CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET
There is an ongoing debate going on on Twitter at the moment about “how to instruct counsel”. More particularly the problems caused by “instructions” being sent in a chain of emails (or other electronic communication) with major difficulties in finding…
ADVICE FROM ACROSS THE PROFESSION AND AROUND THE WORLD: “CROWD SOURCED” GUIDANCE: THANKS FOR ALL THE TWEETS
There have been a number of occasions when I have put contributions from people on Twitter on this blog. This is usually in response to specific questions and issues raised. People have been generous in their time and Advice. I…
TALES FROM THE APIL CONFERENCE 4: TIME ESTIMATES FOR HEARINGS (AND WHY YOU SHOULD VISIT KINGSTON UPON HULL)
There were difficult choices to be made when delegates selected their particular lectures at the recent APIL conference. In a show of northern solidarity (and because I am interested in these kind of things) I went to see District Judge…
LAWYERS: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Last night I did a post on using social media to help young lawyers (and some not so young lawyers). Specifically on how it is possible to gather information and advice from around the professions (and indeed around the world)….
SOMETHING FOR THE WEEKEND: THE THIRD POST THIS WEEK ABOUT THE STATEMENT OF TRUTH: WHEN A SOLICITOR SIGNS A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
I am returning, again, to the consequences of the Court of Appeal judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, “the deliberate or reckless making of a false statement in a document verified by a statement of…
WITNESS STATEMENTS AND SELF-PROTECTION FOR THE LAWYER: A FURTHER RECAP : WHAT IS YOUR SYSTEM IF THE WITNESS BLAMES YOU?
This topic follows directly on from the post yesterday about the significance of the statement of truth. In particular the Court of Appeal’s observation that “the deliberate or reckless making of a false statement in a document verified by a statement…
LIABILITY OF McKENZIE FRIEND: EXCLUSIVE NOTE OF JUDGMENT:
There was considerable discussion yesterday about the decision of HHJ Eady (sitting as a High Court judge) in Wright -v-Troy Lucas. My colleague Colm Nugent has been kind enough to send me a note of the judgment (where he appeared…
LIMITATION AND INHERITANCE ACT CLAIMS: SOMETHING TO WATCH CAREFULLY: AGREEING “LIMITATION AMNESTY” MAY NOT BE POSSIBLE
NB – THESE COMMENTS ON THE POWER TO AGREE AN AMNESTY WERE DOUBTED BY THE COURT OF APPEAL SEE THE POST HERE In Cowan v Foreman & Ors [2019] EWHC 349 (Fam) Mr Justice Mostyn set out some importance principles in…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
LITIGATORS KEEP A CAREFUL LOOK OUT: ITS YOUR DUTY TO MONITOR YOUR EXPERT’S CONDUCT (OTHERWISE ITS YOUR CLIENT THAT SUFFERS)
One specific aspect of the judgment in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) that needs emphasising is the duty the case places on a litigant’s lawyers to monitor the conduct of an expert and…
“MY SOLICITOR WROTE THAT STATEMENT”: A FAMILIAR TALE: HAVING A PLAN TO PROTECT YOURSELF
The previous post dealt with a case where the claimant’s witness statement was found to be “largely fictional”. This coincided with a number of posts on Twitter with various lawyers and judges (duly anonymous) commented on the situations in which…
BACK TO BASICS 14: SERVICE OF THE CLAIM FORM ON A SOLICITOR
In the case I wrote about yesterday, Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch), the very basic errors made by the claimant’s solicitor in relation to service of the claim form were held to amount to “misconduct” (albeit in…
