COURT OF APPEAL – NOT THE CORRECT DESTINATION FOR AN APPEAL RELATING TO THE SENTENCE PASSED ON A JUDGMENT DEBTOR
In Roberts v Jones [2024] EWCA Civ 118 the Court of Appeal held that it was not the correct court to hear an appeal relating to an appeal by a judgment creditor in relation to a sentence passed on a…
“TELL ME MORE, TELL ME MORE”: COURT OF APPEAL SENDS OUT CLEAR MESSAGE OF THE DANGERS OF SEEKING “CLARIFICATION” OF A JUDGMENT: IT MIGHT NOT GET YOU VERY FAR…
In YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71 the Court of Appeal issued a clear warning about the misuse of the practice of “seeking clarification” from the judge following a judgment. The decision is aimed specifically at…
COST BITES 132: INTERIM PAYMENTS FOR COSTS AND COSTS OF A CONSEQUENTIAL HEARING
In Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Limited & Ors [2023] EWHC 2923 (Ch) Mr Justice Mellor considered issues relating to an interim payment on costs and whether a consequentials hearing should be assessed…
DENTON WATCH 3: DENTON IN THE FAMILY COURTS
In TRC v NS [2024] EWHC 80 (Fam) Mrs Justice Lieven considered the issues relating to relief from sanction in the context of an appeal in the Family Court. She held that Denton principles applied. “… the stricter…
“RULE 1 FOR ANY JUDGE DEALING WITH A CASE” :SETTING ASIDE AN ORDER AFTER ONLY ONE PARTY HAS BEEN HEARD: SUPREME COURT OBSERVATIONS AND CASES IN THE CIVIL COURTS
There are some interesting issues raised in the Supreme Court judgment in Potanina v Potanin [2024] UKSC 3. The opening lines of the judgment, however, reiterate an important principle in relation to the need for a rehearing after a party…
DENTON WATCH 2: COURT REFUSES LATE APPLICATION FOR PERMISSION TO APPEAL
In Tameside Caravans and Storage Ltd v Viavecto Ltd [2024] EWHC 95 (KB) Mr Justice Constable refused the defendant’s request for permission to appeal out of time. The fact that the defendant was a litigant in person at the time…
DENTON WATCH: CLAIMANT REFUSED RELIEF FROM SANCTIONS WHEN THE CLAIM FORM WAS NOT SERVED DUE TO SOLICITOR’S MISTAKEN BELIEF THAT IT WOULD BE SERVED BY THE COURT
In Phipps v Goulbourne (Re the Estate of Tetla Yvonne Goulboure otherwise Tetla Yvonne Butler) [2024] EWHC 130 (Ch) Master Teverson refused the claimant’s application for relief from sanctions. The claimant failed to serve a claim form, in accordance with…
A DEFENDANT CANNOT SIMPLY SEEK TO SET ASIDE THE CONSEQUENCES OF A DEBARRING ORDER: AN APPLICATION SOUNDLY REFUSED
In Al Saud v Gibbs [2024] EWHC 123 (Comm) Mr Justice Calver refused a defendant’s application to set aside a debarring order so that they could be involved in the trial of the action. The judgment contains important observations on…
SEEKING PERMISSION TO RELY ON AN EXPERT DOES NOT GIVE RISE TO AN APPLICATION FOR RELIEF FROM SANCTIONS: IMPORTANT JUDGMENT BY THE COURT OF APPEAL
In Yesss (A) Electrical Ltd -v- Warren [2024] EWCA Civ 14 the Court of Appeal considered the law relating to when an application for relief from sanctions comes into play. The judgment gives clear guidance about the question of when…
SERVING A SKELETON LATE DOES NOT A HAPPY JUDGE MAKE: IT IS A VICE TO SUPPLY MATERIALS LATE IN THE DAY
In Karimi, R (On the Application Of) v Sheffield City Council [2024] EWHC 93 (Admin) Fordham J sent out a reminder to practitioners (and particularly those who draft skeleton arguments) of the need to file skeleton arguments in accordance with…
