WHO IS WATCHING YOUR BACK? A CHECKLIST ON "DEFENSIVE LITIGATION"
The previous post looked at the “fish file” checklist prepared by groups in a recent session I conducted in at one of Kerry Underwood’s courses. A second checklist was also prepared by the groups and this related to “defensive litigation”….
OTHER ESSENTIAL CHECKLISTS: DEALING WITH THOSE "FISH FILES"
Earlier posts looked at the essential checklists prepared by delegates at the “how to get sued” conference. Missing from those checklists was any discussion of one real problem for practitioners that can often lead to problems – the “fish file”….
WHEN CAN YOU SERVE WITNESS SUMMARIES? A HIGH COURT CASE ON THE QUESTION OF WHETHER A PARTY IS "UNABLE" TO OBTAIN A WITNESS STATEMENT
The case of Scarlett -v- Grace (4/6/2014) QBD Phillips J was reported briefly on Lawtel yesterday. It provides an example of the difficulties when a party proposes to serve witness summaries rather than witness statements. THE RULES: CPR 32.9 CPR…
PROVING SOMETHING HAS BEEN POSTED: SWEAR IT TO BE TRUE
I initially read the Court of Appeal decision of Price -v- Price [2014[ EWCA] Civ with interest because it showed that the old CPR 3.9 still applied in family proceedings. However Jon Williams pointed out that the case has an…
73rd AMENDMENT TO THE CIVIL PROCEDURE RULES COMES INTO FORCE TODAY: FINAL TRIO OF LINKS
Monmouthshire Law Society’s twitter account announced Happy 73rd update to CPR day this morning. Here are three crucial links so you can join in the celebrations. CELEBRATORY LINKS A general summary and the rules themselves are here Guidance as to…
YOU CAN AGREE TO EXTEND TIME NOW: BUT SHOULD YOU AGREE TO EXTENSIONS?
Parties can agree to extend time from the 5th June. I have already written on the dangers of the system. However, if the dangers can be sidestepped, should a litigator agree to extend time. THE HEATED DEBATE: SHOULD PARTIES AGREE EXTENSIONS? This…
"ESSENTIAL CHECKLISTS": THE COMPLETE LIST
The “Essential Checklist” series developed out of a workshop series in a course I gave last month. Six groups produced six checklists. Here is a link to them all. SERVICE OF PROCEEDINGS: (“SERVICE WITH A SMILE”) Essential points before the…
AVOIDING UNDERSETTLEMENT: THE FINAL "ESSENTIAL CHECKLIST" & A USEFUL LINK
The final list in the “essential checklist” series is on “avoiding undersettlement”. The day the course was held the Law Society Gazette had published Rachel Rothwell’s piece on Why Cannibalism is coming to PI. One delegate noted that he had…
PRE-ACTION CONDUCT: ESSENTIAL CHECKLISTS AND USEFUL LINKS
This is the 5th in the series of “Essential Checklists”. The group “Prequel” (the clue is in the name I guess) set out what they thought were essential elements in Pre-action procedure. PREQUEL’S CHECKLIST PRE-ACTION STEPS, PROTOCOL AND LETTERS BEFORE…
COURT OF APPEAL TO HEAR THREE MORE CASES ON RELIEF FROM SANCTIONS
The Court of Appeal is to hear three cases on sanctions on the 16th & 17th June. One of the cases being considered is Utilise -v- Davies [2014] EWHC 834 (Ch) which was considered in an earlier post on this blog. The…
COSTS, COSTS BUDGETING AND MAKING A LIVING: THE PREQUEL TO THE ESSENTIAL CHECKLIST
The fourth in our “essential checklist” series was prepared by a group that called itself “Group H”. The checklist addresses issues relating to recording and recovering costs. GROUP H This was the only group where I was involved in some…
LATE SERVICE OF THE CLAIM FORM, RETROSPECTIVE EXTENSIONS AND OTHER CAUSES OF SLEEPLESS NIGHTS: A CASE TO POINT.
