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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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COSTS, OFFERS AND ESTATES: A CASE IN POINT

October 28, 2014 · by gexall · in Civil Procedure, Costs

There is an interesting discussion as to costs in the judgment of HH Judge Hodge QC in Goenka -v- Goenka [2014] EWHC 2966 (Ch). This also shows the difficulty in dealing with costs issues at the end of a long…

THE MITCHELL CASE RUMBLES ON: MORE PROCEDURAL ISSUES: SPLIT TRIAL ORDERED

August 4, 2014 · by gexall · in Appeals, Applications, Civil Procedure

I feel almost duty bound to continue to report on the Mitchell case, even if now has limited relevance to the question of sanctions. The latest case management decision offers an interesting decision on whether there should be a split…

BUNDLES, APPEALS AND THE ART OF ADVOCACY: ARE POOR BUNDLES LETTING DOWN YOUR CASE?

July 14, 2014 · by gexall · in Appeals, Civil evidence, Civil Procedure, Written advocacy

The recent post on Caldero Trading -v- Leibson [2014] EWCA Civ 935 included the Court of Appeal’s criticism of the voluminous bundles prepared in that case.  The trial bundle is often neglected as a tool for advocacy. THIS DOES MEAN THAT A…

UNILATERAL DECISIONS TO VARY ORDERS WILL LEAD TO TROUBLE AND AMOUNT TO CONTEMPT: PARATUS AMC EXAMINED

June 23, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions

The case of Paratus AMC Ltd -v- Lewis [2014] EWHC 1577 (Ch) has been placed on Bailli following an order by the judge to highlight an issue of contempt of court. As such it clearly requires wider publication. It also…

CHANGING THE TRIAL DATE : A CASE IN POINT: MITCHELL REMAINS A "TOP BRAND"

May 11, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions, Statements of Case

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…

WHEN IS AN APPLICATION "MADE"? A MATTER THAT COULD BE OF SOME IMPORTANCE

April 20, 2014 · by gexall · in Applications, Avoiding negligence claims, Civil Procedure, Relief from sanctions

The case of In Kaneria -v- Kaneria [2014] EWHC 1165 (Ch) discussed in a previous post means that there is a highly significant difference between applications made before the date of compliance and those made afterwards.   An application made after the…

THE COURTS SHOULD NOT MAKE PEREMPTORY ORDERS LIGHTLY: PORTER CAPITAL CORPORATION –V- ZULFIKAR MASTERS CONSIDERED

March 28, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions

 The fact that relief from sanctions is now  more difficult emphasises the principle that courts should not make peremptory orders lightly.  The case of Porter Capital –v- Zulfikar (19/3/1014) only on Lawtel at present) is a case to point.  THE…

RELIEF FROM SANCTIONS APPLICATION: COSTS AWARDED AGAINST "INNOCENT" PARTY

March 25, 2014 · by gexall · in Civil Procedure, Costs, Relief from sanctions

The case of Lakatamia Shipping -v- Nobu Su [2014] EWHC 796 has been dealt with before  on this blog in relation to a successful application for relief from sanctions. The judge’s comments on the costs of the application are now available…

DUNHILL -v- TASKER: SUPREME COURT DECISION GIVEN TODAY: PROTECTED PARTY CANNOT SETTLE CLAIM WITHOUT APPROVAL. SUPREME COURT DECISION ATTACHED

March 12, 2014 · by gexall · in Appeals, Applications, Civil Procedure

I have attached a copy of the Supreme Court decision in Dunhill -v- Tasker which was given today UKSC_2012_0136_Judgment (1).   The conclusion is that a compromise reached by a protected party cannot be valid unless approved by the court. …

COSTS BUDGETING, CASE MANAGEMENT & TECHNOLOGY: FREE BUNDLE PREPARATION FOR CASE MANAGEMENT HEARINGS: USEFUL DOCUMENTS AND LINKS

March 3, 2014 · by gexall · in Civil Procedure, Costs budgeting, Useful links

Case management and costs budgeting remain one of the Jackson innovations we are still getting used to.  There are several useful guides that assist, plus one company offers a free service providing the bundle for the Case Management Conference. This…

HAVE YOU BEEN "MITCHELLED"? THE PROBLEMS OF WITHOUT NOTICE ORDERS: A WORKING EXAMPLE

February 21, 2014 · by gexall · in Applications, Relief from sanctions, Striking out

I am grateful to Simon Baskind from Cohen Cramer solicitors in Leeds for the following account of a “Mitchell” problem. ACTION STRUCK OUT BY THE COURT FOR NO GOOD REASON “I know we are all probably suffering from Mitchell overload…

NEWLAND CONSIDERS NEW GROUND: LOSS OF LEGAL REPRESENTATION NOT A “GOOD REASON” FOR OBTAINING RELIEF FROM SANCTIONS.

