RELIEF FROM SANCTIONS GRANTED FOLLOWING FAILURES ON DISCLOSURE: THE DEPP TRIAL IS BACK AFLOAT
Last week I wrote on the latest episode of the Depp case. Mr Justice Nicol held that there had been a failure to comply with a peremptory order on disclosure and the Mr Depp’s case stood struck out. Today it…
DEPP, DISCLOSURE, TEXT & TESTS: CASE STRUCK OUT BECAUSE OF FAILURE TO COMPLY WITH PEREMPTORY ORDER : CLAIMANT’S CASE NOW ALL AT SEA
In Depp v News Group Newspapers Ltd & Anor [2020] EWHC 1689 (QB) Mr Justice Nicol held that the claimant’s case stood struck out because of a failure to give disclosure. There are important observations about the scope of disclosure….
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…
DEFENCE STRUCK OUT FOLLOWING FAILURE TO GIVE FULL DISCLOSURE: SEVERE SANCTION WAS NOT DISPROPORTIONATE
In MKG Convenience Ltd, Re [2020] EWHC 547 (Ch) HHJ David Cooke refused the defendants’ application for relief from sanctions following a failure to comply with a peremptory order in relation to disclosure. The sanction was severe, however the circumstances…
THE DISCLOSURE PILOT: GUIDANCE GIVEN AS TO HOW IT SHOULD WORK: NOT A STICK WITH WHICH TO BEAT YOUR OPPONENT
There are two recent cases where the disclosure pilot is considered in detail. In McParland & Partners Ltd & Anor v Whitehead [2020] EWHC 298 (Ch) Sir Geoffrey Vos. Chancellor of the High Court set out some definitive guidance as…
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…
SEEKING FURTHER DISCLOSURE: DON’T GO IMPORTING STONES FROM A NEIGHBOURING QUARRY: DISCLOSURE PILOT PREVAILS
In Maher v Maher & Anor [2019] EWHC 3613 (Ch) HHJ Hodge (sitting as a High Court Judge) refused an application for disclosure. There are a number of important points here, including the need for an application for further disclosure to…
APPLICATION FOR PRE-ACTION DISCLOSURE: COURT’S DISCRETION EXERCISED AGAINST THE APPLICANT
In Hussain v Medical Defence Union & Anor [2020] EWHC 157 (QB) Clive Sheldon QC (sitting as a High Court judge) refused an application for pre-action disclosure. This judgment makes it clear that pre-action disclosure is, ultimately, a matter of…
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…
SOLICITORS CANNOT BE COMPELLED TO HAND OVER FILES: HIGH COURT DECISION
In Hanley v J C & A Solicitors [2018] EWHC 2592 (QB) Mr Justice Soole decided that the court did not have inherent power to compel solicitors to hand over copies of documents to their former clients. THE CASE Three claimants…
BACK TO BASICS 15: CHALLENGING THE AUTHENTICITY OF DOCUMENTS: A PRIMER
In the 10th post in this series I looked at the importance of serving a notice of non-admittance of the authenticity of documents promptly. Here we look at the basics of the rule. Put bluntly if you do not serve…
LAWYERS (& OTHERS) – WHY YOU SHOULD WATCH WHAT YOU SAY IN THE PUB: LEGAL PROFESSIONAL PRIVILEGE OUSTED BY INIQUITY OF ADVICE GIVEN
In the judgment today in X v. Y Ltd (PRACTICE AND PROCEDURE – Disclosure) [2018] UKEAT 0261 Mrs Justice Slade held that an email marked “Legally Privileged and Confidential” did not have the protection of professional privilege. The judgment also shows…
CIVIL PROCEDURE: BACK TO BASICS 10: CHALLENGING THE AUTHENTICITY OF DOCUMENTS MUST BE DONE PROMPTLY: COURT REFUSES LATE APPLICATION – DENTON CRITERIA APPLIED
There is a short addendum to the judgment of Lionel Persey QC (sitting as a High Court Judge) in Lloyd v Kruger [2018] EWHC 2011 (Comm). This deals with a very late application by the claimant to assert that documents were…
RELIEF FROM SANCTIONS : A CLASSIC CASE FOR RELIEF TO BE GRANTED: NOTICE TO PROVE SERVED LATE
In Tuke v JD Classics Ltd [2018] EWHC 531 (QB) Mr Justice Julian Knowles granted a claimant relief from sanctions when a “Notice to Prove” was served late. It is a reminder, amongst other things, of the need to serve a…
FACT FINDING IN THE FAMILY COURT: ERRATIC WITNESSES AND BEHAVIOUR ON DISCLOSURE WHERE THE CONDUCT WAS NOT FAR SHORT OF CONTEMPT
We have looked at “fact finding” by the courts many times. The fact finder in a family case has a particularly arduous and unenviable task . The judge has to assess evidence that is often highly charged, and where there…
CIVIL LITIGATION REVIEW OF 2017 (I): “SURVIVING THE EMOTIONS OF LITIGATION” & “THINGS THAT IRRITATE JUDGES”
This is the fourth annual review on this blog. This year I have decided to break it into a number of reviews. First it is interesting to look at what is being read on this site and the search terms…
CIVIL LITIGATION AND THE MARTIAL ARTS: McGANN -v- BISPING: ROUND 1: DISPUTING THE AUTHENTICITY OF DOCUMENTS WITHOUT SERVICE OF A NOTICE UNDER CPR 32.19
The judgment today in McGann v Bisping [2017] EWHC 2951 (Comm) involves multiple issues in relation to civil evidence, procedure and witness credibility. Here I want to look at just one issue – the failure to serve a notice under CPR…
ACCESS TO DOCUMENTS DEPLOYED IN COURT: A DETAILED CONSIDERATION
The judgment of Master McCloud in Dring v Cape Distribution Ltd & Anor (Constitution – access to courts – open justice) [2017] EWHC 3154 (QB) considers the issue of whether the public should have access to documents disclosed during the course…
PROPOSED NEW RULES FOR DISCLOSURE: LINKS AND COMMENTARY
There is a consultation process going on at present in relation to disclosure. THE PROBLEM The issues of concern are summarised in the Briefing Note “(i) Since the CPR came into force 18 years ago the volume of data that…
COSTS AFTER DISCONTINUANCE VARIED: CLAIMANT TO PAY INDEMNITY NOT STANDARD COSTS: TWO RIGHT FEET BROUGHT THE WRONG ACTION
When a claimant discontinues an action there is an automatic provision that the claimant pay the defendant’s costs (CPR 38.6). In Two Right Feet Ltd v National Westminster Bank Plc & Ors [2017] EWHC 1745 (Ch) Ms Sara Cockerill Q.C. made…
THE DENTON CRITERIA AND DISHONESTY: TELLING A LIE MAY NOT BE “SIGNIFICANT” BUT IT IS ALWAYS SERIOUS.