The recent case of Kaki –v- National Private Air Transport & National Air Service Ltd (QBD (Comm) 23/5/2014 raises some interesting issues in relation to the retrospective validation of service of a claim form when that claim form was served…
SURVIVING MITCHELL 20: THE GREAT BIG OVERALL CHECKLIST
I suspect that this series could go on indefinitely. It is drawn to a close with a round up of the key points. KEY POINTS 1. Know what happened in Mitchell and how it could have been avoided. 2. Assume…
SURVIVING MITCHELL 19: PRACTICE "DEFENSIVE LITIGATION" OR DON'T PRACTICE AT ALL
This is the 19th (and penultimate) in this series on “surviving Mitchell”. What the Mitchell case makes clear is that there is now precious little room for error in civil procedure. We have to develop systems of “defensive litigation”. That…
“MITCHELL BITES TO PENALISE LITIGANTS WHO FAIL TO COMPLY”: EXTENSIONS OF TIME, APPEALS AND BAHO.
The case of Baho & Ors –v- Meerza [2014] EWCA Civ 669 is a further example of a litigant coming to grief because they failed to file an application in time and make the application for an extension of time…
PROMPTNESS AND APPLICATIONS TO SET ASIDE JUDGMENT : THE BIG YELLOW VAN –V- RAYNER 27/05/2014 CONSIDERED
PROMPTNESS AND APPLICATIONS TO SET ASIDE JUDGMENT : THE BIG YELLOW VAN –V- RAYNER (2014) IPEC (Judge Hacon) 27/05/2014 CONSIDERED The importance of a prompt response to procedural issues and setting aside default judgment has been explored previously on this…
WITNESS STATEMENTS: NOT ONE BUT TWO "ESSENTIAL CHECKLISTS"
Earlier posts have documented how these checklists were made. The prequel to the essential checklist sets out matters that practitioners have to watch. Here I set out the checklist prepared by the group “Stating the Obvious”. It is no…
WITNESS STATEMENTS: THE PREQUEL TO THE "ESSENTIAL CHECKLIST"
As part of the “Essential Checklist” series a group considered the issues relating to witness statements. Prior to the checklist it is worth reviewing some of the essential issues relating to the service and preparation of witness statements. THE ISSUES…
“FAILING TO SEE THE WOOD FOR THE TREES” AND LATE APPLICATIONS TO AMEND PLEADINGS : GROARKE –V- FONTAINE CONSIDERED
Groarke –v- Fontaine [2014] EWHC 1679 (QB) centred on a Road Traffic Accident that happened in November 2009. The central issue on appeal was whether a late application to amend the defence to plead contributory negligence should have been allowed….
SERVICE OF PROCEEDINGS: ADDING TO THE "ESSENTIAL CHECKLIST"
One advantage of twitter is that it is instantaneous. Tweeters today commented on the new practice at Salford of only sending one copy of the sealed claim form back for solicitor service. This is something that can usefully be added…
SERVICE BY E-MAIL: SETTING ASIDE JUDGMENTS AFTER MITCHELL AND MUCH MORE: BRETT –V- COLCHESTER HOSPITAL UNIVERSITY CONSIDERED
There is a considerable amount of interest in the judgment of Master O’Hare in this case. Firstly was service by e-mail good service when a party had not complied with the Practice Direction on service by electric means? Secondly what…
A DELIBERATE DECISION NOT TO FILE A WITNESS STATEMENT AND YET RELIEF FROM SANCTIONS GRANTED: MONDE PETROLEUM SA-V- WESTERNAZAGROS LTD CONSIDERED
In Monde Petroleum SA –v- Westernzagros Ltd (2014) QBD (Comm) (Hamblen J) 19/05/2014 a party intentionally failed to file a witness statement on time, yet relief from sanctions was granted. (The following is based on the Lawtel summary) THE FACTS…
CPR 3.9: MITCHELL AND APPLYING TO JOIN GROUP LITIGATION: HOLLOWAY -v- TRANSFORM MEDICAL GROUP
In Holloway -v- Transport Medical Group [2014] EWHC 1641 (QB) Mrs Justice Thirlwall DBE considered whether the “Mitchell” principles applied to late applications to join the register of claims following a Group Litigation Order. THE JUDGMENT The judgment is available…
SETTING ASIDE A DEFAULT JUDGMENT AFTER MITCHELL: WHAT IS THE APPROPRIATE TEST?
