AN ORDER UNDER THE ARBITRATION ACT IS NOT AN ORDER UNDER CPR 3.1(7)
The judgment of Popplewell J in H -v- L [2017] EWHC 137 (Comm) relates to an application to remove an arbitrator. Most of the judgment considers the principles relating to the independence of arbitrators. The judge also considered points…
EXPERTS AND THE OVERRIDING OBJECTIVE: DEFENDANT ALLOWED TO RELY ON EXPERT ALSO USED BY CLAIMANT
In Wheeldon Brothers Waste Limited -v- Millennium Insurance Company Limited [2017] EWHC 218 (TCC) Mr Justice Coulson allowed the defendant to rely on an expert that had also been instructed by the claimant. The circumstances are unusual and the case needs…
THE DUTY ON EX PARTE APPLICATIONS: SOLICITOR INVOLVED NOT ALLOWED TO APPEAL TO THE COURT OF APPEAL AGAINST FINDINGS AGAINST HIM
I am returning to the question of the lawyer’s duty on without notice applications. In March 2015 we looked at the case of Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) where Mr Justice Flaux made a clear and unequivocal…
RELIEF FROM SANCTIONS REFUSED(AFTER THE TRIAL)
In the judgment today in Schenk -v- Cook [2017] EWHC 144 (QB) Mr Justice Green upheld an order refusing relief from sanctions. However the appeal was heard in unusual circumstances. The judge considered the application for relief from sanctions striking…
NEW RULES COMING INTO FORCE: COSTS BUDGETING AND QADER RESULT CODIFIED
The Civil Procedure (Amendment) Rules 2017 were made on the 3rd February. Most of these come into force on the 6th April 2017. The new rules are available here COSTS BUDGETING The amendments set out below may be perplexing. However…
AMENDMENT TO ADD NEW ISSUES THAT HAVE ARISEN SINCE ISSUE: CONSIDER THE OVERRIDING OBJECTIVE AND NOT THE RSC
I said that there would be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). The first looked at the lifting of the automatic stay. Here we look…
FOOTBALL ASSOCIATION ALLOWED EXTRA TIME: CPR 15.11 CONSIDERED: NOT AN ESPECIALLY HEAVY BURDEN
There are going to be two posts about the judgment of Master Marsh in The Football Association Premier League Limited -v- O’Donovan [2017] EWHC 152 (Ch). Here we look at the decision in relation to CPR 15.11. (The second post…
FIXED COSTS APPLY TO APPLICATIONS FOR PRE-ACTION DISCLOSURE: COURT OF APPEAL DECISION TODAY
The Court of Appeal judgment today in Sharp -v- Leeds City Council [2017] EWCA Civ 33 deals with an important point about fixed costs and applications for pre-action disclosure. KEY POINTS An application for pre-action disclosure made by a claimant…
COURT FEES AND STEALTH TAXES: REPAYMENT OF TRIAL FEES TO END NEXT YEAR
Thanks to Kerry Underwood for pointing out the provisions of The Civil Proceedings Fees (Amendment) Order 2016 which comes into force on the 6th March 2017. There is a hidden “tax” in that the repayment of court fees has ended….
WHEN IS EXPERT EVIDENCE ADMISSIBLE: A MASTERLY EXPOSITION
The judgment of Master Matthews in Darby Properties Ltd -v- Lloyds Bank Plc [2016] 2494 (Ch) contains an important consideration of the rules relating to the admissibility of expert evidence. In particular when is expert evidence “necessary”? “… although I…
NO RELIEF FROM SANCTIONS WHEN COSTS BUDGET FILED LATE: THE DECISION IN DETAIL
We have looked, briefly, at the Court of Appeal decision in Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001. I am grateful to Aaron Vodden of Hempsons for sending me a copy of the transcript which…
PROVING THINGS 32: DAMAGES CLAIM STRUCK OUT AS UNSUSTAINABLE; APPLICATION TO AMEND REFUSED.