I am grateful to John McQuater for sending me through a copy of the judgment of His Honour Judge Robinson in the case of Wadsley -v- Sherwood Forest Hospitals NHS Foundation Trust (a copy of that judgment is available here Wadsley…
NON-COMPLIANCE WITH PEREMPTORY ORDERS: THE FULL JUDGMENT IN POWELL -v- WATFORD BOROUGH COUNCIL
I have written before about the judgment of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB). The full transcript has now become available. It deals with an important point about the need to follow the…
FACT FINDING FOR LAWYERS : HOLIDAY CLAIMS: SRA GUIDANCE – NOT A WALK ON THE BEACH
The Solicitors Regulation Authority has issued a specific warning notice in relation to holiday sickness claims. The notice, issued on the 6th September 2017, contains important guidance in relation to the role of the solicitor in investigating facts. The guidance…
FALSE EMAILS, METADATA AND CPR 32.19: A “PROCESS OF FALSIFICATION AND KNOWINGLY PUTTING FORWARD EVIDENCE THAT IS FALSE”
The case of 44 Wellfit Street Ltd v GMR Services Ltd [2017] EWHC 1841 (Ch) was described by Chris Dale as being “like one a much-expanded version of those old-style Finals questions with kitchen sink thrown in”. The judgment of Chief…
DEFICIENCIES IN DISCLOSURE: READING THIS JUDGMENT IS NOT LIKE WATCHING PAINT DRY
A case that concerns the fitting of specialist piping at a paint factory may seem an unlikely starting point for procedural controversy. However I am looking again in the judgment of Mr Justice Fraser in Imperial Chemical Industries Limited -v- Merit…
INADEQUATE DISCLOSURE LEADS TO DEFENCE BEING STRUCK OUT – EVENTUALLY: CASE THAT WAS NOT A WALK IN THE PARK
There is a brief report on Lawtel today of the case of Powell -v- Watford Borough Council, a decision made yesterday by Mr Justice Jay (10th July 2017) in the Royal Courts of Justice . This post is based in…
JUDGES, FACT FINDING AND GRENFELL: THE CRUCIAL QUESTION – IS THIS JUDGE A GOOD FACT FINDER
If you write a blog on civil procedure it is not hard to steer a course away from the issues of the day. However there is one issue of the day that is hard to ignore. The criticisms of the…
DOCUMENTS, AUTHENTICITY AND ADMISSIONS: A TIMELY REMINDER OF THE PROVISIONS OF CPR 32.19
I said in the previous post that there are several reasons litigators should read the judgment of HHJ Paul Matthews (sitting as a High Court Judge) in Jones -v- Oven [2017] EWHC 1647 (Ch). One of those reasons is that it contains…
NOT ALL WITNESS STATEMENTS SHOULD BE MADE PUBLIC AHEAD OF A TRIAL: THE TIMES HAS TO WAIT
In Blue -v- Ashley & The Times Newspapers Limited [2017] EWHC 1553 (Comm) Mr Justice Leggatt considered whether a witness statement should be disclosed to the public when it had been referred to at a pre-trial hearing. The application was…
EXPERTS AND EVIDENCE: WHEN THE CASE GETS PIECED TOGETHER ON THE EVE OF THE TRIAL
In the course of a very detailed judgment today in a clinical negligence case Mr Justice Langstaff made some important observations about expert evidence. He observed that late evidence may lead to costs consequences. Given that the whole rationale of…
PRESSING THE WRONG BUTTON: THE PERILS OF EMAIL “REPLY ALL” IN LITIGATION (OR ARBITRATION)
Many, if not all, of us will have made some errors with emails on some occasion. There is a danger, however, when this happens in litigation. This can be seen in the judgment of Mr Justice Popplewell in T -v-…
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