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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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CIVIL PROCEDURE BACK TO BASICS 93: THE TIME FOR SERVING AN APPLICATION AFTER IT HAS BEEN MADE

CIVIL PROCEDURE BACK TO BASICS 93: THE TIME FOR SERVING AN APPLICATION AFTER IT HAS BEEN MADE

July 18, 2022 · by gexall · in Applications

The previous post about the judgment in AMRA Leasing Ltd v DAC Aviation (EA) Ltd & Ors [2022] EWHC 1718 (Comm) involved a case where the defendants had waited for two months to serve an application.   This was not a critical…

CIVIL PROCEDURE BACK TO BASICS 92: RESILING FROM ADMISSIONS - A SUMMARY OF THE LAW

CIVIL PROCEDURE BACK TO BASICS 92: RESILING FROM ADMISSIONS – A SUMMARY OF THE LAW

December 20, 2021 · by gexall · in Admissions, Appeals

The judgment of Master Stevens in  Shah v London Borough of Barnet [2021] EWHC 2631 (QB) provides an essential summary of the rules and case law in relation to resiling from admissions.   The decision itself was looked at in an…

“A SOLICITOR, NO MATTER HOW EXPERIENCED OR INEXPERIENCED, MUST BE TAKEN TO KNOW THE CIVIL PROCEDURE RULES "(ii): A REMINDER OF THE BACK TO BASICS SERIES

“A SOLICITOR, NO MATTER HOW EXPERIENCED OR INEXPERIENCED, MUST BE TAKEN TO KNOW THE CIVIL PROCEDURE RULES “(ii): A REMINDER OF THE BACK TO BASICS SERIES

December 16, 2021 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure

The post yesterday on the case where it was stated that every lawyer is taken to know the Civil Procedure Rules has led to me re-visit the “Back to Basics” series on this blog.  The series now has 91 posts*…

CIVIL PROCEDURE BACK TO BASICS 90: APPEALS, RESPONDENT'S NOTICES AND DENTON

CIVIL PROCEDURE BACK TO BASICS 90: APPEALS, RESPONDENT’S NOTICES AND DENTON

February 23, 2021 · by gexall · in Appeals, Avoiding negligence claims, Civil Procedure

The Court of Appeal judgment in Unite the Union v Alec McfAdden [2021] EWCA Civ 199 highlights the needs for a party, responding to an appeal, to file a Respondent’s Notice if it wants to argue there are additional, or…

CIVIL PROCEDURE BACK TO BASICS 86: PRE-ACTION ADMISSIONS: THE DANGERS OF NOT MAKING THEM AND THE CONSEQUENCES IF YOU DO

CIVIL PROCEDURE BACK TO BASICS 86: PRE-ACTION ADMISSIONS: THE DANGERS OF NOT MAKING THEM AND THE CONSEQUENCES IF YOU DO

September 28, 2020 · by gexall · in Admissions, Civil Procedure

The judgment in Greater Manchester Fire and Rescue Service v Veevers [2020] EWHC 2550 (Comm) HHJ Pearce emphasises the point that a party can make a formal pre-action admission.  A party who tries an alternative “non-formal” admission may well not get…

CIVIL PROCEDURE BACK TO BASICS  85: DIRECTIONS AND COURT ORDERS SHOULD BE "REALISTIC AND ACHIEVABLE"

CIVIL PROCEDURE BACK TO BASICS 85: DIRECTIONS AND COURT ORDERS SHOULD BE “REALISTIC AND ACHIEVABLE”

September 22, 2020 · by gexall · in Case Management, Civil Procedure

One aspect of the Denton decision that is often overlooked, but which was very welcome, was the Court of Appeal’s message to the courts (and the parties) that any directions given should be “realistic and achievable.”   WHAT WAS SAID…

CIVIL PROCEDURE BACK TO BASICS 84: HOW NOT TO MAKE A PART 36 OFFER THAT IS NOT VALID:

CIVIL PROCEDURE BACK TO BASICS 84: HOW NOT TO MAKE A PART 36 OFFER THAT IS NOT VALID:

September 17, 2020 · by gexall · in Avoiding negligence claims, Civil Procedure, Part 36

You may not care to believe it but the title of this post is deliberate, there is a double negative and a lack of clarity.  This reflects  the ambiguities and uncertainties in many of the attempts at Part 36 offers…

THE "BACK TO BASICS" SERIES 80: THE POSTS SO FAR

THE “BACK TO BASICS” SERIES 80: THE POSTS SO FAR

June 16, 2020 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure

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…

CIVIL PROCEDURE BACK TO BASICS 66: THE COURT HAS TO KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4

CIVIL PROCEDURE BACK TO BASICS 66: THE COURT HAS TO KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4

October 7, 2019 · by gexall · in Applications, Civil evidence, Civil Procedure, Expert evidence, Experts

A party seeking to rely on expert evidence requires permission from the court. It is surprising how often the rule requiring the court to be provided with details of the cost of that expert is overlooked. “When parties apply for…

CIVIL PROCEDURE BACK TO BASICS 65: THAT NIGHTMARE SCENARIO WHERE THE COURT HAS ISSUED THE CLAIM FORM BUT YOU CAN'T SERVE IT

CIVIL PROCEDURE BACK TO BASICS 65: THAT NIGHTMARE SCENARIO WHERE THE COURT HAS ISSUED THE CLAIM FORM BUT YOU CAN’T SERVE IT

October 2, 2019 · by gexall · in Avoiding negligence claims, Civil Procedure, Service of the claim form

Here I want to isolate one aspect of the judgment in AAA -v- Rakoff [2019] EWHC 2525 (QB) that was easy to miss amidst all the features of that case.  The fact that the court can issue proceedings and hold onto…

CIVIL PROCEDURE BACK TO BASICS 64: THE AUTOMATIC STAY (EASY TO FORGET ABOUT)

CIVIL PROCEDURE BACK TO BASICS 64: THE AUTOMATIC STAY (EASY TO FORGET ABOUT)

September 20, 2019 · by gexall · in Avoiding negligence claims, Civil Procedure

Here we look at the automatic stay imposed by CPR 15.11. This is one of those rules than can be overlooked and could, if ignored, cause major procedural difficulties. THE RULES “Where – (a) at least 6 months have expired…

CIVIL PROCEDURE BACK TO BASICS 63: WHEN WILL THE COURT REDUCE THE NUMBER OF WITNESSES ALLOWED?

