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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham.
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SERVICE OF DEFENCE BY EMAIL NOT GOOD SERVICE: RELIEF FROM SANCTIONS REQUIRED TO SET ASIDE JUDGMENT (AND GRANTED)

SERVICE OF DEFENCE BY EMAIL NOT GOOD SERVICE: RELIEF FROM SANCTIONS REQUIRED TO SET ASIDE JUDGMENT (AND GRANTED)

December 23, 2020 · by gexall · in Applications, Civil Procedure, Default judgment,, Peremptory orders, Relief from sanctions, Sanctions, Setting aside judgment

The judgment of Mr Justice Calver in Ipsum Capital Ltd v Lyall & Ors [2020] EWHC 3508 (Comm) shows the dangers of serving documents by email. The judge held that service of a defence by email was not good service…

COSTS LAWYERS BEWARE: COURT REFUSES TO SET ASIDE DEFAULT COSTS CERTIFICATE: "AVOIDABLE DELAY" IS NOT LOOKED AT KINDLY

COSTS LAWYERS BEWARE: COURT REFUSES TO SET ASIDE DEFAULT COSTS CERTIFICATE: “AVOIDABLE DELAY” IS NOT LOOKED AT KINDLY

December 17, 2020 · by gexall · in Applications, Assessment of Costs, Avoiding negligence claims, Civil Procedure, Costs, Extensions of time, Relief from sanctions

In  Masten v London Britannia Hotel Ltd [2020] EWHC B31 (Costs) Mr Leonard refused to set aside a default costs certificate.  This serves as a salutary warning of the importance of time limits.  Further the Master observed that if a…

A SERIES OF WEBINARS ON "STAYING SAFE" IN PERSONAL INJURY PRACTICE: BRIGHTEN UP YOUR NEW YEAR

A SERIES OF WEBINARS ON “STAYING SAFE” IN PERSONAL INJURY PRACTICE: BRIGHTEN UP YOUR NEW YEAR

December 9, 2020 · by gexall · in Avoiding negligence claims, Case Management, Civil evidence, Civil Procedure, Personal Injury, Relief from sanctions, Risks of litigation, Schedules, Well being, Witness statements

To help 2021 run smoothly  for our members I am presenting a series of webinars in February and March on the theme of “staying safe” in the running of personal injury cases. The webinars look at key areas of practice…

IT'S NOT YOUR OPPONENT'S JOB TO POINT OUT OMISSIONS IN YOUR OWN EVIDENCE: A CLOSER LOOK AT ONE ASPECT OF PJSC TATNEFT

IT’S NOT YOUR OPPONENT’S JOB TO POINT OUT OMISSIONS IN YOUR OWN EVIDENCE: A CLOSER LOOK AT ONE ASPECT OF PJSC TATNEFT

November 30, 2020 · by gexall · in Civil evidence, Written advocacy

One particular aspect of the judgment in PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 3250 (Comm) that warrants closer investigation. That is the claimant’s argument that it did not have notice that the defendants were going to invite the court…

CLAIMANT REFUSED PERMISSION TO RELY ON NEW WITNESS STATEMENT SERVED PART-WAY THROUGH A TRIAL: LATE WITNESSES COULD NOT BE ALLOWED TO PLUG GAPS

CLAIMANT REFUSED PERMISSION TO RELY ON NEW WITNESS STATEMENT SERVED PART-WAY THROUGH A TRIAL: LATE WITNESSES COULD NOT BE ALLOWED TO PLUG GAPS

November 30, 2020 · by gexall · in Applications, Civil evidence, Relief from sanctions, Witness statements

In  PJSC Tatneft v Bogolyubov & Ors [2020] EWHC 3250 (Comm) Mrs Justice Moulder refused the claimant’s application for permission to rely on new evidence which was served in the middle of a trial.  Not only is this a consideration…

IF YOU WANT RELIEF FROM SANCTIONS - PUT THE DEFAULT RIGHT AT ONCE, AND  CERTAINLY WELL BEFORE ANY APPLICATION FOR RELIEF: DEFENDANT FAILS ON APPEAL WHEN WITNESS EVIDENCE SERVED LATE

IF YOU WANT RELIEF FROM SANCTIONS – PUT THE DEFAULT RIGHT AT ONCE, AND CERTAINLY WELL BEFORE ANY APPLICATION FOR RELIEF: DEFENDANT FAILS ON APPEAL WHEN WITNESS EVIDENCE SERVED LATE

November 24, 2020 · by gexall · in Avoiding negligence claims, Case Management, Civil Procedure, Relief from sanctions, Witness statements

