MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
I am grateful to Express Solicitors for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown. The Portal cannot be used…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF “METAPHORICAL WARFARE”
We are returning to the judgment of Costs Judge Leonard in Reed v Woodward Property Developments Ltd & Anor [2023] EWHC 36 (SCCO) to look at two other aspects of the case. The first relates to the relevance of the costs…
COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?
We are returning to the judgment of Mrs Justice Stacey in TRX v Southampton Football Club [2022] EWHC 3392 (KB). The judge made some observations in relation to the costs of the assessment process. In particular the interplay of CPR 47.20…
COST BITES 43: CLAIMANT’S COSTS INCURRED BEFORE CFA SIGNED WERE RECOVERABLE
In TRX v Southampton Football Club [2022] EWHC 3392 (KB) Mrs Justice Stacey considered a number of issues relating to costs. One of those was the question of whether pre-CFA costs were recoverable. This required a close consideration of the…
DELAY IN APPLYING TO SET ASIDE A DEFAULT JUDGMENT: FAILURE TO BE PROMPT IS A HIGHLY RELEVANT FACTOR
In AMRA Leasing Ltd v DAC Aviation (EA) Ltd & Ors [2022] EWHC 1718 (Comm) Mr Justice Jacobs refused the defendants’ application to set aside a default judgment. The defendants’ delay in making the application, and then a further delay…
TOO MANY CLAIMANTS SPOIL THE CLAIM FORM: THREE STRIKES … AND YOU’RE OUT
NB THIS DECISION WAS OVERTURNED BY THE DIVISIONAL COURT. SEE THE LATER POST ON THE DECISION HERE. In Abbott & 3,499 Ors v Ministry of Defence [2022] EWHC 1807 (QB) Master Davison rejected the claimant’s arguments that it was permissible…
THE COURT CANNOT EXTEND TIME FOR ACCEPTANCE OF A PART 36 OFFER: HIGH COURT DECISION
A defendant is entitled to make an early Part 36 offer. This, undoubtedly causes difficulties for many claimants. The rules relating to late acceptance are fairly unsympathetic. Nor is it possible to for a claimant to make a prospective application…
A DEFENDANT WHO DOES NOT ATTEND TRIAL CANNOT SIMPLY TURN THE CLOCK BACK: COURT OF APPEAL REFUSES APPLICATION UNDER CPR 39.3
In Mabrouk v Murray [2022] EWCA Civ 960 the Court of Appeal refused the defendant’s application for permission to appeal in a case where the defendant failed to attend the trial. The Court of Appeal dismissed the application under CPR…
WITNESS STATEMENTS: A FAILURE TO FOLLOW THE BASIC RULES IS OFTEN A SIGN OF MORE FUNDAMENTAL PROBLEMS…
We are looking at another aspect of the judgment of HHJ Pearce in Pitalia & Anor v NHS Commissioning Board [2022] EWHC 1636_2 (QB). The judge took the time to note that none of the claimant’s witness statements complied with…
CAN A PARTY TO LITIGATION WITHHOLD THEIR ADDRESS FOR SERVICE? COURT FINDS IT HAS A DISCRETION – BUT DECLINES TO EXERCISE IT
In Axnoller Events Ltd v Brake & Anor (Possession and Eviction Proceedings) [2022] EWHC 1162 (Ch) HHJ Matthews (sitting as a High Court judge) considered the question of whether a party to litigation must give an address for service, whether…
TEMPORARY HALT TO USE OF CLAIMS PORTAL: PUBLIC ANNOUNCEMENT BY A TWEET… THESE CIVIL PROCEDURE RULES WILL NOT LONGER COME INTO EFFECT ON 2ND JUNE 2022
Practice Direction 51ZB was amended so that it would be compulsory for defendants to use the portal from the 2nd June 2022. However this has been delayed. A tweet from HM Courts and Tribunal Services made at 1.33 today…
IS THE CCMCC BREAKING THE LAW ?THE DAMAGES PILOT AND CASES WHERE THE CCMC ARE REFUSING TO ISSUE PROCEEDINGS: WHAT IS THE RELEVANT DATE FOR LIMITATION PURPOSES?