CIVIL PROCEDURE BACK TO BASICS 63: WHEN WILL THE COURT REDUCE THE NUMBER OF WITNESSES ALLOWED?

September 17, 2019 · by gexall · in Civil evidence, Civil Procedure, Witness statements

Here we are looking at CPR 32.2 (3) which gives the court express powers to identify or limit the number of witnesses a party may call. That power has now been considered several times by the courts. Firstly  by Mr…

CIVIL PROCEDURE BACK TO BASICS 62: ASKING LEADING QUESTIONS WHEN INTERVIEWING WITNESSES - CAN (OR WILL) LEAD TO PROBLEMS

CIVIL PROCEDURE BACK TO BASICS 62: ASKING LEADING QUESTIONS WHEN INTERVIEWING WITNESSES – CAN (OR WILL) LEAD TO PROBLEMS

September 16, 2019 · by gexall · in Avoiding negligence claims, Civil evidence, Civil Procedure, Witness statements

Examination in chief is rare in civil cases, many (perhaps most) practitioners will never have seen it done in court.   There is a rule against asking leading questions  when taking a witness through their evidence.   There is a good reason…

CIVIL PROCEDURE BACK TO BASICS 58: HOW TO CALCULATE TIME IN THE CIVIL PROCEDURE RULES

CIVIL PROCEDURE BACK TO BASICS 58: HOW TO CALCULATE TIME IN THE CIVIL PROCEDURE RULES

August 14, 2019 · by gexall · in Civil Procedure, Extensions of time

The previous post on the errors made in relation to calculation of time highlight the need for practitioners to be aware of the precise rules in relation to calculation of time. In this respect this may be the easiest post…

CIVIL PROCEDURE BACK TO BASICS 57: YOU CAN'T SUBMIT THAT A WITNESS IS LYING UNLESS YOU HAVE PUT THAT CASE TO THEM

CIVIL PROCEDURE BACK TO BASICS 57: YOU CAN’T SUBMIT THAT A WITNESS IS LYING UNLESS YOU HAVE PUT THAT CASE TO THEM

August 5, 2019 · by gexall · in Applications, Witness statements

A short, but fundamental, point about making submissions at the close of a case.  You cannot  generally make submissions that a witness  is lying unless that case has been put directly to that witness in cross-examination. “It is a fundamental…

CIVIL PROCEDURE BACK TO BASICS 56: ADVISING ON THE RISKS OF LITIGATION: "CLIENTS WANT TWO INCONSISTENT THINGS"

CIVIL PROCEDURE BACK TO BASICS 56: ADVISING ON THE RISKS OF LITIGATION: “CLIENTS WANT TWO INCONSISTENT THINGS”

July 23, 2019 · by gexall · in Avoiding negligence claims, Risks of litigation

The difficulties facing those giving advice about litigation is summed up in a judgment of Sedley LJ  “Clients, I know, want two inconsistent things. They want confident advice on which they can act, and they want cautionary advice about the…

CIVIL PROCEDURE BACK TO BASICS 55: THE 70 KEY POINTS OF THE DENTON JUDGMENT

CIVIL PROCEDURE BACK TO BASICS 55: THE 70 KEY POINTS OF THE DENTON JUDGMENT

July 21, 2019 · by gexall · in Applications, Avoiding negligence claims, Case Management, Relief from sanctions

The judgment in Denton -v- White [2014] EWCA Civ 906 was given five years ago. It is a case that is still cited daily in the courts. It can be misunderstood or misquoted. Here are the 70 key points of this…

CIVIL PROCEDURE BACK TO BASICS 54: SCHEDULES OF DAMAGES SHOULD NOT BE WORKS OF FICTION

CIVIL PROCEDURE BACK TO BASICS 54: SCHEDULES OF DAMAGES SHOULD NOT BE WORKS OF FICTION

July 12, 2019 · by gexall · in Avoiding negligence claims, Case Management, Civil evidence, Civil Procedure, Damages, Schedules, Statements of Case

Anyone drafting anything in the litigation process must remain acutely aware that there is real possibility that the document they are drafting will one day be read by a judge.  This is even more likely in relation to a schedule…

CIVIL PROCEDURE BACK TO BASICS 52: THE REPLY AND DEFENCE TO COUNTERCLAIM: TO REPLY OR NOT TO REPLY - THAT IS THE QUESTION

CIVIL PROCEDURE BACK TO BASICS 52: THE REPLY AND DEFENCE TO COUNTERCLAIM: TO REPLY OR NOT TO REPLY – THAT IS THE QUESTION

July 8, 2019 · by gexall · in Civil Procedure, Statements of Case

Here we take a quick look at the rules and practice directions in relation to filing a Reply and  Defence to a Counterclaim.  In particular claimants should be very aware of the fact that a defendant can apply to enter…

CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET

CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET

May 27, 2019 · by gexall · in Advocacy, Civil evidence, Civil Procedure

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…

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