THIRD CLAIM FORM CASE OF THE YEAR: FAILURE TO SERVE A SEALED CLAIM FORM, SERVING BY EMAIL WITHOUT THE DEFENDANTS’ CONSENT: IT ENDS UP BADLY FOR THE CLAIMANT
I am grateful to barrister Alicia Tew for sending me a copy of the judgment of HHJ Karen Walden-Smith in Harper -v- Bamber & Lewis (Cambridge County Court – copy of which is available here judgment in Bamber v Harper ). …
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: TEN KEY POINTS WORTH REPEATING
In January 2017 I wrote about a case where a newly qualified solicitor had been struck off . The solicitor “had ‘messed up’ on a handful of the 170 cases he was handling and did not seek help from colleagues”. …
OPENING LINES OF JUDGMENTS 2023: DRAGONS, VENUS, BOMBS, WAR AND THE BEAUTY OF NIDDERDALE (TO NAME JUST A FEW)
It is now too close to Christmas to write the traditional material of this blog. However it is a good time to review some of the best opening lines of judgments for 2023. If you feel I have missed some…
A CLAIMANT, ALLEGING FRAUD, IS NOT ENTITLED TO DELIBERATELY BREACH A COURT ORDER AND THE RULES OF COURT: HIGH COURT JUDGMENT GIVES LITIGATORS MUCH TO THINK ABOUT
Those who draft pleadings, particularly those alleging fraud and misconduct, have much to learn from the judgment of Mr Justice Johnson in AXA Insurance UK PLC v Kryeziu & Ors [2023] EWHC 3233 (KB). The fact that a party is…
COST BITES 128: WHEN IT IS APPROPRIATE FOR THE JUDGE TO MAKE NO ORDER FOR COSTS
In Guy & Ors v Brake & Ors (Re Moratorium Cancellation Costs) [2023] EWHC 3179 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) found that it was appropriate to make no order for costs in relation to an…
COURT REFUSES (VERY) LATE APPLICATION TO RELY ON A WITNESS STATEMENT
In Johnstone v Fawcett’s Garage (Newbury) Ltd [2023] EWHC 3010 (KB) HHJ Simon rejected the claimant’s application, to rely on a new witness. The application was made as a preliminary issue at trial, there was no formal application, there was…
EXTENSIONS OF TIME TO SERVE THE CLAIM FORM SET ASIDE: YOU CANNOT HOLD ON: CARGO CLAIM COMES TO GRIEF
I clearly called time too early when I wrote, in a post on December 5, that we may the considering last claim form post of the year. We have another example of a claimant coming to grief in Doliaa SAS…
“SPEAKING NOTES” RARELY WELCOME BY THE COURTS: THE “SPECIAL CIRCLE OF HELL” RESERVED FOR SOME ADVOCATES…
There is an observation made in the final paragraph of the Privy Council judgment in Chang v The Hospital Administrator & Ors (Trinidad and Tobago) [2023] UKPC 44 that relates to “speaking notes”. They were, it seems, not altogether welcome. …
THIS MAY (OR MAY NOT) BE THE FINAL CLAIM FORM CASE OF 2023: CLAIMANT MAKES FUNDAMENTAL MISTAKE AS TO SERVICE, DEFENDANTS FAIL TO NOTICE IN TIME: THERE IS MUCH TO LEARN HERE…
There are lessons for both claimants and defendant litigators in the judgment of Master Teverson (sitting in retirement) in Simon Bain Building Services Ltd v Cardone & Anor [2023] EWHC 2916 (Ch). Firstly we see another error by the claimant…
CLAIM FORM SENT TO DEFENDANT’S OLD REGISTERED OFFICE NOT PROPERLY SERVED: CLAIMANT WAS NOT INSULATED AGAINST THE MISTAKES OF THEIR SOLICITORS
The judgment of District Judge Dawson in Jagger (& others) -v- Axa Insurance PLC, has enough material to keep this blog going for a month. (The judgment is available on a link from the Law Society Gazette here). I am…