I have come across several examples recently of the CCMCC refusing to issue claim forms on the basis that proceedings should have been issued online using the Damages Claim Pilot. In every case the papers have been returned wrongfully, the…
NEW RULES COMING INTO FORCE ON THE 6TH APRIL 2022 (3): THESE RULES, THEY AREN’T “NEW” ANY MORE
One small change in the rules means that they have left their infancy and, presumably, having now graduated, are entering early adulthood. THE OLD RULE CPR 1.1(1) currently reads (1) These Rules are a new procedural code with the overriding…
PEREMEPTORY ORDERS IN THE COURT OF APPEAL 2: MAKING CONCESSIONS AND PUTTING ALL YOUR EGGS IN ONE BASKET
There are twp other aspects of the Court of Appeal judgment in Poule Securities Ltd v Howe & Ors [2021] EWCA Civ 1373 that merit consideration. Firstly the claimant’s decision to make one application; the second related to concessions made…
JUDGE REFUSES TO VARY THE TERMS OF ORIGINAL ORDER: DEFENDANT’S APPLICATION FOR RECONSIDERATION DID NOT FLY
In Walton Family Estates Ltd & Ors v GID Services Ltd & Ors [2021] EWHC 464 (Comm) Andrew Hochhauser QC, sitting as a judge of the High Court, refused a defendant’s application to reconsider the terms of an earlier order. …
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6TH APRIL 2021: THE DECLARATION THAT THE CLIENT HAS TO SIGN – AND WHY IT POINTS STRAIGHT BACK AT YOU
In addition to the new requirement for the solicitor to sign a declaration that the witness statement complies with the rules the witness themselves has to sign a declaration. The witness declaration, however, does not get the lawyer off the…
WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS AFTER THE 6th APRIL 2021: THE DECLARATION THAT THE SOLICITOR HAS TO SIGN
One of the many requirements that come into force on the 6th April is the requirement for the solicitor to sign a declaration that the witness statement complies with the rules. This is not an obligation that can be taken…
WHERE HAVE ALL THE CIVIL PROCEDURE RULES GONE? (2): A LONG TIME MAY NOT BE PASSING (AND SOME – MAYBE NOT SO USEFUL – LINKS)
As an update on the decision to move the online version of the Civil Procedure Rules. David Wolfson QC, (Parliamentary Under-Secretary of State for Justice) tweeted yesterday that the problem had been recognised “I’ve asked my officials to look at…
WHERE HAVE ALL THE CIVIL PROCEDURE RULES GONE? WHEN WILL THEY EVER LEARN?
From the day this blog started there has always been a link to the Civil Procedure Rules. These were available, in an easily accessible form, on the Ministry of Justice website. They may still be there – but not for…
UPDATED DENTON RESOURCE: AVAILABLE ONLINE NOW
The Sanctions Case Watch section of this blog does its best to keep up to date with cases relating to relief from sanctions. It does this in chronological order. There is always a link in that section to the useful…
CIVIL PROCEDURE BLOG AND ARTICLES ROUNDUP – DECEMBER 2020
A round up of posts and articles relating to civil procedure from November 2020. COSTS ACL – Definition of proportionality to be expanded to include vulnerability ACL – High Court upholds assessment of success fee in high-value clinical negligence case ACL – Supreme…
SERVICE OF DEFENCE BY EMAIL NOT GOOD SERVICE: RELIEF FROM SANCTIONS REQUIRED TO SET ASIDE JUDGMENT (AND GRANTED)
The judgment of Mr Justice Calver in Ipsum Capital Ltd v Lyall & Ors [2020] EWHC 3508 (Comm) shows the dangers of serving documents by email. The judge held that service of a defence by email was not good service…
CIVIL PROCEDURE ROUND UP: BLOG AND ARTICLES ROUND UP: NOVEMBER 2020
This round up covers specific posts and articles in relation to civil procedure from November 2020. COSTS ACL – Lacuna identified in criminal legal aid rules for civil committal proceedings ACL – QOCS does not apply to pre-issue applications, court rules ACL…
WITNESS STATEMENTS COULD BE DISCLOSED IF MENTIONED IN OPEN COURT: DEPP, THE UNCALLED WITNESSES AND THE MEDIA
