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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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CLAIM FORM SENT TO DEFENDANT'S OLD REGISTERED OFFICE NOT PROPERLY SERVED: CLAIMANT WAS NOT INSULATED AGAINST THE MISTAKES OF THEIR SOLICITORS

CLAIM FORM SENT TO DEFENDANT’S OLD REGISTERED OFFICE NOT PROPERLY SERVED: CLAIMANT WAS NOT INSULATED AGAINST THE MISTAKES OF THEIR SOLICITORS

November 30, 2023 · by gexall · in Avoiding negligence claims, Service of the claim form

 The judgment of District Judge Dawson in Jagger (& others) -v- Axa Insurance PLC, has enough material to keep this blog going for a month. (The judgment is available on a link from the Law Society Gazette here).  I am…

SERVICE OF THE CLAIM FORM CASES: THE PAST 14 MONTHS: ANOTHER SEASON OF THE DREARY  & UNLOVELY CROP OF PROCEDURAL SERVICE ISSUES

SERVICE OF THE CLAIM FORM CASES: THE PAST 14 MONTHS: ANOTHER SEASON OF THE DREARY & UNLOVELY CROP OF PROCEDURAL SERVICE ISSUES

November 30, 2023 · by gexall · in Avoiding negligence claims, Civil Procedure, Service of the claim form, Serving documents, Webinar

This year has seen a bumper number of  reported cases on what Master McCloud has referred to as a “dry and unlovely crop of procedural service issues”.  This webinar on the 5th February looks at the cases relating to the…

PART 36 DOES NOT APPLY TO SOLICITORS ACT ASSESSMENTS: HIGH COURT DECISION (YESTERDAY)

November 29, 2023 · by gexall · in Assessment of Costs, Costs, Part 36

In Zuhri v Vardags Ltd [2023] EWHC 3050 (SCCO) Costs Judge Leonard held that the provisions of CPR Part 36 do not apply to a Solicitors Act assessment of costs.  However it may be relevant to Part 7 proceedings issued,…

COST BITES 124 : EARLY VIEW AS TO VALUE OF A PERSONAL INJURY CASE WAS NOT  UNREASONABLE: DEFENDANT'S APPEAL DISMISSED

COST BITES 124 : EARLY VIEW AS TO VALUE OF A PERSONAL INJURY CASE WAS NOT UNREASONABLE: DEFENDANT’S APPEAL DISMISSED

November 27, 2023 · by gexall · in Appeals, Conduct

I am grateful to solicitor John McQuater for sending me a copy of the judgment of HHJ Sadiq in Drury -v- Yorkshire Aggregates Limited (a decision made in January this year, but the transcript has only just become available).  It…

APPLICATION TO SET ASIDE DEFAULT JUDGMENT: THREE MONTHS DELAY IS NOT “PROMPT”: ABSENCE OF EVIDENCE AND A DRAFT DEFENCE DID NOT HELP

November 27, 2023 · by gexall · in Applications, Default judgment,, Setting aside judgment

In Pincus v Singh & Anor [2023] EWHC 2997 (Ch) HHJ Paul Matthews refused a defendant’s application to set aside a default judgment.  The defendant had waited for three months before making the application.  There was no evidence in support…

COST BITES 123: COSTS OF BUDGETING REDUCED BY 25% TO REFLECT CLAIMANT'S UNREALISTIC BUDGET

COST BITES 123: COSTS OF BUDGETING REDUCED BY 25% TO REFLECT CLAIMANT’S UNREALISTIC BUDGET

November 23, 2023 · by gexall · in Conduct, Costs, Costs budgeting

In Reid v Wye Valley NHS Trust & Anor [2023] EWHC 2843 (KB) Master Brown reduced the recoverable costs of budgeting by 25% to reflect the unrealistic nature of the claimant’s budget.  There are important issues here for those who…

"PLEADINGS ARE INTENDED TO IDENTIFY THE ISSUES, NOT OBSCURE THEM": COMMENTS ON STATEMENTS OF CASE: THEY SHOULD PROVIDE LIGHT NOT DARKNESS

“PLEADINGS ARE INTENDED TO IDENTIFY THE ISSUES, NOT OBSCURE THEM”: COMMENTS ON STATEMENTS OF CASE: THEY SHOULD PROVIDE LIGHT NOT DARKNESS

November 21, 2023 · by gexall · in Statements of Case

There have been a number of cases recently where judges have commented on the state of the pleadings. We see observations being made by Mr Justice Ritchie in the decision today in DMH Electrical (UK) Ltd v MK City Group…

COURT REFUSES TO GRANT AN ORDER FOR A GROUP LITIGATION ORDER: INCORRECT PROCEDURE; COSTS AND "WHACK -A-MOLE" CONSIDERED

COURT REFUSES TO GRANT AN ORDER FOR A GROUP LITIGATION ORDER: INCORRECT PROCEDURE; COSTS AND “WHACK -A-MOLE” CONSIDERED

November 16, 2023 · by gexall · in Applications, Civil Procedure, Personal Injury

