THE IMPORTANCE OF MAKING AN APPLICATION TO EXTEND TIME BEFORE THE DATE OF COMPLIANCE: THE COURT DOES NOT CONSIDER DENTON PRINCIPLES EVEN IF THE APPLICANT FAILS TO MEET THEIR OWN PROPOSED TIMETABLE
What is the situation if a party seeks a prospective application of time for compliance but, whilst the application is pending, does not act by the date they proposed? Is this still and “in-time” application? Should it be treated any…
MORE ABOUT THE CASE AGAINST A SOLICITOR BEING STRUCK OUT: THE ABSENCE OF AN ASSUMPTION OF RESPONSIBILITY MEANT THERE WAS NO CASE: A CLAIMANT CANNOT HOPE THAT “SOMETHING WILL TURN UP” ON DISCLOSURE…
We looked at this case earlier today in relation to the procedural aspects. However the substantive judgment, on which the defendant was successful, is of considerable interest to the legal profession generally. There are also issues as to how the…
THE IMPORTANT DISTINCTION BETWEEN AN APPLICATION TO STRIKE OUT AND ONE FOR SUMMARY JUDGMENT: DECISION TO STRIKE OUT ALLOWED ON APPEAL BECAUSE THE JUDGE HAD WRONGLY CONSIDERED THE MERITS
There is an important distinction between the striking out of a statement of a case and summary judgment. Striking out considers whether there is an arguable claim pleaded; summary judgment relates to whether that claim has any merits. This distinction…
CLAIM AGAINST A SOLICITOR WAS STRUCK OUT: THERE HAD BEEN NUMEROUS PROCEDURAL DEFAULT AND THESE WOULD HAVE BEEN FORGIVEN…
We are looking at a case where a claim against a defendant solicitor was struck out. It was struck out because there was no arguable case against the solicitor. However the claimants had also breached numerous rules before and after…
CAN THE HIGH COURT ISSUE AN INJUNCTION PREVENTING THE ISSUE OF PROCEEDINGS IN THE COUNTY COURT? A QUESTION WITH A ONE WORD ANSWER…
Can the court grant an injunction to prevent the issue of proceedings in this jurisdiction? That was the question considered here. The answer was clear, and the judgment brief… “in my judgment, the court does not have jurisdiction to grant…
COST BITES 446 : SHOULD THE COURT HAVE MADE A NON-PARTY COSTS ORDER? SHOULD THE APPELLANT HAVE BEEN CROSS-EXAMINED AND WAS THE COURT BOUND TO ACCEPT HIS EVIDENCE?
This is a case about non-party costs orders that has some unusual elements. Firstly an argument that since the appellant was not cross-examined the court was bound to accept his assertions that he had no direct financial interest in the…
SETTING ASIDE A DEFAULT JUDGMENT, DENTON AND DELAY: SHOULD THE COURT REFUSE THE DEFENDANT RELIEF BECAUSE THEY HAD CAUSED UNNECESSARY DELAY AND COSTS?
For many years now there have been issues relating to how far the “Denton” criteria run alongside the rules relating to applications to set aside a default judgment. We have such a case here. There was clearly an arguable defence,…
INSURER’S APPLICATION TO COMMIT STRUCK OUT AS AN ABUSE OF PROCESS: LITIGATION IS NOT CONDUCTED ON THE BASIS THAT, NOTWITHSTANDING THE ABSENCE OF EVIDENCE, A PARTY MAY BE ABLE TO PUT MATTERS RIGHT AT SOMETIME IN THE FUTURE…
In this case an insurer’s application to commit a personal injury claimant to prison was struck out. This was because the insurer applicant failed to satisfy the court that it had any right to bring the action in the name…
THE CURRENT IMPORTANCE OF PLEADINGS 89: AN APPELLANT CANNOT PURSUE AN UNPLEADED “NEW, NEW CASE”: APPEAL IN CASE AGAINST SOLICITORS WAS “WASTEFUL OF TIME AND RESOURCES”
This is a case that started off as a consideration of the way in which a defendant firm of solicitors adduced evidence to support assertions that there was a history of fraud in motor accident claims. The appellants here, the…
LIMITATION AND SEXUAL ABUSE CLAIMS: THE LAW CHANGED AFTER EVIDENCE AND SUBMISSIONS BUT BEFORE JUDGMENT: THE AMENDED ACT APPLIES
We have looked before at how the new sections 11ZA and 11ZB into the Limitation Act 1980 have already been considered by the courts. Here was have another example. The new provisions were held to apply in a case where…
CIVIL LITIGATION BRIEF WEBINARS COMING UP LATER THIS YEAR: A NEW DISCOUNT CODE
CLB members have a discount to a series of webinars on damages that start in September. The series is intended to provide practical guidance for practitioners dealing with claims of every size, from straightforward road traffic accidents to catastrophic injury litigation….
