THE SOLICITOR’S DUTY TO REVIEW THE DOCUMENTS IN LITIGATION: AN INTERESTING POSTSCRIPT
There is an interesting postcript to the judgment of Jon Turner Q.C. (sitting as a Deputy High Court Judge) in Square Global Ltd v Leonard [2020] EWHC 1008 (QB. “It is fundamental that the client must not make the selection…
EXPERT’S CONDUCT DID NOT LEAD TO EVIDENCE BEING DISALLOWED: CLAIMANT’S CASE REMAINS ON TRACK
In Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors [2020] EWHC 387 (TCC) HHJ Davies (sitting as a High Court judge) carried out a detailed consideration of the conduct of an expert when considering,…
APPLICATIONS TO THE COURT AND THE DUTY OF CANDOUR: THE JUDGE MUST SEE DOCUMENTS THAT ARE ADVERSE TO YOUR CASE
In Short & Ors, R (On the Application Of) v Police Misconduct Tribunal & Anor [2020] EWHC 385 (Admin) Mr Justice Saini issued a warning about the duty of candour owed to the court, particularly on a without notice application….
CLAIMANT’S MEDICAL EXPERT ORDERED TO PAY DEFENDANT’S COSTS: EXPERTS PLEASE NOTE (EXPERTS’ INSURERS NOTE CAREFULLY)
In Thimmaya -v- Lancashire NHS Foundation Trust (30th January 2020, Manchester County Court) HHJ Claire Evans ordered that a medical expert pay a significant part of the defendant’s costs when she found that the expert had failed in his duties…
INDEMNITY COSTS ON THE GROUNDS OF CONDUCT: FAILURE TO BEAT A DEFENDANT’S PART 36 OFFER: A GARDEN THAT GETS MORE AND MORE EXPENSIVE…
The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 is the second time this case, about a garden, has been on appeal. On this occasion the Court of Appeal held that the claimants’ conduct…
GDPR AND THE CIVIL LITIGATOR (1) : USEFUL LINKS FOR LITIGATORS
The post earlier this week that highlighted the fact that an applicant had spent £40,000 unsuccessfully trying to obtain documents that would have been freely available under GDPR has led me to contemplate a series of articles on litigators and…
REDACTING DOCUMENTS: MAY CAUSE ENQUIRIES TO BE MADE AND EXPLANATIONS MAY NEED TO BE GIVEN
One other aspect of the judgment of HHJ Lethem in Ivanoy -v- Lubble (Central London County Court 17th January 2020) is in the orders made after the judgment. It concerns the redaction of documents. THE CASE The primary issue in the…
“THEY LOST”: THE DANGERS OF OVERCONFIDENCE IN CORRESPONDENCE
“Never write anything you will be embarrassed by the court reading” is an essential piece of advice for all lawyers (and one I suspect we have all, occasionally, breached). An example can be seen in the opening lines of the…
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…
ARGUE A WEAK CASE ON EACH AND EVERY POINT, GET INDEMNITY COSTS AWARDED AGAINST YOU
In Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2019] EWHC 3300 (Comm) Mr Justice Teare held that a claimant, who had pursued a weak case in a robust manner, should pay indemnity costs. There is…
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…
STAYING SANE AS A LITIGATOR 1: “OWN YOUR MISTAKES”
Today I am speaking at the Motor Accidents Solicitors Society annual conference on the topic of “Avoiding a Breakdown – Helping Your Clients by Helping Yourself”. I thought this would be a good day to start a new series on…
WHY WOULD ANYONE WANT TO RECORD THEIR MEETING WITH AN EXPERT WITNESS? TWO EXAMPLES WHERE THE COURT’S FOUND THAT AN EXPERT’S STATEMENT OF AN INTERVIEW WAS UNRELIABLE
An earlier post dealt with the case of Mustard v Flower & Ors [2019] EWHC 2623 (QB) and the claimant’s decision to record her appointments with the defendant’s medical experts. The issue of what, precisely, was said to an expert can…
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…
LAWYERS GIVING EVIDENCE 3: THE SOLICITOR (GIVING EVIDENCE WHILST REPRESENTING HIS CLIENTS) HAD BECOME FAR TOO CLOSE TO THE CASE TO BE OBJECTIVE
