COUNTER-SCHEDULES: WORDS OF WISDOM FROM TWITTER
Twitter this afternoon gave rise to a number of interesting discussions about the role of the counter-schedule. I got permission to share some of the contributions. THE START It started with Sarah Pritchard QC looking for ideas for a talk…
WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”
In Paralel Routs Ltd v Fedotov [2019] EWHC 2656 (Ch) HHJ Paul Matthews (sitting as a judge of the High Court) emphasised the importance of procedural rules. There are quite a few interesting observations in relation to disclosure, redaction, civil…
“NOT ALL JUDGES OR COUNSEL ARE HUMOURLESS AUTOMATONS”: NO JUDICIAL BIAS WHEN EVIDENCE GIVEN BY WAY OF A SONG
It is not often that appeals over planning decisions make their way to this blog. It must be even rarer for such appeals to consider the question and appropriateness of humour (and song) in the judicial process. That is what…
THE BACK TO BASICS SERIES: A RUNNING ACCOUNT: READ THEM ALL HERE
The “Back to Basics” series, as the title suggests, deals with some of the basic elements of civil procedure. It covers everything from applications and bundles to the taking of witness statements. The titles are often prompted by elements…
THE TRIAL JUDGE SHOULD HAVE FOUND THAT THE CLAIMANT WAS FUNDAMENTALLY DISHONEST: INADEQUATE DISCLOSURE LEADS TO QOCS BEING DISAPPLIED
In Haider v DSM Demolition Ltd [2019] EWHC 2712 (QB) Mr Justice Julian Knowles refused a claimant’s appeal against a finding that the defendant was not negligent. He granted the defendant relief from sanctions and allowed an appeal against a…
REFUSAL TO GRANT RELIEF FROM SANCTIONS OVERTURNED ON APPEAL: “THE SANCTION WAS WHOLLY DISPROPORTIONATE AND IT WAS WRONG NOT TO GRANT RELIEF”
In Michael v Lillitos [2019] EWHC 2716 (QB) Mrs Justice Steyn overturned a decision refusing relief from sanctions. The Appellant had made payments by cheque rather than by bank transfer. It is also an important example of the pitfalls caused…
CIVIL PROCEDURE BACK TO BASICS 67: EXPERTS ASKING THE COURT FOR DIRECTIONS: THIS CAN REALLY CUT THE MUSTARD…
One, unusual, aspect of the decision in Mustard v Flower & Ors [2019] EWHC 2623 (QB) is that the experts had sought directions from the court. This brings attention to the (apparently) little used provisions of CPR 35.14. Experts have the…
CLAIMANT’S QUESTIONS TO DEFENDANT’S EXPERTS DISALLOWED: PART 35 HAS A REQUIREMENT FOR PROPORTIONALITY: EXPERTS SEEK HELP
There is another aspect of the judgment of Master Davison in In Mustard v Flower & Ors [2019] EWHC 2623 (QB) that is of considerable interest. The Master disallowed a series of lengthy questions to the experts. The Master pointed out…
COURT ADMITS CLAIMANT’S TAPES OF CONSULTATIONS WITH DEFENDANT’S EXPERTS: PROBATIVE VALUE OUTWEIGHS REPREHENSIBLE CONDUCT
In Mustard v Flower & Ors [2019] EWHC 2623 (QB) Master Davison allowed the claimant to produce as evidence the tapes they had recorded of their consultations with the defendant’s medical experts. This decision raises some interesting issues. (The case…
CIVIL PROCEDURE BACK TO BASICS 66: THE COURT HAS TO KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4
A party seeking to rely on expert evidence requires permission from the court. It is surprising how often the rule requiring the court to be provided with details of the cost of that expert is overlooked. “When parties apply for…
COURT OF APPEAL REFUSES APPEAL AGAINST ORDER FOR INDEMNITY COSTS: PARTIES WHO ARE JOINED TO A SPECULATIVE ENTERPRISE IN LITIGATION SHOULD EVALUATE THEIR POSITION WITH CARE
In Ford & Anor v Bennett & Anor [2019] EWCA Civ 1604 the Court of Appeal dismissed an appeal against a trial judge’s decision to award indemnity costs. The judgment contains a lesson to “additional parties” to litigation. “Parties who…
REALISTIC TIME ESTIMATES: THE IMPORTANCE OF GETTING THIS RIGHT
There is a short passage in Barrowfen Properties Ltd v Hambros Investments Ltd & Anor [2019] EWHC 2548 (Ch) where Chief Insolvency and Companies Court Judge Briggs makes it clear that an application had been given an inadequate time estimate….
