THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points of…
101st CPR UPDATE: WELCOME TO THE VIDEO LINK WORLD
The 101st update to the Civil Procedure Rules apply from 8th and 30th November 2018. The main development is a procedure whereby applications to set aside default judgment may be heard by video link. SETTING ASIDE DEFAULT JUDGMENTS: HEARD BY…
AN APPLICATION TO SET ASIDE A WITHOUT NOTICE ORDER IS NOT SUBJECT TO “TIBBLES” CRITERIA: SOMETIMES DENTON DOES NOT APPLY – OR SHOULD NOT BE APPLIED
There is a short passage in the judgment of Mr Justice Pepperall in Berhad v Frazer-Nash Research Ltd & Anor [2018] EWHC 2970 (QB) in relation to late service of evidence before an interlocutory hearing. The judge held that the Denton…
ADVISING YOUR CLIENT ON LITIGATION RISKS 5: IF YOU DON’T PAY COSTS BEFORE ISSUE IT COULD BE VERY EXPENSIVE AFTERWARDS
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the High Court decision in Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). It is one of those cases that illustrate…
BREXIT AND…. ACCURATE TIME ESTIMATES FOR COURT HEARINGS: THE COURT IS NOT A RUBBER STAMP
The judgment in AIG Europe Ltd & Anor, Re [2018] EWHC 2818 (Ch) has already been the subject of some consternation, starting as it does with the words ” This case concerns the reorganisation of a major insurance company to prepare…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
TRYING TO SNEAK EXPERT EVIDENCE INTO A WITNESS STATEMENT: PEOPLE MIGHT NOTICE: DEFENDANT’S ATTEMPT TO EXHIBIT EXPERTS STRUCK OUT
There have been numerous cases in which parties have attempted to give expert evidence in witness statements. Another example can be seen in the decision in New Media Distribution Company Sezc Ltd v Kagalovsky [2018] EWHC 2742 (Ch). An attempt to…
NEW WITNESS STATEMENTS AND EXPERT EVIDENCE NOT ALLOWED: DENTON APPLIED TO CASE MANAGEMENT: COMPLIANCE WITH DIRECTIONS IS THE ONLY SAFE OPTION
In SJ Moore (Jeweller) Limited -v- Squibb Group Limited [2018] EWHC 2731 (QB) Denton principles were considered and applied when the defendant wanted to adduce new evidence. What is notable here is the fact that the defendant had the expert…
COURT STEPS OUTSIDE THE FIXED COSTS REGIME: DEFENDANT’S CONDUCT AMOUNTED TO AN ABUSE
The Intellectual Property Enterprise Court (IPEC) guards its fixed costs regime very jealously. Prior to the decision in Link Up Mitaka Ltd (t/a Thebigword) v Language Empire Ltd & Anor [2018] EWHC 2728 there appears to have only been one previous…
MARMITE: SKELETON ARGUMENTS: “SO CALLED”: ATTEMPTS TO APPEAL THE FACTS: A SPREAD OF ISSUES CONSIDERED
In Solicitors Regulation Authority v Day & Ors [2018] EWHC 2726 the Divisional Court rejected the SRA’s appeal against a decision of the Solicitors’ Disciplinary Tribunal. There are some interesting comments about the number of documents and the length of skeleton’s…
A HARSH REMINDER: IF YOU DON’T TURN UP FOR TRIAL THEN THE TEST FOR SETTING JUDGMENT ASIDE IS VERY TOUGH: BE PROMPT, BE VERY PROMPT
In Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch) Mr Justice Henry Carr refused to set aside a judgment obtained after the defendant failed to attend trial. There was a major mistake on the part of the court, however the…
SOLICITORS CANNOT BE COMPELLED TO HAND OVER FILES: HIGH COURT DECISION
In Hanley v J C & A Solicitors [2018] EWHC 2592 (QB) Mr Justice Soole decided that the court did not have inherent power to compel solicitors to hand over copies of documents to their former clients. THE CASE Three claimants…
AVOIDING PROCEDURAL PITFALLS – AND PUTTING THEM RIGHT: WEBINAR 6th DECEMBER 2018: HELPING LITIGATORS SLEEP SOUNDLY AT NIGHT…
On the 6th December I am presenting a webinar “Avoiding Procedural Pitfalls and Putting Them Right”. The aim is to look at the key problem areas of civil procedure, how to avoid problems and how to rectify problems if things…
SETTING ASIDE AN ORDER ON COURT’S OWN INITIATIVE: A REDETERMINATION OF THE MATTER AND NOT SUBJECT TO TIBBLES PRINCIPLES