LITIGATION IS A TOUGH WORLD: IF YOU MAKE MISTAKES: GET HELP – PLEASE
The decision of the Administrative Court in Solicitors Regulation Authority v James [2018] EWHC 3058 (Admin) has already received wide publication. The Court overturned a decision of the Solicitors Disciplinary Tribunal not to strike off solicitors who had been dishonest. It…
STRESS, LITIGATORS AND LITIGATION: A RECAP
For World Mental Health Day I am re-posting posts on this blog that deal with stress, for litigators and those involved in the litigation process. Part of my work, dealing with relief from sanctions and limitation, means I come across…
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…
AVOIDING PROBLEMS WITH LIMITATION AND THE EFFECTIVE USE SECTION 33 (WEBINAR): 7th NOVEMBER 2018
On the 7th November 2018 I am presenting a webinar for APIL on issues in relation to limitation in personal injury case. It looks at the most common causes of difficulty with limitation periods, avoiding problems with limitation and then…
ADVISING CLIENTS AS TO THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”: CASES AND GUIDANCE
A recent decision by the Bar Standards Board held that a barrister had not acted with reasonable competence when he failed to inform his client in relation to the risks of bringing a private prosecution. This decision highlights the need…
APPLICATION TO EXTEND TIME FOR SERVICE OF THE CLAIM FORM REFUSED: CLAIMANT’S CASE AGAINST THIS DEFENDANT GOES UP IN SMOKE…
In Viner -v- Volkswagen Group Limited [2018] EWHC 2006 (QB) Senior Master Fontaine refused the claimants’ application to extend time for service of the claim form. A link to the judgment is available from the Law Society Gazette article on…
THE DEFENDANT IS NOT THE CLAIMANT’S KEEPER: WOODWARD DECISION ON SERVICE OF THE CLAIM FORM OVERTURNED ON APPEAL: LEAVING SERVICE LATE IS SIMPLY COURTING DISASTER
There is a brief report on Lawtel this morning showing that the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) has been overturned on appeal. It highlights the dangers of leaving service of the claim form…
5th BIRTHDAY REVIEW 4: AVOIDING PROBLEMS AFTER MITCHELL: LIVING IN THE SHADOW OF THE BIKE
It is universally recognised that the Court of Appeal judgment in Mitchell was a mistake. The Master of the Rolls stated that the decision in Mitchell decision led to a “febrile atmosphere” leading to “unreasonable decision making”. There were 219…
5th BIRTHDAY REVIEW 3: AVOIDING NEGLIGENCE CLAIMS
This is the third post that looks back at series of posts over the past five years. The series on avoiding negligence claims was written at the end of 2013. The emphasis was on avoiding negligence claims, particularly for personal injury…
THE ADDRESS FOR SERVICE OF THE CLAIM FORM: HAVE YOU GOT A SYSTEM? LITIGATING OR WINGING IT?
Do you know the address for service of all your cases? Are you sure? Looking at the decision in Woodward & Anor v Phoenix Healthcare Distribution Ltd [2018] EWHC 334 (Ch) brings out the point as to how insouciant litigators can be…
LATE SERVICE OF NOTICE OF FUNDING AND RELIEF FROM SANCTIONS: THIS DOES NOT END WELL FOR THE CLAIMANT: COURT OF APPEAL DECISION
In the judgment today in Springer v University Hospitals of Leicester NHS Trust [2018] EWCA Civ 436 the Court of Appeal upheld a decision that refused to give relief from sanctions following late service of notice of funding. The case shows…
THE THREE YEAR LIMITATION PERIOD: HOW DOES ANYONE MISS IT?
