CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
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”. Some people have expressed surprise and how “basic” some points are…
BUNDLES: CIVIL CASES IN THE FAMILY DIVISION: COMPLY WITH THE RULES
In Re XY [2019] EWHC 1610 (Fam) Mr Justice Williams made it clear that all cases heard in the Family Division are subject to the Division rules relating to bundles. “For applications such as those under the Inheritance (Provision for…
SHOULD THE COURT ORDER A SPLIT TRIAL ON LIMITATION? THE FUTILITY OF CITING DECIDED CASES: “SCRIPTURE FROM WHICH THE DEVIL MAY FREELY QUOTE”
In Hutson v Tata Steel UK Ltd [2019] EWHC 1608 (QB) Mr Justice Turner refused the defendant’s application for a split trial on limitation in a group action. The judgment makes it clear that there is no “burden” on any…
LITIGATION THAT WAS “TOTALLY OUT OF PROPORTION”: THE CLAIMANT SHOULD HAVE CUT THEIR CASE TO SUIT THEIR CLOTH: (SOMETHING ABOUT BUNDLES TOO)
In White Winston Select Asset Funds LLC & Anor v Mahon & Anor [2019] EWHC 1381 (Ch) HHJ Simon Barker QC had some telling words about the manner in which the claimant had conducted litigation. What is remarkable about this…
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…
TRYING TO SERVE A SUPPLEMENTAL EXPERT’S REPORT: WHEN DO THE DENTON PRINCIPLES APPLY?
In Global Horizons Corporation -v- Gray [2019] EWHC 1132 (Ch) Mr Justice Arnold considered the question of when the Denton principles apply to service of a “supplementary” medical report. “… the question of whether an application for permission to…
DEFENDANT CAN ONLY RESPOND TO THE CASE AS PLEADED: COURT REJECTS CLAIMANTS’ ATTEMPTS TO INTRODUCE NEW ISSUES
There are two judgments on BAILLI this morning in the Glaxosmithkline case where the judge has resisted the claimants’ attempts to widen the scope of their case beyond the pleaded case and the issues set out in a Group Litigation…
ALLOCATION TO LEVEL OF JUDGE : “FAME” DOESN’T MATTER – THE TIME IT WILL TAKE TO OBTAIN A HEARING DOES
In Schumacher v Clarke [2019] EWHC 1031 (Ch) Chief Master Marsh held that the time it would take to obtain a hearing date is a factor in relation to which judge the matter would be allocated to. The Master also…
MORE ON THE GREAT BUNDLE TAKEAWAY DEBACLE: A “DIFFICULT” QUESTION OF STATUTORY CONSTRUCTION FOR FAMILY LAWYERS
There has been a large amount of comments on the previous posts in relation to taking away of bundles after trial. For family lawyers there is an even greater problem. The “joint notice” from HMCTS endorsed by the Bar Council…
WITNESS BUNDLES: TAKE THEM AWAY AT THE END OF THE TRIAL – OR ELSE
This has been a week dominated by bundles. To end the week the Bar Council has sent out a joint notice from HMCTS on removal of court bundles. This provides a major incentive to ensure that bundles are, in fact,…
CASE MANAGEMENT, “RELEVANCE” AND ATTEMPTS TO HOLD THE COURT “IN TERROREM”: MORE ON THE POST OFFICE CASE (SOME EXTRAORDINARY ISSUES HERE)
I am returning to the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) because parts of the judgment set out arguments and conduct of litigation that is, to say the least, unusual. This part…
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…
BREXIT AND CIVIL PROCEDURE: EXPERTS ARE NOT BE CROSS EXAMINED ON FORESEEABILITY OF UK LEAVING THE EU
This is a far less exciting case than the headline suggests, however it is the first case I have seen about the impact of Brexit on civil procedure (albeit indirectly). In Canary Wharf (Bp4) T1 Ltd & Ors v European Medicines…
UNDERSTANDING THE CODED LANGUAGE OF THE LEGAL DIRECTORIES: HUMBLEBRAGS AND BEYOND
This if the time of year that several legal directories are published. It leads to an inevitable pattern of behaviour. Thanks to law lecturer John Bates we can all now understand the coded language of the legal directory. THE PATTERN…
CASE MANAGEMENT HEARING: SHOULD WE STAY OR SHOULD WE GO? PROCEEDINGS NOT DELAYED BECAUSE THERE ARE PENDING APPEALS
