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…
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…
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