This blog has covered numerous cases relating to Section 33 of the Limitation Act 1980. It is worthwhile considering what causes a lawyer to miss a basic three year limitation period. In In Greater Manchester Police v Carroll [2017] EWCA Civ 1992 the…
PART 36: THE UNCERTAIN PROGNOSIS AND THE CLAIMANT’S CONUNDRUM: FIVE POINTS TO THINK ABOUT
The earlier post on the Court of Appeal decision in Briggs -v- CEF Holdings Ltd [2017] EWCA 2363 (Civ) gives rise to a conundrum that claimants (and sometimes defendants) have to address. How do you advise a client when a Part 36…
LEAVING ISSUE UNTIL THE LAST MOMENT – ALWAYS DANGEROUS : PARTICULARLY WHEN A CLAIMANT IS ON NOTICE OF POTENTIAL PROBLEMS
In Hall v Environment Agency [2017] EWHC 1309 (TCC) His Honour Judge Havelock-Allan QC pointed out the dangers of leaving issue until the last moment, particularly in cases where there were likely to be procedural issues relating to jurisdiction. THE CASE…
PROVING THINGS 69: SOLICITORS EVIDENCE OF (THEIR OWN) LOSS “WHOLLY INADEQUATE”: IMPORTANT POINTS ABOUT DELAY TOO
This blog often reports on cases where a party fails to appreciate the scope and depth of evidence needed to prove a claim for damages. This issue arose in the judgment today in Hersi & Co Solicitors, R (On the Application…
LIMITATION MYTHS 10: THE FINAL COUNTDOWN: 9 MYTHS BUSTED AND SOME HELPFUL POINTS
The idea of this series is to be a short, sharp “shock”, just to ensure key issues of limitation are lodged – somewhere – in the busy practitioner’s mind. Here, in the final post in the series, I try to…
A CLINICAL NEGLIGENCE LAWYERS SURVIVAL GUIDE: MANCHESTER 5th DECEMBER 2017: “SCHADENFREUDE FOR CLINICAL NEGLIGENCE LAWYERS”
Along with Stephen Grime QC I am talking on the afternoon of the 5th December 2017 in Manchester. “A Clinical Negligence Lawyers Survival Guide” looks at avoiding substantive and procedure problems during the course of a clinical negligence action. Included…
TRAVEL LAW AND LIMITATION: AN UPDATE AND HELPFUL REMINDER
The aim of the series on limitation “myths” is to be succinct and point out dangers. This is only a starting point. Be aware of the dangers – but there can be exceptions. I am grateful to Julian Chamberlayne from…
MYTHS ABOUT LIMITATION 8: THE LIMITATION PERIOD FOR A CHILD ALWAYS STARTS ON THEIR 18th BIRTHDAY
The previous posts on this subject set out examples where different limitation periods apply. It is worth noting that often these limitation period often apply to children. An assumption that a child’s limitation period always starts on their 18th birthday…
MYTHS ABOUT LIMITATION 6: ABROAD IS A FOREIGN COUNTRY, THEY DO THINGS DIFFERENTLY THERE
It is now possible to bring actions in England and Wales for accidents that happened abroad. On the whole the Civil Procedure Rules apply. This has led to a myth that English and Welsh limitation periods also apply. In fact…
MYTHS ABOUT LIMITATION 5: EVERYTHING IS NEVER SHIP SHAPE IF YOU ASSUME A THREE YEAR PERIOD APPLIES
The previous post looked at the two year limitation period that applied in relation to air travel (and airports remember). Here we are going further to dispel the myth that every limitation period is two years. Be wary of anything…
MYTHS ABOUT LIMITATION 4: WHEN YOU REALLY BELIEVE THE THREE YEAR LIMITATION PERIOD CAN FLY
The view that all personal injury claims are subject to a three year limitation period is a myth. If any injury is suffered within or near an aircraft the safest assumption is that the limitation period is two years. The…
MYTHS ABOUT LIMITATION 3: THE DATE OF ISSUE FOR LIMITATION IS THE DATE ON THE CLAIM FORM
Once or twice a month I receive a phone call from practitioners in a panic. They sent the claim form to court in good time but the date of issue is outside the limitation period. Further some defendants still take…
MYTHS ABOUT LIMITATION 2: THE LIMITATION PERIOD FOR ASSAULT IS SIX YEARS
This is a myth I didn’t know existed until I heard it being propounded in a bar last week (and which led to the start of this series). Strangely, unlike some of the myths were are looking at, it has…
MYTHS ABOUT LIMITATION 1: IN A BREACH OF CONTRACT CASE THE LIMITATION PERIOD IS ALWAYS SIX YEARS