LAWYERS GIVING EVIDENCE 4: SOME COURTS MAY TAKE INTO ACCOUNT A CLIENT’S FAILURE TO GIVE FIRST HAND EVIDENCE
This series looks at the question of when, if ever, it is appropriate for a solicitor to swear an affidavit or make a statement in place of the client? This issue was considered by Stanley Burnton J in Bracken Partners…
CIVIL PROCEDURE BACK TO BASICS 65: THAT NIGHTMARE SCENARIO WHERE THE COURT HAS ISSUED THE CLAIM FORM BUT YOU CAN’T SERVE IT
Here I want to isolate one aspect of the judgment in AAA -v- Rakoff [2019] EWHC 2525 (QB) that was easy to miss amidst all the features of that case. The fact that the court can issue proceedings and hold onto…
QUICK REMINDER OF NEW COSTS BUDGETING RULES COMING INTO FORCE TODAY: INCURRED COSTS INCLUDE THE COSTS OF THE CCMC
Part of the 109th update to the Civil Procedure Rules came into force today. A quick reminder that, from today, there is a change in the way that the courts approach the costs of the CCMC itself. INCURRED COSTS…
SERVICE OF THE CLAIM FORM ISSUES, ANONYMITY, EXPEDITED TRIALS AND … SPEARMINT RHINO
I have been meaning to write more about anonymity and civil litigation, in particular orders made under CPR 16. This issue arose today in a surprising context in AAA -v- Rakoff [2019] EWHC 2525 (QB). The case raises issues in…
CPR 3.1 USED, PROPERLY AND EFFICIENTLY, TO KEEP DOWN THE WAITING (AND ANGUISH)
In Irish & Anor, Re [2019] EWHC 2508 (Ch) HHJ Matthews (sitting as a High Court Judge) used CPR 3.1 to cut down greatly the time (expense and anguish) in relation to a difficult and sensitive application. “it seemed to…
CIVIL PROCEDURE, COSTS, EVIDENCE AND – DINOSAURS : A REVIEW OF THE MONTH – ARTICLES AND POSTS (SEPTEMBER 2019)
Every month I plan to provide links to useful articles and posts on civil procedure. I am happy for anyone to send me links that are relevant to the topics that this blog covers. (Links to posts does not constitute…
SERVICE OF THE CLAIM FORM: FAILURE TO SERVE ANY DEFENDANTS WHEN APPLYING FOR AN INJUNCTION: THE GOOSE IS NOT PROPERLY COOKED…
In Canada Goose UK Retail Ltd v Persons Unknown & Anor [2019] EWHC 2459 (QB) Mr Justice Nicklin refused the claimants’ application for an injunction on several grounds. Here we look at the issues relating to service of the claim…
CIVIL PROCEDURE BACK TO BASICS 61: SIMILAR FACT EVIDENCE IN CIVIL PROCEEDINGS
This post is caused by a search term that led to this blog “similar fact evidence in civil litigation”. This would be an apposite time to review the principles relating to similar fact evidence and the relevant case law. …
WITNESS STATEMENTS: THE FORENSIC AND PROFESSIONAL DANGERS OF FAILING TO CONSIDER, AND GIVE EVIDENCE OF, THE SOURCE AND INFORMATION AND BELIEF
The previous post on the judgment in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) gives me a chance to return to a hobby horse – the need to give the source of information and belief when signing a witness statement. Here…
WHEN A JUDGE MAKES A WRONG DECISION BECAUSE RELEVANT PAPERS (WHICH HAVE BEEN SENT TO COURT IN GOOD TIME) HAVE NOT REACHED THEM
The decision in Singh v The Secretary of State for the Home Department [2019] EWCA Civ 1504 related to a case where a decision was made when the judge was not given relevant papers that had arrived at court. “In…
AN ABSOLUTE CAR CRASH OF AN APPEAL: KNOW WHAT DOCUMENTS WERE BEFORE THE THE JUDGE – A BASIC ISSUE FOR ALL WOULD BE APPELLANTS
Appeals are always difficult. The appellate court has to be persuaded that the first-instance judge was “wrong”, and this is a fairly rigorous test. It is made far more difficult if the appellate court is given the wrong documents. Particularly…
SERVICE OF CLAIM FORM BY WHATSAPP: A CASE IN POINT: SERVICE BY SOCIAL MEDIA AND EMAIL
In Gray v Hurley [2019] EWHC 1636 (QB) the court allowed service of the claim form by Whatsapp message. THE CASE The hearing was a dispute about jurisdiction. The claimant issued proceedings and obtained an order for service on the…
SETTING ASIDE JUDGMENT IN DEFAULT: DEFENDANT’S SOLICITOR FAILED TO NOTICE THAT PARTICULARS OF CLAIM HAD BEEN SERVED WITH THE CLAIM FORM