In the third post on the dangers of lawyers giving evidence we are looking at the judgment of Recorder Monty QC in Afia v Mellor & Anor [2013] EW Misc 23 (CC). The only witness called for the defendants was…
WITNESS STATEMENTS: THE DANGERS OF INADVERTENTLY MISLEADING THE COURT: CHECK BEFORE YOU ASSERT (ALSO A MESSAGE HERE FOR EXPERTS)
The judgment of Master Clark in Baynton-Williams v Baynton-Williams [2019] EWHC 2179 (Ch) contains a number of important lessons : (i) for anyone preparing a witness statement to be careful not to inadvertently mislead the court; (ii) for experts – on…
CIVIL PROCEDURE BACK TO BASICS 53: PART 36 AND COSTS AFTER THE COURT HAS LIMITED THE BUDGET TO COURT FEES
This may be an ambitious subject for the back to basics series. However here I want to look at the situation where a party has failed to file their costs budget timeously and the budget has been confined to court…
CIVIL PROCEDURE BACK TO BASICS 51: BULLOCK AND SANDERSON ORDERS: COSTS WHERE THERE ARE MULTIPLE DEFENDANTS
When writing the previous post about a Bullock order it struck me that there may be some people not quite certain of what a “Bullock order ” or “Sanderson order” is. This gives rise to a need to explain those…
THE TRIAL JUDGE COULD SAY BULLOCKS TO THE COST ORDER: ON APPEAL, HOWEVER, THE CLAIMANT SHOULD NOT HAVE BEEN SO BULLISH
In Fouladi v Darout Ltd & Ors [2019] EWHC 1674 (Ch) Mr Justice Henry Carr refused an appeal against the making of a “Bullock” order in relation to the costs of a fourth defendant. The claimant, however, was not successful…
PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS
In Bull v Desporte [2019] EWHC 1669 (QB) Mr Justice Knowles rejected the defendant’s argument that a Part 36 offer meant that she did not have to pay costs. THE CASE The claimant succeeded in an action for misuse of…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
WITHOUT NOTICE INJUNCTIONS 1: CLAIMANT’S APPLICATION FOR AN INJUNCTION GOES DOWN THE PAN
The judgment in Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch) has only recently arrived on BAILLI. However it is a case that shows the importance of disclosure in relation to without notice injunctions. What…
ATTEMPTING TO OBTAIN EXTENSIONS OF TIME BY INFORMAL EMAIL : THE COURT TAKES A “SINGULARLY DIM VIEW” OF ATTEMPTS BY PARTIES TO CIRCUMVENT THE RULES (OH, AND BUNDLES AGAIN)
In Saint Benedict Land Trust Ltd v London Borough of Camden & Anor [2019] EWHC 1433 (Ch) (17 May 2019) Mr Justice Marcus Smith took a very dim view indeed of an attempt by a litigant to obtain an extension…
ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION
In Hilson v McCarthy [2019] EWHC 1110 (Admin) the Divisional Court confirmed that the appellants had harassed a judge unlawfully and amounted to harassment. It is an important case for anyone involved in the legal system. “in examining the nature…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
CIVIL PROCEDURE BACK TO BASICS 44: JUST DON’T WRITE RUDE THINGS : LANGUAGE THAT IS “FAR REMOVED FROM THE PROFESSIONAL COURTESY THAT SOLICITORS ARE EXPECTED TO SHOW EACH OTHER”
Don’t write rude things. Not even in internal emails or texts. One day it may (and probably will) come back to haunt you. Read the judgment of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor…
COURT COULD NOT GO OUTSIDE FIXED COSTS REGIME: HOWEVER AN ORDER SEEKING INDEMNITY COSTS IS NOT AN “INTERIM” APPLICATION
I am grateful to Matthew Hoe from Taylor Rose for sending me a copy of the judgment of Mrs Justice Carr in Parsa -v- D.S. Smith PLC (25th March 2019) Parsa v D.S. Smith PLC – Approved Judgment -…
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
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…
LAWYERS: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Last night I did a post on using social media to help young lawyers (and some not so young lawyers). Specifically on how it is possible to gather information and advice from around the professions (and indeed around the world)….