SERVICE OF THE CLAIM FORM CASES: THE PAST 14 MONTHS: ANOTHER SEASON OF THE DREARY & UNLOVELY CROP OF PROCEDURAL SERVICE ISSUES: WEBINAR 5th FEBRUARY 2024
This year has seen a bumper number of reported cases on what Master McCloud has referred to as a “dry and unlovely crop of procedural service issues”. This webinar on the 5th February looks at the cases relating to the…
PART 36 DOES NOT APPLY TO SOLICITORS ACT ASSESSMENTS: HIGH COURT DECISION (YESTERDAY)
In Zuhri v Vardags Ltd [2023] EWHC 3050 (SCCO) Costs Judge Leonard held that the provisions of CPR Part 36 do not apply to a Solicitors Act assessment of costs. However it may be relevant to Part 7 proceedings issued,…
COST BITES 124 : EARLY VIEW AS TO VALUE OF A PERSONAL INJURY CASE WAS NOT UNREASONABLE: DEFENDANT’S APPEAL DISMISSED
I am grateful to solicitor John McQuater for sending me a copy of the judgment of HHJ Sadiq in Drury -v- Yorkshire Aggregates Limited (a decision made in January this year, but the transcript has only just become available). It…
APPLICATION TO SET ASIDE DEFAULT JUDGMENT: THREE MONTHS DELAY IS NOT “PROMPT”: ABSENCE OF EVIDENCE AND A DRAFT DEFENCE DID NOT HELP
In Pincus v Singh & Anor [2023] EWHC 2997 (Ch) HHJ Paul Matthews refused a defendant’s application to set aside a default judgment. The defendant had waited for three months before making the application. There was no evidence in support…
THE NEED FOR COURT APPROVAL IN A FATAL ACCIDENT CASE INVOLVING CHILDREN: SUBSEQUENT ACTION FOR PERSONAL INJURY IS NOT AN ABUSE OF PROCESS
The judgment of Mr Justice Pepperall in Bayless & Ors v Norfolk and Norwich University Hospitals NHS Foundation Trust [2023] EWHC 2986 (KB) provides a warning, to both claimants and defendants, that offers under the Fatal Accidents Act, that involve…
RELIEF FROM SANCTIONS REFUSED WHEN THE COSTS BUDGET WAS SERVED LATE: BUDGETING AT TRIAL IS A FAIRLY HOPELESS TASK
There is much to learn from the decision of Mr Justice Ritchie in Tan v Idlbi & Anor [2023] EWHC 2840 (KB). The claimant was unsuccessful in an application for relief from sanctions following late service of the costs budget….
COURT REFUSES TO GRANT AN ORDER FOR A GROUP LITIGATION ORDER: INCORRECT PROCEDURE; COSTS AND “WHACK -A-MOLE” CONSIDERED
Several kind people have sent me a copy of the decision in Abbott & Ors v Ministry of Defence [2023] EWHC 2839 (KB). This is an unusual case because, despite the claimant and defendant being in agreement, the court did…
COST BITES 117: THE COURT CAN ORDER A PAYMENT ON ACCOUNT OF COSTS WHERE THE SCHEDULE IS HIGH BUT NOT EXCESSIVE
In South Tees Development Corporation & Anor v PD Teesport Ltd & Anor (Re Costs) [2023] EWHC 2270 (Ch) Mr Justice Trower rejected an argument that a payment of account should not be made because the schedule in support was…
LITIGATORS: IF YOU DON’T PAY YOUR EXPERTS AND THEY ARE NOT COMING TO TRIAL, DON’T BE SURPRISED IF YOUR ACTION FAILS
The judgment of Mr Justice Freedman in Doyle v HDI Global Specialty SE [2023] EWHC 2722 (KB) shows a surprising set of facts when an expert wrote directly to the court. The expert made it clear that he was not…
THE “SLIP RULE” CONSIDERED IN DETAIL: ALSO THE COURT’S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS…)
The “slip rule” in civil procedure is often mentioned, but rarely considered at length. There is a detailed consideration of the rule and relevant authorities in the judgment of Mr Justice Henshaw in Deutsche Bank AG v Sebastian Holdings Inc…
