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…
I’M NOT TAKING A PLEADING POINT – BUT: FAILURE TO PUT A POINT IN CROSS-EXAMINATION NOT FATAL TO CLAIMANT’S CASE
The judgment in Auckland v Khan & Anor [2018] EWCA Civ 1148 is in short form. However it does illustrate the difficulties of appealing on “pleading points” and findings of fact. “There are certainly cases in which the failure to put…
YOUR CLAIM FORM IS, WELL, PRETTY DAMN HOPELESS – AND WITNESS EVIDENCE CAN’T PUT IT RIGHT
The observations made by Mr Justice Andrew Baker in Orascom Tmt Investments SARL v Veon Ltd [2018] EWHC 985 (Comm) are of general interest. They highlight the need for statements of case to be properly particularised and also highlight the dangerous…
STRIKING OUT A DEFENCE: FONT SIZE, LINE SPACING AND A MAXIMUM PAGE LENGTH ORDERED: PLEADINGS THAT “TEND TO OBFUSCATE RATHER THAN CLARIFY THE ISSUES”
In Brown & Anor (t/a Maple Hayes Hall School) v AB [2018] EWHC 623 (QB) Mr Edward Pepperall QC (sitting as a Deputy High Court Judge) struck out a defence that was . In giving the defendant another chance he made…
LATE AMENDMENT: COURT OF APPEAL DECISION
We looked at the decision in Nesbit Law Group LLP -v- Acasta European Insurance Company Limited (Leeds Mercantile Court 15.9.16) in an earlier post. The defendant appealed to the Court of Appeal Nesbit Law Group LLP v Acasta European Insurance Company Ltd [2018]…
WHEN THE PLEADINGS APPEAR TO HAVE BEEN PUT IN THE PAPER BIN AT TRIAL (SHADES OF THE OFFICE)
The judgment in Premier Paper Group Ltd v Buchanan McPherson Ltd [2018] EWCA Civ 15 contains some interesting observations about the way in which the parties departed from their pleadings. Although the claim succeeded this case how important it is that…
ALLEGING AND FINDING FUNDAMENTAL DISHONESTY, PLEADING AND EVIDENCE: COURT OF APPEAL JUDGMENT TODAY
I am grateful to barrister Tom Vonberg for sending me a copy of the Court of Appeal decision today in Howlett -v- Ageas [2017] EWCA Civ 1696. Howlett & anr v Davies & anr- jt Final-1. Tom acted for the…
SEARCHING FOR “THE GOLDEN RULE OF PLEADING”: BREVITY, BRER RABBIT AND – GOING TO HELL
It is interesting to note the search term that leads people to this blog. Today I commented on one that led many, many practitioners to a search for the golden rule of pleading. Be warned not all of these replies…
WHEN THE PLEADINGS SHOULD NOT NAME SOMEONE: HIGH COURT OBSERVATIONS
In Huda v Wells & Ors [2017] EWHC 2553 (QB) Mr Justice Nicklin made some observations that make it clear that it may be prudent for statements of case not to name vulnerable individuals. THE CASE The defendants set aside an…
YOU CAN’T APPEAL ON A POINT THAT YOU HAVEN’T PLEADED: DEFENDANT’S ARGUMENTS GO DOWN THE PAN
There are periodic reminders from the court as to how important the statement of case is. This can be seen in the judgment today in Watt v Dignan & Ors [2017] EWCA Civ 1390. “I do not agree that a…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: A STARK REMINDER FROM THE COUNTY COURT ONLINE PILOT PRACTICE DIRECTION
I have looked before at the issues that arise when the legal representative signs a statement of truth on behalf of a client. These issues are shown in stark terms in the Practice Direction 51S – The County Court Online…
ABSENCE OF RISK ASSESSMENTS LEADS TO JUDGMENT FOR DEFENDANT BEING OVERTURNED: THE SECOND PART OF POWELL -v- WATFORD BOROUGH COUNCIL
The first part of the decision of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB)was considered in detail in the previous post. Mr Justice Jay held that a peremptory order had not been complied with and the defence…
THROWING EVERYTHING IN AT TRIAL- INCLUDING THE KITCHEN CABINET: YOU HAVE TO PUT YOUR CASE (AND PLEAD IT)
There are some important observations in the judgment of Mr Justice Henry Carr in Neptune (Europe) Ltd v Devol Kitchens Ltd [2017] EWHC 2172 (Pat) about the need to plead and put a case at trial. An attempt to introduce a…
SOMETIMES YOU DON’T HAVE TO SIGN STATEMENTS OF CASE WITH A STATEMENT OF TRUTH: HIGH COURT DECISION ON AMENDING PARTICULARS OF CLAIM
The case of Kimathi v Foreign and Commonwealth Office [2017] EWHC 2145 (QB) promises to be a legal epic. As I understand it the trial is not even half way through. It was opened in April 2017. It is unlikely…
