COURT REFORM: VIEW FROM THE DISTRICT JUDGES: “WE QUESTION WHETHER THERE HAS BEEN MEANINGFUL (AS OPPOSED TO TOKEN) CONSULTATION WITH ALL LEVELS OF THE JUDICIARY”
The Justice Committee is carrying out an inquiry into the ongoing court reforms. The written evidence it has received is available here. I just want to highlight the views from The Association of Her Majesty’s District Judges. This makes interesting…
CIVIL PROCEDURE BACK TO BASICS 42: WHY A DAY EARLY IS SO VERY DIFFERENT TO A DAY LATE: THE ROBERT CRITERIA
There is a world of different between a prospective and retrospective application to extend time, or comply with an order. Every litigator has to know about Robert -v- Momentum Services [2003] EWCA Civ 229. An application made in advance means that the…
APPEALING FINDINGS OF FACT: SEEKING FURTHER INFORMATION AND THE CONSTRUCTION OF EXPERT EVIDENCE
I am grateful to Charles Bagot QC for sending me a copy of the judgment of Mr Justice Birss in Price -v- Cwm Taf University Health Board [2019] EWHC 938 (QB). A transcript of the case is available on the…
CIVIL PROCEDURE BACK TO BASICS 42: NON-DISCLOSURE OF DOCUMENTS DURING THE COURSE OF PROCEEDINGS
This post arises out of a Twitter discussion. Someone was reporting that documents that had been disclosed during the course of ongoing litigation were being put copied onto social media. Is this allowed? THE RULES: NON-DISCLOSURE OF DOCUMENTS This is…
NEW PRECEDENT R: STARTED TODAY (CONTAIN YOUR EXCITEMENT): USEFUL LINKS AND GUIDANCE
Credit to Costs Lawyer Jessica Swannell for reminding people on Linked In that the new Precedent R must be used from today. It is a good time to provide a link to the new form and some useful posts and…
tWENTY YEARS OF THE CIVIL PROCEDURE RULES: ALL THAT TIME AND THEY HAVE MADE FEW FRIENDS
I have already done a post on the 20th anniversary of the Civil Procedure Rules on the 26th April. In an effort to find supporters I tried again. The Civil Procedure Rules, it appears, has very few friends… …
FRESH EYES NOT A GOOD REASON FOR PERMISSION TO AMEND: COURT REFUSED CLAIMANT’S LATE APPLICATION TO RE-CAST ITS CASE
In Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) Martin Griffiths QC, sitting as a High Court judge, disallowed a late application to amend. It is another example of an application being made shortly before trial,…
COURT FEE REMISSION: USEFUL LINKS AND GUIDANCE
The earlier post reporting that a defendant had been ordered to pay the claimant’s court fees despite the claimant being entitled to remission has led to a lot of discussion on Twitter. Responses range from “that’s right” to “what on…
TWENTY YEARS OF THE CIVIL PROCEDURE RULES (AND 107 SERIES OF AMENDMENTS): A CHANCE TO REMINISCE, CRITICISE, SHARE EXPERIENCES…
This month sees the 20th anniversary of the Civil Procedure Rules coming into force. This is a good time to invite practitioners (and judges if they are so minded) to look back at the old rule and the “new” rules…
SERVICE OF THE CLAIM FORM: DANGERS OF SERVING AT THE LAST KNOWN ADDRESS (2019)
It is difficult for a month, sometimes a week, to pass without there being a service of the claim form case. The issue of service was central to the decision of Mr Justice Martin Spencer in Brayshaw -v- Partners of…
MORE ON THE GREAT BUNDLE TAKEAWAY DEBACLE: A “DIFFICULT” QUESTION OF STATUTORY CONSTRUCTION FOR FAMILY LAWYERS
There has been a large amount of comments on the previous posts in relation to taking away of bundles after trial. For family lawyers there is an even greater problem. The “joint notice” from HMCTS endorsed by the Bar Council…