There has been much discussion of whether the Mitchell principles impact upon an application have a default judgment set aside. There are some cases that indicate that the amended CPR 3.9 should be taken into account in relation to a…
“A DISMAL CATALOGUE OF CONFUSION AND ERROR”: SERVICE OF THE CLAIM FORM, COURT ERRORS AND OTHER MISHAPS
An article in the Law Society Gazette this week reported a denial by the Ministry of Justice that the civil court system had been affected by austerity. Perhaps the MOJ should read the decision in Stoute -v- LT Operations Ltd…
RELIEF FROM SANCTIONS, PRISONS AND SANITATION
The issue of relief from sanctions was considered by Mr Justice Hickinbottom in Ashton (et al) -v- The Ministry of Justice [2014] EWHC 1624 QB. THE FACTS A large number of prisoners were bringing actions under the European Convention alleging…
A TWO DAY BREACH IS "TRIVIAL": ANOTHER CASE WHERE RELIEF FROM SANCTIONS GRANTED AFTER LATE SERVICE OF COSTS BUDGET
In Azure East Midlands Ltd -v- Manchester Aiport Group Ltd [2014] EWHC 1644 (TCC) His Honour Judge Grant made an order for relief from sanctions where a costs budget was served two days late. THE BREACH The claimant filed its…
JACKSON L.J. ON AGREEING EXTENSIONS OF TIME AND DEFAULT COSTS CERTIFICATES: IMPORTANT DEVELOPMENTS
I have already dealt with the rules to be introduced next month in relation to the parties being able to agree extensions of time in civil proceedings. Today Jackson L.J. made it clear that it was never part of his…
SERVICE OF THE CLAIM FORM: SERVICE AT “LAST KNOWN” ADDRESS: MORE DANGEROUS POINTS TO WATCH
Following the previous posts as to issues and problems relating to service of the claim form some responses have highlighted the difficulties of service at the “last known address”. The rules here are somewhat complex, a detailed knowledge is necessary….
SERVICE OF PROCEEDINGS: THE "ESSENTIAL CHECKLIST"
In earlier posts I have described how groups of litigators got together earlier this week to draft essential “safety” checklists for key elements of civil procedure. Here we have the checklist for service of proceedings. THE TEAM This checklist was…
SERVICE OF THE CLAIM FORM: THE TIME FOR SERVICE AND THE ADDRESS FOR SERVICE: ESSENTIAL POINTS BEFORE THE ESSENTIAL CHECKLIST
In an earlier post I described the work done on a recent course when delegates developed checklists designed to avoid problems in key areas of civil procedure. I was planning to put the checklists up individually. However in social media…
YOU CAN AGREE TO EXTEND TIME – BUT BE VERY CAREFUL: FIVE DANGER POINTS EXPLORED
There is some relief for litigators (and the courts to be honest) now that parties (from the 5th June) are allowed to extend time. However the new rules introduce some potential traps. It is wise to be aware of these…
AGREEMENTS TO EXTEND TIME: THE NEW RULES IN FULL
It required a statutory instrument to reinstate the ability to extend time that the Jackson Report never intended to take away. THE NEW RULES The Civil Procedure (Amendment No 5) Rules 2014 come into force on the 5th June 2014….
SURVIVING MITCHELL 18: RECOGNISING THAT 99.8% OF LITIGATORS ARE STARK RAVING BONKERS
There is a growing trend of “cannibalism” in the legal profession. Advertisements on my local radio station this morning were asking “do you want to sue your lawyer”? What is the legal profession doing to protect itself? The answer is…
MASSIVE DELAY, SETTING ASIDE JUDGMENT AND THE MITCHELL PRINCIPLES: MID-EAST SALES LTD –v- UNITED ENGINEERING & THE ISLAMIC REPUBLIC OF PAKISTAN CONSIDERED
One of the many moot points that arise from Mitchell is how far the amendment to the overriding objective and CPR 3.9 impact upon applications to have judgment set aside. This issue was considered by Burton J in Mid-East Sales…
SKELETON ARGUMENTS: IF YOU DON'T DO THEM PROPERLY YOU WON'T GET PAID!
The judicial review/planning law case of Secretary of State for Local Government -v- Hopkins Development Ltd [2014] EWCA Civ 470 contains some interesting observations of general interest to civil litigators. THE SKELETON ARGUMENTS Jackson L.J. prefaced his judgment with observations…
AMENDING PLEADINGS LATE AND MITCHELL: NOT A SMOOTH JOURNEY
What relevance do the Mitchell principles have in relation to applications to amend pleadings. Particularly when those applications are made late? This was considered by Mrs Justice Andrews in Dany Lions Ltd -v- Bristol Cars Ltd [2014] EWHC (QB) 928….
