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…
LEGALLY STREETWISE: WHAT YOU DON’T LEARN IN LAW SCHOOL
Initially it was a surprise to discover that law students were being told to read this blog (I am not sure I need that kind of pressure). Apparently prospective pupils and trainees are advised to read it to answer interview…
IN LITIGATION, AS IN LIFE, THINGS WILL GO WRONG: HAVING A STRATEGY IN PLACE
There has been a lot of publicity recently about lawyers who have been struck off for, effectively, making things up to cover up mistakes. In the most recent case a time limit was missed for the First Tier Tribunal and…
A FURTHER GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTION 2: BE CAREFUL ABOUT THE ADDRESS FOR SERVICE
Now that the gyms are emptying out again this is a good time to provide one of the periodical reminders about the civil litigator’s new year’s resolutions. Just concentrating upon the address for service. RESOLUTION 2 KNOW THE ADDRESS AND…
LIMITATION, PAIN AND ANGUISH: A GENTLE REMINDER ABOUT NEW YEAR'S RESOLUTIONS (1)
Most New Year’s resolutions last 24 days. In an effort to keep litigators on board for the whole of the year in relation to the Resolutions for Litigators for 2016 I am doing a series of short reminders about the…
ADMINISTRATIVE COURT AWARDS NOTIONAL COSTS: THE PRICE TO PAY FOR THE ABSENCE OF A COSTS SCHEDULE
There is an interesting exchange at the end of the judgment of Mr Justice Dove in The Queen on the application of the Solicitors Regulation Authority -v- Imran [2015] EWHC 2572 (Admin). A REMINDER This is an example of the…
SERVICE OF THE CLAIM FORM: A SORRY TALE OF A DOUBLE WHAMMY
We have looked at the case of Dzekova -v- Thomas Eggar LLP [2015] EWHC 2600 (QB) briefly before. However the full transcript has become available. It reveals a sorry tale of woe and yet another case of problems with service….
"HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE": 22nd SEPTEMBER 2015: HARDWICKE BUILDING, LONDON: RAISING FUNDS FOR THE BILLABLE HOUR
LITIGATORS: HOW TO GET SUED: MAKE A LOSS AND BE MISERABLE RAISING MONEY FOR THE BILLABLE HOUR APPEAL (ALL PROCEEDS GO TO THE APPEAL) Gordon Exall and PJ Kirby QC. Hardwicke Building, Lincoln’s Inn. TUESDAY 22nd SEPTEMBER 2015 5.30 -…
TYPE IN HASTE, REPENT AT LEISURE: SOME EXAMPLES FROM LITIGATION: "CHURN THAT BILL, BABY"
If you write something down, particularly on a computer, it has the potential to come back and bite you. It can bite you even if you think the communication is privileged or between colleagues. There are several cases in which…
ADVISING ON THE "RISKS OF LITIGATION": A HIGH COURT DECISION
In Thomas -v- Albutt [2015] EWHC Mr Justice Morgan considered, among other things, the duty owed by a barrister (and lawyers generally) to warn about the risks of litigation. “Clients, I know, want two inconsistent things. They want confident advice…
SERVICE OF THE CLAIM FORM – FURTHER PROBLEMS: YOU CANNOT ALWAYS RELY ON WHAT YOU ARE TOLD
Service of the claim form is an issue that continues to cause problems. There is a brief report on Lawtel today of the decision of Stewart J in Dzekova -v- Thomas Eggar PPL (QBD 17/07/2015)*. It is another example of…
HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE (2015 EDITION): LEEDS 30th JUNE 2015
If you are a litigator and feeling happy, confident and have no concerns at all about getting things wrong, being sued or making a loss, then something may be missing from your life. TO MAKE YOUR LIFE COMPLETE Come to…
AMENDING PLEADINGS LATE 1: WANI LLP -v- RBS: A MATTER OF INTEREST?