CIVIL PROCEDURE BACK TO BASICS 34: “THE SOURCES OF INFORMATION AND BELIEF” IN WITNESS STATEMENTS: 10 KEY POINTS
The maker of a witness statement must given the source of their information or belief. This obligation is often overlooked, or simply paid lip service to. However the careful following of this rule could prevent many of the common problems we…
AMENDMENT, FOOTBALL AND THE ALLEGEDLY NEGLIGENT SOLICITOR: SIX KEY POINTS (WITH THE LAST ONE BEING THE MOST IMPORTANT OF ALL)
There are many reasons litigators should read the judgment of Mrs Justice O’Farrell in Jenkins v JCP Solicitors Ltd [2019] EWHC 852 (QB). 1. It provides yet another example of a claimant suing the wrong entity The firm of solicitors…
DO NOT WRITE TO THE COURT WITHOUT COPYING IN THE OTHER SIDE: NOW ITS IN THE RULES – AND THERE ARE SANCTIONS FOR NON-COMPLIANCE
This blog has looked several times at judicial warnings against one party writing to the court without copying in the other party. Those warnings have now been inserted into the Rules. The Civil Procedure (Amendment) Rules 2019 introduce a new…
NOT COMPLYING WITH DIRECTIONS OR REPLYING TO CORRESPONDENCE – AND THEN BLAMING THE OTHER SIDE: IT DOES YOU NO CREDIT
There are several matters of general interest in the judgment of Mrs Justice Pepperall in Essex County Council v UBB Waste (Essex) Ltd [2019] EWHC 819 (TCC) (02 April 2019). Here we look at the dangers of simply failing to…
RELIEF FROM SANCTIONS, LATE SERVICE OF NOTICE TO APPEAL AND THE LITIGANT IN PERSON
In London Borough of Hamlets v Al Ahmed [2019] EWHC 749 (QB) Mr Justice Dove set aside an order granting an appellant an extension of time for appealing. The fact that the appellant was a litigant in person was not a…
DEPARTING FROM THE BUDGET: IMPORTANT DECISION ON APPEAL: JUDGMENT NOW AVAILABLE
Both Professor Dominic Regan and Acumension have kindly sent me copies of the decision in Barts Health NHS Trust -v-Salmon an appeal in relation to costs budgeting (HHJ Dight CBE, with Master Brown as an assessor, 17th January 2019). A copy…
DENTON CONSIDERED: EXTENSION ALLOWED WHEN NOTICE HAD GONE INTO SOLICITOR’S SPAM FOLDER
In Adetoye v The Solicitors Regulation Authority [2019] EWHC 707 (Admin) Mr Justice Mostyn allowed an appellant an extension of time when a notice of appeal was served late. The delay was because the appellant had not noticed the order appealed…
TOO MANY DOCUMENTS, TOO MANY AUTHORITIES: A REMINDER OF AN OLD FASHIONED REMEDY: BEWARE YE, BEWARE YE
When commenting on a recent case about committal in the Court of Appeal Professor Dominic Regan made the point that the first part of the hearing had been marked by judicial comments about the size of the bundles and number…
WHEN YOU ASK SOMEONE TO SIGN A DOCUMENT WITH A STATEMENT OF TRUTH: OR SIGN ONE YOURSELF: BEST READ THIS IF YOU DON’T WANT TO GO TO JAIL
The judgment in Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 goes much further than a warning to errant experts. It contains important observations that must be considered by the entire profession. Particularly those who draft statements, and those…
SETTING ASIDE AN ORDER WHEN THE DEFENDANT DID NOT APPEAR: THE RULES SHOULD BE FOLLOWED
There are several unusual aspects about the decision of Salix Homes v Mantato [2019] EWCA Civ 445, not least it is an appeal directly from a Deputy District Judge to the Court of Appeal. In addition to the point of law…
WHAT IS THE ROLE OF THE LITIGATOR? WHAT HAPPENS WHEN YOU RAISE A RHETORICAL QUESTION ON TWITTER..