BACK TO BASICS MONDAY: RELIEF FROM SANCTIONS: THE RELEVANCE OF THE CLIENTS BEING SOLELY AT FAULT: SOME DIFFICULT ISSUES TO TACKLE
In many cases relating to breach from sanctions the fault may lie with the solicitor rather than the client. This case considers that question directly. The clients’ innocence was an important factor in the court’s discretion. “I take from the…
THROWBACK FRIDAY: AVOIDING NEGLIGENCE CLAIMS IN LITIGATION AN 8 POINT SURVIVAL GUIDE (AUGUST 2019): AND LOOK AT THE LINKS…
This week we go back to August 2019 with a simple (but I hope effective) post on avoiding negligence claims in civil litigation. Eight of the major problem areas were identified and succinct solutions offered. (There have been hundreds of…
A WIDOW CANNOT BRING AN ACTION UNDER THE FATAL ACCIDENTS ACT WHERE HER HUSBAND SETTLED THE PERSONAL INJURY ACTION AGAINST A CONCURRENT TORTFEASOR IN HIS LIFETIME
This case emphasises a long existing principle that a second action cannot be brought if a claimant, now deceased, has settled proceedings in their lifetime. This principle extends to concurrent tortfeasors. There are also important observations outside the realm of…
COST BITES 434 : JUDGE REFUSES TO INCREASE CLAIMANT’S BUDGET AFTER TRIAL, EVEN THOUGH IT WAS NOT OPPOSED BY THE DEFENDANT: A PARTY MADE NO ATTEMPT TO EXPLAIN WHY IT NEEDED TO SPEND THE PRICE OF THE AVERAGE UK HOUSE ON ADDITIONAL DISCLOSURE
We are looking at another attempt to vary a costs budget. In this case the attempt was made after the trial and after judgment. Both parties, initially, sought large variations. Only the claimant proceeded with the application in relation to…
GIVING AN UNDERTAKING AS TO DAMAGES WHEN OBTAINING AN INJUNCTION: REMEMBER IT CAN COME BACK TO BITE (AND SOMETIMES BITE HARD…)
When a party obtains an injunction they, usually, have to give an undertaking as to damages. There are now a number of cases where litigants have been found liable to pay damages as a result of that undertaking. We have…
CAN DELAY IN APPLYING TO STRIKE OUT AN ACTION FOR ABUSE OF PROCESS BE AN ABUSE OF PROCESS IN ITSELF? THE DANGERS OF LETTING TIME GO BY
Here we have a case where it was argued that the defendant’s delay in bringing an application to strike out for abuse of process was an abuse of process in itself. The case points to authorities that “acquiescing” in an…
THROWBACK FRIDAY: SIMILAR FACT EVIDENCE IN CIVIL CASES: AN OVERVIEW AND THE RELEVANT GUIDANCE CONSIDERED (AUGUST 2020)
Man of the posts in August 2020 concerned the impact of Covid. This post is the exception. It arose out of a Court of Appeal decision that month that reviewed the principles relating to similar fact evidence in civil cases….
