SERVICE OF THE CLAIM FORM ON A SOLICITOR (NOT THE FIRST TIME I’VE WRITTEN ABOUT THIS AND PROBABLY NOT THE LAST…)
Every so often, but sometimes I think not often enough, I write posts on the dangers relating to service of the claim form. Here is a quick reminder about the basic principles of serving on a solicitor. This post has…
CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – DECEMBER 2019
Links and articles to blog posts and articles available online from December 2019. Costs Costs Barrister Cash flow and catastrophic personal injury litigation Costs Barrister Fixed costs and translation fees Association for Costs Lawyers Court can order costs in foreign…
THE COURT WILL NOT READILY IMPLY SANCTIONS INTO ORDERS THAT DO NOT EXPRESSLY CONTAIN SANCTIONS: AN EARLY CHRISTMAS PRESENT FOR LITIGATORS
In Djurberg v London Borough of Richmond & Ors [2019] EWHC 3342 (Ch) Chief Master Marsh held that a party did not require relief from sanctions when it failed to comply with a court order that did not impose a…
2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: PART 36: THE GROWTH IN CLAIMANT’S PART 36 OFFERS – AND WHY THE CONSEQUENCES USUALLY APPLY
Looking back it is clear that this has been a very busy year for cases on Part 36. Part of the reason for this has been the growth in cases relating to claimant’s offers. There are a number of key…
CIVIL PROCEDURE BACK TO BASICS 74: HEARSAY EVIDENCE AND SECTION 4 OF THE CIVIL EVIDENCE ACT 1995
The judgment of Deputy Master Linwood in Barnaby & Anor v Johnson (aka Smith) [2019] EWHC 3344 (Ch) provides a reminder of the terms of Section 4 of the Civil Evidence Act 1995 and an example of its application. …
CORRECT INTEREST RATE ON COSTS WHEN CLAIMANT BEATS THEIR OWN PART 36 OFFER: TRIAL JUDGE WAS ENTITLED TO AWARD 10% OVER BASE
There are several interesting aspects of the judgment of Mr Justice Saini in Essex County Council & Ors v Davies & Ors [2019] EWHC 3443. Here I want to look at the part of the judgment that deals with the…
RELIEF FROM SANCTIONS REFUSED WHEN DEFENDANT FILES AN INADEQUATE PLEADING
The Denton principles were considered in an unusual context by Mr Justice Julian Knowles in Oliver v Shaikh [2019] EWHC 3389 (QB). THE CASE The claimant is a Circuit Judge. He brought an action for harassment against the defendant….
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (3): SANCTIONS AND RELIEF FROM SANCTIONS (OR NOT…)
Another certainty about writing about civil procedure is that every year will bring a batch of applications relating to sanctions and relief from sanctions. This year has been no different. We start off (from the end of last year) with…
2019 AND CIVIL PROCEDURE – THE YEAR IN REVIEW (2): SERVICE OF THE CLAIM FORM (AND ALLIED ISSUES)
The one “certainty” about writing about civil procedure is that every year there will be a few (often more than few)cases about service of the claim form. This is always a fruitful source of difficulty for claimants. The causes of…
PART 36: A SUCCESSFUL LITIGANT CAN BE BULLISH: CLAIMANT BEATS ITS OWN PART 36 OFFER AND THERE WAS NOTHING UNJUST IN THE DEFENDANT PAYING THE PRICE
In Kivells Ltd v Torridge District Council [2019] EWHC 3210 (TCC) the claimant beat its own Part 36 offer (by a fair margin). HHJ Russen QC rejected the defendant’s argument that it would be unjust to apply the normal Part…
CIVIL PROCEDURE BACK TO BASICS 73: THE AUTOMATIC STAY
CPR 15,11(2) provides for an automatic stay if nothing happens in an action for six months after service. This is a rule that can be overlooked. THE RULE CPR rule 15.11. Sub-paragraph (1) of that rule provides that: “Where…
IS A CONDITIONAL FEE AGREEMENT A CONTENTIOUS BUSINESS AGREEMENT? WELL, IT DEPENDS… (& IT HAS CONSEQUENCES)
In Healys LLP v Partridge & Anor [2019] EWHC 2471 (Ch) Kelyn Bacon QC, sitting as a Deputy High Court Judge, considered the issue of whether a conditional fee agreement was a contentious business agreement. This has practical consequences in…
NO SECOND BITE OF A CHERRY AFTER A TRIAL: COURT OF APPEAL CONFIRMS JUDGE’S DECISION
In L’Oreal (UK) Ltd & Anor v Liqwd Inc & Anor [2019] EWCA Civ 1943 the Court of Appeal confirmed the trial judge’s decision not to admit new evidence that a defendant attempted to introduce after judgment was handed down….
