ISSUING HIGH VALUE PERSONAL INJURY AND CLINICAL NEGLIGENCE CLAIMS: LOCAL IS USUALLY BEST: HIGH COURT DECISION
I am grateful to all those readers who brought my attention to the judgment of Mr Justice Cotter in Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB), in particular to the section on the wisdom of issuing in local…
“E-MAIL EXCHANGES COULD BE 2,000 OR 4,000 PAGES APART”: A JUDGMENT ABOUT BUNDLES (WHERE YOU CAN SEE SOME FAIRLY GRUMPY CORRESPONDENCE)
In Bailey -v- Stonewall Equality Ltd, Garden Court Chambers & others the Employment Tribunal awarded £20,000 costs against the respondents (in what is normally a no- costs regime) because of the chaotic way that the application bundle had been presented. …
COST BITES 74: CLAIMANTS HAVE TO PAY THE COSTS OF DISCONTINUED APPLICATION FOR A GROUP LITIGATION ORDER: COUNTING THE COPPERS
In Beck & Ors v Police Federation of England and Wales (Re Costs) [2023] EWHC 685 (KB) Senior Master Fontaine held that the claimants should pay the costs of an – abandoned – application for a Group Litigation Order. “I…
PLEADING A DEFENCE: THE DIFFICULT STATUS OF A “NON-ADMISSION”: (SOMETHING ABOUT RE-USING WITNESS STATEMENTS TOO)
In Cardiff City Football Club (Holdings) Ltd, Re [2022] EWHC 322 (Ch) Mr Justice Adam Johnson found himself deciding matters relating to the pleading of the action, the scope of the trial and the admissibility of witness evidence on the…
GLUTS AND BUNDLES: LOTS OF AUTHORITIES DON’T HELP: “THIS MUST NOT BE REPEATED IN ANY FUTURE COUNTY COURT TRIAL”
I am sure that our eminent housing bloggers and commentators will write about the important substantive judgment in the case of Rosebery Housing Association Ltd v Williams & Anor [2021] EW Misc 22 (CC). However this blog deals with only one…
DELAY IN PURSUING PROCEEDINGS IS AN ABUSE OF PROCESS: LOCAL AUTHORITY’S INSOUCIENCE A CAUSE FOR CONCERN
In London Borough of Havering & Ors v Persons Unknown & Ors [2021] EWHC 2648 (QB) Mr Justice Nicklin had some clear warnings to give in relation to cases where local authorities had failed to pursue cases promptly after obtaining…
BUNDLES IN PART 8 PROCEEDINGS: THE RELEVANT DOCUMENTS CHRONOLOGICALLY AND IN CATEGORIES
Issues relating to bundles are a regular theme on this blog. There is a short postscript to the judgment of Master Clark in Hudman v Morris [2021] EWHC 1400 (Ch), where observations were made following a Part 8 hearing relating…
A SPLIT TRIAL IS NOT ALWAYS A GOOD IDEA: ORDERS MADE WITH THE BEST OF INTENTIONS CAN PROVE TO BE A COSTLY EXERCISE
In Mather v Ministry of Defence [2021] EWHC 811 (QB) Mr Justice Freedman refused the claimant’s application for a split trial. “The law reports are littered with cases where a preliminary issue seemed a good cost-saving exercise, but where…
CASE MANAGEMENT ORDERS ARE NOT WRITTEN IN STONE: COURT SHOULD NOT BE “STUCK IN THE RAILS”: MASTER COULD VARY ORDER OF PREVIOUS MASTER
In Oyston & Anor v Rubin & Anor [2021] EWHC 448 (Ch) Mr Justice Miles considered arguments in relation to whether a Master was entitled to vary a previous order made by a different Master. The judge emphasised that case…
YOU CAN’T CLAIM THE COSTS OF ADVERTISING FOR CLIENTS IN YOUR COST BUDGET: YOU REALLY CAN’T
An interesting point arose in the judgment of Mr Justice Saini in Weaver & Ors v British Airways Plc [2021] EWHC 217 (QB). The costs of advertising for clients to join a Group Litigation Order are not recoverable, they were…
THOUSANDS OF DOCUMENTS AND LEAVING SOME POINTS ON THE CUTTING ROOM FLOOR: THE JUDGE’S LAMENT
In Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC) Mr Justice Turner allowed the defendants’ application to strike out the claim being brought by 202,600 claimants. Here we look at the observations in relation…
CIVIL PROCEDURE BACK TO BASICS 85: DIRECTIONS AND COURT ORDERS SHOULD BE “REALISTIC AND ACHIEVABLE”
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…
CORONAVIRUS – A USEFUL CASE: MASTER ALLOWS PARTY TO VARY DIRECTIONS BY CONSENT BY 56 DAYS
7BR’s website carries an interesting report from Adam Korn of a judgment today where Master Davison made an order extending the amount of time the parties can agree to vary directions. This was directly because of potential difficulties arising out…
THE DANGERS OF MAKING ORDERS FOR SPLIT TRIALS: DECISION AT TRIAL SET ASIDE DUE TO A SERIOUS PROCEDURAL IRREGULARITY
The judgment of Mr Justice Murray today in Sharn Panesar Ltd v Pistachios In The Park Ltd & Anor [2020] EWHC 194 (QB) illustrates some of the dangers of holding a trial on a preliminary issue. In this case a…
WITNESS STATEMENTS, WITNESS EVIDENCE AND SELF-PROTECTION FOR THE LAWYER
Every few years I repeat advice given in relation to the need for “self-protection” when drafting witness statements. This is often caused by something I have seen in practice, questions I am asked, or a transcript of a case. The…
2019 AND CIVIL PROCEDURE – A ROUND UP OF THE ROUND UPS: WHAT TO FRET ABOUT AND WHAT NOT TO FRET ABOUT…
There have been a series of annual reviews on key topics throughout December. To round off the year it seemed a good idea to provide a reminder of them all and put the links in one place 2019 AND CIVIL…
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (1): BUNDLES
I am sorry to be starting the annual review of procedure so early, but December is a busy month and there is a lot to fit in. I’ll start with the subject that has constantly drawn the most readers to…
MAKING FINDINGS ON THE BASIS OF THE LIST OF DOCUMENTS ALONE: THE MACKENZIE PERPLEX
There is one aspect of the judgement in Mackenzie v Alcoa Manufacturing (Gb) Ltd [2019] EWCA Civ 2110 that requires a little more attention. That is is the question of how parties, faced with the absence of documents and where…
DEFENDANTS – WAKE UP, SERIOUSLY: A “VERY RELAXED” ATTITUDE TO THE RULES WILL COST YOUR CLIENTS DEAR: APPLICATION FOR EXTENSION OF TIME TO FILE A DEFENCE REFUSED: REFUSAL CONFIRMED ON APPEAL
In Joan Angela Kember v (As Personal Representative of the Estate of Leonard John Kember, Deceased And On Her Own Behalf And On Behalf of His Dependants) [2019] EWHC 2297 (QB) Mrs Justice Lambert upheld a refusal to grant a…
APPEAL ON COSTS BUDGETING : CLAIMANT’S APPEAL UNSUCCESSFUL: AN OFFER AS TO COSTS DOES NOT BECOME THE BENCHMARK FIGURE
In Gray v Commissioner of Police for the Metropolis [2019] EWHC 1780 (QB) Mr Justice Lambert dismissed the claimant’s appeal from cost budgeting decisions. The judgment contains important observations about the nature of cost budgeting hearings and appeals on…
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…
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