There are many aspects of the judgment in Depp II v News Group Newspapers Ltd & Anor [2020] EWHC 2911 (QB) that have gained wide media attention. Here I want to look at two issues in relation to the failure…
ACTION NOT STRUCK OUT BECAUSE ALLEGATIONS OF BAD FAITH AND WILFUL MISCONDUCT NOT FULLY PARTICULARISED
In Palladian Partners LP & Ors v The Republic of Argentina & Anor [2020] EWHC 1946 (Comm) Mrs Justice Cockerill refused to strike out pleadings alleging, bad faith, wilful misconduct and manifest error. This is the second example recently of…
WHEN SHOULD A SOLICITOR MAKE A WITNESS STATEMENT ON BEHALF OF THEIR CLIENTS? A REVIEW OF THE CASES
Last week I gave an in-house talk to a London firm of solicitors.* One of the matters we discussed was when (if ever) it was appropriate for a solicitor to make a witness statement in support of an interlocutory application. …
CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP – JUNE 2020
A round up of posts and articles about costs, procedure and evidence from June 2020. (Matters relating to Coronavirus and civil procedure will be dealt with in a separate post). Costs Litigation Futures – QC’s £1.5m brief fee for nine months’…
ARGUING YOUR CASE THROUGH THE WITNESS STATEMENTS: THIS MAY NOT END WELL
Yesterday I wrote about the judgment in Skatteforvaltningen (The Danish Customs And Tax Administration) v Solo Capital Partners LLP & Ors [2020] EWHC 1624 (Comm). In particular the very vigorous judicial disapproval of an attempt to “argue” the case by way…
WITNESS STATEMENTS “NOT IN MY STOCK IN TRADE”: HIGH COURT JUDGE HIGHLY CRITICAL OF ARGUMENTATIVE AND LARGELY IRRELEVANT WITNESS STATEMENTS
Last week I wrote about the report on witness evidence working group of the business and property courts. That report commented that drafting witness statements (more accurately evidence in chief) was no longer part of a lawyer’s “stock in trade”. …
WHEN THE SKY FALLS IN: WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 6th AUGUST 2020
I have been writing on this blog for some time now that lawyers should be taught that mistakes happen. We should aim to avoid them but if errors are made they are often rectifiable if dealt with correctly and quickly. …
WEBINARS ON LAW, PROCEDURE AND DAMAGES: READ ALL ABOUT THEM…
Since lockdown has made giving live presentations impossible I have been involved in presenting a number of webinars. This would seem a good time to set them out. Those that have been given earlier this year are still available on…
THE “BACK TO BASICS” SERIES 80: 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”. Two years on this is a good time to recap on…
CIVIL PROCEDURE BACK TO BASICS 79: NON-DISCLOSURE OF THE OTHER SIDE’S WITNESS STATEMENT
Today we are looking at CPR 32.12. The rule preventing a party using the other side’s witness statements for purposes other than the action they were served in. THE RULE Use of witness statements for other purposes 32.12 (1) Except…
OPINION EVIDENCE AND DEFECTIVE WITNESS STATEMENTS: EVIDENCE NOT ALLOWED AT TRIAL
In Harlow -v- Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Harlow v Aspect Contracts Ltd [2020] EWHC 1488 (TCC) Alexander Nissen QC (sitting as a High Court judge) allowed an application preventing the defendant relying on a witness statement that was,…
CIVIL PROCEDURE: BLOG AND ARTICLES ROUND UP – MAY 2020
As we adjust to the problems of the pandemic some of the more conventional issues of litigation have been dealt with extensively this month. Costs ACL Trio of High Court judges issue costs penalties to defendants that refused ADR ACL Claimant not…
LATE WITNESS STATEMENT: RELIEF FROM SANCTIONS NOT GRANTED: A WARNING AGAINST COMPLACENCY
Anyone who has had the pleasure of hearing Professor Dominic Regan lecture will know that he gives a constant warning that the Denton principles have not gone away. In relation to the late service of budgets in particular, but in…
AFFIDAVITS, COMPULSION, EXHIBITS AND THE IMPLIED DUTY NOT TO DISCLOSE TO THIRD PARTIES: HIGH COURT DECISION