WINDING UP PETITION NEEDS TO BE ISSUED IN LOCAL COURT: TYNE FOR PETITIONERS TO CHANGE THEIR PRACTICES
In The One Collection Real Estate Ltd v Insolvency & Law Ltd [2023] EWHC 2673 (Ch). HHJ Kramer held that a winding up petition should be issued and heard in the circuit that has closest links to the case. A block policy…
WANT TO OBTAIN AN ORDER AFTER RECEIVING A DRAFT JUDGMENT? BETTER READ THIS
I have been kindly sent a message from Tim Lord KC which sets out observations made by Miles J in relation to Practice Direction 40E., in particular 4.4.. The Practice Direction deals with the handing down of judgments. 4.4. imposes…
CLAIM FORM SERVED LATE: NO EXTENSION OF TIME GIVEN: PLANNING TO FAIL
In Telford And Wrekin Council v Secretary of State for Levelling Up, Housing and Communities & Anor [2023] EWHC 2439 (Admin) Mr Justice Eyre held that a claim form had been served late. Further the claimant did not come within…
PARTY NOT PERMITTED TO ADDUCE EXPERT EVIDENCE FROM OTHER CASES AS HEARSAY EVIDENCE
One of the issues decided by Mr Justice Mellor in Crypto Open Patent Alliance v Wright [2023] EWHC 2408 (Ch) related to the attempts by a party (COPA) to adduce expert evidence from other trials by way of hearsay evidence…
DELAYS, ADJOURNMENTS AND THE SIZE OF THE TRIAL BUNDLE: NOT JUST AN ACADEMIC PROBLEM: ELECTRONIC BUNDLES DOESN’T MEAN YOU CAN JUST THROW EVERYTHING IN
The judgment of Mr Justice Constable in Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2023] EWHC 2394 (TCC) contains another interesting insight into the preparation of trial bundles and how that, in itself, can become highly contentious. …
THE CIVIL COURTS ARE “NOT THE WILD WEST”: ATTEMPTS TO INTRODUCE NEW ARGUMENTS ON APPEAL REJECTED: SKELETON ARGUMENT SHOULD HAVE DEALT WITH POINTS THE DEFENDANT NOW WANTED TO ARGUE
We are returning to the judgment of Mr Justice Julian Knowles in Morgan-Rowe v Woodgate [2023] EWHC 2375 (KB). This looks at the judge’s view of attempting to run an argument that was not made at trial (indeed, in part, admitted…
CIVIL PROCEDURE BACK TO BASICS 99: THE MANDATORY REQUIREMENTS FOR THE TOP RIGHT HAND CORNER OF A WITNESS STATEMENT AND AFFIDAVIT
The purpose of this series is to look at the most basic elements of civil procedure. One, very common, omission practitioners make is to fail to follow the mandatory requirements of Practice Direction 32 in relation to the information on…
“FORENSIC SPEED DATING” IS NOT A DESIRABLE EXERCISE: PRACTITIONERS SHOULD LIMIT THE NUMBER OF AUTHORITIES CITED
In a post-script to the judgment in Invest Bank PSC v El-Husseini & Ors [2023] EWHC 2302 (Comm) Stephen Houseman KC, sitting as High Court Judge, raised concerns over the number of authorities cited and the impact this has on…
ADMINISTRATIVE COURT JUDICIAL REVIEW GUIDE 2023: NOW AVAILABLE
The latest Administrative Court Judicial Review Guide is available on the link here. It may well be ahead of time (it is dated October 2023). THE CONTENTS It includes guidance on: litigants in person civil restraint orders starting a claim…
FIXED RECOVERABLE COSTS EXTENSION LECTURES: KERRY UNDERWOOD ON TOUR
The new rules as to fixed costs are coming soon. Kerry Underwood is undertaking a national tour of day long lectures on the fixed costs provisions. It cannot be stressed enough that the new rules are of significance to all…
NEW RULES AS TO ADMISSIONS: READ THEM HERE: IN FORCE 1st OCTOBER 2023
