THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (3): EMBARGOED JUDGMENTS – DON’T DISCLOSE EARLY TO ANYONE (LET ALONE THE LAWYER’S PR TEAM…)
The new guide has extended the section on embargoed judgments. This makes it absolutely clear that the disclosure of judgments to third parties (for example the lawyers’ PR teams) for the purpose of preparing a press release to publicise the…
COST BITES 83: DEFENDANT SERVING BUDGET LATE SCRAPES HOME IN A “BORDERLINE” CASE
In K/S Mountain Invest v Ducat Maritime Ltd [2023] EWHC 939 (Comm) HHJ Keyser KC (sitting as a High Court Judge) granted the defendant relief from sanctions following the late filing of its costs budget. The defendant was, perhaps, fortunate….
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (1): LAWYERS STAY OUT OF THE MEETING OF EXPERTS
A new edition of the King’s Bench Division Guide was published last week (although it is dated March 2023). I will take a short look at the major changes. Firstly looking at a new passage in relation to the instruction…
CIVIL PROCEDURE BACK TO BASICS 96: PERMISSION TO APPEAL: THE APPLICATION TO THE FIRST-INSTANCE JUDGE HAS TO BE MADE AT THE INITIAL HEARING (OR ADJOURNMENT THEREOF)
The judgment of HHJ Pelling in FG Financing Ltd & Anor v Lagun [2023] EWHC 126 (Comm) serves as a useful reminder of the limited period of time available to make an application to the first-instance judge for permission to…
“IT WAS TWENTY YEARS AGO TODAY”: A BATCH OF SERVICE OF THE CLAIM FORM CASES IN THE COURT OF APPEAL: A CHANCE TO REVIEW (OR REMINISCE..)
The Court of Appeal judgment in Cranfield & Anor v Bridgegrove Ltd. [2003] EWCA Civ 656 was given 20 years ago today. One of the aims of that judgment was to clarify issues relating to service of the claim form…
AMENDMENT, COMPLIANCE WITH PEREMPTORY ORDERS AND THE DENTON CRITERIA: THERE IS NO HALFWAY HOUSE: COURT OF APPEAL DECISION
There are so many judgments dealing with the issue of late amendment that, as I have stated before, I often do not write about them – each being fact specific. However the Court of Appeal judgment in CNM Estates (Tolworth…
CIVIL PROCEDURE BACK TO BASICS 95: ACCEPTING A PART 36 OFFER WHEN THERE IS MORE THAN ONE DEFENDANT
This post arises out of an interesting question I was asked in a recent webinar on Part 36.* The questioner asked wanted to accept a Part 36 offer by one defendant and continue the action against others. The situation here…
ANOTHER CHANGE IN THE RULES ON APRIL 6th: PERSONAL INJURY LAWYERS CAN SAY GOODBYE (IN SOME CASES) TO THE ADMIRALTY COURT
The focus on the new rules on QOCS coming into force on the 6th April may lead to losing sight of some other changes. In particular the new rules and amendments to the Practice Direction in relation to accidents at…
THE NEW RULES ON QOCS FROM APRIL 6th: OMNIBUS EDITION
The new rules on QOCS come into force on the 6th April. Here is a review of the key points as to issue, the consequences and links to useful commentary. WHEN THE RULES COME INTO FORCE The key date…
ISSUING IN HASTE BEFORE APRIL 6th: DO NOT REPENT AT LEISURE WITH SERVICE ISSUES IN FOUR MONTHS’ TIME
I have been told that there has been a flurry of activity this week with claimants anxious to issue proceedings before the change in the rules relating to QOCS. One problem with this is that there will now be numerous…
AGREEING EXTENSIONS OF TIME FOR SERVICE: THE ESSENTIAL POINT THAT THEY MUST BE IN WRITING
An interesting issue about “agreements” is referred to in the judgment of Mr Justice Kerr in Clarion Housing Association Ltd v Crest Nicholson Operations Ltd [2023] EWHC 620 (TCC). I will be looking at the case in more detail later. …
APRIL 5th IS AN IMPORTANT DATE: WHAT IS MEANT BY “ISSUED” IN THE CONTEXT OF CHANGES TO QOCS?