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
COST BITES 432: THE COURT CANNOT ALTER THE COSTS BUDGET UNLESS THERE ARE “SIGNIFICANT DEVELOPMENTS” : HIGH COURT DECISION
This case reiterates the essential point that the court has no freestanding discretion to vary a costs budget. An essential prerequisite of variation is that there must be a “significant development” that warrants a variation. There was no such development…
SERVICE POINTS 53: HOW DOES THE COURT PROTECT THE POSITION OF A PARTY WHO WANTS TO APPEAL DECISION IN RELATION TO JURISDICTION BUT RISKS “ACCEPTING” JURISDICTION IN THE MEANTIME? A PUZZLE SOLVED BY THE COURT OF APPEAL
This judgment highlights the risk that a party who wishes to dispute jurisdiction can accidentally accept it. What, if any, steps should the courts take to protect an appellant in these circumstances. The litigant may wish to appeal to a…
SHOULD AN ASSESSMENT OF DAMAGES GO AHEAD PENDING AN APPEAL? £8 MILLION COSTS COULD HELP AVOID £45 MILLION: THE TRIAL COULD MATERIALLY ADVANCE THE LITIGATION AND NARROW FUTURE DISPUTES
Here the court considered whether an assessment of damages should be stayed pending the claimants’ application for permission to appeal. This raised issues in relation to costs management and proportionality. The judge engaged in an exercise of looking at the…
FAILING TO GIVE THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: THE JUDGE MAY THINK THAT THERE IS SOMETHING FISHY GOING ON HERE…
There is, it appears, no end to the number of cases in which non-compliant witness statements are served. We have another example here. One major issue relates to the failure to give the source of information and belief for the…
BACK TO BASICS MONDAY: THE 70 KEY POINTS OF THE DENTON JUDGMENT: REVISITING THE BASICS AFTER TWELVE YEARS…
It is now twelve years since the judgment in Denton -v- White [2014] EWCA Civ 906. However it is still a judgment that appears regularly in the reports (we will be looking at such a case this week). Over the years…
ENFORCEMENT BULLETIN 5: AN APPLICATION FOR RECOVERY OF MONEY PAID TO ENFORCEMENT AGENT DISMISSED: IT WAS TOO LATE AND MISCONCEIVED IN ANY EVENT
There are several issues in the case of general importance, particularly for those seeking to challenge Enforcement Agents. Firstly as to the strict timetable involved; secondly as to what constitutes “controlled goods” and finally as to the appropriate means for…
THE CURRENT IMPORTANCE OF PLEADINGS 87: A CLAIM CAN BE STRUCK OUT ON AN ANALYSIS OF THE PLEADED CASE
This judgment confirms a decision to strike out a case on the basis of inadequate pleadings. It emphasises the fact that there is no need to wait for a defence to be filed before such an application is heard. It…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
COURT REFUSES PERMISSION TO CHANGE NAME OF THE CLAIMANT AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE DANGERS OF LEAVING THINGS LATE
Many of the “problem” cases we look at on this blog have similar themes. Leaving the issue of proceedings until the last possible moment and then compounding that by leaving service until the last minute. This case has an additional…
A QUICK REMINDER OF THE CLB WEBINARS NOW AVAILABLE “ON DEMAND”: ALSO (AND UNRELATED) SAYING AU REVOIR TO THE LITTLE WHITE DOG
There are a number of CLB webinars that are available “on demand”. There is a reduction for CLB members. This is also an opportune time to say au revoir to the little white dog that has been gracing the pages…
A PARTY CANNOT ADVANCE ONE CASE IN ONE SET OF PROCEEDINGS AND THE OPPOSITE CASE IN ANOTHER: ESTOPPEL BY CONDUCT LEADS TO A COUNTERCLAIM BEING STRUCK OUT: COURT OF APPEAL DECISION
Here we have a case where the Court of Appeal struck out a counterclaim. The defendant had argued one set of facts in Employment Tribunal proceedings and sought to argue a totally different version. The Court was not best pleased…
COST BITES 426: COURT OF APPEAL OVERTURNS DECISION THAT A CLAIMANT IN THE SMALL CLAIMS TRACK SHOULD PAY COSTS AFTER DISCONTINUING: “THE SMALL CLAIMS TRACK IS DESIGNED TO BE DIFFERENT”
This case gives a clear message from the Court of Appeal about the critical importance of the “costs neutral” status of the Small Claims Track. The judgment makes it clear that the starting point is that costs are not recoverable…
SHOULD UNDUE DELAY AND “GROVIT” ABUSE LEAD TO AN ACTION BEING STRUCK OUT UNLESS THERE ARE COMPELLING REASONS NO TO DO SO? THE COURT OF APPEAL CONSIDER THE ISSUES
This is an important decision by the Court of Appeal on how the court should respond to an abuse of process caused by delay. The answer is that this kind of abuse is treated similarly to other types of abuse….