There was much serious material being discussed at the Legal Futures Civil Litigation Conference yesterday. As best I could I was tweeting observations from the day. I tweeted the rhetorical question asked by Luke Tucker Harrison “What is the role…
SHOULD AN ERRANT EXPERT GO TO JAIL? COURT OF APPEAL DECISION: MAKING A FALSE STATEMENT SHOULD LEAD TO JAIL
In Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392 the Court of Appeal set out clear guidance for courts considering sentencing in cases relating to reckless contempt on the part of expert witnesses. A “reckless” statement made…
WHO HAS WON AND WHO SHOULD PAY THE COSTS? WHEN “WHO PAYS THE CHEQUE” IS NOT A SUFFICIENT ANSWER
In Hamad M Aldrees & Partners v Rotex Europe Ltd [2019] EWHC 526 (TCC) Sir Antony Edwards-Stuart considered a case where it was far from clear that the “winning” party should recover its costs, The case is useful in that it…
AGREEING EXTENSIONS OF TIME: ADVICE FROM M’ LEARNED FRIEND: “DON’T PANIC” AND BE TOTALLY CLEAR IN WHAT YOU ARE AGREEING
In his post yesterday Agreeing An Extension to the Limitation Period Nigel Poole QC dealt with some of the issues arising from the judgment in Cowan v Foreman and ors [2019] EWHC 349 (Fam) where Mostyn J suggested it was not possible for the…
WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: A “CUT OUT AND KEEP” GUIDE: A JUDGMENT ON INTEREST OF INTEREST
The judgment of Mr Justice Bryan in Assetco Plc v Grant Thornton UK LLP [2019] EWHC 592 (Comm) provides a helpful review of the principles and authorities relating to the approach to be adopted when a claimant beats their own Part…
WHEN ENFORCEMENT PROCEEDINGS GO WRONG: IF YOU CAN’T OPERATE BY THE RULES THEY MAY TAKE YOUR LICENCE AWAY…
The enforcement of judgments is an aspect of civil procedure that rarely makes the law reports. In Rooftops South West Ltd & Ors v Ash Interiors (UK) Ltd & Ors [2018] EWHC 2799 (QB) Master Davison was highly critical of the…
BANKRUPTCY PETITION NOT SERVED PROPERLY: BANKRUPTCY NOT ANNULLED
There may well be a disturbance in the Force if there is not a service of the claim form case every few weeks. In Ardawa v Uppal & Anor [2019] EWHC 456 (Ch) Mr Justice Roth held that a judge could…
TIMING OF APPLICATIONS FOR ANONYMITY: CLAIMANTS SHOULD ACT WELL BEFORE TRIAL
In Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) Mr Justice Martin Spencer refused the claimant’s application for anonymity. He made important observations about when such an application should normally be made. THE TIMING OF APPLICATIONS After refusing…
CIVIL PROCEDURE BACK TO BASICS 33: INVALUABLE GUIDANCE ON EXPERT EVIDENCE FROM THE ICCA
The Inns of Court College of Advocacy has prepared a very useful guide called “Guidance on the preparation, admission and examination of expert evidence”. It is free of charge and can be downloaded . This post is just a summary…
DEFAULT JUDGMENT SET ASIDE, RELIEF FROM SANCTIONS GRANTED: ACTION THEN STRUCK OUT: REMEMBERING THE BASIC OBLIGATION TO FILE A DEFENCE – ON TIME
In Workman v Deansgate 123 LLP [2019] EWHC 360 (QB) Mr Justice William Davis allowed an application to set aside a default judgment and relief from sanctions. The most surprising procedural aspect of this case is the defendant’s failure to file…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
IF YOU ARE AT TRIAL AND HAVEN’T PAID THE TRIAL FEE: STRIKE OUT IS AUTOMATIC: A FORMAL APPLICATION FOR RELIEF FROM SANCTIONS NEEDS TO BE MADE
In Hyslop -v- 38/41 CHG Residents Company Limited [2018] EWHC 3893 (QB) Mr Justice Freedman considered a case in which the fact that a claimant had not paid the trial fee only came to light at the trial itself. …
AN ANONYMOUS DRIVER CANNOT BE SUED: YOU’VE GOT TO HAVE SOMEWHERE TO SERVE…
In the judgment today Cameron v Liverpool Victoria Insurance Co Ltd [2019] UKSC 6 the Supreme Court overturned the Court of Appeal decision in relation to service when there is an unknown driver. The court cannot make an order that service…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at the…
KEEP YOUR WITNESS STATEMENTS SHORT AND TO THE POINT: A SHOT ACROSS THE LITIGANTS’ BOWS
In Avonwick Holdings Ltd v Azitio Holdings & Ors [2019] EWHC 305 (Comm) Mr Justice Andrew Baker refused the defendants’ application for an adjournment of a trial date. When doing so he sent a clear message as to the way in…
