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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS

DEFENDANT NOT PERMITTED TO PLEAD FUNDAMENTAL DISHONESTY ON A SPECULATIVE OR CONTINGENT BASIS

April 9, 2021 · by gexall · in Amendment, Fundamental Dishonesty, Statements of Case

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...)

WHEN YOUR PLEADED CASE IS DIFFERENT TO YOUR EVIDENCE: YOU ARE TAKING A HUGE GAMBLE (WHICH DIDN’T PAY OFF…)

February 19, 2021 · by gexall · in Statements of Case, Witness statements

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...

REPLIES TO DEFENCES: WHY AND WHEN…

February 17, 2021 · by gexall · in Civil Procedure, Statements of Case

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

YOU CANNOT USE A REPLY TO PLEAD MATTERS THAT SHOULD HAVE BEEN IN THE PARTICULARS OF CLAIM

February 16, 2021 · by gexall · in Amendment, Applications, Statements of Case, Striking out

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] . …

STATEMENTS OF CASE, DRAFTING, DANGERS AND PITFALLS: WEBINAR 17th FEBRUARY 2021

STATEMENTS OF CASE, DRAFTING, DANGERS AND PITFALLS: WEBINAR 17th FEBRUARY 2021

February 9, 2021 · by gexall · in Civil Procedure, Statements of Case, Webinar

I am giving a webinar on the 17th February 2021 on avoiding problems with Statements of Case. This is part series of webinars on the theme of “staying safe” in the running of personal injury cases. The webinars look at…

SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN'T "WAIT AND SEE"

SUING A CLAIMANT WHO HAS ACCEPTED A PART 36 OFFER: THE PROFOUND PROBLEMS WHEN PLEADING FRAUD: YOU CAN’T “WAIT AND SEE”

January 28, 2021 · by gexall · in Appeals, Clinical Negligence, Personal Injury, Statements of Case

There is an interesting history in the judgment of Mr Justice Saini in in Kasem v University College London Hospitals NHS Foundation Trust [2021] EWHC 136 (QB).  It is a case that is an object lesson in the stringent requirements…

CLAIMANT'S CASE STRUCK OUT BECAUSE IT SAID TWO CONTRADICTORY THINGS: "JANUS-FACED" PLEADINGS NOT ALLOWED

CLAIMANT’S CASE STRUCK OUT BECAUSE IT SAID TWO CONTRADICTORY THINGS: “JANUS-FACED” PLEADINGS NOT ALLOWED

November 16, 2020 · by gexall · in Appeals, Applications, Damages, Statements of Case

The judgment of Mr Justice Marcus Smith in Betesh Partnership -v- Evans [2020] EWHC 1589 (QB) contains interesting observations on the need for a claimant to plead a case that is not inconsistent.  I am working and citing  from the…

IF YOU FIGHT AN "ALL OR NOTHING CASE" THEN YOU CAN'T COMPLAIN IF YOU GET NOTHING

IF YOU FIGHT AN “ALL OR NOTHING CASE” THEN YOU CAN’T COMPLAIN IF YOU GET NOTHING

October 12, 2020 · by gexall · in Appeals, Statements of Case

In  Amin v Amin & Ors [2020] EWHC 2675 (Ch)  Mr Justice Nugee made an important observation about the way in which parties present their case.  It may benefit some litigants to put their case on an alternative basis. THE…

"LITIGANTS SHOULD BE TERRIFIED IF THEY LIE TO THE COURT": THE IMPORTANCE OF THE STATEMENT OF TRUTH

“LITIGANTS SHOULD BE TERRIFIED IF THEY LIE TO THE COURT”: THE IMPORTANCE OF THE STATEMENT OF TRUTH

October 4, 2020 · by gexall · in Civil Procedure, Committal proceedings, Statements of Truth

There are many, many cases about committal proceedings in commercial cases.  Some judges have observed that they appear to be used tactically.   Most are confined to their own facts. However in North of England Coachworks Ltd v Khan [2020] EWHC…

GOT TO DRAFT A DEFENCE? SOME HELPFUL GUIDANCE FROM OUR CANADIAN COUSINS

GOT TO DRAFT A DEFENCE? SOME HELPFUL GUIDANCE FROM OUR CANADIAN COUSINS

September 24, 2020 · by gexall · in Statements of Case, Useful links

  There is relatively little guidance given on the process involved in drafting a defence.  There is some useful help given the the Law Society of Ontario Practice Area Resource “How to Prepare a Statement of Defence”. Some of this…

CLAIM FOR DAMAGES STRUCK OUT: APPLICATION TO AMEND REFUSED: CLAIMANT FAILED TO USE THEIR LOAF AS CLAIM IS SLICED...