There is a short passage in the judgment today of Master Clark in Massimo Osti SRL v Global Design And Innovation Ltd & Anor [2018] EWHC 2263 (Ch) that provides an important reminder of the relevant principles that apply when a…
DON’T DELAY SERVICE OF THE CLAIM FORM JUST BECAUSE YOU DON’T HAVE THE PARTICULARS OF CLAIM: A NAIL IN THE COFFIN FOR CLAIMANTS WHO DECIDE TO WAIT
There is another aspect of the judgment in Phoenix Healthcare Distribution Ltd v Woodward & Anor [2018] EWHC 2152 (Ch) that needs highlighting. The lesson here is clear: you cannot delay service of the claim form on the grounds that you…
LIMITATION: SECTION 33 IN A FATAL DISEASE CASE: CASE ALLOWED TO PROCEED AFTER 25 YEAR DELAY
In Pearce & Ors v The Secretary of State for Business, Energy And Industrial Strategy & Ors [2018] EWHC 2009 (QB) Mr Justice Turner considered the principles relating to Section 33 of the Limitation Act 1980 and granted an application where…
THE KIMATHI DECISION 5: REVIEW OF SECTION 33 PRINCIPLES: WHY LIMITATION WASN’T HEARD FIRST
This is the fifth in the series that looks at the decision of Mr Justice Stewart in Kimathi & Ors v The Foreign And Commonwealth Office [2018] EWHC 2066 (QB). The judgment contains a useful review and survey of Section 33 and…
YOU’VE STARTED SO YOU’LL FINISH: MASTER SETS ASIDE NOTICE OF DISCONTINUANCE SERVED BY INSURER
In Advantage Insurance Co Ltd v Stoodley & Anor [2018] EWHC 2135 (QB) Master Davison set aside the claimant’s notice of discontinuance made after reading the defendant’s additional written submissions after a hearing. The notice of discontinuance was viewed as “tactical….
YOU LOST AT TRIAL – YOU ARE NOT GETTING A SECOND GO: THE JUDGMENT IS HAIR TODAY AND WILL NOT BE GONE TOMORROW…
In Liqwd Inc & Anor v L’Oreal (UK) Ltd & Anor [2018] EWHC 1845 (Pat) Mr Justice Birss refused a defendant’s application to “reopen the trial and decide one of the issues afresh” taking into account new evidence. “Many litigants, having…
WHEN IS A REPORT NOT A MEDICAL REPORT? RELIEF FROM SANCTIONS GRANTED WHEN CLAIMANT FAILED TO SERVE A “MEDICAL REPORT” WITH THE PARTICULARS OF CLAIM
In a judgment given today at Leeds County Court His Honour Judge Gosnell held that a claimant, seeking damages for industrial deafness, breached the rules when issuing by not serving a medical report but serving an “AMR” report. The judge,…
HOME SECRETARY REFUSED PERMISSION TO SERVE EVIDENCE LATE: THE OVERRIDING OBJECTIVE WAS USED EVEN IF DENTON DID NOT APPLY
In Teh v Secretary of State for the Home Department [2018] EWHC 1586 (Admin) the Secretary of State was refused permission to rely on evidence served late. The issue was decided under the Overriding Objective, rather than by reference to the…
FIFTH BIRTHDAY REVIEW 7: THE “BACK TO BASICS” SERIES
I am looking back at the posts that have been part of a series over the past five years. The “Back to Basics” posts are part of a series that is very much ongoing. The aim of each post is…
THE LIMITS OF DECLARATORY RELIEF: THE DANGERS OF APPLYING FOR IT: CLAIMANT’S ARGUMENTS (AND PLEADINGS) FAIL TO RAISE THE ROOF
I am grateful to my colleague John de Waal QC at Hardwicke for bringing my attention to the judgment of Mrs Justice O’Farrell in Office Depot International (UK) Ltd v UBS Asset Management (UK) Ltd & Ors [2018] EWHC 1494 (TCC). It…
PROVING THINGS 112: ITS NO USE JUST WAVING ACCOUNTANT’S REPORTS AROUND
In Berkshire Homes (Northern) Ltd v Newbury Venture Capital Ltd [2018] EWHC 938 (Ch) the respondent relied on accountant’s reports in an attempt to prove its case. The case shows that it is insufficient just to produce accounts. Evidence has to…
JUDGES CANNOT MAGICALLY ACQUIRE INFORMATION BY OSMOSIS: THE DUTY ON PARTIES TO ENCAPSULATE LONG-RUNNING LITIGATION
In SC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) Patrica Robertson QC (sitting as a High Court Judge) reminded practitioners that judges have no magical powers. When a long-running case on a “grand scale” comes before the court…
TRANSFER FROM COUNTY COURT TO HIGH COURT: YOU CAN ASK FOR THIS ONLY ONCE: A DISCRETION TO BE EXERCISED “WITH GREAT CIRCUMSPECTION”