Several kind people have sent me a copy of the decision in Abbott & Ors v Ministry of Defence [2023] EWHC 2839 (KB). This is an unusual case because, despite the claimant and defendant being in agreement, the court did…

COST BITES 120:  QOCS AND HIRE CHARGES: DECISION THAT CLAIMANT SHOULD PAY COSTS OUTSIDE QOCS OVERTURNED ON APPEAL

COST BITES 120: QOCS AND HIRE CHARGES: DECISION THAT CLAIMANT SHOULD PAY COSTS OUTSIDE QOCS OVERTURNED ON APPEAL

November 15, 2023 · by gexall · in Appeals, Costs, Personal Injury, QOCS

In Amjad v UK Insurance Ltd [2023] EWHC 2832 (KB) Mr Justice Ritchie overturned a decision that the QOCS cap should be lifted in relation to a claimant who had failed to beat the defendant’s Part 36 offer and who…

COST BITES 117: THE COURT CAN ORDER A PAYMENT ON ACCOUNT OF COSTS WHERE THE SCHEDULE IS HIGH BUT NOT EXCESSIVE

COST BITES 117: THE COURT CAN ORDER A PAYMENT ON ACCOUNT OF COSTS WHERE THE SCHEDULE IS HIGH BUT NOT EXCESSIVE

November 13, 2023 · by gexall · in Applications, Assessment of Costs, Costs, Interim Payments, Summary assessment,, Webinar

In  South Tees Development Corporation & Anor v PD Teesport Ltd & Anor (Re Costs) [2023] EWHC 2270 (Ch) Mr Justice Trower rejected an argument that a payment of account should not be made because the schedule in support was…

A SECOND ACTION ON A DIFFERENT ISSUE TO THE FIRST SHOULD NOT HAVE BEEN STRUCK OUT: COURT OF APPEAL NOT TOO KEEN ON "SHADOW BOXING" IN CIVIL LITIGATION

A SECOND ACTION ON A DIFFERENT ISSUE TO THE FIRST SHOULD NOT HAVE BEEN STRUCK OUT: COURT OF APPEAL NOT TOO KEEN ON “SHADOW BOXING” IN CIVIL LITIGATION

November 6, 2023 · by gexall · in Abuse of Process, Appeals, Applications, Civil Procedure

In Orji & Anor v Nagra & Anor [2023] EWCA Civ 1289 the Court of Appeal overturned a decision that an action should be struck out as an abuse of process.  The Court rejected the defendant’s contention that the action…

PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM

PROVING THINGS 234: REMOTE EVIDENCE FROM OUTSIDE THE JURISDICTION: PARTY CALLING WITNESSES HITS A PROBLEM

November 2, 2023 · by gexall · in Case Management, Civil evidence, Civil Procedure, Remote hearings, Witness statements

The judgment of Deputy District Judge Batstone in  Amanda Seafood PTE Ltd v Sykes Seafood Ltd [2023] EW Misc 13 (CC) illustrates the care that needs to be taken when attempting to call a witness who is giving evidence remotely…

THE "SLIP RULE" CONSIDERED IN DETAIL: ALSO THE COURT'S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS...)

THE “SLIP RULE” CONSIDERED IN DETAIL: ALSO THE COURT’S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS…)

October 31, 2023 · by gexall · in Applications, Civil Procedure, Uncategorized

The “slip rule” in civil procedure is often mentioned, but rarely considered at length. There is a detailed consideration of the rule and relevant authorities in the judgment of Mr Justice Henshaw in Deutsche Bank AG v Sebastian Holdings Inc…

WINDING UP PETITION NEEDS TO BE ISSUED IN LOCAL COURT: TYNE FOR PETITIONERS TO CHANGE THEIR PRACTICES

WINDING UP PETITION NEEDS TO BE ISSUED IN LOCAL COURT: TYNE FOR PETITIONERS TO CHANGE THEIR PRACTICES

October 30, 2023 · by gexall · in Applications, Case Management, Civil Procedure

In The One Collection Real Estate Ltd v Insolvency & Law Ltd [2023] EWHC 2673 (Ch). HHJ Kramer held that a winding up petition should be issued and heard in the circuit that has closest links to the case.  A block policy…

CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE:  THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)

CLAIMANTS NOT GIVEN PERMISSION TO RELY ON EXPERT EVIDENCE: THE EVIDENCE WOULD NOT ASSIST THE COURT IN ITS TASK (WITH A FEW OTHER REASONS)

October 26, 2023 · by gexall · in Applications, Civil evidence, Expert evidence, Experts