LATE (BUT NOT VERY LATE) AMENDMENTS ALLOWED: LIMITATION DEFENCE WAS NOT “MUCKING AROUND AT THE LAST MOMENT”
In Vilca & Ors v XSTRATA Ltd & Anor [2017] EWHC 2096 (QB) Mr Justice Stuart Smith allowed a late, but not “very late” application by the defendant to allow it to plead limitation. “To my mind… all of the…
FAILURE TO RESPOND TO PART 18 REQUESTS PROPERLY LEADS TO STRIKE OUT: NO SECOND BITE OF THE CHERRY IN RELATION TO RELIEF FROM SANCTIONS
There are relatively few reported cases about Part 18 questions. The decision of the Court of Appeal today in Griffith -v- Gourgey [2017] EWCA Civ 926 shows the dangers of failing to respond fully and properly. “This shows the necessity…
AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce [2017] EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended…
A “DEFENCE STRAIGHT OUT OF THE 1970S”: DEFENDANT’S PLEADINGS 40 YEARS OUT OF DATE
Some defences are inadequate. Some are (rightly) struck out. Some do not recognise the essential difference between a non-admission and a denial. A series of denials is, the case law makes clear, an inappropriate and archaic way of proceeding. “Churchill’s…
PARTICULARS OF CLAIM MUST BE IN A FORM THAT THE DEFENDANT CAN RESPOND TO: PLEADINGS STRUCK OUT ALTHOUGH THE CLAIM WAS NOT
In Kaplan -v- Super PCS LLP [2017] EWHC 1165 (Ch) Mrs Justice Rose struck out the particulars of claim because it was impossible for the defendants to respond to it. It is an object lesson that, even in a complex…
PLEADINGS, FACTS AND EXPERT EVIDENCE: EXPERT SHOULD NOT “USURP THE FUNCTION OF THE COURT”
There is an interesting discussion of the purpose of pleadings and expert evidence in the judgment of HH Parkes QC in PP -v- The Home Office [2017] EWHC 663 (QB). The fact that an expert report is referred to in…
AMENDMENT PROVIDES A BRIDGE OVER TROUBLED WATERS: PERMISSION TO AMEND TO CLARIFY POSITION OF PARTY PERMITTED
Decisions on amendment and limitation arguments are cropping up at the moment. Here we look at the judgment of Master Kay QC in Highways England Company Limited -v- B.G. Rodwell Limited[2017] EWHC 118(QB). The defendant raised issues under Section 35…
CIVIL PROCEDURE: THE BEHRENS' EFFECT
His Honour Judge Behrens, the resident Chancery judge in Leeds, retires tomorrow. This led me to consider the contribution he has made to civil procedure. JOHN BEHRENS AT THE BAR I could begin by telling of the meticulous neatness of…
REPLIES AND DEFENCE TO COUNTERCLAIM: A PRIMER
Two recent posts* have highlighted the difficulties that can exist with the filing of Replies and Defence to Counterclaim. Here is a short Primer. A REPLY If the Defence does not contain a counterclaim a Reply is not mandatory. There…
IF YOU ARE GOING TO DRAFT PLEADINGS THEN DO IT PROPERLY: A REPLY AND DEFENCE TO COUNTERCLAIM IS NOT A MERE FORMALITY
A post last month highlighted a case where a defendant obtained judgment in default on a counterclaim. The judge refused to set aside the judgment and, in effect, the claimant’s entire claim failed. There is a clear and obvious need…
DEFENDANT REFUSED PERMISSION TO ADDUCE FURTHER EVIDENCE: LATE EVIDENCE IS ALWAYS A PROBLEM
I am grateful to barrister Michelle Fanneran for sending me a copy of the decision of His Honour Judge Cotter QC in the case of Moore -v- Plymouth Hospitals Trust (11th May 2016). This involves consideration of relief from…
STRIKING OUT A PLEADING WHEN IT DOES NOT COMPLY WITH THE RULES
In Jones -v- Longley [2016] EWHC 1309 (Ch) Master Matthews considered the criteria for striking out a pleading, in this case a counterclaim. There are important observations on the needs for pleadings to comply with the rules; on the fact…
SIGNING A STATEMENT OF TRUTH ON BEHALF OF A CLIENT: GET THE WORDING RIGHT
On more than one occasion on this blog we have looked at cases where the courts have questioned the wisdom of a lawyer signing a statement of truth on behalf of a client. In Galdikas -v- DJ Houghton Catching Services…
ADVOCACY – THE JUDGE’S VIEW II: "USEFUL","JUST & CHEAP": GUIDANCE FROM DOWN UNDER
The post earlier this week on Things Lawyers do to Annoy Judges was, without doubt, one of the most publicised and read posts on this blog. However it also opened up a rich train of enquiry: what do judges write…
STATEMENTS OF CASE & THE STATEMENT OF TRUTH: CAN A PARTY ARGUE TWO DIFFERENT THINGS?
