CIVIL PROCEDURE BACK TO BASICS 64: THE AUTOMATIC STAY (EASY TO FORGET ABOUT)
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?
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
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
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
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”
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
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
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
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
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…
CIVIL PROCEDURE BACK TO BASICS 43: CROSS EXAMINING EXPERTS: USEFUL GUIDES AND LINKS
Cross-examining experts is possibly one of the most daunting aspects of advocacy. If an advocate gets into a “debate” with an expert then the advocate normally loses. If the advocate is too brutal the cross-examination can backfire, too supine and…
CIVIL PROCEDURE BACK TO BASICS 39: A NOTICE TO ADMIT FACTS: THE RULES AND CASE LAW
In a discussion about the 20th anniversary of the Civil Procedure Rules on Twitter today someone asked if “Notices to Admit Facts” were still available, they had not seen one for a long time. The rules still permit parties to…
CIVIL PROCEDURE BACK TO BASICS 38: THE DEFENCE TO COUNTERCLAIM
The previous post was about the “reply”. The rules relating to a Defence to Counterclaim are different. Very importantly the timing of the defence to counterclaim is different. There is an obligation on a claimant to properly and fully plead…
CIVIL PROCEDURE BACK TO BASICS 36A: UNDERSTANDING “LITIGATION WISHFUL THINKING”
In assessing a case, and the evidence of both sides, litigators have to be aware of the process of “litigation wishful thinking”. Witnesses may be perfectly honest, but their memories as to what happened are influenced by what they wish would have…
CIVIL PROCEDURE BACK TO BASICS 36 : WHAT TO DO WHEN A PROPOSED DEFENDANT HAS DIED AND THERE IS NO GRANT OF PROBATE
A search term that arrived on this blog earlier today asked “how to you sue a dead person?” The basic answer is that you can’t. You have to sue their executors or administrators. The problem arises when probate has not…
CIVIL PROCEDURE BACK TO BASICS 35: WITNESS CREDIBILITY: MORE THAN MEMORY OR HONESTY
The question of witness credibility is often the central issue of most cases that get to trial. Surprisingly it is a matter that barely features in legal education. A knowledge of the factors that a judge will take into account…
CIVIL PROCEDURE: BACK TO BASICS 24: THE BANKRUPT CLAIMANT (PERSONAL INJURY LITIGANTS IN PARTICULAR)
I am writing this primarily because of a conversation I had with a law graduate who thought the term “bankruptcy” was a generic term to cover anyone who was hard up. The very basic point about what bankruptcy is, and…
CIVIL PROCEDURE BACK TO BASICS 22: WHEN THE CLAIMANT ADOPTS ALLEGATIONS OF CONTRIBUTORY NEGLIGENCE: HOIST ON YOUR OWN PETARD
This post follows on from the previous post in relation to pleading the Defendant’s case in the alternative. Here we are looking at cases where a defendant pleads allegations of negligence and the claimant uses those allegations as allegations against the…
CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR
Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s…
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…