CIVIL PROCEDURE AND COSTS: BLOG AND ARTICLES ROUND UP – NOVEMBER 2019
Here we have links to blogs and articles about civil procedure and costs from November 2019. COSTS Costs Barrister Blaming others Costs Barrister The undiscovered country Herbert Smith Freehills Court of Appeal confirms jurisdiction to award claimant interim payment on account of costs…
CIVIL PROCEDURE BACK TO BASICS 72: THE EXPERT’S DUTY TO LOOK AT BOTH SIDES OF THE ISSUE AND GIVE REASON FOR THEIR VIEWS (A MANDATORY OBLIGATION MORE HONOURED IN THE BREACH…)
The recent post on the decision in Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) highlights a common omission from many expert reports. The expert’s duty to consider whether there is a range of opinion and to give…
EXPERTS, IMPARTIALITY AND CELEBRITY BEDSPREADS: BE CAREFUL OF THE WAY YOU INSTRUCT EXPERTS AND YOU MAY SLEEP TIGHTLY (YOU SHOULD BE SO LUCKY)
In Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) HHJ Melissa Clarke considered, and was critical of, the way in which an expert was instructed. The difficulty was that the appointed expert moved from “hired gun” hired…
NO SECOND BITE OF A CHERRY AFTER A TRIAL: COURT OF APPEAL CONFIRMS JUDGE’S DECISION
In L’Oreal (UK) Ltd & Anor v Liqwd Inc & Anor [2019] EWCA Civ 1943 the Court of Appeal confirmed the trial judge’s decision not to admit new evidence that a defendant attempted to introduce after judgment was handed down….
PROVING THINGS 169: WHEN THE DEFENDANT CALLS NO (LAY) EVIDENCE AND TRIES TO PROVE ITS CASE THROUGH THE CLAIMANT’S WITNESSES
There are a number of interesting aspects of the judgment of HHJ Coe in Esegbona v King’s College Hospital NHS Foundation Trust (false imprisonment in hospital) [2019] EWHC 77 (QB). One of which is the defendant’s failure to call any…
DEFENDANT’S APPLICATION FOR ADJOURNMENT OF TRIAL REFUSED: A PROBLEM OF THEIR OWN MAKING: THE TRIAL WILL GO AHEAD
There is an interesting summary of the decision in Mitchell -v- Precis 545 Ltd (15/11/2019) on Kings Chambers website. A report by my colleague Jeremy Roussak of a case where he represented the claimant and where HHJ Freedman refused a…
SOLICITORS GIVING EVIDENCE: IT JUST DOESN’T HELP: IS THIS EVIDENCE THAT THE WITNESS WOULD BE ALLOWED TO GIVE ORALLY?
The danger of witness statements from solicitors purporting to give evidence as to fact has been emphasised many times in the cases reported on the blog. The danger can be seen again in the judgment of Ms Pat Treacy (sitting…
APPLICATION FOR RELIEF FROM SANCTIONS: THE IMPORTANCE OF PROMPT APPLICATIONS
In Pepe’s Piri Piri Ltd & Anor v Muhammad Ali Junaid Food Trends Ltd (Now Dissolved) & Ors[2019] EWHC 2769 (QB) Matthew Gullick (sitting as a High Court judge) granted the claimants relief from sanctions in relation to late service…
PROVING THINGS 167: BUNDLES, EXPERTS, ABSENT WITNESS, UNPLEADED DEFENCES AND… SEWAGE: ALL MODERN LITIGATION IS HERE…
The judgment of HHJ Russen (QC) (sitting as a High Court Judge) in Kivells Ltd v Torridge District Council [2019] EWHC 2846 (TCC), contains a number of interesting scenarios in relation to civil evidence. Many of the common problems of…
CIVIL PROCEDURE BACK TO BASICS 67: EXPERTS ASKING THE COURT FOR DIRECTIONS: THIS CAN REALLY CUT THE MUSTARD…
One, unusual, aspect of the decision in Mustard v Flower & Ors [2019] EWHC 2623 (QB) is that the experts had sought directions from the court. This brings attention to the (apparently) little used provisions of CPR 35.14. Experts have the…
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…
CLAIMANT’S QUESTIONS TO DEFENDANT’S EXPERTS DISALLOWED: PART 35 HAS A REQUIREMENT FOR PROPORTIONALITY: EXPERTS SEEK HELP
There is another aspect of the judgment of Master Davison in In Mustard v Flower & Ors [2019] EWHC 2623 (QB) that is of considerable interest. The Master disallowed a series of lengthy questions to the experts. The Master pointed out…
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…
THE HONEST WITNESS WHOSE EVIDENCE WAS NOT ACCEPTED – BUT WHO STILL WON HER CASE: A CLOSE ANALYSIS OF THE LAY AND EXPERT EVIDENCE IN MORDEL
The result of the judgment today in Mordel v Royal Berkshire NHS Foundation Trust [2019] EWHC 2591 (QB) has already been well publicised. A mother succeeded in her claim that the defendant trust was negligent in failing to check her…
WHEN WITNESSES ATTEMPT TO GIVE EXPERT EVIDENCE: LOOK OUT FOR THOSE PURPLE PASSAGES
This blog has reported on numerous cases where lay witnesses have attempted to give expert evidence (and, indeed, where expert witnesses have tried to give evidence of matters of fact). This issue can be seen in the judgment of Lord…
CIVIL PROCEDURE BACK TO BASICS 66: THE COURT HAS TO KNOW HOW MUCH AN EXPERT WILL COST: CPR 35.4
A party seeking to rely on expert evidence requires permission from the court. It is surprising how often the rule requiring the court to be provided with details of the cost of that expert is overlooked. “When parties apply for…
PAYING EXPERT’S FEES: INFORMING AN EXPERT THAT A HEARING IS CANCELLED AND – GETTING STRUCK OFF THE ROLL OF SOLICITORS …
The judgment in the case of Clegg v Solicitors Regulation Authority [2019] EWHC 2408. A solicitor was struck off, in circumstances that could easily have been avoided. It required the simple step of informing an expert that a trial had…
HOW DO YOU VALUE A FOOTBALL CLUB: EXPERTS DISCUSS THE ODDS: BLADES AWAY
There is an interesting passage in the judgment in UTB LLC v Sheffield United Ltd & Ors [2019] EWHC 2322 (Ch) in relation to experts. It is an interesting example of expert evidence of valuation in a, relatively unusual, case…
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…
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…