The judgment of HH Judge Hodge QC (sitting as a HIgh Court Judge) in Praetura Asset Finance Ltd v Hood [2019] EWHC 2231 (Comm) shows how important it is to check what has been served. The one, overwhelming, lesson for…
CIVIL PROCEDURE BACK TO BASICS 60: INTERIM ORDERS ON ACCOUNT OF COSTS: “CASH FLOW IS THE LIFEBLOOD OF BUSINESS”
Here we look at the rules relating to interim orders on account of costs, a subject of considerable importance in relation to practitioner’s cash flow and client’s pockets. CPR 44.2(8) “(8) Where the court orders a party to pay costs…
TRIAL JUDGE SHOULD HAVE WAITED FOR PARTIES TO ARRIVE AT COURT: APPEAL AGAINST ORDER UNDER CPR 39.3 ALLOWED
In Akita & Anor v Governor and Company of the Bank of Ireland [2019] EWHC 1712 (QB) Mr Justice Martin Spencer held that a trial judge, knowing that parties were on the way to court, should have waited longer before…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 11: PROCEDURE: AN EIGHT POINT SURVIVAL GUIDE
Here we have a short eight point guide on some of the key problem areas in relation to procedure once proceedings have been issued. Rule 1: Have everything ready pre-issue and have a plan. Effectively this means that you have,…
DE MINIMIS BREACH OF RULES DID NOT LEAD TO PART 36 OFFER BEING INVALID
In Momonakaya v the Ministry of Defence [2019] EWHC 480 (QB) HHJ Blair QC considered whether a claimant had properly accepted a Part 36 offer. It was held that an offer that breached the rules in a de minimis way was…
THE COURT CAN ORDER PARTIES TO TAKE PART IN AN EARLY NEUTRAL EVALUATION: COURT OF APPEAL DECISION
I am grateful to barrister Christopher Buckingham for pointing out that the Court of Appeal decision in Lomax v Lomax [2019] EWCA Civ 1467 is now on BAILLI. The Court of Appeal held that the consent of both parties was…
WHY IT IS IMPORTANT LITIGATORS KNOW HOW TO COMPUTE TIME PROPERLY: 7 DAYS MEANS 7 DAYS: APPLICATION TWO DAYS LATE: CLAIMANT COMES TO GRIEF
In Evans v Pinsent Masons LLP [2019] EWHC 2150 (QB) Mr Justice Martin Spencer overturned a decision granting relief from sanctions. A major issue arose out of confusion by the claimant’s solicitors over the calculation of the time period. This…
AVOIDING NEGLIGENCE CLAIMS IN LITIGATION 9: SERVICE OF THE CLAIM FORM (3): SERVICE AT THE LAST KNOWN ADDRESS
Staying with issues relating to service of the claim form we are looking at another common source of error – service at the “last known address”. The key point here is that a claimant cannot simply serve at the “last…
PART 8 PROCEDURE USED FOR CLAIM FOR £2.6 MILLION: THE CLAIMANT COMES TO GRIEF – IS ANYONE SURPRISED?
A common practice has occurred of issuing Part 8 proceedings under the MOJ Protocol and “parking” cases there for an extended period. This is an extremely dangerous practice. It is even more dangerous if the case that has been parked…
COURT OF APPEAL ORDER RETRIAL FOLLOWING JUDGE’S FAILURE TO GIVE ADEQUATE REASONS: THE “BUILDING BLOCKS” OF FACT FINDING
Attempts to appeal findings of fact are extremely common, so common that I have stopped writing about them. There is also a common theme – the judge should not have found that, says the appellant: it was a finding open…
RIGHTS OF AUDIENCE AND HEARINGS IN “CHAMBERS”: BAR COUNCIL GUIDANCE
I am grateful to Charles Bagot QC for referring me to the Bar Council publication “Acting as a Solicitor’s Agent”. This has a different view to those set out in earlier posts. It would be prudent for those involved in…
APPLICATION FOR EXTENSION OF TIME FOR DETAILED ASSESSMENT PROCEEDINGS REFUSED:
There are many lessons that litigation lawyers can learn from the judgment of Master Leonard in Rattan v Carter-Ruck Solicitors [2019] EWHC B9 (Costs). It is a case where a client agreed to a settlement and then, essentially, sought to…
COURT ENTERS JUDGMENT IN DEFAULT OF DEFENCE – SIDESTEPPING THE LATE ACKNOWLEDGEMENT OF SERVICE ARGUMENT: DENTON PRINCIPLES APPLIES
In Hanson & Ors v Carlino & Anor [2019] EWHC 1940 (Ch) Mrs Justice Falk neatly sidestepped the vexed question of when a claimant can enter judgment in default of acknowledgement of service by entering judgment in default of defence. …