This is the first of a series of short posts about “myths” about limitation that sometimes exist in litigation, in personal injury in particular. Myth 1 is that if you are bringing a claim based on breach of contract the…
SERVICE ON SOLICITORS: A REMARKABLE VIEW LEADS TO MAJOR MISTAKE: THE LAW SUMMARISED
I have already written today about the decision in Higgins & Ors v ERC Accountants & Business Advisers Ltd [2017] EWHC 2190 (Ch). I want to isolate one element of that case that relates to the remarkable view that the claimants’ solicitor…
ANOTHER CLAIM FORM CASE: PUTTING IN THE POST ON REQUISITE DATE IS GOOD SERVICE: NO SAFE HARBOUR FOR DEFENDANTS ON THIS ISSUE
Master McCloud has already made observations about the ” dry and unlovely crop of procedural service issues” that are regularly coming before the Masters. Another issue was considered in Jones v Chichester Harbour Conservancy & Ors [2017] EWHC 2270. “… the correct…
WITNESSES, STATEMENTS AND LAWYERS – “SELF PROTECTION”: A QUICK RECAP
Sometimes, quite often in fact, clients need “protecting” from lawyers who are preparing witness statements on their behalf. I have dealt with this in previous posts and will write on this again in the near future. However here I want…
WHAT DO YOU DO WHEN IT ALL GETS TOO MUCH (OR IT IS YOU THAT HAS TO PICK UP THE PIECES): A RECAP
I am repeating, in large part, an earlier post. I do so without apology. Part of my job involves, periodically, dealing with cases (sometimes multiple cases) where someone has “gone off the rails” leaving numerous practical and procedural problems…
MORE ON FISH FILES: “LEAVE THEM IN THE CORNER UNTIL THEY START TO SMELL”: RECOGNISING THE PROBLEM AND SOLUTIONS
Everyone, at some stage, has a “fish file” – a file that has been left for so long it has started to smell (sometimes literally). Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe….
WHAT THEY DON’T TEACH YOU AT LAW SCHOOL IV: OWNING AND FIXING YOUR MISTAKES
The Fourth in this series goes to Pennsylvania and looks at an article by Elizabeth Collura in Lawyerist.com – Recognisizing, Owning and Fixing Your Mistakes. This is short but to the point. Mistakes happen, they are rarely disastrous. It is…
LITIGATORS: WHAT DO YOU DO WHEN THINGS GO WRONG? 10 KEY POINTS
There has been an unusual amount of sympathy today on Twitter for the report of a newly qualified solicitor who was struck off. The solicitor “had ‘messed up’ on a handful of the 170 cases he was handling and did…
A NEW YEAR'S RESOLUTION FOR 2017 : EX PARTE APPLICATIONS ARE NO PARTY (AND CAN LEAD TO CRYING)
Last year I had 10 new year’s resolutions for litigators. This year I have one. (The resolutions from last year remain current but one resolution is easier to keep) THINK VERY CAREFULLY BEFORE, DURING AND AFTER, MAKING AN EX-PARTE APPLICATION…
BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)
There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload. This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is…
FRAUDULENT CLAIMANTS AND THE NEED FOR SELF-PROTECTION BY LAWYERS
A report in Litigation Futures last week illustrates the need for “self protection” by lawyers. The headline says it all “Insurance Fraudster who tried to blame his solicitor jailed for 18 months”. “IT WAS ALL MY SOLICITOR’S FAULT” The claimant…
IN-HOUSE COURSES ON WITNESS STATEMENTS AND CIVIL PROCEDURE
In response to several e-mails over recent months I have prepared two courses, available in-house only: one on drafting witness statements, the other on “avoiding procedural pitfalls”. WITNESS STATEMENTS “Too often (indeed far too often) witnesses who have had statements…
LITIGATION AND WORKLOAD 3: INSURERS
The first post in this series on litigators and workload got an (unexpected) amount of attention. As part of the series I want to look at one often overlooked, but crucial, part of the litigation chain, insurers. In particular claims…
LITIGATORS, LITIGATION AND THE APPROPRIATE CASE LOAD 2: "IT’S NUTS"
I had no idea that the earlier post on a litigator’s case load would receive such a large response and have many hundreds of people reading it within hours (it was posted on a Sunday remember). Most of the response…
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