In Wambura & Ors v Barrick TZ Ltd & Anor [2023] EWHC 2582 (KB) Master Stevens rejected the claimants’ application to call an expert.  The judge contains a detailed consideration of the law and authorities relating to the court’s discretion…

WANT TO OBTAIN AN ORDER AFTER RECEIVING A DRAFT JUDGMENT? BETTER READ THIS

WANT TO OBTAIN AN ORDER AFTER RECEIVING A DRAFT JUDGMENT? BETTER READ THIS

October 19, 2023 · by gexall · in Applications, Civil Procedure

I have been kindly sent a message from Tim Lord KC which sets out observations made by Miles J in relation to Practice Direction 40E., in particular 4.4..  The Practice Direction deals with the handing down of judgments.  4.4. imposes…

WEBINAR ON DRAFTING SCHEDULES IN PERSONAL INJURY CASES: 9th NOVEMBER 2023

WEBINAR ON DRAFTING SCHEDULES IN PERSONAL INJURY CASES: 9th NOVEMBER 2023

October 18, 2023 · by gexall · in Damages, Personal Injury, Webinar

I am presenting a webinar on drafting Schedules on the 9th November 2023.  Booking details are available here. “In the event, the Original Schedules of Loss were shown to be quite unreliable and, in many respects, bore little or no relation…

FIXED COSTS: LONDON WEIGHTING (AN EXTRA 12.5%): BUT -  WHERE IS LONDON?

FIXED COSTS: LONDON WEIGHTING (AN EXTRA 12.5%): BUT – WHERE IS LONDON?

October 6, 2023 · by gexall · in Costs, Fixed Costs, Rule Changes

The fixed costs provisions provide a “London Weighting” of an additional 12.5%. “London” has a specific meaning as defined in the Practice Direction set out below.   CPR 45.3 Additional costs for work in specified areas (‘London weighting’) 45.3.—(1) Where…

FIXED COSTS: THE COURT MAY CONSIDER A HIGHER SUM IF A PARTY OR WITNESS IS "VULNERABLE"

FIXED COSTS: THE COURT MAY CONSIDER A HIGHER SUM IF A PARTY OR WITNESS IS “VULNERABLE”

October 4, 2023 · by gexall · in Costs, Fixed Costs, Rule Changes

The rules make provision allowing the court to award a higher sum for damages when a party, or witness is vulnerable.  However there are significant caveats. It must be the vulnerability that has required additional work to be undertaken and the…

FIXED RECOVERABLE COSTS: A POWER TO ORDER GREATER AMOUNTS IN "EXCEPTIONAL CIRCUMSTANCES"  AND THE STING IN THE TAIL

FIXED RECOVERABLE COSTS: A POWER TO ORDER GREATER AMOUNTS IN “EXCEPTIONAL CIRCUMSTANCES” AND THE STING IN THE TAIL

October 3, 2023 · by gexall · in Civil Procedure, Costs, Fixed Costs, Rule Changes

Continuing the examination of fixed recoverable costs.  CPR 45.9 gives the court power to order sums greater than FRC in “exceptional circumstances”.  The applicant’s difficulties are (i) there is no definition of exceptional circumstances (ii) there is a real sting…

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  • NEW YEAR NEW HOURLY RATES: INDEXED LINK UPLIFT OF RATES FROM 1st JANUARY 2024: SEE THEM HERE
  • CLAIM FORM SENT TO DEFENDANT’S OLD REGISTERED OFFICE NOT PROPERLY SERVED: CLAIMANT WAS NOT INSULATED AGAINST THE MISTAKES OF THEIR SOLICITORS
  • SERVICE OF THE CLAIM FORM CASES: THE PAST 14 MONTHS: ANOTHER SEASON OF THE DREARY & UNLOVELY CROP OF PROCEDURAL SERVICE ISSUES
  • A KNOTTY PROBLEM: CAN THE COURT STAY PROCEEDINGS AND ORDER THE PARTIES TO ENGAGE IN ADR? YES IT CAN … BUT…
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  • NEW YEAR NEW HOURLY RATES: INDEXED LINK UPLIFT OF RATES FROM 1st JANUARY 2024: SEE THEM HERE
  • CLAIM FORM SENT TO DEFENDANT'S OLD REGISTERED OFFICE NOT PROPERLY SERVED: CLAIMANT WAS NOT INSULATED AGAINST THE MISTAKES OF THEIR SOLICITORS
  • GRIFFITHS -v- TUI: SUPREME COURT FINDS FOR THE CLAIMANT: THE TRIAL WAS UNFAIR: POINTS SHOULD HAVE BEEN PUT TO THE EXPERT
  • A KNOTTY PROBLEM: CAN THE COURT STAY PROCEEDINGS AND ORDER THE PARTIES TO ENGAGE IN ADR? YES IT CAN ... BUT...
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