February 14, 2014 · by gexall · in Applications, Civil Procedure, Relief from sanctions, Striking out

The case of Newland –v- Toba Trading involves some complex facts.  However it is important that it is reviewed n detail because there are important observations on civil procedure. In particular whether a party should apply for a review or…

THE DANGERS OF SERVING BY E-MAIL: A WORKING EXAMPLE

February 13, 2014 · by gexall · in Appeals, Avoiding negligence claims, Civil Procedure, Relief from sanctions, Serving documents

A recent post  looked at potential problems with serving documents by e-mail. That this is a very real issue is shown by a report of a decision sent to me by counsel.  The full details of the case are withheld. …

MORE ON ORDERS ALLOWING THE PARTIES TO EXTEND TIME BY AGREEMENT

February 13, 2014 · by gexall · in Civil Procedure, Relief from sanctions

It appears that the proposed change to allow the parties to vary orders by consent only applies to clinical negligence cases. Lexis Law Dispute Resolution report  The Judicial Office has released this statement: “A draft amendment to the clinical negligence…

THE REMAINING PROBLEM OF HISTORICAL AGREEMENTS TO EXTEND TIME: USEFUL GUIDANCE FROM PREVIOUS AUTHORITIES ON CIVIL PROCEDURE

February 12, 2014 · by gexall · in Avoiding negligence claims, Civil Procedure, Relief from sanctions

 ANDREW WILKEY –V- BRITISH BROADCASTING CORPORATION [2002] EWCA Civ 1561 Wilkey was a case in which the Court of Appeal considered the practical impact of the decision in Godwin v Swindon Borough Council [2002] 1 WLR 997 and Anderton v…

SURVIVING MITCHELL A PRACTITIONER’S GUIDE 3: IF YOU CANNOT COMPLY WITH A RULE OR PRACTICE DIRECTION THEN MAKE AN APPLICATION BEFORE IT IS BREACHED

December 22, 2013 · by gexall · in Applications, Avoiding negligence claims, Civil Procedure, Relief from sanctions

The Mitchell case makes it clear that applications for relief from sanctions made after breach will be granted sparingly.  Here we consider the merits of making an application in advance of the date of breach.  WHAT THE COURT OF APPEAL…

KARBHARI: THE MITCHELL CRITERIA AND THE LATE SERVICE OF WITNESS STATEMENTS

December 19, 2013 · by gexall · in Civil Procedure, Relief from sanctions, Striking out, Witness statements

KARBHARI -v- AHMED http://www.bailii.org/ew/cases/EWHC/QB/2013/4042.html 2013] EWHC 4042 (QB) This was a  High Court case listed for seven days. On the first day of the trial the defendant’s counsel indicated that it would be necessary to amend the Defence and introduce a supplementary…

TRIAL BUNDLES: TIMING, CONTENTS AND PRESENTATION : AND DO YOU KNOW SEDLEY’S LAWS?

December 16, 2013 · by gexall · in Civil evidence, Civil Procedure, Useful links, Witness statements

Amidst the Mitchell Mayhem and the high glamour and glitz of Civil Litigation at the moment I am writing a post on the mundane subject of trial bundles.  Mundane but important. The significance of bundles was highlighted in the recent…

SURVIVING MITCHELL A PRACTITIONER’S GUIDE 2: ASSUME EVERY ORDER OF THE COURT IS A PEREMPTORY ORDER.

December 14, 2013 · by gexall · in Applications, Avoiding negligence claims, Civil evidence, Relief from sanctions

Some of the cases on sanctions reported this week have been highly disturbing; with cases being struck out on the morning of the trial because the bundles were not lodged three days earlier.  As a result the only safe assumption…

SG DG PETROL: A (HIGH COURT) POST-MITCHELL DECISION ON RELIEF FROM SANCTIONS

December 11, 2013 · by gexall · in Civil Procedure, Relief from sanctions, Striking out

There is a High Court decision on relief from sanctions at http://www.bailii.org/ew/cases/EWHC/Comm/2013/3920.html An application for relief from sanctions was dismissed. The judge went on to make general observations about how applications for relief from sanctions should be conducted. In SG DG Petrol…

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