PROVING THINGS 171: A TALE OF TWO TELEVISION PRESENTERS (AND OF A CASE WHERE THERE WAS NO EVIDENCE AT ALL ON VITAL ISSUES)
The judgment of the Employment Tribunal in the case of Ahmed -v- BBC (10th January 2019) has already received wide publicity. It is worthwhile looking at the paucity, often the total absence of evidence, on many key issues on the…
THE COURT WOULD NOT EXTEND THE EMBARGO ON A DRAFT JUDGMENT TO ALLOW CLAIMANT TO SEEK TO RECOVER SUMS FROM A THIRD PARTY
The interesting thing about writing a blog on civil procedure is that – despite the apparent narrowness of the subject – new issues come up all the time. You can never say you have “seen it all”. I was reading…
COURT ADMITS CLAIMANT’S TAPES OF CONSULTATIONS WITH DEFENDANT’S EXPERTS: PROBATIVE VALUE OUTWEIGHS REPREHENSIBLE CONDUCT
In Mustard v Flower & Ors [2019] EWHC 2623 (QB) Master Davison allowed the claimant to produce as evidence the tapes they had recorded of their consultations with the defendant’s medical experts. This decision raises some interesting issues. (The case…
REDACTION OF RELEVANT DOCUMENTS TO BE DISCOURAGED: THINGS COULD TURN OUT BADLY FOR THE REDACTOR
In Nicoll v Promontoria (Ram 2) Ltd [2019] EWHC 2410 (Ch) Mr Justice Mann was critical of a decision to redact elements of documents disclosed in an application to set aside a statutory demand. “unnecessary and inappropriate redactions are…
AN ABSOLUTE CAR CRASH OF AN APPEAL: KNOW WHAT DOCUMENTS WERE BEFORE THE THE JUDGE – A BASIC ISSUE FOR ALL WOULD BE APPELLANTS
Appeals are always difficult. The appellate court has to be persuaded that the first-instance judge was “wrong”, and this is a fairly rigorous test. It is made far more difficult if the appellate court is given the wrong documents. Particularly…
PROVING THINGS 161: DOCUMENTS BEING DELIBERATELY DESTROYED AND EXPERTS WHO WERE OF VERY LIMITED ASSISTANCE
The judgment in Bajaj Healthcare Ltd v Fine Organics Ltd [2019] EWHC 2316 (Ch) is in what could appear to be a fairly dry dispute about the supply of goods. As the judge observed this was not a simple sale…
DISCLOSURE OF DOCUMENTS MENTIONED IN WITNESS STATEMENTS: MENTION MUST MEAN “SPECIFICALLY MENTION”
The judgment in Rudd v Bridle & Anor [2019] EWHC 1986 (QB) also considered, and rejected, the claimant’s application for specific disclosure of documents. Mr Justice Warby held that for an order to be made under CPR 31.15 there must be…
COURT REFUSES TO MAKE ORDER THAT A DEFENDANT DISCLOSES FUNDING ARRANGEMENTS
In Rudd v Bridle & Anor [2019] EWHC 1986 (QB) Mr Justice Warby refused a claimant’s application for disclosure of the defendants’ funding arrangements. “Beyond this is the common-sense point, that the Court will not be keen to allow…
FOOTBALL CLUB’S APPLICATION DOES NOT GET EXTRA TIME: APPLICATION FOR RELIEF FROM SANCTIONS IN ORDER TO DISPUTE AUTHENTICITY OF DOCUMENTS IS REFUSED
In UTB LLC v Sheffield United Ltd [2019] EWHC 1377 (Ch) Mr Justice Fancourt refused Sheffield United’s application for relief from sanctions so as to allow it to dispute the authenticity of documents during the course of a trial. “A…
PROVING THINGS 149: A JUDGE CAN FIND DISHONESTY ON THE FACTS BEFORE THEM EVEN IF IT IS NOT PLEADED
We are staying with the decision of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor [2019] EWHC 1207 (IPEC). The claimant in that case had not pleaded fraud. The judge rejected the argument that the absence…
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…
TALES FROM THE APIL CONFERENCE 1: SOCIAL MEDIA AND THE PERSONAL INJURY LITIGATOR
I have been at the APIL annual conference this week. Ostensibly to give a talk about expert evidence, but a blogger (indeed any practising lawyer) can never miss an opportunity to pick up ideas. I went to a “Fee earner…
CIVIL PROCEDURE BACK TO BASICS 42: NON-DISCLOSURE OF DOCUMENTS DURING THE COURSE OF PROCEEDINGS
This post arises out of a Twitter discussion. Someone was reporting that documents that had been disclosed during the course of ongoing litigation were being put copied onto social media. Is this allowed? THE RULES: NON-DISCLOSURE OF DOCUMENTS This is…
RECORDINGS ARE DOCUMENTS: AN APPROACH TO EVIDENCE THAT WAS UNSATISFACTORY
In the judgment in Guest v Guest & Anor [2019] EWHC 869 (Ch) HHJ Russen (sitting as a High Court judge) commented on the unsatisfactory way in which recordings had been disclosed and produced to the court. It provides a…
EXAGGERATION IS NOT NECESSARILY FUNDAMENTAL DISHONESTY: WHEN THE DEFENDANT DIGS A BIG EVIDENTIAL HOLE FOR ITSELF
The judgment of HHJ Hampton in Smith -v- Ashwell Maintenance Limited (Leicester County Court 21/01/2019) is available through a Linked In post provided by barrister Andrew Mckie. It provides a number of lessons for those collecting evidence. In a case where…
DEFENDANTS REFUSED RELIEF FROM SANCTIONS: INADEQUATE EXPLANATIONS WILL NOT SUFFICE
In Consult II SRO & Ors v Shire Warwick Lewis Capital Ltd & Ors [2019] EWHC 286 (Comm) Andrew Henshaw QC (sitting as a High Court Judge) refused the defendants’ application for relief from sanctions. The lack of a candid explanation…
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…
THE ADMISSIBILITY OF POLICE REPORTS AS EVIDENCE: NO NEGLIGENCE WHEN DRIVER FEARED HE WAS TO BE ASSAULTED: A CASE TO POINT
In Mohmed v Barnes & Anor [2019] EWHC 87 (QB) Mr Justice Turner found that a driver had not been negligent when he drove into a pedestrian an attempt to escape an assault. The case is important in relation to an…
NEW DISCLOSURE SCHEME IN THE BUSINESS AND PROPERTIES COURTS: USEFUL LINKS AND GUIDANCE
The Disclosure Pilot Scheme for the Business and Properties Courts commences on the 1st January 2019. Here are some links to guides, written by practitioners, to the practical impact of the Pilot Scheme. THE RULES AND PRACTICE DIRECTIONS The Draft…
NON COMPLIANCE WITH PEREMPTORY ORDERS: STRIKING OUT; LATE ATTEMPTS TO COMPLY; LATE “ACCEPTANCE” OF PART 36 OFFERS AND NO RELIEF FROM SANCTIONS: ALL LITIGATION LIFE IS HERE
In Devoy-Williams -v- High Cartwright & Amin [2018] EWHC 2815 (Ch) Mrs Justice Falk upheld a decision that an action was struck out and that relief from sanctions should not be granted. It is a reminder (amongst other things) of…
