of the claimant’s failure to consider the consequences of the defendant being bankrupt. Insolvency issues in litigation…
MAKING APPLICATIONS TO THE COURT: A PRACTITIONER’S GUIDE: WEBINAR 10th SEPTEMBER 2024
It is surprising how many applications are made which do not comply with the most basic requirements of procedure and evidence. This webinar on the 10th September 2024 aims to help practitioners avoid errors and aims to ensure that participants…
BRINGING A REPRESENTATIVE ACTION WAS A FLIGHT OF FANCY: ACTION ON BEHALF OF NUMEROUS PASSENGERS STRUCK OUT
In Smyth v British Airways Plc & Anor [2024] EWHC 2173 (KB) Master Davison struck out an action which claimed to be a “representative action” on behalf of thousands (if not millions) of airline passengers. The judge was sceptical about…
COST BITES 181: WHAT PERCENTAGE SHOULD BE PAID ON ACCOUNT OF COSTS?
In Matrix Receivables Ltd v Musst Holdings Ltd (Re Costs) [2024] EWHC 2245 (Ch) Mr Justice Freedman considered the appropriate approach to an interim payment on costs. He rejected the argument that the appropriate percentage was 70% and found, on…
NO “VYING AND REVYING”: WITNESS STATEMENTS, EVIDENCE AND LOTS OF OTHER MATERIAL BESIDES: AFTER 287 YEARS OF JUDICIAL PROMPTING HAVE PRACTITIONERS GOT THE MESSAGE?
Anyone involved in civil litigation will spend a great deal of their time reading witness “evidence” which, in reality, is no such thing. Witness statements tend to be seen as an opportunity to put forward opinions, submissions and innuendo. As…
ENTERING JUDGMENT IN DEFAULT: NO DUTY ON THE PARTIES TO HELP EACH OTHER: THE IMPORTANCE OF KNOWING THE RULES
There are some interesting observations in the judgment of HHJ Cadwallader (sitting as a Judge of the High Court) in Thiscompany Ltd & Ors v Welsh & Ors [2024] EWHC 2159 (Comm). It was a case where three of the…
COST BITES 179: CHALLENGING A PROVISIONAL ASSESSMENT: CLAIMANT’S FAILURE TO COMPLY WITH THE RULES LEADS TO CHALLENGE BEING REJECTED
In Christodoulides v Holbech [2024] EWHC 2172 (SCCO) Deputy Costs Judge Roy KC refused a claimant’s application to revisit a provisional assessment. The claimant (the paying party) had not complied with the rules when attempting to challenge the bill and…
THE AUTOMATIC STAY UNDER CPR 15.11 AND RELIEF FROM SANCTIONS: A CASE IN POINT
In Michael Wilson & Partners, Ltd v Short [2024] EWHC 2113 (Ch) Master Clark granted the claimant relief from sanctions in a case that had become automatically stayed under CPR 15.11. This case serves as a reminder, if nothing else,…
IF YOU ARE GOING TO PROPOSE CHANGES TO A DRAFT JUDGMENT THE OTHER SIDE MUST BE NOTIFIED FIRST
The judgment of Ms. Pat Treacy (setting as a judge of the Chancery Division) in Parsons v Convatec Ltd [2024] EWHC 2111 (Pat) contains a reminder of the importance of a party notifying the other side immediately if they are going…
CLAIMANT’S FAILURE TO PAY COSTS LEADS TO PEREMPTORY ORDER BEING MADE: PUT UP OR SHUT UP…
In Ceto Shipping Corporation v Savory Shipping Inc [2024] EWHC 1897 (Comm) Mr Justice Butcher made a peremptory order following the claimant’s failure to pay costs that had been ordered in interlocutory applications and in other related proceedings. “In the…
STRIKING OUT FOR DELAY: THE DANGERS FOR A COUNTERCLAIMING DEFENDANT IN LETTING SLEEPING DOGS LIE
In Western Avenue Properties Ltd & Anor v SONI & Anor [2024] EWHC 2124 (KB) Master Davison struck out a counterclaim on the grounds of delay. The claim had already been struck out for delay. In these circumstances the principles…
PROVING THINGS 240: PROVING THE “EELES” CRITERIA ON AN APPLICATION FOR AN INTERIM PAYMENT: GAPS IN THE EVIDENCE PREVENT A FINAL DETERMINATION BEING MADE
In XS1 (A Child) v West Hertfordshire Hospitals NHS Trust [2024] EWHC 1865 (KB) Master Stevens adjourned a claimant’s application for a substantial interim payment. The primary ground for this was that there was insufficient evidence before the court to…
THREE WEBINARS: MAKING APPLICATIONS TO THE COURT; INSOLVENCY AND SOCIAL MEDIA AND THE PERSONAL INJURY LAWYER
In September and October there are a number of webinars relating to procedure and evidence. Firstly on the essential issue (but often overlooked) elements and rules relating to making applications to the court; secondly on insolvency and personal injury and…
SELF PROTECTION FOR LITIGATION LAWYERS – A RECAP: WITNESS STATEMENTS UNDER SCRUTINY
A report in Litigation Futures in August 2016 illustrates the need for “self protection” by lawyers in . The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY…
“TRENCH WARFARE OF THE MOST ATTRITIONAL KIND”: ALLEGATIONS OF NON-DISCLOSURE AND THE LAW OF DIMINISHING RETURNS: “QUALITY NOT QUANTITY SHOULD BE THE WATCHWORD”
There are some interesting observations in the Court of Appeal judgment today in MEX Group Worldwide Limited v Stewart Owen Ford & Ors [2024] EWCA Civ 959 about the way cases should be presented in relation to allegations of non-disclosure. The Court…
