FUNDAMENTAL DISHONESTY A DOZEN THINGS TO THINK ABOUT: A RECAP
Given recent decisions on fundamental dishonesty this may be a good time to rake over some key points. “I assure the Committee that the way that the clause is drafted should not result in the courts using the measures lightly….
INAPPROPRIATE USE OF PART 8 PROCEDURE: “AN ENTIRELY UNSATISFACTORY WAY TO PROCEED”: HIGH COURT DECISION
In Victory House General Partner Ltd v RGB P&C Ltd [2018] EWHC 102 (TCC) Miss Joanna Smith QC (sitting as a Deputy) was clear in her view that a claimant had used the Part 8 procedure inappropriately. “In my judgment this…
COURT ORDER ALLOWING PROSPECTIVE AND RETROSPECTIVE EXTENSIONS OF TIME: A BRIEF EXAMPLE
I am grateful to Dominic Regan for providing a precedent that allows the parties to extend time for compliance prospectively and retrospectively. THE ISSUE During a discussion on Twitter Dominic mentioned that some courts were habitually making orders that allowed…
PRESENTING THE CASE PROPERLY FOR YOUR CLIENT: TRIAL BUNDLES: RESURRECTING THE ADVICE GIVEN BY “LEGAL ORANGE”
The average lifespan of a blog is around 100 days. One blog on law and litigation that stopped posting several years ago was Legal Orange . A blog that started in December 2013 and where the last post was December…
INTERIM PAYMENTS: CHANGE IN THE DISCOUNT RATE AND EELES: THE ISSUES ADDRESSED HEAD ON: INTERIM PAYMENT OF £2.4 MILLION GRANTED
The problems caused to personal injury claimants by the change in the discount rate were addressed directly by His Honour Judge Curran (sitting as a High Court Judge) in Porter v Barts Health NHS Trust [2017] EWHC 3205 (QB). The court…
WRITING TO THE COURT ON A UNILATERAL BASIS: COURT OF APPEAL SAYS DON’T DO IT
Several passages in the judgment in Zuma’s Choice Pet Products Ltd & Anor v Azumi Ltd & Ors [2017] EWCA Civ 2133 emphasise a point made earlier this year. A litigant should not write to the court on a unilateral basis….
FONTS, LAWYERS AND THE RULES: NEVER, EVER USE COMIC SANS
There was a recent discussion on Twitter about the appropriate fonts for lawyers to use. At times it was a heated discussion. This led me to look at the rules and guidance as to the use of fonts in litigation,…
STRIKING OUT THE CLAIM FOR NON-PAYMENT OF TRIAL FEE: THIS IS ALWAYS A POINT TO WATCH
In April this year the rules were amended to introduce a concept of “automatic striking out”. Put simply if a claimant does not pay the court fee by the relevant date. I have seen occasions where this has had effect….
CONDUCT AND LITIGATION: THE SEPARATION OF POWERS AND THE RULE OF LAW: A SECRETARY OF STATE DOES “NOT REQUIRE KINDERGARTEN-TYPE ELABORATION”
The headnote in R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC) appears relatively benign, Mr Justice McCloskey deciding that the upper…
ACCEPTING A PART 36 OFFER DURING A TRIAL: A MATTER OF JUDICIAL DISCRETION: CLAIMANTS HAD LOST THEIR CHANCE
I am grateful to barrister Simon Mills for sending me a copy of the judgment of Mr Justice Morgan in Houghton (Stanley) -v- P.B. Donaghue (Haulage & Plant Hire Ltd & Ors) 2017] EWHC 1738 (Ch). It relates to the question…
“MULTIPLE SERIOUS ERRORS” IN JUDICIAL DECISION MAKING : THE UPPER TRIBUNAL DECISION IN FULL