CHANGING THE TRIAL DATE : A CASE IN POINT: MITCHELL REMAINS A "TOP BRAND"
Ever since the introduction of the Woolf reforms the trial date has been viewed as fairly sacrosanct. Once set it is hard to change without a good reason. This position has probably hardened as a result of Mitchell. The issue…
A WORD ABOUT BUNDLES: MORE VIEWS FROM THE BENCH: RULES APPLY TO JUDICIAL REVIEW TOO
The article I wrote on trial bundles remains one of the most visited posts on this blog. It is always one of the most visited posts each working day. Proper preparation can make a major different to the efficient…
THE CONSEQUENCES OF CHARTWELL 3: THE "LITIGATOR'S DILEMMA": DO YOU TAKE THE "MITCHELL" POINT?
This is the third in the series examining the practical consequences of the Chartwell decision. The first post looked at the importance of serving witness statements on time, the second at the effect on the criteria for reinstatement. Here we…
PLEADING MITIGATION OF LOSS: WHY THE PRACTICE DIRECTION IS (ALMOST ALWAYS) WRONG AND THE RULES ARE A SHAMBLES
It is well established law that the burden of proving a failure to mitigate loss lies with the defendant. It is for the defendant to establish that the claimant failed to act reasonably. Somewhat surprisingly a Practice Direction in…
THE CONSEQUENCES OF CHARTWELL 2: OBTAINING RELIEF FROM SANCTIONS IS DIFFICULT BUT NOT IMPOSSIBLE
The Court of Appeal decision in Chartwell –v- Fergies Properties has already been considered in detail. An earlier article dealt with the importance of serving witness statements on time. Here we consider the implications for the principles relating to granting…
THE COURT SERVICE AND THE "SECRET STATE": ANOTHER EXAMPLE FROM "LEGAL CHAP"
A blog post yesterday highlighted the problems that solicitors had been having with some courts insisting that there was a “secret” letter that meant Part 8 applications could not be issued for minor approval applications. After considerable delay it was…
THE APPROPRIATE FEE FOR PART 8 APPLICATIONS: CLARIFICATION AT LAST
In a post in February “Civil Procedure and the Secret State” complaints were made of a “secret” policy introduced by the courts of changes to a demand that Part 7 proceedings be issued instead of Part 8 proceedings and that higher…
THE CRITERIA TO BE APPLIED WHEN A PARTY MAKES AN APPLICATION AHEAD OF THE DATE OF THE BREACH: THE ROBERT CRITERIA CONSIDERED
In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) it was made clear that Mitchell principles did not apply in cases where an application was made prior to the date of breach. The principles in Robert -v- Momentum Services [2003] EWCA…
HAS PROPER DISCLOSURE BEEN GIVEN? A NEW AREA OF BATTLE. GLOBAL MARINE DRILLSHIPS LIMITED –V- WILLIAM LA BELLA [2014] EWHC 1230 (Ch) CONSIDERED
In the post Mitchell world parties are anxious to demonstrate that their opponents have not complied with orders of the court and, consequently, should have their actions struck out. These arguments are likely to be particularly problematic in issues relating…
RELIEF FROM SANCTIONS: WHAT DOES “TRIVIAL” ACTUALLY MEAN? A LOOK AT THE CASES
If you attend one of the, numerous, “Jackson” and “Mitchell” conferences that abound at the moment you can easily make the lecturer sweat. Ask them to define “trivial”. Whether a breach is “trivial” or not is crucial to the way…
A BUDGET SERVED A DAY LATE IS A “TRIVIAL” ERROR: WAIN –v- GLOUCESTERSHIRE COUNTY COUNCIL [2014] EWHC 1274 (TCC) CONSIDERED
It was made clear in Mitchell that the courts should not concern themselves with “trivial” breaches, however what was meant by “trivial” was never defined. In Wain –v- Gloucestershire County Council Judge Grant, sitting as a judge of the High…
WHAT IS THE DATE OF SERVICE? THE DIFFERENCE BETWEEN THE “DEEMED” DATE OF SERVICE AND THE “EFFECTED” DATE OF SERVICE
T & L SUGARS LTD V TATE & LYLE INDUSTRIES LTD [2014] EWHC 1066 Problems with service and the date of service continue to abound. They have always been subject to a much stricter regime. In particular the date of…
IMPORTANT CHANGES ON THE 22ND APRIL: NEW COURT FEES AND NEW STATEMENT OF TRUTH ON COST BUDGET
The previous post dealt with the date of applications and considered the potential implications if an application was not accompanied by the relevant fee. It seems timely to remind everyone that: 1. New Court Fees come into force on the 22nd…
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