SERVICE OF THE CLAIM FORM ISSUES: CLAIMANT FAILS TO COMPLY WITH MANDATORY REQUIREMENTS: HIGH COURT UPHOLDS THE EXTENSIONS OF TIME
The judgment of Mrs Justice Hill in Graham v Fidelidade – Companhia De Seguros SA [2024] EWHC 2010 (KB) contains some salutary lessons for litigators. In particular the importance of complying the the rules for applying for extensions of time…
COST BITES 176: A WARNING TO ALL WOULD BE INTERVENORS IN CIVIL PROCEEDINGS: IT COULD BE COSTLY (£110,000 IN THIS CASE)
In Betta Oceanway Company v SC Tomini Trading SR (Re Costs) [2024] EWHC 2068 (Comm) Mr Stephen Hofmeyr KC (sitting as a Deputy Judge of the High Court) held that a person who unsuccessfully sought to intervene in civil proceedings…
CAN A COURT STRIKE OUT A CASE ON THE GROUNDS THAT THE CLAIMANT HAS NO REAL INTENTION OF PROCEEDING TO TRIAL? IT CAN – BUT NOT IN THIS CASE
In Lloyd v Hayward & Anor [2024] EWHC 2033 (Ch) HHJ Keyser KC (sitting as a Judge of the High Court) considered the question of whether the delay in the progress of an action should lead to it being struck…
HARASSMENT PROCEEDINGS: PART 7 OR PART 8 ? FACTUAL DISPUTES MILITATE TRANSFER TO PART 7
We have seen several cases on this blog where the courts have considered the issues caused by the rules requiring that claims for harassment must be issued under Part 8 (however note that there is an important exception, considered in Pattinson…
ANOTHER FAILED SERVICE OF CLAIM FORM CASE: FAILURE TO SERVE PROPERLY ON A PARTNERSHIP MEANS THE ACTION COMES TO GRIEF
In Goodfellow v Warren Boyes & Archer (A Firm) [2024] EWHC 2015 (KB)Master Thornett rejected an argument that a former partner in a solicitors’ practice had been validly served when proceedings were sent to the company that had purchased that…
A PART 36 OFFER MADE PRE-TRIAL WAS NOT OPEN FOR ACCEPTANCE WHILST QUANTUM WAS BEING ASSESSED: WHEN IS A SPLIT TRIAL NOT A SPLIT TRIAL?
In Wells v Hornshaw & Ors [2024] EWHC 2019 (Ch) Mr Justice Adam Johnson rejected a petitioner’s argument that a Part 36 offer remained open for acceptance. There had been a trial after the Part 36 offer had been made. …
THE CLAIMANT’S CASE WAS NOT STAYED BECAUSE IT COULD NOT PAY INTERLOCUTORY COSTS ORDERS: WON’T PAY IS VERY DIFFERENT TO CAN’T PAY
In J Robbins Capital Partners Ltd v Zamsort Ltd & Ors [2024] EWHC 1990 (Comm) Paul Stanley KC (sitting as a Deputy High Court Judge) refused the defendants’ application that the action be stayed pending the claimant’s payment of interlocutory…
OMNIBUS CLAIM FORMS: COURT MANAGEMENT OF CASES AND “DISAGGREGATION”
A problem with “omnibus” claim forms and subsequent case management was considered in detail in the judgment of Mr Justice Garnham and Master Davison in Adams & Ors v Ministry of Defence [2024] EWHC 1966 (KB). The judgment considered the…
COURT REFUSES TO EXTEND TIME FOR SERVICE OF THE CLAIM FORM: CLAIMANTS COME TO GRIEF
In Playfair & Ors v Pannells LLP & Ors [2024] EWHC 1933 (Ch) Master Brightwell refused the claimants’ application for an extension of time for service of the claim form. The application was made before the time of expiry for…
PERSONAL INJURY: EXAGGERATED CLAIMS: CONTEMPT OF COURT: RUGBY, LIFTING WEIGHTS AND… SOCIAL MEDIA
In Wye Valley NHS Trust v Murphy [2024] EWHC 1912 (KB) Mr Justice Mould found the defendant in contempt of court for exaggerating the extent of his injuries when bringing a claim for damages for personal injury. An interesting aspect…
“WHAT I CANNOT DO IS HEAR AN APPEAL AGAINST A RECITAL”: WORDING OF ORDER MEANS SLIP RULE HAS TO BE APPLIED
It appears to be a well known fact that family lawyers love recitals. (Not the musical kind – but as the preamble to any and all court orders). This issue caused problems in MA v Roux [2024] EWHC 1917 (Fam)…
RELIEF FROM SANCTIONS REFUSED WHEN WITNESS EVIDENCE SERVED THREE WEEKS LATE: SOMETHING ABOUT THE DANGERS OF “CUT AND PASTE” SUBMISSIONS TOO…
In Seaton Management Ltd v Evans-Jones [2024] EWHC 1883 (Ch) ICC Judge Barber refused the respondent’s application for relief from sanctions when a witness statement was served three weeks late. “The matters addressed in the Respondent’s skeleton argument on…
TEACHER’S APPEAL WAS IN TIME AND IN THE RIGHT COURT: NO REQUIREMENT TO APPEAL TO THE ADMINISTRATIVE COURT
In Sutcliffe v Secretary of State for Education [2024] EWHC 1878 (Admin) Mr Justice Pepperall held that a teacher, exercising a statutory right of appeal to the High Court, had appealed in time when filing an appeal in the King’s…
COST BITES 172: CLAIMANT WHOSE CASE WAS STRUCK OUT HAD TO PAY THE DEFENDANT’S COSTS
In Khokan v Nirjhor (Re Costs) [2024] EWHC 1873 (KB) Mrs Justice Hill rejected an argument that a claimant, whose case had been struck out due to non compliance with a peremptory order, should then not be liable to pay…
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