ADJOURNMENT OF A TRIAL IS A “LAST RESORT” (AND WILL RARELY OCCUR BECAUSE OF INABILITY OF SPECIFIC COUNSEL TO ATTEND)
The judgment of Mr Justice Fordham in Naylor v University Hospitals of Leicester NHS Trust [2021] EWHC 340 (QB) shows the difficulty of obtaining an adjournment of a trial date. The judge rejected an application on the grounds of…
THE CORRECT COURT FEE WHEN ADDITIONAL PARTIES ARE JOINED INTO AN ACTION: NOT £55 BUT £10,000 (OH, AND YOU CAN’T RELY ON WHAT THE COURT TOLD YOU…)
There are not many cases where a judge is asked to determine what the appropriate court fee should be. However this is precisely what occurred in the judgment of HHJ Pearce in Walayat & Ors v Berkeley Solicitors Ltd [2021]…
THE RULES OF LITIGATION ARE DETAILED AND IMPORTANT: COURT REFUSES APPEAL – DEFENDANT’S ATTEMPT TO RE-LITIGATE HEARING WAS AN ABUSE OF PROCESS
The judgment of Collins Rice J in Vafa v Patel [2021] EWHC 198 (QB) shows the importance of knowing and complying with the rules. The judge dismissed an appeal where it had been held that a defendant’s attempt to re-litigate…
ANOTHER WITNESS STATEMENT THAT STRAYED INTO INADMISSIBLE ARGUMENTS, PROTRACTED COMMENTARY AND EXPERT EVIDENCE
There have been a number of recent cases regarding the appropriate drafting of witness statements, in particular attempts to put much inadmissible material into statements. This can be seen in the judgment of HH Russen QC in Philipp v Barclays…
CLAIMANTS SUED THE WRONG (NON-EXISTENT) DEFENDANT – AND THE LIMITATION PERIOD HAD EXPIRED: DON’T START BREAKING THE CROCKERY JUST YET
In The 52 Occupiers of the Ceramic Works v Bowmer & Kirkland Ltd & Anor [2021] EWHC 17 (TCC) District Judge Baldwin considered an application to substitute a defendant after the primary limitation period had expired. The judge, if anything,…
COVID DOESN’T STOP THE COURTS GOING ON: BUT GREAT CARE IS NEEDED
In Bilta (UK) Ltd & Ors v SVS Securities Plc & Ors [2021] EWHC 36 (Ch) Mr Justice Marcus Smith examined in detail the principles relating to court hearings during COVID. There is an examination of the steps that need…
A CLAIMANT’S ADDRESS SHOULD BE ON THE CLAIM FORM: BUT A FAILURE DOES NOT LEAD TO A GRANT OF SECURITY FOR COSTS
The judgment of Master Kaye in Beriwala v Woodstone Properties (Birmingham) Ltd & Anor [2021] EWHC 6 (Ch) provides a reminder that the inclusion of the claimant’s address on the claim form is a mandatory requirement [unless an application is…
SERVICE OF DEFENCE BY EMAIL NOT GOOD SERVICE: RELIEF FROM SANCTIONS REQUIRED TO SET ASIDE JUDGMENT (AND GRANTED)
The judgment of Mr Justice Calver in Ipsum Capital Ltd v Lyall & Ors [2020] EWHC 3508 (Comm) shows the dangers of serving documents by email. The judge held that service of a defence by email was not good service…
COSTS LAWYERS BEWARE: COURT REFUSES TO SET ASIDE DEFAULT COSTS CERTIFICATE: “AVOIDABLE DELAY” IS NOT LOOKED AT KINDLY
In Masten v London Britannia Hotel Ltd [2020] EWHC B31 (Costs) Mr Leonard refused to set aside a default costs certificate. This serves as a salutary warning of the importance of time limits. Further the Master observed that if a…
MISTAKES IN THE TERMS OF AN ORDER, DENTON AND THE SLIP RULE: AN UNFORTUNATE ERROR LEADS TO A LOT OF LITIGATION