In the many posts I have written about seeking relief from sanctions one matter that has been stressed is the overwhelming importance of rectifying the breach immediately. The dangers of  not doing so are exemplified in the judgment of Mr…

RELIEF FROM SANCTIONS GRANTED WHEN NOTICE TO RELY ON HEARSAY EVIDENCE NOT SERVED AHEAD OF TRIAL

RELIEF FROM SANCTIONS GRANTED WHEN NOTICE TO RELY ON HEARSAY EVIDENCE NOT SERVED AHEAD OF TRIAL

November 23, 2020 · by gexall · in Civil evidence, Relief from sanctions, Sanctions, Witness statements

In  ST (A Minor) & Anor v L Primary School (Rev 2) [2020] EWHC 1046 (QB) Deputy Master Hill QC granted relief from sanctions where the claimant failed to serve a notice of intention to rely on hearsay evidence prior…

COURT REFUSES PARTY PERMISSION TO RELY ON WITNESS STATEMENT SERVED LATE

COURT REFUSES PARTY PERMISSION TO RELY ON WITNESS STATEMENT SERVED LATE

November 18, 2020 · by gexall · in Applications, Civil evidence, Civil Procedure, Relief from sanctions, Witness statements

In RGB Plastering Ltd v TAWE Drylining and Plastering Ltd [2020] EWHC 3028 (TCC)  HHJ Jarman QC (sitting as a judge of the High Court) refused the defendant permission to rely on a witness statement that was served late. “Ms…

FUNDAMENTAL DISHONESTY, APPEALS AND RELIEF FROM SANCTIONS: CLAIMANT'S PROPOSED APPEAL COMES TO GRIEF

FUNDAMENTAL DISHONESTY, APPEALS AND RELIEF FROM SANCTIONS: CLAIMANT’S PROPOSED APPEAL COMES TO GRIEF

November 13, 2020 · by gexall · in Appeals, Applications, Fundamental Dishonesty, Relief from sanctions

The judgment of Mr Justice Lavender in Kamara v Builder Depot Ltd [2020] EWHC 3046 (QB) contains a catalogue of material in relation to procedural issues and appeals.  However, here, I want to concentrate upon the issues relating to fundamental…

WORKING FROM HOME IN A LONELY WINTER (5):LITIGATION DEADLINES -  AVOIDING THE PAIN BY SHARING THE PAIN

WORKING FROM HOME IN A LONELY WINTER (5):LITIGATION DEADLINES – AVOIDING THE PAIN BY SHARING THE PAIN

November 10, 2020 · by gexall · in Avoiding negligence claims, Coronavirus, Relief from sanctions, Well being

The fact that we are in lockdown does not make litigation deadlines go away.  Litigation may be more problematic, however there is now nothing in the rules that recognises the difficulties that litigators face.   One way of dealing with this…

APPLYING FOR RELIEF FROM SANCTIONS: TWO CLASSIC MISTAKES AND A REMINDER OF 10 KEY POINTS

APPLYING FOR RELIEF FROM SANCTIONS: TWO CLASSIC MISTAKES AND A REMINDER OF 10 KEY POINTS

November 4, 2020 · by gexall · in Applications, Relief from sanctions

The judgment in Diriye v Bojaj & Anor [2020] EWCA Civ 1400 shows, at least, two classic mistakes that people make when applying for relief from sanctions: not making the application promptly and not remedying the default properly (in fact…

APPLICATION TO ADDUCE NEW PHOTOGRAPHS AFTER FINAL SUBMISSIONS REFUSED: DENTON PRINCIPLES APPLIED

APPLICATION TO ADDUCE NEW PHOTOGRAPHS AFTER FINAL SUBMISSIONS REFUSED: DENTON PRINCIPLES APPLIED

November 4, 2020 · by gexall · in Civil evidence, Relief from sanctions

In Mullane v Davies [2020] EW Misc 25 (CC)  HHJ Jarman QC refused an application by a party to admit new photographs after closing submissions.  The Denton principles applied and militated against granting relief from sanctions. “Such noncompliance is serious,…

"THE DOG ATE MY HOMEWORK" EXCUSE DOESN'T WORK WELL IN COURT: THE JUDGE MAY HAVE BEEN WRONG ABOUT THE WAY "SIGNED FOR 1ST CLASS" OPERATED BUT THEY WERE RIGHT TO REFUSE RELIEF FROM SANCTIONS: COURT OF APPEAL DECIION

“THE DOG ATE MY HOMEWORK” EXCUSE DOESN’T WORK WELL IN COURT: THE JUDGE MAY HAVE BEEN WRONG ABOUT THE WAY “SIGNED FOR 1ST CLASS” OPERATED BUT THEY WERE RIGHT TO REFUSE RELIEF FROM SANCTIONS: COURT OF APPEAL DECIION

