PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
YOU CAN’T RAISE A NEW CLAIM IN A RESPONSE TO A PART 18 REQUEST: THE PLEADED CASE REMAINS IMPORTANT
In Costa v DissociaDID Ltd & Anor [2022] EWHC 1934 (IPEC) HHJ Hacon rejected the defendants’ attempt to argue points that were not pleaded. The only time an issue had been raised was in response to Part 18 requests. This…
HIGH COURT ISSUES A WARNING TO THOSE PLEADING CLAIM FOR EXEMPLARY DAMAGES: THERE MUST BE A PROPER BASIS FOR SUCH A PLEA
In Underwood & Anor v Bounty UK Ltd & Anor [2022] EWHC 888 (QB) Mr Justice Nicklin sent out a warning about the pleading a claim for exemplary damages. Such claims should only be made where there is a proper…
COURT OF APPEAL UPHOLDS REFUSAL TO ALLOW DEFENDANTS TO WITHDRAW FROM ADMISSIONS: “THE STATEMENT OF TRUTH IS NO EMPTY FORMALITY”
In Clarkson v Future Resources FZE & Ors [2022] EWCA Civ 230 the Court of Appeal upheld a judge’s decision not to allow the defendants permission to withdraw an admission. It is an important reminder of the quality of the…
PLEADINGS, APPEALS AND THE DROP OF A HAMMER: A HIGH COURT DECISION
In SPS Groundworks & Building Ltd v Mahil [2022] EWHC 371 (QB) Mr Justice Cotter reiterated the point that statements of case are important. Any issue as to the scope of the pleadings should be determined at the outset of…
PLEADING A DEFENCE: THE DIFFICULT STATUS OF A “NON-ADMISSION”: (SOMETHING ABOUT RE-USING WITNESS STATEMENTS TOO)
In Cardiff City Football Club (Holdings) Ltd, Re [2022] EWHC 322 (Ch) Mr Justice Adam Johnson found himself deciding matters relating to the pleading of the action, the scope of the trial and the admissibility of witness evidence on the…
STATEMENTS OF CASE, DRAFTING, DANGERS AND PITFALLS 2022: FORTHCOMING WEBINAR
Recently we have looked at several cases where the importance of proper pleading was emphasises. For instance in Charles Russell Speechlys LLP v Beneficial House (Birmingham) Regeneration LLP [2021] EWHC 3458 (QB) the appeal was allowed, and the matter remitted…
APPLICATIONS TO AMEND: TOWER BLOCKS, FIRE SAFETY AND “FACTS” PLEADED IN THE DEFENCE: COURT OF APPEAL DECISION
In Mulalley & Co. Ltd v Martlet Homes Ltd [2022] EWCA Civ 32 the Court of Appeal upheld a decision that a claimant, seeking to amend its Particulars of Claim by referring to matters pleaded in the defence, was pleading…
YOU CAN’T RAISE A TOTALLY NEW POINT ON APPEAL: COURT OF APPEAL DOES NOT ALLOW A MAJOR CHANGE OF CASE
In London Borough of Brent v Johnson [2022] EWCA Civ 28 the Court of Appeal set out the difficulties for a party that wishes to take a fundamentally new or different point on appeal. This gives rise to major difficulties…
“A SOLICITOR, NO MATTER HOW EXPERIENCED OR INEXPERIENCED, MUST BE TAKEN TO KNOW THE CIVIL PROCEDURE RULES”
That quotation, taken from the judgment of HHJ Bird in Holterman v Electrium (2020) EWHC 3915 ( TCC) was chosen by Professor Dominic Regan as his “thought of the year” in a recent tweet. Since there are 3208 pages in…
NEVER MIND THE… AMENDMENTS…. HERE’S THE SEX PISTOLS: JOHNNY ROTTEN WAS TOO FAR BEHIND THE BEAT…
In Jones & Anor v Lydon & Ors [2021] EWHC 2322 (Ch) Sir Anthony Mann refused an application for late amendment of the pleadings. A Note explaining the nature of the case cannot be used as a substitute for a…
STATEMENTS OF CASE: A REPLY CANNOT BE INCONSISTENT WITH THE PARTICULARS OF CLAIM
In R5 Capital Ltd v Mitheridge Capital Management LLP [2021] EWHC 2316 (Ch) Deputy Master Raeburn highlighted the fact that the rules do not allow a Reply to be, or to appear to be, contradictory to the case set out…
PLEADING A CASE WHERE “DISCREDITABLE CONDUCT” IS ALLEGED: THE DEFENDANT MUST KNOW THE CASE THEY HAVE TO MEET
The judgment of Mr Justice Bryan in Lakatamia Shipping Co Ltd v Su & Ors [2021] EWHC 1907 (Comm) could be used as a textbook for several important issues of civil procedure and civil evidence. Here we look at that…
DEFENDANTS’ APPLICATION TO RESILE FROM ADMISSIONS REFUSED: NO EVIDENCE THAT DEFENCE WAS NOT CAREFULLY CONSIDERED BY THE LEGAL ADVISERS WITH THE DEFENDANTS
The judgment of Chief Master Marsh in Financial Conduct Authority v Skinner & Ors [2019] EWHC 392 has only recently arrived on BAILLI. It is an example of the court refusing to allow a party to withdraw from admissions. The…
CLAIMANT WAS NOT FUNDAMENTALLY DISHONEST: TO WHAT EXTENT CAN A DEFENDANT EXPLORE “PERIPHERAL” MATTERS WHEN MAKING ASSERTIONS OF DISHONESTY?
In Long v Elegant Resorts Ltd [2021] EWHC 1330 (QB)HHJ Pearce (sitting as a Judge of the High Court) considered, and rejected, an argument that the claimant had been fundamentally dishonest. In fact the claimant beat his own Part 36…
DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS
In Mustard v Flower & Ors [2021] EWHC 846 (QB) Master Davison refused a defendant’s application to amend its defence to plead fundamental dishonesty on a “contingent” basis. The judgment deals with important issues as to how a defendant must…
WHEN YOUR PLEADED CASE IS DIFFERENT TO YOUR EVIDENCE: YOU ARE TAKING A HUGE GAMBLE (WHICH DIDN’T PAY OFF…)
The judgment of Gavin Mansfield QC (sitting as a High Court judge) in Puharic v Silverbond Enterprises Ltd [2021] EWHC 351 (QB) highlights the difficulties that can occur if the pleaded case differs from the evidence. Put bluntly running a…
REPLIES TO DEFENCES: WHY AND WHEN…
A post yesterday made me think that this is an opportune time to re-visit the function of the Reply in litigation. I am here concerned only with a Reply to a Defence which is, essentially voluntary, not a Defence to…
YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM
About ten minutes ago I sent off the material for a webinar I am giving tomorrow on drafting statements of case. Inevitably, therefore, a new and relevant case arrived on BAILLI* [the material was subsequently amended to include this] . …