The Civil Procedure (Amendment No.3) Rules 2023 introduce a “new” Part 14 on admissions. The is not to make any substantial changes but are part of a process of simplifying the rules. So, for instance, the criteria for seeking to…
PART 36 APPLIES TO CLAIMS THAT ARE NOT ABOUT MONEY: SILENCE DID NOT INDICATE A REFUSAL TO ENTER ADR: PART 36 CONSEQUENCES APPLIED
In Jones v Tracey & Ors (Re Costs) [2023] EWHC 2256 (Ch) Master Marsh (sitting in retirement) found that Part 36 applied to cases that were not about money. It was held that the fact that the action would be…
MESSAGE FROM THE DESIGNATED CIVIL JUDGE IN MANCHESTER: STAFF REDUCTIONS IN THE COURTS HAVE CONSEQUENCES: PRACTICAL POINTS TO HELP
It is a sign of the times when the Designated Civil Judge sends out a message dealing with pressures on the Court, and staff in particular. Manchester Law Society has a “Message from the Designated Civil Judge” in which the…
BACK TO BASICS 98: COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: IT IS DANGEROUS TO ASSUME THAT THESE ARE “ADMINISTRATIVE” MATTERS
I am grateful to barrister Justin Bates for drawing my attention to the final paragraphs of the judgment of Mr Justice Fordham in Debenham-Schon v Anchor Hanover Group [2021] EWHC 3023 (QB). It concerns the duty of a litigant to…
THE UNSETTING TRUTH ABOUT SETTLING PART 1: MORE MISSIVES FROM CANADA: “EXPERIENTIA DOCET”
We are continuing with our look at articles by the retired Canadian judge, The Honourable Joseph Quinn. For those who haven’t read them. For those unfamiliar with his work it is always worth reading Things Lawyers do to Annoy Judges, and…
SERVICE OF THE CLAIM FORM: AMBIGUITY IN DEFENDANT’S INSTRUCTIONS LED TO A (VERY RARE) CASE OF A CLAIMANT SUCCEEDING ON CPR 6.15
In London Fluid System Technologies Ltd & Ors, R (On the Application Of) v HM Revenue and Customs [2023] EWHC 2206 (Admin) Mrs Justice Foster made an order under CPR 6.15 when the claimants had mistakenly served the defendant at…
SECTION 33 APPLICATION IN CLINICAL NEGLIGENCE CASE: THE SINS OF THE SOLICITORS WERE NOT VISITED UPON THE CLAIMANT: ACTION ALLOWED TO PROCEED WHEN IT WAS 5 1/2 YEARS OUT OF TIME
We looked at the judgment in Shaw v Maguire (Re Preliminary Issues) [2023] EWHC 2155 (KB) in an earlier post where Master Cook held that the court had a discretion under Section 33 of the Limitation Act 1980 in a fatal…
WHEN LAWYERS GIVE WITNESS STATEMENTS: THE SOURCE OF INFORMATION AND BELIEF IS ESSENTIAL
We are looking back at a post in 2019. Primarily because the issues the case raises in relation to lawyers making witness statements are prevalent. There are numerous examples on this blog of the difficulties that can occur when a…
WHEN THE PARTIES COULD NOT AGREE WHO THE JOINT EXPERT SHOULD BE: FAILURE TO ENGAGE COST THE CLAIMANT
I cannot remember many judgments where the sole issue has been who the jointly instructed expert should be. However we have such a case in the judgment of Mr Nicholas Thompsell (sitting as a High Court judge) in Gheewalla v…
THE PARTICULARS OF CLAIM WERE TOO LONG, TOO CONFUSING AND DID NOT COMPLY WITH THE RULES.
In Halsion Limited v St Thomas Street Development Limited [2023] EWHC 2045 (TCC) HHJ Cawson KC, sitting as a High Court Judge, struck out the claimant’s Particulars of Claim. The Particulars were too long and rambling and failed to comply…
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