CLAIM FOR DAMAGES STRUCK OUT: APPLICATION TO AMEND REFUSED: CLAIMANT FAILED TO USE THEIR LOAF AS CLAIM IS SLICED…

September 22, 2020 · by gexall · in Amendment, Applications, Damages, Striking out, Summary judgment

The judgment of Mrs Justice Jefford in The Leicester Bakery (Holdings) Ltd v Ridge And Partners LLP [2020] EWHC 2430 (TCC) shows the necessity of being able to particularise a claim for damages. What it demonstrates is that, in claims…

"WHAT IS THE DIFFERENCE BETWEEN A NON-ADMISSION AND A DENIAL" ? A SEARCH TERM THAT COMES UP FREQUENTLY

“WHAT IS THE DIFFERENCE BETWEEN A NON-ADMISSION AND A DENIAL” ? A SEARCH TERM THAT COMES UP FREQUENTLY

August 21, 2020 · by gexall · in Statements of Case, Webinar

On the 3rd September 2020 I am presenting a webinar on Pleadings (Statements of Case) for Personal Injury Lawyers. One of the issues being looked at is drafting a defence. One of the regular search terms that lead to this…

ACTION NOT STRUCK OUT BECAUSE ALLEGATIONS OF BAD FAITH AND WILFUL MISCONDUCT NOT FULLY PARTICULARISED

ACTION NOT STRUCK OUT BECAUSE ALLEGATIONS OF BAD FAITH AND WILFUL MISCONDUCT NOT FULLY PARTICULARISED

July 21, 2020 · by gexall · in Applications, Statements of Case, Summary judgment

In Palladian Partners LP & Ors v The Republic of Argentina & Anor [2020] EWHC 1946 (Comm) Mrs Justice Cockerill refused to strike out pleadings alleging, bad faith, wilful misconduct and manifest error.  This is the second example recently of…

PLEADING (STATEMENTS OF CASE) FOR PERSONAL INJURY LAWYERS (LIVE WEBINAR) 3rd SEPTEMBER 2020

July 15, 2020 · by gexall · in Case Management, Civil Procedure, Statements of Case, Webinar

The discussion of statements of case yesterday in the case of  Tejani v Fitzroy Place Residential Ltd & Anor [2020] EWHC 1856 (TCC) has led, almost directly, to a webinar on statements of case.   I am giving a webinar on the…

THE STATEMENT OF CASE WOULD NOT HAVE BEEN STRUCK OUT: JUDGE PROVIDES A LESSON IN THE BASIC PRINCIPLES OF PLEADING

THE STATEMENT OF CASE WOULD NOT HAVE BEEN STRUCK OUT: JUDGE PROVIDES A LESSON IN THE BASIC PRINCIPLES OF PLEADING

July 14, 2020 · by gexall · in Applications, Statements of Case, Striking out

In Tejani v Fitzroy Place Residential Ltd & Anor [2020] EWHC 1856 (TCC) Mr Justice Pepperall sent out a clear reminder of the basic purpose of pleading. He rejected an argument by the defendant that a particulars of claim should…

COVID REPEATS 48: REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER

COVID REPEATS 48: REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER

June 10, 2020 · by gexall · in Civil Procedure, Default judgment,, Statements of Case

Today we are taking a look back at what turned out to be the second most read post on this blog in 2016. The basic rules about when to file a Reply and, more importantly, a defence to counterclaim. A…

CLAIM STRUCK OUT FOR INADEQUATE PLEADING: ENOUGH TO MAKE YOU HIT THE BOTTLE

CLAIM STRUCK OUT FOR INADEQUATE PLEADING: ENOUGH TO MAKE YOU HIT THE BOTTLE

May 20, 2020 · by gexall · in Civil Procedure, Statements of Case, Striking out

I don’t normally write about the cases relating to defamation and pleading, this is a very niche area and there is usually little of general interest. However the judgment of Mr Justice Nicol in  BrewDog Plc & Anor v Frank…

THE IMPORTANCE OF STATEMENTS OF CASE: THE TRIAL SHOULD NOT BECOME A "FREE FOR ALL": COURT OF APPEAL SENDS OUT A WARNING

THE IMPORTANCE OF STATEMENTS OF CASE: THE TRIAL SHOULD NOT BECOME A “FREE FOR ALL”: COURT OF APPEAL SENDS OUT A WARNING

May 15, 2020 · by gexall · in Civil Procedure, Statements of Case

In Dhillon v Barclays Bank Plc & Anor [2020] EWCA Civ 619 the Court of Appeal reiterated the importance of statements of case in relation to civil litigation.  The statements of case should define the issues at trial.   “It…

"STATEMENTS OF CASE PLAY A CRITICAL ROLE IN CIVIL LITIGATION WHICH SHOULD NOT BE DIMINISHED": THE COURT OF APPEAL AND THE LEARNING ACADEMY

“STATEMENTS OF CASE PLAY A CRITICAL ROLE IN CIVIL LITIGATION WHICH SHOULD NOT BE DIMINISHED”: THE COURT OF APPEAL AND THE LEARNING ACADEMY

March 12, 2020 · by gexall · in Appeals, Civil Procedure, Statements of Case

In November 2018 I wrote about the decision of HHJ Klein in  UK Learning Academy Ltd v The Secretary of State for Education [2018] EWHC 2915 (Comm). An appeal from that judgment has been heard, and dismissed, by the Court of Appeal. …

THAT IMPORTANT DISTINCTION BETWEEN A "NON-ADMISSION" AND A DENIAL IN A DEFENCE:  THE KEY CASES CONSIDERED

THAT IMPORTANT DISTINCTION BETWEEN A “NON-ADMISSION” AND A DENIAL IN A DEFENCE: THE KEY CASES CONSIDERED

March 10, 2020 · by gexall · in Appeals, Civil Procedure, Statements of Case

The discussion yesterday of the decision in Aven & Ors v Orbis Business Intelligence Ltd [2020] EWHC 523 (QB) gives rise to review  cases on pleading a defence, in particular the  important distinction between a “denial” and a “non-admission”. It is…

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