In Guney -v- Kingsley Napley [2016] EWHC 2349 (QB) Mrs Justice McGowan struck out part of the claimant’s claim for damages and refused the claimant permission to amend to plead new heads of damage. It could serve as an object…
SOLICITOR'S AGENT HAS NO RIGHT OF AUDIENCE AT STAGE 3 HEARING: COUNTY COURT DECISION CONSIDERED
Who has a right of audience at a Stage 3 hearing? This issue has been considered in the county court and I am grateful to barrister Jonathan Dingle for sending me a copy of the decision of District Judge Peake…
INVALID SERVICE OF CLAIM ON SOLICITORS: ANOTHER CLAIM FORM INCORRECTLY SERVED
Problems with service of the claim form are a regular feature of this blog. I have written, many times, about the dangers of leaving service of the claim form until the last minute. I have also written, many times, about…
MCKENZIE FRIENDS AND THE THREE WISE MONKEYS: A DISCRETION TO BE EXERCISED RARELY
In Ravenscroft -v- Canal & River Trust [2016] EWHC 2282 (Ch) Chief Master Marsh considered the law relating to allowing a McKenzie friend to be permitted to act. (This case also considered the use of without prejudice correspondence in court,…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 2: THE STRESS OF LITIGATION: GUIDANCE AND LINKS
The earlier post on looking at litigation from the litigant’s viewpoint led to some interesting comments, on the blog itself; on LinkedIn and on twitter. It was particularly interesting to hear from lawyers who had been involved in litigation…
ANOTHER ROUND IN THE CFA ASSIGNMENT BATTLE: CFA CAN BE ASSIGNED
In Azim -v- Tradwise Insurance Services Limited [2016] EWHC B20 (Costs) Master Leonard found that a conditional fee agreement could properly be assigned. KEY POINTS An assignment of a CFA between solicitors was valid. The validity of an assignment did…
REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER
Two recent posts* have highlighted the difficulties that can exist with the filing of Replies and Defence to Counterclaim. Here is a short Primer. A REPLY If the Defence does not contain a counterclaim a Reply is not mandatory. There…
KEEPING PARTIES OUT OF COURT IN CIVIL PROCEEDINGS : COURT OF APPEAL DECISION
The practice of sending witnesses out of court whilst evidence is being given is extremely rare in civil cases. It was considered by the Court of Appeal in Da Costa -v- Sargaco [2016] EWCA Civ 764. “… whilst there may…
PROVING THINGS 24 : DAMAGES AND THE "BUT FOR TEST": WHEN IT GETS REALLY COMPLEX
The judgment of Mr Justice Foskett today in Reaney -v- University Hospital of North Staffordshire NHS Trust [2016] EWHC 1676 (QB) is interesting reading. Not least because the parties could not agree what the Court of Appeal had decided and…
MY WITNESS STATEMENT WAS DRAFTED BY MY LAWYER: THANK YOU OFFICER
There are 909 paragraphs in the judgment of Mr Justice Wyn Williams in Mouncher -v- The Chief Constable of South Wales Police [2016] EWHC 1367 (QB). I just want to look at one of them. This was a case all…
I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME
One of aspects of the judgment in McTear -v- Englehard [2016] EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos in relation to the nature of the correspondence between the parties. “It would seem…
COURT OF APPEAL OVERTURN REFUSAL TO GRANT RELIEF FROM SANCTIONS: RE-TRIAL NECESSARY
In McTear -v- Engelhard [2016] EWCA Civ 487 today the Court of Appeal overturned a refusal to grant relief from sanctions. Consequently there will have to be a re-trial. (The judgment at first instance in this Case was considered in…
FAILURE TO PAY THE CORRECT COURT FEE DOES NOT LEAD TO STRIKING OUT OF AN ACTION