BACK TO BASICS MONDAY: WHAT DOCUMENTS NEED TO BE IN AN APPEAL BUNDLE? A JUDGMENT ON THAT VERY POINT:”DOCUMENTS GENUINELY REQUIRED FOR DETERMINATION OF THE APPEAL”
Over the years we have seen many dozens of cases where judges have been critical of the contents of bundles. I cannot recall a case where a judge has determined the contents in advance. We now have an example here. …
COST BITES 424: A CLAIM FOR 30.5 HOURS IN ONE DAY: A SCHEDULE “SO UNRELIABLE IT CANNOT FORM THE BASIS FOR ASSESSMENT”
We have seen many issues in relation to schedules over the years. Here the judge considered a schedule that claimed for one person working more than 24 hours in a day. “Some of those hours are, on the face of…
THROWBACK FRIDAY: GESTMIN GUIDANCE IN THE CONTEXT OF CLINICAL NEGLIGENCE CASES (WITH A CHANCE TO REMEMBER HH ALAN GORE K.C.) : JULY 2019
Here we look at a post from July 2019. It gives me a chance to remember the judge in question HH Alan Gore who sadly died in December last year. This is one of his judgments about the Gestmin criteria…
COST BITES 421 : THE AMY WINEHOUSE CASE IS BACK IN COURT: CLAIMANT’S AGGRESSIVE CONDUCT OF A CASE WHERE HE LOST “ON EVERY MATERIAL POINT OF FACT AND LAW” LEADS TO AN ORDER FOR INDEMNITY COSTS TO PAY COSTS ON THE INDEMNITY BASIS
We are looking at another case where the claimant’s conduct of the case has led to costs being awarded on an indemnity basis. The judgment is clear that the claimant deliberately adopted an aggressive case which had no factual merit…
SERVICE POINTS 51: HIGH COURT REFUSES TO SET ASIDE AN ORDER ALLOWING SERVICE BY EMAIL ON THE DEFENDANT’S SOLICITORS
In this case the defendant, a judgment debtor, attempted to set aside an order that a claim form could be served by email on their solicitors. The situation was an unusual one in that the claimant had a judgment against…
TWO PROCEDURAL POINTS TO WATCH: GIVING REMOTE EVIDENCE FROM ABROAD: SEEKING COSTS BEFORE THE FIRST-TIER TRIBUNAL
Here we are looking “preliminary matters” in a judgment that highlight two procedural issues. One of them is of general relevance, the other more specific but still of significance, particularly for those who are unfamiliar with procedure in the General…
WITNESS EVIDENCE WEDNESDAY: LARGE PARTS OF THE CLAIMANT’S WITNESS STATEMENTS ARE STRUCK OUT: “INADMISSIBLE AS A MATTER OF LAW” “OF MARGINAL RELEVANCE” AND DEAL WITH “WHOLLY COLLATERAL ISSUES”
Here we have a case where the court was asked to exclude large parts of a party’s witness statements. That application was successful in part. The judge finding that many of the statements, or parts of the statements, were simply…
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
SEEKING A STAY PENDING AN APPEAL: “GENERALISED ASSERTIONS ARE NO SUBSTITUTE FOR EVIDENCE”: COURT REFUSES APPLICATION
This judgment emphasises the point that a party seeking a stay of a judgment cannot obtain this by “generalised assertions”. There are clear and well established criteria for the court to consider. A party making such an application must make …
SERVICE POINTS 50: IS SERVICE OF A TENANT AND AN ADDRESS STATED IN THE LEASE GOOD SERVICE WHEN THE TENANT IS NOT THERE? DOES THE CONTRACT OVERRIDE THE CPR?