In Sberbank of Russia v The OJSC International Bank of Azerbaijan [2018] EWHC 2777 (Comm)Mr Justice Bryan had to consider whether to adjourn a case management conference pending appeals in other cases. The judge considered the overriding objective and held that…
VERY LATE CHANGE FROM PART 8 TO PART 7: NUANCED CASE MANAGEMENT IN THE TCC
There is an interesting piece of case management in the judgment of Recorder Andrew Singer QC (sitting as a Judge of the Technology and Construction Court) in Ealing Care Alliance Ltd v London Borough of Ealing [2018] EWHC 2630 (TCC). …
ADVISING ON LITIGATION RISKS 1: YOU CAN BE BELIEVED AS A WITNESS AND STILL LOSE YOUR CASE
Earlier posts have looked at the concept of “litigation risks”. This is something we are all aware of as practising lawyers. We advise on those risks on a daily basis. However very little is written about this. This is the…
THIS IS NOT A “PLEADING POINT”: WHY LISTS OF ISSUES NEED TO BE CAREFULLY DRAFTED: COURT OF APPEAL DECISION
In Scicluna v Zippy Stitch Ltd & Ors [2018] EWCA Civ 1320 the Court of Appeal reiterated the importance of the list of issues. This relates to procedure in the Employment Tribunal however, as the judgment points out, lists of issues…
APPLICATION FOR SPLIT TRIAL FAILS TO FLOAT THE MASTER’S BOAT
The judgment in Howard & Ors v Chelsea Yacht And Boat Company Ltd & Anor [2018] EWHC 1118 (Ch) provides a useful “cut out and keep” summary of the principles relating to applications for a split trial. “questions of case…
PROVING THINGS 93: PROVING A WILL: THERE ARE SPECIFIC RULES THAT THE PARTIES SHOULD FOLLOW
I cannot remember the last time I read a case where the Court of Appeal heard evidence from witnesses (who had not been heard below) and made a request that it have sight of original documents. This is what happened…
DELAY IN GETTING TO TRIAL – AND ITS NOT THE COURT’S FAULT: COUNSEL’S AVAILABILITY AND DELAYS – A REMINDER OF THE JIGSAW PROBLEM…
There is often much criticism about the length of time it takes to obtain a trial date. The observations of Mr Justice Fraser in Dacy Building Services Ltd v IDM Properties LLP [2018] EWHC 178 (TCC) indicate that it is not…
LITIGANTS IN PERSON: SUBJECT TO THE SAME LAW AS EVERYBODY ELSE (BUT CASE MANAGEMENT DIRECTIONS MAY BE DIFFERENT)
The judgment in Reynard v Fox [2018] EWHC 443 (Ch) has already been written about in the legal press. Indeed it bristles with procedural issues, I want to concentrate on the issue of the treatment of litigants in person. THE…
PARTIES MUST OBTAIN AN ORDER FOR A HEARING OF A PRELIMINARY ISSUE: (MORE ON LENGTHY SKELETON ARGUMENTS)
In Bokova v Associated Newspapers Ltd [2018] EWHC 320 (QB) Mr Justice Dingemans considered several important issues of procedure. Firstly the need for parties to obtain an order for a hearing on a preliminary issue rather than simply turning up on…
EXPERT EVIDENCE AS TO EARNINGS NOT NECESSARY (THOUGH NOT A CIVIL CASE): ASSESSMENT OF EVIDENCE IS THE JUDGE’S JOB NOT THE EXPERTS
I am trespassing into the area of family law to look at decision of Mr Justice Moor in Buehrlen v Buehrlen [2017] EWHC 3643 (Fam). It is of general interest to civil lawyers because it involves the court considering whether expert…
PROPORTIONALITY AND CASE MANAGEMENT: THE OVERRIDING OBJECTIVE APPLIES ON A MACRO SCALE: “ACADEMIC” ISSUE SHOULD PROCEED TO A HEARING
In London Borough of Haringey v Simawi [2018] EWHC 290 (QB) Mr Justice Nicklen expressly considered the Overriding Objective when determining whether a human rights issue that could be rendered “academic” should continue to a hearing. “Those rules are directed at…
ANONYMOUS WITNESSES AND CONFIDENTIALITY CLUBS: HIGH COURT DECISION
In Kalma & Ors v African Minerals Ltd & Ors [2018] EWHC 120 (QB) Mr Justice Turner considered the issue of anonymous witnesses and confidentiality clubs. He granted six witnesses anonymity. This was subject to the identity of the witnesses being…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VI: COULD PROJECT MANAGEMENT HELP?