CLAIMANT’S PART 36 “SUBJECT TO A NIL CRU” WAS A VALID OFFER: IF THE DEFENDANT WAS CONFUSED THEY SHOULD HAVE SOUGHT CLARIFICATION
The judgment of District Judge Hickinbottom in Gibbons -v- Rotherham Doncaster and South Humber NHS Foundation Trust (o4/06/2019), discussed in an earlier post, also has an interesting section in relation to a Part 36 offer. “It seems to me the Defendant could…
DELAY OF 18 MONTHS IN GIVING JUDGMENT DID NOT UNDERMINE THE JUDGE’S VIEW AS TO CREDIBILITY
In Nuttal & Anor v Kerr & Anor [2019] EWHC 1977 (QB) Mr Justice Freedman rejected an argument that an excessive delay in giving judgment meant that the trial judge’s conclusions were innately unreliable. (The judgment also reviews the authorities…
RAISING NEW ISSUES ON APPEAL: COURT OF APPEAL CONSIDERS THE LAW: CIRCUIT JUDGE CORRECT TO ALLOW NEW ISSUE TO BE ARGUED IN RELATION TO INTEREST RATES
In Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 the Court of Appeal reviewed the principles relating to new matters being raised on appeal. “These authorities show that there is no general rule that a case…
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…
ADVICE TO A NEWLY QUALIFIED LITIGATOR (1): READ THIS CASE: BE WARY OF OPENING YOUR MOUTH TOO WIDE: TURN DOWN £1.5 MILLION AND GET £2.00 INSTEAD
A member of my family qualifies as a solicitor tomorrow and starts working in litigation. I have been pondering the best advice to give a newly qualified litigation solicitor. I intended a recap post of all those cases where litigants…
“CAN A DEAD PERSON BE TAKEN TO COURT?” : CPR 19.8: A RECAP
There have been a number of search terms arriving on this blog recently relating to the appropriate procedure when a party has died. Today the question was “can a dead person be taken to court?” This may be an opportune…
THE GENERAL DUTY ON LAWYERS TO INFORM THE COURT IF IT IS OBVIOUS THAT THE TIME ESTIMATE IS INCORRECT
There is a judgment today on BAILLI in a family case. The case appears to be subject to reporting restrictions so I do not propose to link to it, or even name it, until these are clarified. However what is…
DRAFTING WITNESS STATEMENTS: THE FINER DETAIL: NO ROOM FOR A MARGIN OF ERROR
A search led to this blog today “witness statement margin” which led me to look this issue up and realise that, despite the dozens of posts on witness statements on this blog, the important issue of margin size has never…
ROBUST DECISION TO STRIKE OUT PERSONAL INJURY CLAIM FOR NON-COMPLIANCE WITH RULES IS UPHELD ON APPEAL: BANDWAGONS & CRASH HELMETS IN BRADFORD COUNTY COURT
I am grateful to barrister Toby Coupe for sending me a copy of the decision of HHJ Gosnell in Aslam -v- The Secretary of State for Justice (17/05/2019), a copy of which is available here. Aslam v Secretary of…
CASE NOT STRUCK OUT AFTER A FOUR YEAR DELAY: ALTERNATIVE “SANCTION” ORDERED INSTEAD
In Alba Exotic Fruit SH PK v MSC Mediterranean Shipping Company S.A. [2019] EWHC 1779 (Comm) HHJ Rawlings considered the appropriate sanction where there had been a four year delay by the claimant in pursuing an action. This case is…
A SECOND – IDENTICAL – APPLICATION WAS AN ABUSE OF PROCESS AND DISMISSED ON THAT GROUND ALONE
In Lambert v Forest of Dean District Council & Ors [2019] EWHC 1763 (Ch) ICC Judge Mullen rejected an application on the grounds that it was an abuse of process. An identical application had been made earlier and struck out…
CIVIL PROCEDURE BACK TO BASICS 53A: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES: ALI -v-CHANNEL 5
Shortly after I completed the post on Part 36 offers after the costs budget has been confined to court fees Professor Dominic Regan reminded me that there is another example in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC…
CIVIL PROCEDURE BACK TO BASICS 53: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES
This may be an ambitious subject for the back to basics series. However here I want to look at the situation where a party has failed to file their costs budget timeously and the budget has been confined to court…
You must be logged in to post a comment.