There have been a few cases recently relating to fairly last minute attempts to amend pleadings. The principles governing applications were considered by Mr Justice Henderson in Wani LLP -v- The Royal Bank of Scotland [2015] EWHC 1181 (Ch). It…
COCKELL –v- HOLTON AND MISLEADING HEADLINES: IT WASN'T THE WRONG EMAIL ADDRESS THAT KILLED THE COUNTERCLAIM
There are many reports in the legal press that deal with the relief from sanctions issue in Cockell -v- Holton (No 2) [2015] EWHC 1117 (TCC). Many of these concentrate upon the initial failure to lodge the pleading at court because…
COMMUNICATIONS WITH THE CLIENT AFTER PROCTOR: A NEW TYPE OF LEGAL DRAFTING REQUIRING PARTICULAR SKILLS
In the Proctor -v- Raleys case the standard forms and letters written by the insurers came under close scrutiny at the trial and in the Court of Appeal. Professor Richard Moorhead provides an interesting angle on this issue in his…
ADVISING CLIENTS PROPERLY AND THE ECONOMICS OF PRACTICE: WHEN DRAWINGS ARE AT £9.9 MILLION
The earlier post on Procter -v- Raley’s solicitors contained a submission on behalf of the defendant that it was necessary “in modern conditions” for solicitors to “commoditise” their advice to clients. The Court of Appeal were doubtful on that point because there…
THERE ARE NOW UNEXPLODED GRENADES IN YOUR FILING CABINET: SERVE PROCEEDINGS PROMPTLY AND PROPERLY
One problem with the flurry of issuing proceedings last week is that there will now be numerous actions that have been issued which are not fully ready and where service will be delayed. Remember that un-served proceedings means that there…
FOR TWO DOLLARS MORE: THE DANGERS OF NOT SENDING THE CORRECT COURT FEE
I am grateful to Gerard McDermott QC for sending me details from the American Bar Association Journal of a £2.5 million case in Powhattan Circuit Court where a $2.5 million dollar action failed because the court fee was incorrect by…
AVOIDING NEGLIGENCE CLAIMS: A SUMMARY OF PREVIOUS POSTS
There are now over 640 individual posts on this blog. Occasionally it helps to recap. Here I provide links to the series on “avoiding negligence” claims written at the end of 2013. THE SERIES The series was primarily aimed at…
MATTERS LEADING UP TO THE MAKING OF A WITNESS STATEMENT MAY NOT NECESSARILY HAVE JUDICIAL PROCEEDINGS IMMUNITY: COULD YOU BE CROSS-EXAMINED ON THE WAY YOU TOOK A WITNESS STATEMENT?
Statements made in the course of proceedings are usually subject to judicial proceedings immunity. The scope and extent of this immunity was considered in detail by the Court of Appeal in Singh -v- Governing Body of Moorlands Primary School [2013]…
LITIGATION AFTER JACKSON (POST DENTON EDITION): 12 POINT SURVIVAL GUIDE
In August last year I wrote Litigation after Jackson a 10 point Survival Guide. All of the points made in that post remain valid. I have added another 2 to deal with the situation post -Denton. The biggest danger, post…
AVOIDING UNDER SETTLEMENT 1: CLAIMS FOR LOSS OF EARNINGS (1)
The curious thing about writing about avoiding under settlement is that there is very little material on the subject, particularly in the U.K. There are now plenty of websites which offer to sue your previous lawyer if you are not…
WHO IS WATCHING YOUR BACK? A CHECKLIST ON "DEFENSIVE LITIGATION"
The previous post looked at the “fish file” checklist prepared by groups in a recent session I conducted in at one of Kerry Underwood’s courses. A second checklist was also prepared by the groups and this related to “defensive litigation”….
OTHER ESSENTIAL CHECKLISTS: DEALING WITH THOSE "FISH FILES"
Earlier posts looked at the essential checklists prepared by delegates at the “how to get sued” conference. Missing from those checklists was any discussion of one real problem for practitioners that can often lead to problems – the “fish file”….
PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE
I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings. However Jon Williams pointed out that the case has an…
73rd AMENDMENT TO THE CIVIL PROCEDURE RULES COMES INTO FORCE TODAY: FINAL TRIO OF LINKS
Monmouthshire Law Society’s twitter account announced Happy 73rd update to CPR day this morning. Here are three crucial links so you can join in the celebrations. CELEBRATORY LINKS A general summary and the rules themselves are here Guidance as to…
YOU CAN AGREE TO EXTEND TIME NOW: BUT SHOULD YOU AGREE TO EXTENSIONS?