This series on proportionality for litigators is a long-running one. One suggestion is that “Legal project management” could help. There is a very short entry in Wikipedia as to what “Legal project management” is. LEGAL PROJECT MANAGEMENT I put questions to…
THE SHORTER TRIAL SCHEME: PROCEDURAL WRANGLING AND PROBLEMATIC EXPERT EVIDENCE: IT CAN’T BE BRUSHED ASIDE
In the judgment today in L’Oréal Société Anonyme RN Ventures Ltd [2018] EWHC 173 (Pat) Mr Justice Henry Carr set out his concerns on aspects of the procedure and expert evidence before the court. The judgment contains some lessons for litigators…
PRESENTING THE CASE PROPERLY FOR YOUR CLIENT: TRIAL BUNDLES: RESURRECTING THE ADVICE GIVEN BY “LEGAL ORANGE”
The average lifespan of a blog is around 100 days. One blog on law and litigation that stopped posting several years ago was Legal Orange . A blog that started in December 2013 and where the last post was December…
EXPERT REPORTS SHOULD BE EXCHANGED CONCURRENTLY: THE PRINCIPLES APPLIED IN A CAR HIRE CASE: WHEN EVIDENCE CAN AMOUNT TO A SKELETON ARGUMENT
The decision of District Judge Glen in Kansal -v- Tang (31st January 2017, County Court at Slough) is available on the DWF website. It says a lot about “expert” evidence about hire rates. In particular the judge’s comment that evidence…
I WANT AN ADJOURNMENT BECAUSE I’M ILL: AN APPLICATION NOT GUARANTEED BE SUCCESSFUL
The issue of adjournments because of ill-health is one of the most common search terms that leads to this blog. (I am not certain whether to be surprised at this or not). For those searching today the relevant principles are…
WITNESS CREDIBILITY, VERY BAD SINGING AND A MOVIE: ALL HUMAN LIFE IS HERE: (SOMETHING FOR LAWYERS TOO…)
The decision in Martin & Anor v Kogan & Ors [2017] EWHC 2927 (IPEC) centred on witness credibility. Not so much honesty but accuracy of recollection. It illustrates the issue of how the judge goes about assessing evidence when witnesses…
SORRY SILKS: IMPORTANT AS YOU ARE THE CASE IS NOT BEING HELD UP FOR YOU: THE TAIL IS NOT GOING TO WAG THE DOG
The judgment of Mr Justice Fraser in Bates & Ors v Post Office Ltd [2017] EWHC 2844 (QB) contains some telling observations about case management, listing and the need to comply with the overriding objective. “Fitting hearings around [counsel’s] availability has…
CONDUCT AND LITIGATION: THE SEPARATION OF POWERS AND THE RULE OF LAW: A SECRETARY OF STATE DOES “NOT REQUIRE KINDERGARTEN-TYPE ELABORATION”
The headnote in R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC) appears relatively benign, Mr Justice McCloskey deciding that the upper…
DISPUTE BETWEEN SOLICITORS: PERMISSION TO AMEND REFUSED AS IT WAS A COLLATERAL ATTACK ON AN EARLIER DECISION: CONCESSION MADE BY MISTAKE CANNOT BE WITHDRAWN
In Mark Lewis Law Ltd & Anor v Taylor Hampton Solicitors Ltd & Anor [2017] EWHC 2359 (QB) Mrs Justice Whipple DBE refused an application by the defendant solicitors to amend its counterclaim shortly before trial. It is a case that…
WHY DISTRICT JUDGES SOMETIMES NEED THE PATIENCE OF SEVERAL SAINTS
In a recent case Mr Justice Kerr said, of employment judges “Employment Judges sometimes have to have the patience of a saint to do their job and are appointed because they are considered to have it, among other reasons.”* Those…
TOO MANY DOCUMENTS SPOIL THE CASE: APPLICATIONS SHOULD BE CONDUCTED PROPORTIONALLY
In Alsaifi -v- Amunwa [2017] EWHC 1443 QB Mr Justice Warby reminded parties of the need for bundles and documents to be relevant and proportional. “I make these points to emphasise the importance of parties to litigation of this kind…
WHY YOU SHOULD NEVER JUDGE A BOOK BY ITS COVER: THE UNDERWOOD TRILOGY
There are three volumes in Kerry Underwood’s guide to “Kerry on Personal Injury Small Claims Portals and Fixed costs”. Each has Kerry’s photo on the front. Should that put you off? As ever I have a “quick” review and a…