ADVICE FOR THE ASPIRANT OR TYRO LAWYER: WHEN TWITTER CAN BE YOUR FRIEND (IN FACT YOU CAN HAVE DOZENS OF FRIENDS GIVING YOU ADVICE)
This is a post started almost by accident. It started with a tweet when a barrister was happy to be sitting on her sofa, for a change and said this is the reality of legal life. It led to dozens…
“CAN SOLICITORS BE RUDE IN THEIR CORRESPONDENCE TO THE OPPOSING CLIENT”? A RECAP OF ADVICE ON CONDUCT AND COURTESY
“Can solicitors be rude in their correspondence to the opposing client.” This was a search term that led someone to this blog earlier today. We don’t know whether this search was from a solicitor proposing to be rude, or the…
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…
CASE MANAGEMENT, “RELEVANCE” AND ATTEMPTS TO HOLD THE COURT “IN TERROREM”: MORE ON THE POST OFFICE CASE (SOME EXTRAORDINARY ISSUES HERE)
I am returning to the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) because parts of the judgment set out arguments and conduct of litigation that is, to say the least, unusual. This part…
EXPERTS WHO CAN’T REPORT IN TIME: BETTER READ THIS: IF YOU CAN’T REPORT ON TIME PROBABLY BEST NOT TO TAKE INSTRUCTIONS AT ALL…
In X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 HH Clifford Bellamy (sitting as a Deputy Circuit Judge) made some observations in relation to the role of the expert, particularly when that expert cannot report timeously. The…
ALLEGED “MISCONDUCT” DURING ASSESSMENT PROCESS DID NOT LEAD TO COSTS BEING DISALLOWED OR REDUCED: ATE PREMIUM WAS REASONABLE
In Murray v Oxford University Hospitals NHS Trust [2019] EWHC 539 (QB) Mr Justice Stewart rejected an argument that mistakes made by a claimant during the assessment of costs process should have led to costs being disallowed or reduced. The…
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…
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…
WHEN EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee…
WHEN LITIGATION BECOMES A “VERBAL BRAWL”: DISCLOSURE MUST BE PROPORTIONATE
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2019] EWHC 154 (Ch) Master Shuman observed how disclosure applications could quickly become disproportional. The litigation had become a “verbal brawl”. It is an example of the dangers of losing sight…
WHEN YOU’VE SPENT ALL YOUR MONEY ON LEGAL COSTS: NO REMEDY AVAILABLE: LITTLE SYMPATHY WHEN YOUR NET INCOME IS THE SAME AS A CIRCUIT JUDGE
This blog usually looks at family cases in the context of evidence or costs. The decision in Daga v Bangur [2018] EWFC 91 has a salutary tale to tell in relation to costs. There is also an interesting comparison in relation…
DETAILED ASSESSMENTS WILL NOT OVERSTEP THE MARK: THE COURTS WILL NOT (GENERALLY) REVISIT MATTERS RELATING TO THE CONDUCT OF THE CASE ON ASSESSMENT
There is an interesting and important judgment by Deputy Master Friston in Andrews v Retro Computers Ltd [2019] EWHC B2 (Costs) which highlights the dangers of attempting to use detailed assessment as a means of challenging the receiving party’s conduct. I…
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…
“A MISUSE OF JUDICIAL POWER”: A WITNESS SPEAKING TO LAWYER IN THE COURSE OF GIVING EVIDENCE DOES NOT JUSTIFY COMMITTAL OR STRIKING OUT A CASE
In the judgment today in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ the Court of Appeal robustly overturned a decision committing a witness to prison and striking out a case. It was found that the trial judge had,…
DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
THE CONSEQUENCES WHEN SERVICE OF THE CLAIM FORM GOES WRONG: SOLICITOR’S LIEN OVERRIDDEN: NOT KNOWING THE RULES IN RELATION TO SERVICE AMOUNTS TO “MISCONDUCT”
The judgment in Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch) shows another case that has been made problematic because of basic errors in failure of service of the claim form. The errors made by the solicitors in that…
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
COSTS AND “ABSURD” CONDUCT IN LITIGATION: HOW TO WASTE £1 MILLION…
This blog rarely looks at family cases. When it does it is often in relation to costs. Which is why the judgment of Mr Justice Francis in ABX v SBX [2018] EWFC 81 caught my eye. It raises one fundamental dilemma…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
RUN UP COSTS OF £1.4 MILLION: EXPECT TO PAY A LARGE CHUNK OF THEM YOURSELF: “NO ONE ENTERS LITIGATION SIMPLY EXPECTING A BLANK CHEQUE”
There are interesting (and important) observations on the running up of costs in the judgment of Mr Justice Francis in WG v HG [2018] EWFC 70. This blog does not normally follow family law cases. However the question of costs is…
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