CIVIL PROCEDURE BACK TO BASICS 32: BEWARE YE, BEWARE YE, BEWARE YE THE HUMBLE WITNESS SUMMARY: IT COULD BITE BACK – WITH VENGEANCE
The earlier post on the judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited(Leicester County Court 21/01/2019) highlighted how dangerous it is for a party to serve a witness summary. Here we look at the rules relating to witness summaries, the…
DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE
In Consult II SRO & Ors v Shire Warwick Lewis Capital Ltd & Ors [2019] EWHC 286 (Comm) Andrew Henshaw QC (sitting as a High Court Judge) refused the defendants’ application for relief from sanctions. The lack of a candid explanation…
STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel [2018] EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can…
SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL
Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court. The expert…
CIVIL PROCEDURE BACK TO BASICS 30: THE ADVANTAGES OF APPLYING FOR AN EXTENSION BEFORE THE DATE OF BREACH: THE CASE KEEPS MOMENTUM
In Robert –v- Momentum Services Limited [2003] EWCA Civ 299 the Court of Appeal held that where an application for an extension of time is made before the expiry of the stipulated period this was not a case as one of relief from sanctions. The…
JUDGE WAS WRONG TO IMPOSE SECURITY FOR COSTS ORDER IN RESPONSE TO WITNESS STATEMENT BEING SERVED LATE: COURT OF APPEAL DECISION
In Gama Aviation (UK) Ltd v Taleveras Petroleum Trading DMCC [2019] EWCA Civ 119 the Court of Appeal overturned a first instance decision where a summary judgment application was adjourned on terms that the defendant provided security for costs. The defendant…
RELIEF FROM SANCTIONS GRANTED WHEN WITNESS STATEMENT SERVED LATE: DECISION UPHELD ON APPEAL
In Petrou v Lambrou (t/a KCJ Builders) [2019] EWHC 166 (Comm) Mr Justice Freedman upheld the decision of a circuit judge who granted the defendant relief from sanctions when a witness statement was served late. Interestingly the judge, on appeal, exercised…
SERVICE OF CLAIM FORM BY EMAIL ALLOWED: THE SAFEGUARDS TO RESPONDENTS TO WITHOUT NOTICE APPLICATIONS.
The case and issues in Linklaters LLP -v- Mellish [2019] EWHC 177 (QB) have already made the headlines. The procedural aspects of the decision are also of interest. Firstly Mr Justice Warby made an order allowing service of the claim form…
THE ORDER THE COURTS CAN MAKE WHEN A DEFENDANT HAS DIED AND THERE ARE NO EXECUTORS OR ADMINISTRATORS
Another aspect of the judgment Currie v Thornley & Anor [2019] EWHC. 172 (Ch) relates to the order the courts can make when a defendant in a civil action has died. THE CASE One of two defendants in a civil action had…
HAVING A COPY OF WITNESS STATEMENTS AVAILABLE AT COURT: IT IS IN THE RULES
One other aspect of the decision in Prosser v British Airways Plc [2018] EW Misc B13 is worth noting. There was a rare reference to the requirements of CPR 32.13(1). Copy witness statements must be available at the trial for inspection. …
ORDER GRANTING TIME TO EXTEND SERVICE SET ASIDE: THE DEEMED DATE FOR SERVICE OF THE CLAIM FORM: A BLAST FROM THE PAST: STILL APPLIES TO SERVICE ABROAD
The judgment in Punjab National Bank (International) Ltd v Srinivasan & Ors [2019] EWHC 89 (Ch) contains two interesting lessons (i) a court can always set aside an order extending time for service of proceedings; (ii) the “old” rules relating to…
CIVIL PROCEDURE BACK TO BASICS 26: WHEN CAN A WITNESS BE EXCLUDED FROM THE COURT HEARING?
In civil proceedings witnesses are commonly present throughout an entire action. On occasions a request is made that witnesses be excluded. There is little authority for the proposition that a court can exclude witnesses or guidance as to how the discretion…
UNDERSTANDING LEGAL TERMINOLOGY: USEFUL GUIDANCE: IT DOESN’T ALL RES IPSA LOQUITUR YOU KNOW
The Radio 4 programme “Word of Mouth” had a programme last week on “legal language”: “demystifying the language of the court room”. This led one of the participants, barrister, author and blogger Lucy Reed to write a post “Why do…
INTRANSIGENT EXPERT’S APPROACH LEADS TO “SIGNIFICANT PART OF CLAIMANT’S CASE BEING STRUCK OUT”: A CASE FOR EVERY EXPERT AND LITIGATOR TO READ – NOW
The judgment of Mr Justice Males in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) is one of the most robust I have seen in relation to expert evidence. An expert’s failure to properly engage…
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