In Bass v Ministry of Defence [2018] EWHC 1297 (QB) Master Davison held it was an abuse of process for a party to make an application to transfer to the High Court when a similar application had been made, and refused,…
“AVOIDING PAROCHIALISM”: TRANSFER BETWEEN DIVISIONS – NO EVIDENCE ONE DIVISION IS BETTER THAN ANOTHER
In Mezvinsky & Anor v Associated Newspapers Ltd [2018] EWHC 1261 (Ch) Chief Master Marsh refused an application to transfer from the Business and Property Courts to the Media and Communications List. “the court hearing an application for transfer must be…
PROVING THINGS 94: : THE DEFENDANT WANTS TO CHOOSE BOTH THE CLAIMANT’S LITIGATION FRIEND AND SOLICITOR: EVIDENCE IN SUPPORT FAR FROM COMPELLING
There are some audacious applications. However an application by defendants that attempts to dictate who the claimant’s litigation friend should be, and who their solicitor should be, should – at the very least – be backed up by firm evidence. …
DENTON PRINCIPLES APPLIED TO A CASE WHERE A CLAIMANT FAILED TO GET PERMISSION TO ISSUE PROCEEDINGS
Although the Denton principles are much more settled it is prudent to keep a weather eye on cases where they are considered. His Honour Judge Davis-White QC (sitting as a judge of the Chancery Division in Leeds) applied the Denton principles in a…
NO LUCK WHEN REACHING FOR THE SKY: LITIGANTS SEEKING A SECOND BITE OF THE CHERRY FROM THE TRIAL JUDGE GET SHORT SHRIFT
In an earlier post about the case of P (A Child), Re [2018] EWCA Civ 720 we looked at an example where the parties (all the parties in the case) had correctly used the guidance in English v Emery Reimbold and Strick Ltd [2002]…
THE CLEVELAND BRIDGE CASE: A SECOND CROSSING: PAYMENTS ON ACCOUNT OF COSTS
Judgments dealing with payments on account of costs are rare, but illuminating. Particularly when the costs budget is taken as the starting point. There is a detailed consideration of this issue in Cleveland Bridge UK Ltd v Sarens (UK) Ltd [2018]…
CIVIL PROCEDURE – BACK TO BASICS 2: “EVIDENCE IN SUPPORT” OF AN APPLICATION
The previous post looked at some of the basic requirements of an application to the court. Here we look at the evidence that may be needed in support of an application. The key point here being “evidence”. Numerous hours are…
CIVIL PROCEDURE – BACK TO BASICS 1: THE HUMBLE APPLICATION: WORDING AND TIMING
Last year I was giving an in-house talk at a very prominent firm of litigation solicitors. The litigation partner present (a person of immense experience) made the point that the firm were continually having talks and education on esoteric and…
“PERSUASION”: APPLICATIONS & EVIDENCE: ATTEND A COURSE AND SUPPORT CHILDREN’S LITERACY: 18th APRIL 2018 – LINCOLN’S INN
On the 18th April 2018 I am involved in a talk at Hardwicke, in Lincoln’s Inn. With a number of my colleagues we are talking on “Persuasion” Applications and Evidence for Defendants and Insurers”. All proceeds go directly to a…
YOU APPEAL DECISIONS NOT REASONS: PERMISSION TO APPEAL REFUSED IN RELATION TO AN ARGUMENT THAT DID NOT CHANGE OUTCOME OF THE CASE
In Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt rejected the defendant’s application for permission to appeal. The proposed appeal was wholly academic in the sense that it had no impact on the outcome of the case. THE…
APPEAL ALLOWED BECAUSE OF A SERIOUS PROCEDURAL IRREGULARITY: IF YOU WANT SUMMARY JUDGMENT THEN MAKE SURE YOU HAVE APPLIED FOR IT
On the 18th April 2018 I am, with a number of my colleagues from Hardwicke, giving a talk on “Applications for Defendants”*. The judgment this week in St Clair v King & Anor [2018] EWHC 682 (Ch) may well feature. It…
A DRAFT JUDGMENT IS NOT AN OPEN INVITATION TO TAKE A SECOND BITE AT THE CHERRY: AN OVERUSED TACTIC
In Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWHC 227 (TCC) Mr Justice Fraser made it clear that draft judgments were not to be taken as an invitation to the parties to embark on a second round of submissions….