Parties can agree to extend time from the 5th June. I have already written on the dangers of the system. However, if the dangers can be sidestepped, should a litigator agree to extend time. THE HEATED DEBATE: SHOULD PARTIES AGREE EXTENSIONS? This…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
AVOIDING UNDERSETTLEMENT: THE FINAL "ESSENTIAL CHECKLIST" & A USEFUL LINK
The final list in the “essential checklist” series is on “avoiding undersettlement”. The day the course was held the Law Society Gazette had published Rachel Rothwell’s piece on Why Cannibalism is coming to PI. One delegate noted that he had…
PRE-ACTION CONDUCT: ESSENTIAL CHECKLISTS AND USEFUL LINKS
This is the 5th in the series of “Essential Checklists”. The group “Prequel” (the clue is in the name I guess) set out what they thought were essential elements in Pre-action procedure. PREQUEL’S CHECKLIST PRE-ACTION STEPS, PROTOCOL AND LETTERS BEFORE…
COSTS AND COSTS BUDGETING SOME ESSENTIAL CHECKLISTS: GROUP H AT WORK
This is the checklist produced by Group H. You can see the cost lawyer’s concerns at work in relation to the proper allocation of the case and the need to keep an ongoing record. Of particular interest is the…
SURVIVING MITCHELL 20: THE GREAT BIG OVERALL CHECKLIST
I suspect that this series could go on indefinitely. It is drawn to a close with a round up of the key points. KEY POINTS 1. Know what happened in Mitchell and how it could have been avoided. 2. Assume…
SURVIVING MITCHELL 19: PRACTICE "DEFENSIVE LITIGATION" OR DON'T PRACTICE AT ALL
This is the 19th (and penultimate) in this series on “surviving Mitchell”. What the Mitchell case makes clear is that there is now precious little room for error in civil procedure. We have to develop systems of “defensive litigation”. That…
WITNESS STATEMENTS: THE PREQUEL TO THE "ESSENTIAL CHECKLIST"
As part of the “Essential Checklist” series a group considered the issues relating to witness statements. Prior to the checklist it is worth reviewing some of the essential issues relating to the service and preparation of witness statements. THE ISSUES…
LIMITATION: THE ESSENTIAL CHECKLIST: BACK TO THE FUTURE AT WORK
This is the second “essential checklist” compiled at a recent course held by Zenith Chambers. In this workshop practitioners (primarily solicitors), of all levels and type of experience, were asked to produce checklists for the “danger” areas of practice….
LIMITATION: ESSENTIAL POINTS BEFORE THE "ESSENTIAL CHECKLIST"
We have already had the essential checklist on service. We are now moving on to the essential checklist for limitation. Before the Mitchell case it was usually limitation that was a major problem for litigators, particularly personal injury practitioners. It…
SERVICE OF PROCEEDINGS: THE "ESSENTIAL CHECKLIST"
In earlier posts I have described how groups of litigators got together earlier this week to draft essential “safety” checklists for key elements of civil procedure. Here we have the checklist for service of proceedings. THE TEAM This checklist was…
SERVICE OF THE CLAIM FORM: THE TIME FOR SERVICE AND THE ADDRESS FOR SERVICE: ESSENTIAL POINTS BEFORE THE ESSENTIAL CHECKLIST
In an earlier post I described the work done on a recent course when delegates developed checklists designed to avoid problems in key areas of civil procedure. I was planning to put the checklists up individually. However in social media…
YOU CAN AGREE TO EXTEND TIME – BUT BE VERY CAREFUL: FIVE DANGER POINTS EXPLORED
There is some relief for litigators (and the courts to be honest) now that parties (from the 5th June) are allowed to extend time. However the new rules introduce some potential traps. It is wise to be aware of these…
SURVIVING MITCHELL 18: RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
There is a growing trend of “cannibalism” in the legal profession. Advertisements on my local radio station this morning were asking “do you want to sue your lawyer”? What is the legal profession doing to protect itself? The answer is…
WHEN IS AN APPLICATION "MADE"? A MATTER THAT COULD BE OF SOME IMPORTANCE
The case of In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards. An application made after the…
SURVIVING MITCHELL 16: DEALING WITH "FISH FILES": OVERCOMING PROCRASTINATION
A “fish file” is a file that has been left for so long it has started to smell. Consequently the litigator avoids it and it gets smellier and smellier. These files are always ripe. Ripe, that is, for problems to…
SURVIVING MITCHELL 15: SHARE THE PAIN
Most of the burden of complying with time periods and court orders lies with the solicitor. However a solicitor’s life can be made easier by making sure that all those concerned with the litigation process know of the deadlines involved…
SURVIVING MITCHELL 13: READ KERRY'S RULES OF SURVIVAL
At the end of the previous post on Surviving Mitchell I wrote that there were important issues of law firm management which needed to be addressed and that, perhaps, Kerry Underwood would be better placed than me to address them….
SURVIVING MITCHELL 12: READ LEGAL ORANGE AND LITIGATION FUTURES TODAY
The links section of this blog points readers to many and various useful posts and articles on procedure. Today, however there are two that need singling out as part of the “Surviving Mitchell” strategy. LEGAL ORANGE Reading Mitchell-Proofing your claim…
SURVIVING MITCHELL 11: BE PROMPT: BE VERY PROMPT
Two recent cases have emphasised the importance of a prompt response to procedural issues. Anything other than “promptness” courts danger with the courts. The duty to act “promptly” does not just apply to making applications for relief from sanctions. A…
HAVE YOU BEEN "MITCHELLED"? THE PROBLEMS OF WITHOUT NOTICE ORDERS: A WORKING EXAMPLE
I am grateful to Simon Baskind from Cohen Cramer solicitors in Leeds for the following account of a “Mitchell” problem. ACTION STRUCK OUT BY THE COURT FOR NO GOOD REASON “I know we are all probably suffering from Mitchell overload…
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