The new rules relating to the ability to set off defendant’s costs liabilities against a claimant’s costs and damages have, I am told, led to a rush to issue proceedings and a backlog in some courts. These rules come into…
A LITIGANT CAN “APPEAR” AT A SMALL CLAIMS TRACK HEARING BY THEIR LEGAL REPRESENTATIVE: COURT OF APPEAL DECISION
In Owen v Black Horse Ltd [2023] EWCA Civ 325 the Court of Appeal allowed the claimant’s appeal. The claim had been struck out at the start of a Small Claims Track hearing on the grounds that attendance by the…
THE SERVICE OF WITNESS STATEMENTS LATE: CLAIMANT REFUSED RELIEF FROM SANCTIONS: DEFENDANT GRANTED RELIEF FROM SANCTIONS: EQUALITY IS NOT ALWAYS EQUITY
It is quite possible that both parties in an action could be in default. One party could be granted relief from sanctions for that default and the other refused. This is precisely what happened in Shill Properties Ltd v Bunch…
THE ABSENCE OF A REPLY TO A DEFENCE DOES NOT MEAN THAT IT COULD BE ASSUMED THAT THE ACCOUNT IN THE DEFENCE WAS ACCEPTED
There is a breach statement in the judgment of Lady Justice Andrews in Zanatta v Metroline Travel Ltd [2023] EWCA Civ 224 that highlights a crucial point in relation to the drafting of a Reply. Whereas a Reply and Defence…
MISTAKES AND THE ROAD TRAFFIC PROTOCOL: DOCTRINE OF MISTAKE APPLIED: A WORKING EXAMPLE
In Doyle -v- the NFU (St Helens County Court 24th February 2023) Deputy District Judge Murray held that the doctrine of mistake applied to offers made on the Pre-Action Protocol for road traffic accidents. I am grateful to solicitor Jamil…
WITNESS STATEMENTS: NON-COMPLIANCE WITH THE RULES AND WITNESS CREDIBILITY: A DEFENCE TO A CLAIM “BASED AT LEAST IN PART ON WISHFUL THINKING”
In Litkraft Ltd v Cottrell [2023] EWHC 465 (Comm) HHJ Pearce (sitting as a High Court Judge) considered issues relating to credibility and weight in a case where there had been non-compliance with the rules relating to witness statements. We…
SERVICE ON A SOLICITOR WAS NOT DEFECTIVE: WHAT IS MEANT BY A “PLACE OF BUSINESS”?
In Ellison Road Ltd v Mian (t/a HKH Kenwright & Cox Solicitors) & Anor [2023] EWHC 375 (Ch) Master Brightwell rejected a defendant’s argument that he had not been properly served at his “place of business”. The case shows the…
THE NEW RULES ON QOCS 3: WHAT INFORMED COMMENTATORS ARE SAYING: & TWO USEFUL WEBINARS
In the third in this series I thought it would be useful to highlight what informed commentators are saying in relation the new rules. I have gathered a range of views below. I have taken some key comments, however reading…
VULNERABLE WITNESSES IN THE CIVIL COURTS: THE VULNERABLE WITNESS SHOULD NOT HAVE BEEN SHOWN CROSS EXAMINATION QUESTIONS IN ADVANCE:
There are relatively few cases relating to vulnerable witnesses in civil courts. In GKE v Gunning [2023] EWHC 332 (KB) Mr Justice Ritchie considered the terms of an order made to protect a vulnerable witness. Although the wording of the…
“THE FOUR WITNESS STATEMENTS ARE THE CAREFUL WORK OF A LEGAL TEAM”: JUDGE CRITICAL OF THE WAY STATEMENTS WERE PREPARED FOR TRIAL
There are many aspects of the judgment of Mr Justice Fancourt in Mackenzie v Rosenblatt Solicitors & Anor [2023] EWHC 331 (Ch) that are of interest to litigators. However here we look at the judge’s criticisms of the witness statements…
RELIEF FROM SANCTIONS REFUSED FOLLOWING LATE SERVICE OF WITNESS STATEMENTS: RECOURSE TO HUMAN RIGHTS ARGUMENTS WERE TO NO AVAIL
In Bank of Scotland Plc v Hoskins [2023] EWHC 306 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) refused an application for relief from sanctions following late service of witness evidence. The Defendant’s attempt to invoke Human Rights…
CLAIMANT SOUGHT TO AMEND NAME OF THE DEFENDANT: CLAIM STRUCK OUT: ANOTHER PERIL OF TRAVEL LITIGATION
I am grateful to barrister Katherine Howells for sending me a copy of the decision of Deputy District Judge Causton in Gregory -v- TUI Airways Ltd, a copy of that decision is available here Approved Judgment Gregory v TUI. …
DEFENDANT REFUSED PERMISSION TO WITHDRAW FROM ADMISSIONS: PRE-INQUEST ADMISSIONS FATAL TO DEFENDANT’S CASE
I am grateful to barrister Jo Moore for drawing my attention to the judgment of Master Sullivan in Somoye v North West Anglia NHS Foundation Trust [2023] EWHC 191 (KB). This is a case where the Master refused the defendant’s…
COURT REFUSES CLAIMANT’S APPLICATION FOR RETROSPECTIVE EXTENSION OF TIME TO SERVE THE CLAIM FORM:CLAIMANT’S ARGUMENTS THAT CPR 3.9 APPLIED FAILED TO FLY
Regular readers may be concerned that we have got through to the second week of February of the year and we have not yet had a claims form case. (There are several in the pipeline.) I am grateful to barrister…
RESPONDENT SIX MONTHS LATE IN SERVING WITNESS STATEMENT: RELIEF FROM SANCTIONS GRANTED
In Davidson & Ors v Looney (Re Kieran Looney & Co Ltd) [2023] EWHC 197 (Ch) Deputy ICC Judge Kyriakides granted a respondent relief from sanctions when a witness statement was served six months late. THE CASE The applicant liquidators…
ANOTHER CASE OF DISCLOSURE OF AN EMBARGOED COURT OF APPEAL JUDGMENT: LIABILITY FOR CONTEMPT MAY BE STRICT, BUT IN THIS CASE NEED GO NO FURTHER
In Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57 the Court of Appeal considered another case where the results a draft embargoed judgment was disclosed (although not the judgment itself). Liability for the…
COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL
In Wilkins v Serco Ltd [2023] EWHC 61 (KB) Mrs Justice Heather Williams rejected the defendant’s appeal in relation to allocation of a case for false imprisonment. She upheld a finding that the case would have been allocated to the…
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…
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