I am grateful to barrister Sarah Walker for sending me a copy of the judgment of Deputy Insolvencies and Companies Court Judge Kyriakides in the Official Receiver -v- Skeene & Bowers [2020] EWHC 1252. It concerned the issue of whether…
SERVICE OF THE CLAIM FORM: CLAIMANT SURVIVES “BY THE SKIN OF THEIR TEETH”: SOME IMPORTANT LESSONS TO LEARN HERE
Every year brings its own crop of service of the claim form cases. This year is no different. In Oran Environmental Solutions Ltd & Anor v QBE Insurance (Europe) Ltd & Anor [2020] EWHC 1271 (Comm) Mrs Justice Cockerill observed…
CORONAVIRUS CATCH UP 1: DENTON AND RELIEF FROM SANCTIONS
I have, recently, been writing primarily about the impact of coronavirus on lawyers and civil procedure. Some cases in “mainstream” civil litigation have been overlooked. To prevent a “backlog” of cases here is a link to, and brief summary of,…
ANOTHER DAY ANOTHER AMENDMENT TO THE PRACTICE DIRECTIONS: POSSESSION PROCEEDINGS
There have been amendments to Practice Direction 51Z. These provide exceptions to the total ban on possession proceedings. THE AMENDMENTS: 120th UPDATE – PRACTICE DIRECTION AMENDMENTS “The amendments to Practice Direction 51Z supplementing the Civil Procedure Rules 1998 are…
THE OTHER IMPORTANT RULE CHANGE TODAY IN RELATION TO WITNESS STATEMENTS: AND, HONESTLY, THIS COULDN’T HAVE COME AT A BETTER TIME
Along with changes to the statement of truth the rule changes effective from today now impose a further obligation in relation to witness statements. I have written about this before (but much has happened since). THE NEW RULES From…
THE NEW PRACTICE DIRECTION: THE LIMITATIONS ON THE POWER TO EXTEND TIME BY AGREEMENT AND MAKING AN APPLICATION
Although it is welcome the new Practice direction is a bit disappointing. It does not trust litigators at all (or not very much). Parties can agree extensions of up to 56 days, without permission of the Court, but not beyond…
CLAIMANT BEATS OWN PART 36 OFFER: DEFENDANT ORDERED TO PAY INDEMNITY COSTS FOR AN EXTENDED PERIOD BECAUSE OF ITS CONDUCT
I am grateful to Sam Hayman from Bolt Burdon Kemp for drawing my attention to the decision today of Mr Justice Griffiths in DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB). The defendant was ordered to pay indemnity…
GIVING THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: NOT A MERE TECHNICALITY: FAILURE TO COMPLY WITH RULES CAN HAVE MAJOR CONSEQUENCES
This blog has dealt, many times, with the difficulties that can arise when a solicitor makes a witness statement in support of an interlocutory application. Not least there is a duty to give details of the source of information and…
CIVIL LITIGATION IN A TIME OF TOTAL UNCERTAINTY: 10 KEY POINTS ON DIFFICULTIES ARISING OUT OF THE CORONAVIRUS OUTBREAK
I cannot recall a time when matters were so rife with uncertainty. By request I have been asked to consider practical steps litigators can take. Equally significantly we have to consider what steps the courts, and the Rules Committee, should…
OUT OF TIME APPEAL ALLOWED BECAUSE OF ITS UNDERLYING MERITS: DENTON CONSIDERED
For the second time in two days I am writing about a relief from sanctions case where the court took into account the merits of the underlying case. Yesterday relief was refused because the court held that the case had…
THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED
The discussion yesterday of the decision in Aven & Ors v Orbis Business Intelligence Ltd [2020] EWHC 523 (QB) gives rise to review cases on pleading a defence, in particular the important distinction between a “denial” and a “non-admission”. It is…
SERVING PROCEEDINGS: COURT OF APPEAL REFUSE GOOSE’S APPEAL : THE DANGERS OF OVERLOOKING THE BASIC OBLIGATION TO SERVE
In Canada Goose UK Retail Ltd & Anor v Unknown Persons [2020] EWCA Civ 303 the Court of Appeal upheld the judge’s decision not to grant the claimant any kind of relief due to a failure to properly serve the…
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