The decision in Lewis -v- Ward Hadaway [2015] EWHC 3503 (Ch) has led to considerable interest (and it has to be said) some hyperbole and opportunistic applications. The case is often misunderstood. In Bhatti -v- Ashghar [2016] EWHC 1049 (QB)…
WITNESS STATEMENTS: ALTERATIONS AND THE FALLIBLE MEMORY: A SCIENTIFIC STUDY
It is worthwhile anyone involved in assessment of witness evidence reading the post by Julia Shaw in Scientific America today: Do you suffer from memory blindness. The post refers back to the altered witness statements in the Hillsborough enquiries in the…
UNCERTAINTY AS TO DAMAGES: JUST HOLD ONTO THE MONEY UNTIL FULL TIME
In Gibbs -v- Leeds United Football Club Ltd [2016] EWHC 960 (QB) Mr Justice Langstaff made an order that dealt with the question of uncertainty in relation to the assessment of damages. Rather than speculate on sums to be paid…
TAKING TECHNICAL POINTS AS TO SERVICE: JUDICIAL "DISMAY" THAT THE MATTER WAS PURSUED
One of the most difficult decisions that litigators now face is whether to take “technical points”. Technical points, particularly as to service of the claim form, can potentially bring proceedings to a premature end. However there are risks as well…
QOCS AND DISHONESTY: YOU CAN TRY TO CHECK OUT ANY TIME YOU LIKE BUT YOU CAN’T ALWAYS LEAVE
Thanks to Sintons LLP there is now a copy available online of the judgment of HH Judge Gosnell in Rouse -v- Aviva Insurance Limited (15th January 2016). This is another case that relates to discontinuance by the claimant in a…
CASE FAILS BECAUSE OF MATTERS NOT PLEADED: ANOTHER LESSON FOR PLEADERS
The decision of His Honour Judge David Grant yesterday in Bridgland -v- Earlsmead Estates Limited [2016] EWHC B9 (TCC) makes salutary reading for anyone who drafts pleadings. If the claimants had pleaded their case differently they may have won. It…
CAR HIRE CHARGES SHOULD STAY IN PROTOCOL: COURT OF APPEAL DECISION TODAY
In Phillips -v- Willis [2016] EWCA Civ 401 the Court of Appeal gave some clear guidance as to the appropriate approach of the courts when the issues relating to damages are “whittled down” by agreement. The normal procedure is for…
THE RISKS OF JOINING A THIRD PARTY INTO AN ACTION: THE DEFENDANT MAY NOT RECOVER THE COSTS
The judgment on costs in Axon -v- Ministry of Defence [2016] EWHC 883 (QB) highlights the risks of a defendant bringing a Third Party into an action. The defendant was successful, however the claimant was not ordered to pay all…
THE LIMITS OF QOCS: HIGH COURT DECISION TODAY
NB THIS DECISION WAS SUBSEQUENTLY OVERTURNED ON APPEAL. SEE THE POST ON THE APPEAL AVAILABLE HERE In Howe -v- Motor Insurers’ Bureau [2016] 884 (QB) Mr Justice Stewart considered the meaning of an action for “personal injury”. He held that…
ASSESSMENT OF COSTS CAN BE IN PRIVATE: DECHERT DECISION CONFIRMED BY THE COURT OF APPEAL
In Dechert LLP -v- Eurasian Natural Resources Corporation Ltd [2016] EWCA Civ 375 the Court of Appeal upheld a decision that an assessment of costs could be in private.” “The issue is clearly of importance for both parties. On the…
"IN TIME" APPLICATION TO EXTEND TIME FOR PEREMPTORY ORDER REFUSED: CLAIM STRUCK OUT
I am grateful to Charles Bagot of Hardwicke Chambers for bringing my attention to the decision in Kranniqi -v- Watford Timber Company Ltd (District Judge Parfitt 13/04/2016). It is a working example of (i)the dangers of failing to comply with…
DOES COSTS BUDGETING APPLY TO A FATAL ACCIDENT CLAIM WHERE A CHILD IS A DEPENDANT? SOME MORE DETAIL
Over the weekend I heard two speakers on costs budgeting mention my view that costs budgeting may not now apply to fatal accident claims where children are dependants. Given the potential significance of this, it is worth expanding my concerns….