The case of AA069062014 & Ors. [2017] UKAITUR AA069062014 has already attracted considerable attention on social media and beyond. The Upper Tribunal (Immigration & Asylum Chamber) considered appeals in 14 cases. The major issue was the tribunal judge. Here are the…
THE DUTY TO PUT YOUR CASE : FINDINGS MADE ON KEY POINTS WHICH WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL
In Chen v Ng (British Virgin Islands) [2017] UKPC 27 the Judicial Committee of the Privy Council considered the extent of the duty to put a case to a witness. It is a reminder of the importance of putting a case…
THE STRENGTH OF ENGLISH LAW: GUIDANCE WHICH NEEDS TO BE GIVEN AT HOME NOT JUST ABROAD
The Courts and Tribunals service have today produced a short guide – essentially selling the English courts* and the UK Jurisdiction. In essence it is a marketing booklet to persuade foreign litigants to use court in the UK and to…
THE JOB OF THE COURT IN CIVIL CASES: A USEFUL PRIMER: ADJUDICATION, THE BURDEN OF PROOF: THE JUDGE DOES NOT DECIDE WHO HAS THE MORAL HIGH GROUND
In Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) set out clearly and succinctly the principles by which the civil courts determine cases. They serve as a…
“THE CONSTITUTIONAL RIGHT OF ACCESS TO THE COURTS IS INHERENT IN THE RULE OF LAW”: THE JUDGMENT OF THE SUPREME COURT: EDITED HIGHLIGHTS
The decision of the Supreme Court in UNISON, R (on the application of) v Lord Chancellor [2017] UKSC 51 may have wide ramifications. Certainly its impact will go well beyond employment law. The Supreme Court set out, in clear and absolute…
TALES FROM THE APIL CONFERENCE IV: HOW PROCEDURAL CHANGES CAN MAKE A DIFFERENCE IN THE REAL WORLD
This may have been a strange venue to be talking about intellectual property rights and civil procedure. However it arose because Mr Justice Birss was on the panel and he has a background in intellectual property law. HOW CHANGES TO…
AN UNUSUAL APPLICATION FOR RELEASE OF AUDIO RECORDING OF JUDGMENT: NOT NECESSARY AND NOT ALLOWED
What does a litigant do if a written judgment varies from the oral judgment given in court? This issue was considered by HHJ Matthews (sitting as a High Court judge) in Bath -v- Escott [2017] EWHC 1101 (Ch). The judgment…
A WITNESS IN THE COURSE OF GIVING EVIDENCE IS IN PURDAH: THE ROLE OF THE LAWYER
The Employment Tribunal decision in Chidzoy -v- BBC (available here) contains an important lesson to lawyers and litigants alike. A witness in the course of giving evidence is in “purdah” – in that they should not discuss the case with…
ORAL CLOSING SUBMISSIONS ARE IMPORTANT: USE OF WRITTEN SUBMISSIONS IS “UNSATISFACTORY”
In Pimlico Plumbers Ltd -v- Smith [2017] EWCA Civ 51 the Court of Appeal stated that oral closing submissions are important. Relying on written submissions alone represents a “considerable risk”. THE CASE The Court of Appeal was considering an appeal…
ALLEGATIONS OF JUDICIAL BIAS AND THE INFORMED OBSERVER TEST: THE LAW AND PRACTICE
In Kimyani -v- Sandhu [2017] EWHC 151 (Ch) Master Matthews dealt with the difficult issue of a litigant alleging judicial bias. This judgment emphasises the fact that the test is one of the fair minded and informed observer and not…
FIRST CLAIM FORM CASE OF THE YEAR: AND THERE'S A BRIGHTSIDE
Every year brings a batch of cases relating to service of the claim form. This year starts with an unusual issue. In Brightside Group Ltd -v- RSM UK Audit LLP [2017] EWHC 6 (Comm) Mr Justice Andrew Baker considered issues…