THE TIME FOR CHALLENGING A BILL HAS PROBABLY LONG GONE: AN IMPORTANT FACTOR IN REFUSING AN APPLICATION FOR DELIVERY UP
There is a battle (or a series of skirmishes) going on at present in relation to solicitors charging success fees to their clients in personal injury cases. This has led to numerous applications to the courts for disclosure. The former…
NO “GRANDSTANDING” PLEASE: THE COURT IS NOT ASSISTED BY RHETORICAL POINTS
It has been a week for the courts commenting on advocates. Earlier we had complaints of advocates interrupting each other. Today we have complaints of “grandstanding”. Reminding advocates that their task is to deal with the legal issues at hand…
THE LIMITATION PERIOD IS JUST ABOUT TO EXPIRE AND YOU ARE NOT READY: FIVE KEY POINTS FOR WHEN YOU DICE WITH PROCEDURAL DEATH
No matter how hard litigators try (and how many warnings are given) it appears inevitable that, sooner or later, you are going to have a case where the limitation period is about to expire but you are not ready. The…
PARTIES MUST OBTAIN AN ORDER FOR A HEARING OF A PRELIMINARY ISSUE: (MORE ON LENGTHY SKELETON ARGUMENTS)
In Bokova v Associated Newspapers Ltd [2018] EWHC 320 (QB) Mr Justice Dingemans considered several important issues of procedure. Firstly the need for parties to obtain an order for a hearing on a preliminary issue rather than simply turning up on…
TIME ESTIMATES: PROBLEMS WHEN THE ESTIMATES ARE TOO SHORT: STILL LOOKING FOR GUIDANCE
I have been searching (so far unsuccessfully) for guidance to litigators and litigants to help provide accurate time estimates. This may well be more of an art than a science. However it is a skill that needs honing. Not only…
THE COURT “REGRETTED IF NOT DEPLORED” EXCESSIVE EXPENDITURE ON JURISDICTION ISSUES: COURT OF APPEAL DECISION
In Ogale Community & Ors v Royal Dutch Shell Plc & Anor [2018] EWCA Civ 191 the Court of Appeal made observations about the need to keep applications about jurisdiction in proportion. “… hearings concerning the issue of appropriate forum should…
APPLICATIONS FOR PERMISSION TO APPEAL: THE PROPOSED RESPONDENT CAN HAVE THEIR SAY
An interesting point arose in the Court of Appeal decision today in Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190. When a party seeks permission to appeal from the trial judge – can the other party make submissions in…
THE PROBLEM IN OBTAINING AN ORDER YOU HAVEN’T ASKED FOR:AN APPLICATION UNDER CPR 3.4 WILL NOT BE TREATED AS AN APPLICATION UNDER PART 24
The judgment of Chief Master Marsh in Saeed & Anor v Ibrahim & Ors [2018] EWHC 3 (Ch) contains several important observations in relation to making applications. The Master refused to treat an application, ostensibly made under CPR 3.4, as an…
COURT FEES AND STRIKING OUT: APPEAL AGAINST STRIKING OUT ALLOWED: CROSS -v- BLACK BULL – THE FULL JUDGMENT
I reported the judgment in Cross-v- Black Bull (Doncaster) Limited* (Sheffield County Court 21st December 2017) at the end of last year. The full judgment is now available and is attached here 072 – Cross v Black Bull – Judgment A SUMMARY The…
CIVIL LITIGATION REVIEW OF 2017 (I): “SURVIVING THE EMOTIONS OF LITIGATION” & “THINGS THAT IRRITATE JUDGES”
This is the fourth annual review on this blog. This year I have decided to break it into a number of reviews. First it is interesting to look at what is being read on this site and the search terms…
CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 3: LATE WITNESS STATEMENTS AND “IMPLICIT” ORDERS FOR RELIEF FROM SANCTIONS
We have already looked twice at the “sparring” arguments in relation to procedure in the case of McGann v Bisping [2017] EWHC 2951 (Comm). A further procedural issue arose as to whether a party was debarred from calling evidence at all. The…
AFTER THE EVENT INSURANCE DOES NOT PROHIBIT AN ORDER FOR SECURITY FOR COSTS
In Premier Motorauctions Ltd & Anor v Pricewaterhousecoopers LLP & Anor [2017] EWCA Civ 1872 the Court of Appeal decided that the existence of an after the event insurance policy to cover legal expenses did not prohibit a court from ordering…
SUING THE WRONG DEFENDANT? SHOULD HAVE GONE TO SPECSAVERS?
It is always embarrassing to find out you are suing the wrong defendant and have to apply for substitution (although we have looked at cases in which the wrong claimant has issued proceedings). This issue was considered by Mr Justice…
You must be logged in to post a comment.