LEGAL AID IN CONTEMPT PROCEEDINGS: A HAPPIER ENDING
On the 8th March there was a short post on this blog discussing the judgment in Brown -v- London Borough of Haringey [2015] EWCA Civ 483 about the availability of legal aid in committal proceedings. This included the passage ” The…
NEW RULES AND PRACTICE DIRECTIONS TOMORROW: THE TRANSITIONAL PROVISIONS
Following the post about the rule changes coming into force tomorrow there was some discussion about the transitional provisions. The confusion comes about partly because the SI introducing them says the same thing in different ways. However further confusion arises…
APPLICATIONS ARE EXPENSIVE: NINE POINTS FROM AUSTRALIA TO REDUCE COSTS
Given the recent increase in court fees in relation to applications it is prudent for everyone involved to look for a means to avoid the need for applications, or reduce their client’s exposure to costs. Similar problems are faced throughout…
THE PROTOCOLS: OFFERS AND RAISING NEW POINTS AT THE HEARING
The 4 New Square website has a copy of an interesting judgment of His Honour Judge Freedman in Mulholland -v- Hughes (18th September 2015). “I regard it as inequitable and unfair for a defendant, for the first time, to raise…
BRITISH GAS HAS PRODUCED SOME HOT AIR: DENTON APPLIED NOT CONVERTED
I have already seen several headlines, and numerous commentaries, that mention the “hard line” taken by the Court of Appeal in British Gas Trading -v- Oak Cash & Carry Limited [2016] EWCA Civ 153. The case is not as draconian as…
DELAY, DISCRETION AND SETTING ASIDE JUDGMENT
In the judgment today in Albesher -v- Ryan [2016] EWHC 541 (Comm) Mr Justice Walker considered issues of delay in an application to set aside a default judgment. KEY POINTS A regular judgment was set aside because there was…
REVISITING COMPLIANCE WITH A PEREMPTORY ORDER AFTER TRIAL: LIES ARE FOUND OUT AND ACTION DISMISSED
I am grateful to Jeff Turton of Weightmans for sending me a copy of the transcript in the case of Anward -v- Severn Trent Water Ltd (13th July 2015). Abid Anwar – Full Judgment It raises an interesting and important point…
DENTON CRITERIA OVERRIDES ALLEGATIONS OF FRAUD: COURT OF APPEAL DECISION: A WAKE UP CALL FOR THE INSURANCE INDUSTRY?
In Gentry -v- Miller and UK Insurance Company [2016] EWCA Civ 141 the Court of Appeal held that the fact that a defendant was alleging fraud did not entitle it to any special treatment in relation to breaches of rules….
A GENTLE REMINDER OF YOUR NEW YEAR'S RESOLUTIONS 3: THINK VERY CAREFULLY BEFORE SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT
As part of the series reminding litigators of the new year’s resolutions for 2016 we look at resolution number 4: “Think very carefully before signing a statement of truth on behalf of a client”. We have already seen one case…
INTERIM PAYMENTS, EVIDENCE AND THE BURDEN OF PROOF: OBSERVATIONS FROM THE HIGH COURT
In Sellar-Elliot -v- Howling [2016] EWHC 443 (QB) Mr Justice Sweeney considered some important issues in relation to interim payments. The case is somewhat unusual in that the judgment is one that refuses permission to appeal. However the judge recognised…
REPRESENTATION IN CIVIL COMMITTAL PROCEEDING: ANOTHER CASE
Shortly after the previous post about legal aid in committal proceedings the decision in Watson -v- Holman [2016] EW Misc B5 was placed on Bailli. The case involved committal applications for failure to comply with an order to remove a…
APPROVAL HEARINGS: CLAIMANTS SHOWING ADVICES TO THE DEFENDANT: A VERY PECULIAR PRACTICE
This is a post inspired by a twitter conversation. It started as a general issue about children and approval hearings. During the course of the discussion it became clear that there were some claimant solicitors who as a matter of course…
DENTON DOES NOT APPLY TO DELAY IN PROVISIONAL ASSESSMENT
I am grateful to Simon Anderson of Park Square Barristers for his note of the judgment of Deputy District Judge Hill yesterday (4th March 2016) in the case of Martin -v- The Leeds Teaching Hospitals NHS Trust. This decision is…
IMPORTANT CHANGES TO COSTS BUDGETING: THE KEY POINTS
New rules in relation to costs budgeting come into force on the 6th April 2016. They apply to proceedings commenced on or after 6th April 2016. EXEMPTION FOR CHILDREN 5. In rule 3.12(1), for subparagraph (c), substitute— “(c) where in…
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