INSURANCE, FUNDING AND LITIGATION: INSURERS HAD TO PAY SOLICITORS
There is an interesting judgment by Stuart Brown QC (sitting as a judge of the High Court) in Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16). The judgment is available here nesbitjudgment A judgment on…
CIVIL CASE OF THE YEAR 2016: THE CASE THAT ENCAPSULATES CIVIL EVIDENCE: HOW THE COURT DECIDES
There were many important cases on procedure and costs in 2016. Choosing a case of importance to litigators was not an easy task. However I kept coming back to the judgment of Master Matthews in Adepoju -v- Akinola [2016] EWHC 3160…
TOO LONG OR TOO SHORT: SCHEDULES and COUNTER-SCHEDULES: THE "CINDERELLAS" OF THE LITIGATION PROCESS
One important, but often overlooked, element of procedure and legal drafting is the preparation of the schedule of damages and the counter-schedule. The rules relating to these documents are sparse. However these are important documents, often impacting upon the credibility…
CLAIMANT'S ACCEPTANCE OF PART 36 OFFER DOES NOT LEAD TO JUDGMENT ON COUNTERCLAIM: A MARATHON EFFORT BUT TO NO AVAIL
In Marathon Asset Management LLP -v- Seddon [2016] EWHC 2615 (Comm) Mr Justice Leggatt rejected an argument that the claimant’s acceptance of a Part 36 offer meant that a defendant was entitled to judgment on its counterclaim. KEY POINTS The…
BOMBARDING THE COURT: AN IMPORTANT POSTSCRIPT
There is an important postscript to the judgment of Lady Justice King in Agarwala -v- Agarwala [2016] EWCA Civ 1252. It sets out the dangers of “bombarding” the court with communications and applications. It sets out a course of…
LITIGANTS IN PERSON AND CASE MANAGEMENT: TIMELY SERVICE OF DOCUMENTS – DRAWING FROM THE FAMILY DIVISION
Recent cases have made it clear that litigants in person do not have any special status during the conduct of litigation. However it is equally clear that, when making case management decisions, the court has to have regard to the…
LOOKING AT LITIGATION FROM THE LITIGANT'S VIEWPOINT 1: A BOOK WORTH READING
There is surprisingly little written about the actual experience of being a litigant, particularly a litigant in the civil courts. What is more the “experience”, or viewpoint of the client does not figure greatly (if at all) in legal training. Doctors have…
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…
NEW RULES ON COSTS CAPPING
New rules (The Civil Procedure (Amendment No.2) Rules 2016 were passed yesterday which amend CPR Part 3 in relation to costs capping. They are of relatively limited ambit, applying only to Judicial Review applications. They replace protective costs orders in…
ADVOCACY – THE JUDGE’S VIEW III: MORE GUIDANCE FROM CANADA
As part of the series looking at the advice that judges give to advocates (and how this relates to civil litigators in particular) we return to Canada. Judge Carol Baird Ellan collected the views of 12 of her colleagues in…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
ORDERING A SPLIT TRIAL ON PRELIMINARY ISSUES: A CAUTIONARY TALE
In Larkfleet -v- Allison Homes Eastern Limited [2016] EWHC 195 (TCC) Mr Justice Fraser made some important observations about the need for total clarity when a court orders the trial of a preliminary issue of law. ‘Preliminary points of law…
WHAT IS A TRIAL? AND WHY DOES IT MATTER?