In IC v RC [2020] EWHC 2997 (Fam) Mrs Justice Knowles had to consider the Denton criteria and the slip rule. It also serves as an important warning to anyone undertaking the task of drafting a court order. “I…
A SERIES OF WEBINARS ON “STAYING SAFE” IN PERSONAL INJURY PRACTICE: BRIGHTEN UP YOUR NEW YEAR
To help 2021 run smoothly for litigators I am presenting a series of webinars in February and March on the theme of “staying safe” in the running of personal injury cases. The webinars look at key areas of practice and…
SUMMARY ASSESSMENT OF COSTS: WHAT TO DO IF YOU ARE PRESSED FOR TIME
I am looking again at the judgment of HHJ Hodge QC in Cohen v Fine & Ors [2020] EWHC 3278 (Ch) a because, in concentrating on the issues relating to hourly rates, the other important part of the judgment may…
EXPERT EVIDENCE NOT ADMITTED: IT WAS NOT NECESSARY AND TOO COSTLY
It must be disheartening for parties who get to trial to find that the judge does not think that the “experts” they have instructed (at great cost) are not regarded by the courts as experts at all. This is exactly…
INDEMNITY COSTS AFTER A JUDGMENT DEBTOR WAS EXAMINED: IN ADDITION THERE IS GOING TO BE A SECOND MATCH…
In Shearer v Neal [2020] EWHC 3148 (QB) Deputy Master Hill QC ordered that a debtor pay costs on the indemnity basis after she heard a Part 71 hearing. The case was also remitted to the High Court Judge on…
APPLYING FOR RELIEF FROM SANCTIONS: TWO CLASSIC MISTAKES AND A REMINDER OF 10 KEY POINTS
The judgment in Diriye v Bojaj & Anor [2020] EWCA Civ 1400 shows, at least, two classic mistakes that people make when applying for relief from sanctions: not making the application promptly and not remedying the default properly (in fact…
THE DANGERS OF APPLYING FOR NON-PARTY COSTS ORDERS: THE APPLICANT HAS TO PAY THE PRICE: COURT OF APPEAL DECISION TODAY
In the judgment today in Deepchand & Anor v Sooben [2020] EWCA Civ 1409 the Court of Appeal overturned a decision that there be no order for costs when a party made an unsuccessful application for a non-party costs order. …
COUNSEL PROHIBITED FROM ACTING FOR A PARTY: APPEAL UPHELD: A VERY RARE POWER EXERCISED
In Ahmed v Iqbal (Order Preventing Counsel from Acting) [2020] EWHC 2666 (Fam) Mr Justice Macdonald upheld a decision preventing counsel from acting for a party in family proceedings. THE CASE The father and mother were involved in proceedings under…
ADDRESS FOR SERVICE: THE USE OF A POST OFFICE BOX NUMBER OR ACCOMODATION ADDRESS DOES NOT COMPLY WITH THE RULES: (ALSO – THE PRICE TAG FOR LITIGANTS IN PERSON)
In Smith v Marston Holdings Ltd & Anor [2020] EW Misc 23 (CC) HHJ Paul Matthews made some observations about the correct address for service when applications are issued. He also noted the issues that can arise when dealing with…
“A MOST UNUSUAL CASE”: “A JUDGE’S DRAFT JUDGMENT IS NOT AN INVITATION TO TREAT”
In FS v RS and JS [2020] EWFC 63 Sir James Munby warned against trying to re-open cases after judgment has been given. There were several attempts to re-open the judgment after it was given. It is the only judgment…
SEEK PERMISSION TO APPEAL PROMPTLY (AND TELL THE JUDGE ABOUT IT): “A close analysis of the parties’ cases thus reveals a fractal pattern of progressively complex and ever-finer recursive detail of sharply declining significance.”