LAWYERS: JUDGES SO WANT TO SEE ALL THE CORRESPONDENCE (AND TO BE TOLD ABOUT IT AS WELL…): MASTER’S POINT OF PRACTICE WORTH READING
There are some observations in the judgment of Master Thornett in Palizban v Protech (UK) Ltd [2019] EWHC 3090 (QB) that every litigator should read. It relates to the manner in which solicitors present witness statements, and documents, in interlocutory…
SERVICE OF THE PARTICULARS OF CLAIM AND THE “TRAP FOR THE UNWARY CLAIMANT”: THE TRAP OPERATED AND RELIEF FROM SANCTIONS NOT GRANTED
The judgment of Chief Master Marsh today in Maggistro-Contenta & Anor v O’Shea & Anor [2019] EWHC 3035 (Ch) is a prime example of difficulties being caused because of a mistake in relation to the rules relating to service. It…
ANONYMOUS LITIGANT REFUSED RELIEF FROM SANCTIONS: “ALL THE CIRCUMSTANCES OF THE CASE MILITATE AGAINST GRANTING THE CLAIMANT RELIEF”
In ABC v Google LLC [2019] EWHC 3020 (QB) Mr Justice Pushpinder Saini refused an (anonymous) claimants application for relief from sanctions. The case has some unusual features, however it does highlight the point that a relief from sanctions application…
STAGE 3 PROCEEDINGS AND LATE SERVICE OF EVIDENCE: COURT OF APPEAL DECISION
The judgment of the Court of Appeal yesterday in Wickes Building Supplies Ltd v Blair [2019] EWCA Civ 1934 is an important one in relation to late service of evidence and Stage 3 of the Protocol. It shows the importance…
COURT IN THE MIDDLE? CIVIL COMMITTAL PROCEEDINGS AND LEGAL AID: JUDGE EMPHASISES THE COMPLEX MESS ABOUT FUNDING
There have been concerns in the past about the way in which civil committal proceedings are carried out. A guide to the careful approach needed is shown in the judgment of Chamberlain J in The All England Lawn Tennis Club…
RELIEF FROM SANCTIONS: CANDOUR FROM THE APPLICANT AND NO EVIDENCE FROM THE DEFENDANT TO PROVE PREJUDICE
There is a report of a case where relief from sanctions was granted in Anglia Autoflow North America LLC and Another v Anglia Autoflow Ltd [2019] Costs LR 155. One thing that marks this case is the total candour from the…
THE RIDICULOUS RULES ABOUT PLEADING MITIGATION OF LOSS: DOES THE RULES COMMITTEE JUST NOT LISTEN (OR JUST NOT CARE)?
The previous post in this case on the judgment in Pepe’s Piri Piri Ltd & Anor v Muhammad Ali Junaid Food Trends Ltd (Now Dissolved) & Ors[2019] EWHC 2769 (QB) highlights the problems posed by one of the most ridiculous rules…
APPLICATION FOR RELIEF FROM SANCTIONS: THE IMPORTANCE OF PROMPT APPLICATIONS
In Pepe’s Piri Piri Ltd & Anor v Muhammad Ali Junaid Food Trends Ltd (Now Dissolved) & Ors[2019] EWHC 2769 (QB) Matthew Gullick (sitting as a High Court judge) granted the claimants relief from sanctions in relation to late service…
STAYING SANE AS A LITIGATOR 5: THINGS WILL GO WRONG: “YOU GOTTA HAVE A PLAN”: DON’T CRASH…
No matter how hard you try, on occasions, things will go wrong in litigation. Do you have a plan? Here we examine the need to have a plan to cover default and other issues in litigation. We then look in…
PROSPECTIVE APPLICATIONS FOR EXTENSIONS OF TIME (CONSTITUTIONAL LAWYERS DO NOT GET EXCITED)
Today seems a good day to consider prospective applications for extensions of time. These are going to figure in every litigators career at some point. A knowledge of the relevant law is essential. A prospective application of time is dealt…
CONDITIONAL FEE AGREEMENT IS ENFORCEABLE AFTER DEATH: HIGH COURT JUDGMENT TODAY
In Higgins & Co Lawyers Ltd -v- Evans [2019] EWHC 2809 (QB) Mr Justice Pushpinder Saini overturned a decision that a conditional fee agreement was not enforceable after death. THE CASE The deceased had signed a CFA agreement with the…
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…
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