LATE SERVICE OF THE PARTICULARS OF CLAIM AND RELIEF FROM SANCTIONS: CLAIMANT ALLOWED TO PURSUE CLAIM AGAINST ONE DEFENDANT BUT NOT THE OTHER: WHAT A DIFFERENCE AN ADMISSION MAKES
In Bangs v FM Conway Ltd & Anor [2024] EWHC 494 (Comm) Mr Justice Jacobs considered the claimant’s application for relief from sanctions when the particulars of claim had been served late. He allowed the claimant’s application against one defendant…
CLAIMANT’S APPEAL ALLOWED BECAUSE THE JUDGE FOUND FOR THE DEFENDANT ON A BASIS THAT WAS NOT PLEADED
I am grateful to barrister Tom Morris for giving me details of the judgment of Mr Justice Fancourt in Jacobs v Chalcot Crescent (Management) Company Ltd [2024] EWHC 259 (Ch). It is an important case about statements of case. The…
A CLAIMANT, ALLEGING FRAUD, IS NOT ENTITLED TO DELIBERATELY BREACH A COURT ORDER AND THE RULES OF COURT: HIGH COURT JUDGMENT GIVES LITIGATORS MUCH TO THINK ABOUT
Those who draft pleadings, particularly those alleging fraud and misconduct, have much to learn from the judgment of Mr Justice Johnson in AXA Insurance UK PLC v Kryeziu & Ors [2023] EWHC 3233 (KB). The fact that a party is…
“PLEADINGS ARE INTENDED TO IDENTIFY THE ISSUES, NOT OBSCURE THEM”: COMMENTS ON STATEMENTS OF CASE: THEY SHOULD PROVIDE LIGHT NOT DARKNESS
There have been a number of cases recently where judges have commented on the state of the pleadings. We see observations being made by Mr Justice Ritchie in the decision today in DMH Electrical (UK) Ltd v MK City Group…
THE JUDGE WAS RIGHT TO REFUSE TO ALLOW A “NEW POINT” TO BE TAKEN ON APPEAL: DON’T FORGET PLEADINGS ARE STILL IMPORTANT…
In Azhar v All Money Matters t/a TFC Home Loans [2023] EWCA Civ 1341 the Court of Appeal rejected a defendant’s argument that it should have been permitted to raise a “new” point on appeal. The matter upon which the…
PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE’S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG
The Court of Appeal judgment today in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a rare example of the Court of Appeal overturning a judge’s findings on the facts. It is also an example of the importance…
THE PARTICULARS OF CLAIM WERE TOO LONG, TOO CONFUSING AND DID NOT COMPLY WITH THE RULES.
In Halsion Limited v St Thomas Street Development Limited [2023] EWHC 2045 (TCC) HHJ Cawson KC, sitting as a High Court Judge, struck out the claimant’s Particulars of Claim. The Particulars were too long and rambling and failed to comply…
AN INTERESTING ISSUE: CLAIMANT WHO FAILS TO PLEAD CONTRACTUAL INTEREST – DOESN’T GET INTEREST AT ALL
The judgment of Mr Justice Foxton in Rolls-Royce Holdings Plc v Goodrich Corporation [2023] EWHC 2002 (Comm) illustrates an important issue in relation to interest. If a successful party has a contractual right to interest, but has not pleaded that…
LATE SERVICE OF THE PARTICULARS OF CLAIM: THE “TRAP FOR THE UNWARY” AND RELIEF FROM SANCTIONS
In Altiatech Ltd v Birmingham City Council [2023] EWHC 1371 (TCC) Mr Justice Waksman considered the position when a claimant served the Particulars of Claim late. The judgement refers to a specific rules in relation to procurement. However the point…
ANOTHER CLAIM FORM CASE – BUT WITH A DIFFERENCE: ACTION STRUCK OUT BECAUSE CLAIM FORM CONTAINED NO FACTS AT ALL
In Free Leisure Ltd (t/a “Cirque Le Soir”) v Peidl And Company Ltd & Anor [2023] EWHC 792 (Comm) Charles Hollander KC, sitting as a High Court judge considered the appropriate course when the “facts” section of the claim form…
THE ABSENCE OF A REPLY TO A DEFENCE DOES NOT MEAN THAT IT COULD BE ASSUMED THAT THE ACCOUNT IN THE DEFENCE WAS ACCEPTED
There is a breach statement in the judgment of Lady Justice Andrews in Zanatta v Metroline Travel Ltd [2023] EWCA Civ 224 that highlights a crucial point in relation to the drafting of a Reply. Whereas a Reply and Defence…
SERVICE ON A SOLICITOR WAS NOT DEFECTIVE: WHAT IS MEANT BY A “PLACE OF BUSINESS”?
In Ellison Road Ltd v Mian (t/a HKH Kenwright & Cox Solicitors) & Anor [2023] EWHC 375 (Ch) Master Brightwell rejected a defendant’s argument that he had not been properly served at his “place of business”. The case shows the…
CLAIMANT SOUGHT TO AMEND NAME OF THE DEFENDANT: CLAIM STRUCK OUT: ANOTHER PERIL OF TRAVEL LITIGATION
I am grateful to barrister Katherine Howells for sending me a copy of the decision of Deputy District Judge Causton in Gregory -v- TUI Airways Ltd, a copy of that decision is available here Approved Judgment Gregory v TUI. …
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] . …
STATEMENTS OF CASE, DRAFTING, DANGERS AND PITFALLS: WEBINAR 17th FEBRUARY 2021
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”
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
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
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
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
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…
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
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
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
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
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
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
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
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
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
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…
PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A DENIAL AND A NON-ADMISSION: HIGH COURT GOES BACK TO BASIC PRINCIPLES
There are some interesting observations about statements of case in the judgment of Mr Justice Warby in Aven & Ors v Orbis Business Intelligence Ltd [2020] EWHC 523 (QB). This case emphasises the difference between a non-admission and a denial…
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