ADJOURNMENTS, ILL HEALTH, FAIRNESS AND THE DENTON PRINCIPLES: COURT OF APPEAL UPHOLDS CASE MANAGEMENT DECISIONS
In Dove -v- London Borough of Havering [2017] EWCA Civ 156 the Court of Appeal considered a number of procedural issues prior to giving judgment on the substantive point. The defendants argued that they should have been granted an adjournment of…
BOMBARDING THE COURT: AN IMPORTANT POSTSCRIPT
There is an important postscript to the judgment of Lady Justice King in Agarwala -v- Agarwala [2016] EWCA Civ 1252. It sets out the dangers of “bombarding” the court with communications and applications. It sets out a course of…
COSTS BUDGETING: PILOT SCHEME IN THE CHANCERY DIVISION IN LEEDS
Leeds District Registry has a pilot scheme in relation to costs budgeting. It enables the parties to agree to limit the extent of costs budgeting. The parties can, by agreement, file a simple costs budget with the Directions Questionnaire. If…
ANOTHER EXPERT WITNESS GOES AWRY: PATENTLY A PROBLEM
It is easy for the non-technical reader to pass over judgments relating to patents. These often involve highly technical issues. However there is one aspect of the judgment in Thoratec Europe Limited -v- AIS GMBH Aachen Innovative Solutions [2016] EWHC…
COSTS BUDGETING IS APPROPRIATE AND NECESSARY IN A HIGH VALUE CASE : BUT IT WAS NOT APPROPRIATE TO ORDER A SPLIT TRIAL
In Signia Wealth Limited -v- Marlborough Trust Company Limited [2016] EWHC 2141 (Ch) Chief Master Marsh considered two issues relating to case management: whether costs budgeting should apply and whether a split trial was appropriate. KEY POINTS Costs budgeting A…
UNNECESSARY MATERIAL, DUPLICATION AND INFORMATION OVERLOAD: ANOTHER JUDGE'S LAMENT
The observations of Mr Justice Kerr at the end of his judgment in Kimmance -v- General Medical Council [2016] EWHC 1808 (Admin) contains some familiar themes in relation to the preparation of cases: bundles, citations and skeletons. “The parties should…
PROVING THINGS 25: ATTEMPTS TO SMUGGLE IN WITNESS STATEMENTS DO NOT HELP (AND CARRY NO WEIGHT)
There are interesting observations in the judgment of His Honour Judge Hacon today in Raft Limited -v- Freestyle of Haven Limited [2016] EWHC 1711 (IPEC) in relation to an attempt to avoid a limit on the number of witnesses who…
A BASIC THING THAT ANYONE PREPARING A WITNESS STATEMENT SHOULD KNOW: THE DIFFERENCE BETWEEN FACTS AND OPINION
This blog has often observed that many litigators could make life a lot simpler if lay witnesses statements stopped trying to give expert evidence and expert witnesses stopped trying to determine issues of fact. I am grateful to Jeff…
EXPERT REPORTS IN THE ADMINISTRATIVE COURT: PART 35 APPLIES
In the judgment today in Khaled -v- Secretary of State for the Home Department [2016] EWHC 857 (Admin) Mr Justice Garnham considered Part 35 of the CPR and the admissibility of expert reports in proceedings in the Administrative Court. “The…
A SPLIT TRIAL ON A PRELIMINARY ISSUE: ANOTHER CAUTIONARY TALE
A post earlier this month looked at the dangers of a court ordering a trial on a preliminary issue on a point of law. Similar concerns were raised by Mr Justice Edwards-Stuart in Water Lilly Co Ltd -v- Clin [2016] EWHC…
THE IMPACT OF PROCEDURE UPON SUBSTANTIVE LAW: KNAUER -v- MOJ
I have written elsewhere about the impact of the Supreme Court decision in Knauer v Ministry of Justice [2016] UKSC 9. It is interesting to look at one short part of the judgment to reflect how changes to procedure can have…
THE SHORTER TRIALS SCHEME: SCOPE AND PROCEDURE
The Shorter Trial Scheme is both interesting and exciting. Providing as it does a possible blueprint for getting appropriate cases to trial much quicker, and a much lower costs. The scheme is discussed in detail in the short judgment of…
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