In Pickard -v- Roberts [2016] EWHC 187 (Ch) Mr John Baldwin QC (Sitting as a Deputy Judge of the Chancery Division) had to consider whether a hearing was a “trial” and whether this had any impact upon the decision to…
TEN NEW YEAR'S RESOLUTIONS FOR LITIGATORS IN 2016
Some resolutions to keep you prosperous and out of difficulties in 2016. (Happy New Year) 1. NEVER, EVER, GUESS ABOUT A LIMITATION PERIOD (OR TAKE A CLIENT’S WORD FOR IT) Litigators of all types must have a clear idea about…
CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS
We civil litigators cannot be left out of the, apparently universal, need for an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing. Here we look at poetry, carpet bombing and disappearing…
WHEN THE COURT FAILS TO SERVE: AN IRREGULAR JUDGMENT MUST BE SET ASIDE
In Tanir -v- Tanir [2015] EWHC 3363 (QB) Mr Justice Garnham found that the court had failed to serve the claim form and, consequently, a judgment had to be set aside. The court had no discretion to act otherwise. “The…
SENDING THE FEE WITH THE APPLICATION: FAILURE CAN BE FATAL
I am grateful to barrister Matthew White for sending me details and a copy of the decision of His Honour Judge Lopez in Price -v- Egbert H Taylor Limited (Birmingham County Court 2nd October 2015). “… there [are] numerous authorities…
SUMMARY JUDGMENT FOR DEFENDANT WHEN THERE WERE ALLEGED DISPUTES OF FACT: DON'T PARK THE CAR
Is it prudent to apply for summary judgment when there are alleged disputes of fact? I am grateful to my colleague Colm Nugent for sending me a copy of the judgment of Mr Justice Cooke in Price -v- Euro Car…
THE ALDI PRINCIPLE AND SECOND ACTIONS: A STING IN THE TAIL
In Chamonix Private Equity LLP -v- Caledonia Investments plc [2015] EWHC 3290 (Comm) Mr Justice Knowles noted that, in the absence of prior notification, it was going to be difficult for a claimant to bring a second action against different…
COSTS WHERE CLAIMANTS ARE REPRESENTED BY MORE THAN ONE FIRM OF SOLICITORS: IT CAN GET DIFFICULT
In Ong -v- Ping [2015] EWHC 3258 (Ch) Mr Justice Morgan considered the relevant order to make as to costs when the claimants in an action had been represented by separate solicitors. THE CASE Four claimants had been successful in…
ANOTHER CLAIM FORM NOT SERVED PROPERLY: SERVICE ABROAD AND SERVICE ON A SOLICITOR
In Transportes Viana E Fernandes LDA -v- Baban & others (Brighton County Court, 15th January 2015)* His Honour Judge Simkiss overturned the order of the District Judge in circumstances where the claim form had not been served properly. The claim…
THE HUMBLE CASE SUMMARY: A NEGLECTED ART: I'M ON THE LOOKOUT FOR EXAMPLES OF BEST PRACTICE
The New Law Journal last month carried an important article from District Judge Nigel Law about his experience with case summaries in the county court. The case summaries he found were too long and rarely useful. This set me looking…
SUING OR DEFENDING ON BEHALF OF AN ESTATE OR TRUST FUND: DID YOU KNOW YOUR COSTS BUDGETS MUST BE FILED WITH THE PLEADINGS?
A solicitor has pointed out to me the surprise provisions of Practice Direction 3F – on Costs Capping. The title of the Practice Directions is deceptive. There are also mandatory provisions in relation to the filing of costs budgets at…
DISPUTES OF FACT IN SUMMARY JUDGMENT APPLICATIONS: THE APPROPRIATE TEST
In Optaglio Limited -v- Tethal [2015] EWCA Civ 1002 the Court of Appeal considered the issue of how far a judge can determine disputed issues of fact in a summary judgment application. THE CASE The claimant was appealing an order…
CIVIL LITIGATION BRIEF 20 YEARS AGO: ANY LESSONS FOR TODAY?
I doubt whether anyone knew what a “blog” was 20 years ago. However at that time Civil Litigation Brief was a monthly column in the Solicitors Journal. It is interesting to see how much (or how little) matters have moved…
DEFENDANT COUNTERCLAIMING EXEMPLARY DAMAGES AGAINST FRAUDULENT CLAIMANTS: AN INTERESTING REPORT
There is a report in the DWF update section of the case of Akhtar & Khan -v- Ball, a decision of HHJ Gregory on 10.7.15. It raises an interesting issue in relation to a counterclaim by a defendant faced with…
COMMITTAL APPLICATION REFUSED BECAUSE OF LONGSTANDING DEFECTS IN COURT FORM
In Re: Dad Application to commit Muhammad Nawaz Chaudry to prison [2015] EWHC 2655 (Fam) Mr Justice Holman refused an application to commit a respondent to prison on the grounds that the standard form of collection order did not comply…
CIVIL JUSTICE STATISTICS: APRIL TO JUNE 2015
The Ministry of Justice have published Civil Justice statistics for April to June 2015. Here are some key points NUMBERS OF CLAIMS In April to June 2015, courts dealt with around 366,000 claims, 34,000 allocations, 66,000 defences and around 194,000 judgments. The…
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