November 4, 2020 · by gexall · in Appeals, Applications, Civil evidence, Civil Procedure, Damages, Relief from sanctions, Sanctions

In Diriye v Bojaj & Anor [2020] EWCA Civ 1400 the Court of Appeal held that the judges who heard a relief from sanctions hearing below were in error about the way that “Signed for 1st class” post operated, however…

GOING FOR A SONG: THE DANGERS OF DOING NOTHING WHEN PART 18 QUESTIONS ARE SERVED, AND ARGUING "NOT" ENTITLED WHEN A COURT ORDER HAS BEEN MADE:

GOING FOR A SONG: THE DANGERS OF DOING NOTHING WHEN PART 18 QUESTIONS ARE SERVED, AND ARGUING “NOT” ENTITLED WHEN A COURT ORDER HAS BEEN MADE:

October 28, 2020 · by gexall · in Civil evidence, Civil Procedure, Relief from sanctions

The judgment of Master Kay in Sheeran & Ors v Chokri & Ors [2020] EWHC 2806 (Ch) provides an important reminder that a Part 18 request cannot simply be ignored.  Further once a court makes an order that a party…

SERVE WITNESS STATEMENTS LATE AT YOUR PERIL: RELIEF FROM SANCTIONS NECESSARY AND LATE SERVICE IS NEARLY ALWAYS A SERIOUS BREACH

October 27, 2020 · by gexall · in Applications, Relief from sanctions, Sanctions, Witness statements

There are many interesting aspects of the judgment of HHJ Mithani QC in Patel & Anor v Barlows Solicitors (a firm) & Ors [2020] EWHC 2753 (Ch). Here I want to look at the part of the judgment that considers…

CLAIMANT GIVEN RELIEF FROM SANCTIONS FOLLOWING BREACH OF PEREMPTORY ORDER (WITH NO FORMAL APPLICATION BEING MADE).

CLAIMANT GIVEN RELIEF FROM SANCTIONS FOLLOWING BREACH OF PEREMPTORY ORDER (WITH NO FORMAL APPLICATION BEING MADE).

October 21, 2020 · by gexall · in Applications, Peremptory orders, Relief from sanctions

In Park v Hadi & Anor [2020] EWHC 2687 Mr Justice Freedman granted a defendant relief from sanctions in circumstances where there had been a breach of a peremptory order and no formal application had been made.   THE CASE…

TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT'S APPLICATION TO ADDUCE LATE WITNESS STATEMENT

TRIAL JUDGE WAS RIGHT TO REFUSE CLAIMANT’S APPLICATION TO ADDUCE LATE WITNESS STATEMENT

October 7, 2020 · by gexall · in Appeals, Relief from sanctions, Witness statements

In Bromford Housing Association Ltd v Nightingale [2020] EWHC 2648 Mr Justice Cavangh upheld a decision not to allow a claimant in possession proceedings to adduce evidence late.  In a “rolled up” hearing he dismissed the claimant’s application for permission…

THE DIFFICULTY IN APPEALING A DENTON TYPE DECISION

THE DIFFICULTY IN APPEALING A DENTON TYPE DECISION

September 23, 2020 · by gexall · in Appeals, Relief from sanctions

The second issue in  judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) was whether the appellant was able to appeal the District Judge’s refusal to grant relief…

DENTON PRINCIPLES APPLY WHERE WITNESS EVIDENCE SERVED LATE

DENTON PRINCIPLES APPLY WHERE WITNESS EVIDENCE SERVED LATE

September 23, 2020 · by gexall · in Appeals, Extensions of time, Relief from sanctions, Witness statements

The judgment of HHJ Matthews (sitting as a High Court judge) in Wolf Rock (Cornwall) Ltd v Langhelle [2020] EWHC 2500 (Ch) considers the issue of whether the Denton principles apply when a witness statement is served late but there…

SETTING ASIDE  A REGULAR JUDGMENT: TWO HURDLES FOR THE APPLICANT TO CLEAR - AND EVEN THEN THERE CAN BE CONDITIONS

SETTING ASIDE A REGULAR JUDGMENT: TWO HURDLES FOR THE APPLICANT TO CLEAR – AND EVEN THEN THERE CAN BE CONDITIONS

September 16, 2020 · by gexall · in Civil Procedure, Sanctions, Setting aside judgment

The judgment of Master Kaye in  Penta Ultimate Holdings Ltd & Anor v Storrier [2020] EWHC 2400 (Ch) is a reminder that a party attempting to set aside a regular judgment has two hurdles to clear: the test set out…

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