The judgment of Mr Justice Turner in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) discloses an unusual turn of events in relation to an appeal. It contains some important observations about the…
NEWTON’S LAW AND COMMUNICATING WITH THE COURT: THE NEED FOR PARTIES TO GO THROUGH THE APPROPRIATE PROCEDURE
There are is brief passage in the judgment of Mr Recorder Allen QC in G v C [2020] EWFC B35 (OJ) (16 July 2020) that is of general application. “The communication has served to demonstrate Newton’s third law of…
RELIEF FROM SANCTIONS ALLOWED WHEN JUDGE HAD RESERVATIONS AS TO WHETHER STRIKING OUT ORDER SHOULD EVER HAVE BEEN MADE
In Barakat v Greycourt Ltd [2020] EWHC 643 (Ch) Mr Justice Fancourt granted relief from sanctions to an appellant whose appeal had been struck out without notice. One thing of note in this judgment is the order striking out the…
AMENDING PLEADINGS? HAVE A DRAFT AT COURT: JUDGE CONSIDERS “CIRCULAR ARGUMENTS” AND A “PARTICULARLY UNFORTUNATE PROCEDURAL LITIGATION HISTORY”
The judgment of HHJ Gore QC (sitting as a High Court judge) in Sivaji v Ministry of Defence [2020] EWHC 2006 (QB) makes interesting reading. It is an object lesson in the need to have an amended pleading to hand…
POINTS TAKEN ON APPLICATION WERE “ALL BAD”: PARTIES TO LITIGATION ARE NOT BOUND TO TAKE BAD OR HOPELESS POINTS
The judgment of Master Davison in Vale SA v BSG Resources Ltd & Anor [2020] EWHC 2021 (Comm) contains some interesting observations on the “state of litigation”. “The points taken on Mr Cramer’s behalf were not a mixture of…
SETTING ASIDE AN ORDER MADE WITHOUT A HEARING OR MADE WITHOUT NOTICE : THE RELEVANT CRITERIA
The previous post looked at the judgment in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin). In that judgment Mostyn J stated that there was no authority on the issue of the criteria when…
COSTS ORDERS MADE WITHOUT A HEARING: HENRY VIII AND THE RELEVANT CRITERIA FOR VARYING ORDERS
We are looking again (and not for the last time) at the decision of Mr Justice Mostyn in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin). This time on the question on the…
GET YOUR COSTS SCHEDULES TO COURT: OR ELSE (YOU WON’T GET PAID): MAKE YOUR BED AND THEN LIE IN IT
The judgment of Mr Justice Mostyn in Kuznetsov, R (On the Application Of) v London Borough of Camden [2019] EWHC 3910 (Admin)has a number of elements that are of interest to costs lawyers, and litigators generally. I am going to…
ACTION NOT STRUCK OUT BECAUSE ALLEGATIONS OF BAD FAITH AND WILFUL MISCONDUCT NOT FULLY PARTICULARISED
In Palladian Partners LP & Ors v The Republic of Argentina & Anor [2020] EWHC 1946 (Comm) Mrs Justice Cockerill refused to strike out pleadings alleging, bad faith, wilful misconduct and manifest error. This is the second example recently of…
“INTEMPERATE DEBATE” IN LEGAL CORRESPONDENCE: A REVIEW OF THE GUIDANCE AND CASES
The judgment yesterday in Collier & Ors v Bennett [2020] EWHC 1884 (QB) contained some judicial observations as to “intemperate debate” in correspondence. This provides an opportunity to review guidance and judicial observations on this topic. THE CASE The judge…
DENTON PRINCIPLES APPLIED IN THE ADMINISTRATIVE COURT: EXTENSION OF TIME GRANTED FOLLOWING DEFAULT IN AN EXTRADITION CASE
In Zelenko v Prosecutor General’s Office of the Republic of Latvia [2020] EWHC 1800 (Admin) the Administrative Court applied Denton principles to an issue concerning extradition. THE CASE An order had been made extraditing the applicant to Latvia. The…
THE STATEMENT OF CASE WOULD NOT HAVE BEEN STRUCK OUT: JUDGE PROVIDES A LESSON IN THE BASIC PRINCIPLES OF PLEADING
In Tejani v Fitzroy Place Residential Ltd & Anor [2020] EWHC 1856 (TCC) Mr Justice Pepperall sent out a clear reminder of the basic purpose of pleading. He rejected an argument by the defendant that a particulars of claim should…
ALLEGATIONS OF JUDICIAL BIAS REJECTED: HIGH COURT DECISION TODAY
In Ameyaw v McGoldrick & Ors [2020] EWHC 1787 (QB) Mrs Justice Steyn refused an application that she recuse herself. The first part of the judgment summarises the law in relation to bias when the judge knows the counsel involved….
WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES
Last week I gave an in-house talk to a London firm of solicitors.* One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …
ARGUING YOUR CASE THROUGH THE WITNESS STATEMENTS: THIS MAY NOT END WELL
Yesterday I wrote about the judgment in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors [2020] EWHC 1624 (Comm). In particular the very vigorous judicial disapproval of an attempt to “argue” the case by way…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
CORONAVIRUS LAW: SHOULD A HEARING BE IN PERSON OR BY VIDEO?