This Court of Appeal decision considers issues in relation to contractual service. Does a contractual term in a lease saying that service of documents can take place at the property in question override the CPR provisions as to service? In…
LATE WITNESS STATEMENTS, RELIEF FROM SANCTIONS (OR NOT…) AND THE COURT OF APPEAL CONSIDERS “WHAT IS A TRIAL?”: THE DEFINITION PROVES TO BE VERY IMPORTANT FOR THIS APPELLANT…
One of the key factors in this Court of Appeal judgment was the meaning of the word “trial”. Curiously this is not defined in the rules and has only been considered in two previous cases. The issue was important…
EXPERT WATCH 63: WHEN A DOCTOR WRITES TO THE COURT AND THE JUDGE FINDS THE INFORMATION “UNRELIABLE”
There have been a number of cases where the courts have considered letters, or less formal “reports”, provided by doctors to support elements of a litigant’s case, usually in relation to an application for adjournment or procedural issue. There was…
A BOOK ABOUT SERVICE (AT LONG LAST): WHAT IS MORE IT IS IMPRESSIVE, COMPREHENSIVE AND FILLS A GAP IN THE MARKET (AND, THIS BLOG’S PART IN ITS CREATION)
Regular readers will know that this blog features a lot of cases about service of the claim form. It is one of the most common problem areas in litigation. It is surprising that there has not been a recent text…
THE RULES ARE CHANGING: ADVANCE NOTICE: GOODBYE TO THE CHANCERY DIVISION
A whole raft of changes come into force on the 1st October. The most noticeable will be that the Chancery Division disappears. There is also an end to the “presumption” that costs management takes place by telephone. Also note the…
SERVICE POINTS 49: THE JUDGE WOULD HAVE SET ASIDE AN ORDER EXTENDING TIME FOR SERVICE OF THE CLAIM FORM: IT COULD HAVE BEEN SERVED WITHOUT THE PARTICULARS OF CLAIM
This is another case that emphasises the importance of serving the claim form promptly. The claimants had obtained an order extending time for service. The defendants applied to set aside that order. The judge stated that, if the issue had…
EXPERT WATCH 60: THE JUDGE’S ASSESSMENT OF THE EXPERTS IN THE DIESEL EMISSIONS CASE: AN EXHAUSTING TRIAL?
We are looking here at a major case where the claimants were heavily reliant on expert evidence. They way in which the judge viewed the experts was crucial. This was not a case where the judge found fault with the…
CAN THE WAY IN WHICH A CLAIMANT HAS CONDUCTED A CASE MEAN THAT IT SHOULD NOT HAVE SUMMARY JUDGMENT: “CLEAN HANDS” AND OTHER EQUITABLE MAXIMS CONSIDERED
We are looking at an unusual set of arguments here. The defendant, in resisting an application for summary judgment, submitted that the way in which the claimant had conducted the litigation itself meant the court should not grant judgment. It…
BACK TO BASICS MONDAY: EXPERT WITNESSES HAVE TO HAVE ACCESS TO THE SAME MATERIAL: THE IMPORTANCE OF THE LEVEL PLAYING FIELD
The post earlier this morning set out the judge’s reservations about the nature of the information given to the claimant’s experts. In particular the failure to give the sources of their information. In fact the requirements go further than that. …
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