SIGNATURES, ELECTRONIC SIGNATURES AND STATEMENTS OF TRUTH: A BRIEF REFRESHER
One aspect of the decision in Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 that may be unique is the fact that the court will be considering the statement of truth certified by an electronic signature. That case emphasises, if…
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 38: THE DEFENCE TO COUNTERCLAIM
The previous post was about the “reply”. The rules relating to a Defence to Counterclaim are different. Very importantly the timing of the defence to counterclaim is different. There is an obligation on a claimant to properly and fully plead…
CIVIL PROCEDURE BACK TO BASICS 37: THE EVER SO HUMBLE REPLY: CANNOT BE USED TO BRING A NEW CLAIM
The closing passages of the judgment in Donovan & Anor v Grainmarket Asset Management LLP [2019] EWHC 1023 (QB) dealt with the Claimant’s reply. It is worthwhile looking at the rules and case law relating to this aspect of civil procedure. …
LIMITS ON THE DUTY OF COUNSEL TO ADVISE ON COSTS AND FUNDING: ALSO PARTICULARS OF CLAIM – IF YOU CAN’T PLEAD A CASE PROPERLY ITS PROBABLY INDICATIVE OF A POOR CASE
The judgment in Andrews & Ors v Messer Beg Ltd [2019] EWHC 911 (Ch) contains an interesting discussion on a barrister’s duty to advise on the funding of litigation. The Part 20 claimant, having had the particulars of claim struck out, …
“PLEADINGS THAT ARE OF SUCH DISPROPORTIONATE LENGTH AND DENSITY”: “THE CLAIM BECAME IMPENETRABLE AND UNNECESSARILY EXPENSIVE TO DEAL WITH”
In Galazi& Anor v Christoforou & Ors [2019] EWHC 670 (Ch) Chief Master Marsh considered the costs consequences of amendment and the effective discontinuance of certain causes of action. There are two particular aspects of the judgment of general interest. Firstly…
THE SPI NORTH (NON-ADMISSION IN PLEADING CASE) IN THE COURT OF APPEAL: THE SECOND POINT: COMPELLING EVIDENCE NEEDED AND NO SATELLITE LITIGATION PLEASE
Yesterday’s post on SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 concentrated upon the Court of Appeal guidance in relation to the drafting of a pleading. However the second point on which the claimant’s appeal …
A WHOLE COURT OF APPEAL CASE ABOUT WHETHER IT IS APPROPRIATE TO DRAFT A “NON-ADMISSION”: NO DUTY ON A DEFENDANT TO SEEK OUT INFORMATION FROM A THIRD PARTY WHEN DRAFTING A DEFENCE
In the judgment today in SPI North Ltd v Swiss Post International (UK) Ltd & Anor [2019] EWCA Civ 7 the Court of Appeal carried out a close analysis of the rules relating to pleading a defence. In particular the…
THE STATEMENT OF TRUTH AND WITNESSES WITH POOR ENGLISH: PRACTICE DIRECTION 22
The post earlier today about witness statements in a foreign language led (almost immediately) to a telephone enquiry as to what happens when a party cannot read or understand the statement of truth in a statement of case. The answer…
CIVIL PROCEDURE BACK TO BASICS 22: WHEN THE CLAIMANT ADOPTS ALLEGATIONS OF CONTRIBUTORY NEGLIGENCE: HOIST ON YOUR OWN PETARD
This post follows on from the previous post in relation to pleading the Defendant’s case in the alternative. Here we are looking at cases where a defendant pleads allegations of negligence and the claimant uses those allegations as allegations against the…
CIVIL PROCEDURE: BACK TO BASICS 21: PLEADING IN THE ALTERNATIVE: BINKS -v- SECURICOR
Can a claimant plead two alternative cases? This is an issue that often arises in personal injury litigation, where the basic facts are disputed. A claimant may wish to argue that the defendant remains liable – even on the defendant’s…
LATE SERVICE OF THE PARTICULARS OF CLAIM AND ACCOMPANYING DOCUMENTATION: IT MAY STILL BE DANGEROUS – AND HERE’S WHY
We have looked twice already at the judgment in Mark v Universal Coatings & Services Ltd & Anor [2018] EWHC 3206 (QB). One of the key findings in that case was that the claimant, who had served the particulars of claim, medical…
THE DANGERS OF PLEADING DISHONESTY: PART OF REPLY TO DEFENCE STRUCK OUT
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2018] EWHC 1376 (Ch) Master Shuman provides an succinct summary of the principles relating to pleading dishonesty. Part of a Reply that alleged dishonesty was struck out. THE CASE The claimant…
SIX YEARS ON: YOU SHOULD KNOW THE CASE YOU WANT TO PLEAD: CLAIMANT’S ACTION STRUCK OUT BECAUSE OF INABILITY TO PARTICULARISE CASE
The judgment of HHJ Platts in Wrightson -v- Flor Projects Limited [2018] EWHC 3036 (QB) provides, amongst other things, an important warning on the need to plead and particularise a case properly. The case shows that when a claimant has…
STATEMENTS OF CASE: KEEP THEM SIMPLE: NO NEED TO PLEAD A REFERENCE TO SIR CHRISTOPHER WREN IN A CASE ALLEGING BREACH OF CONTRACT
In Portland Stone Firms Ltd & Ors v Barclays Bank Plc & Ors [2018] EWHC 2341 (QB) Mr Justice Stuart-Smith had some telling observations about the way in which statements of case should be drafted. “The applications before the Court have…
PROVING THINGS 126: FAILURE TO PROVE DISHONESTY
The judgment in Autogas (Europe) Ltd v Ochocki & Ors [2018] EWHC 2345 (Ch) highlights the difficulties for a claimant who has to prove fraud as an essential element of their claim. The judgment also emphasises the needs to plead allegations…
CIVIL PROCEDURE BACK TO BASICS 12: THE DIFFERENCE BETWEEN A NON-ADMISSION AND A DENIAL
Some defences adopt a scattergun approach of “denying” everything. Some are more selective – they “put the Claimant to strict proof”. Many defences ignore the important distinction between a non-admission and a denial. THE DIFFERENCE IN A NUTSHELL If you…
PLEADING AND ARGUING FUNDAMENTAL DISHONESTY: THE CLAIMANT KNEW WHAT WAS COMING (ON THIS OCCASION)
We have already looked at the factual findings in Pinkus v Direct Line [2018] EWHC 1671. Of equal interest is that part of the judgment where the judge considered the claimant’s argument that the defendant should not be allowed to argue fundamental…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
FINDINGS OF FUNDAMENTAL DISHONESTY SHOULD HAVE BEEN MADE BY TRIAL JUDGE: DEFENDANT’S APPEAL ALLOWED
The previous post dealt with a judgment of Mr Justice Martin Spencer overturning a judgment in favour of the claimant. The judgment in Molodi v Cambridge Vibration Maintenance Service & Anor [2018] EWHC 1288 (QB) is in similar terms. Only on…