In Surrey Heath Borough Council v Robb & Ors [2020] EWHC 1650 (QB) Mr Justice Freedman considered submissions that a hearing should take place in person. He held that there was an onus on part requesting a hearing in court…
WEBINARS ON LAW, PROCEDURE AND DAMAGES: READ ALL ABOUT THEM…
Since lockdown has made giving live presentations impossible I have been involved in presenting a number of webinars. This would seem a good time to set them out. Those that have been given earlier this year are still available on…
LIFE EXPECTANCY IS RARELY A SIMPLE MATTER OF STATISTICS: APPLYING FOR A “VARIATION” OF DIRECTIONS: YOU SHOULD HAVE APPEALED
In the judgment this morning in Chaplin v Ben Pistol Allianz Insurance Plc [2020] EWHC 1543 (QB) Jay J rejected an application by the defendant to rely on expert evidence in relation to life expectancy. This judgment is important…
THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Two years on this is a good time to recap on…
RELIEF FROM SANCTIONS GRANTED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: SUCCESSFUL APPEAL TO THE HIGH COURT
High Court decisions in relation to relief of sanctions seem to be coming in pairs. Yesterday we looked at Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 1237 (QB) today we are looking at the claimant’s successful appeal…
INTERLOCUTORY APPLICATIONS TO THE COURT: EXTENSIONS OF TIME & INTERIM PAYMENTS: WEBINAR 4th JUNE 2020
At a time when most applications are going to be heard remotely, it is more important than ever that litigators know and comply with the rules governing making applications to court. I am giving a webinar on the 4th June…
COURT FUNDS OFFICE WILL NOW ACCEPT ELECTRONIC PAYMENTS BY BACS DIRECT CREDIT.
I have had a tweet from John de Bono QC stating that the Courts Funds Office will now accept electronic payment by BACS Direct Credit. “Breaking news. I understand Court Funds Office will now accept electronic payments by BACS Direct…
REMOTE HEARINGS (1): HOW ARE THE COURTS COPING? TWO CASES TODAY
I hope to keep a running record of how the courts are coping with remote hearings. Two cases reported today provide examples. Telephone used in committal proceedings In Anwer v Central Bridging Loans Ltd [2020] EWHC 765 (Ch) Mr Justice…
INFORMATION FOR QUEEN’S BENCH COURT USERS QUEEN’S BENCH MASTERS HEARINGS AND QB ACTION DEPARTMENT
Further guidance has been issued by the Queens’ Bench Division in relation to hearings before QB Masters. CORONAVIRUS BULLETIN 2 “In the light of the developments of the last 48 hours, the situation has changed from the communication sent out…
THE EXPLANATORY NOTES TO THE CORONAVIRUS BILL: LIVE LINKS IN COURT PROCEEDINGS
The explanatory notes to the Coronavirus Bill have a detailed explanation of the plans for the expansion of live links in court proceedings, particularly criminal proceedings. Clause 51 and Schedule 22 Expansion of availability of live links in criminal proceedings…
USEFUL GUIDANCE ON REMOTE HEARINGS: FROM START TO FINISH
I am grateful to barristers Rebecca Musgrove and Iain Hutchinson who have sent me a copy (and permission to circulate) of their guide to remote hearings. It provides step by step guidance (and photographs) to help those unfamilar with the…
WEBCAST GUIDES TO ONLINE COMMUNICATIONS AND HEARINGS – FROM ISHAN KOLHATKAR
I made Ishan Kolhatkar Civil Litigation Brief “Lawyer of the Year” last year for the wonderful work he did on the Billable Hour cookbook. Ish is a man of many talents. He has now sent me links to the webcasts…
HMCTS GUIDANCE ON TELEPHONE AND VIDEO HEARINGS DURING CORONAVIRUS OUTBREAK
HMCTS has published guidance HMCTS telephone and video hearings during coronavirus outbreak THE GUIDANCE “Running our courts and tribunals is an essential public service. Audio and video technology has long played a part in the justice system and can now…
CLAIMANT’S HUMAN RIGHTS CLAIM FOR LOSS OF CHERISHED NUMBER PLATES NOT STRUCK OUT:
I am grateful to solicitor Ian Bailey from PGB Gitlin Baker for sending me a copy of the decision of HHJ Roberts in Phillips -v- Secretary of State for Transport. (County Court at Central London 24/02/2020 – a copy of…
SETTING ASIDE DEFAULT JUDGMENT: THE NEED FOR PROMPTNESS AND THE RELEVANCE OF THE DENTON CRITERIA
In Core-Export Spa -v- Yang Ming Marine Transportation Corp [2020] EWHC 425 (Comm) HHJ Pelling QC (sitting as a High Court Judge) refused an application to set aside a default judgment. The defendant had an arguable defence, however its history…
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