There are some interesting observations by Mr Justice Leggatt in ED&F Sugar ltd -v- T&L Sugar Ltd [2016] EWHC 272 (Comm). KEY POINTS A statement of truth which supported particulars of claim was a statement of fact. An assertion in…
FAILING TO PLEAD CASE FULLY CAN LEAD TO YOUR ACTION GOING DOWN THE DRAIN
The Court of Appeal decision today in the case of Court -v- Van Dijk [2016] EWCA Civ 438 is the third case within a month where the courts have considered the adequacy of statements of case. It is also has…
WITNESS STATEMENTS CANNOT REPLACE PLEADINGS &"CUT AND PASTE" WITNESS STATEMENTS ARE UNLIKELY TO IMPRESS
In Chong -v- Alexander [2015] EWHC 735 (CH) Richard Spearman Q.C. (sitting as a Deputy Judge) had to consider several issues relating to statements of case and witness evidence. “…the typographical error (“At” instead of “As”), is replicated in a…
CASE FAILS BECAUSE OF MATTERS NOT PLEADED: ANOTHER LESSON FOR PLEADERS
The decision of His Honour Judge David Grant yesterday in Bridgland -v- Earlsmead Estates Limited [2016] EWHC B9 (TCC) makes salutary reading for anyone who drafts pleadings. If the claimants had pleaded their case differently they may have won. It…
A CASE YOU MUST READ IF YOU THINK PLEADINGS ARE NOT IMPORTANT
The opening paragraphs of the Court of Appeal decision today in The Prudential Assurance Company Limited -v- Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 376 should be compulsory reading for anyone who considers that pleadings can be…
LATE APPLICATIONS TO AMEND & WITNESS STATEMENTS DELIBERATELY NOT SERVED: THIS DOESN'T END WELL FOR THE DEFAULTING PARTY
In Birch -v- Beccanor Limited & Dixon [2016] EWHC 265 (Ch) Mr Justice Norris refused an application for late amendment. He also refused an application to adjourn in circumstances where the defendant had deliberately served witness evidence late. KEY POINTS The…
FAILURES IN DISCLOSURE AND WITNESS EVIDENCE YET SUCCESSFUL ON APPEAL
The decision of the Court of Appeal in Sobrany -v- UAB Transtira [2016] EWCA Civ 28 gives rise to a few interesting procedural points. It is worth remarking, however, that many of the difficulties arose because of failures by the…
LATE AMENDMENT ALLOWED: TRIAL DATE MOVED: A CLINICAL NEGLIGENCE CASE
In G -v- Kings College Hospital NHS Foundation Trust Appeal [2016] EWHC 104 (QB) Mrs Justice May granted the claimant permission to amend the Particulars of Claim even though this meant moving a 7 day trial listed in early April…
ISSUING WITHOUT AUTHORITY: THE DANGERS OF SOLICITORS SIGNING STATEMENTS OF TRUTH: ACTION STRUCK OUT AS AN ABUSE OF PROCESS
This blog has looked, several times, at the dangers of solicitors signing documents which contain a statement of truth. The risks are clearly set out in the decision of Mrs Justice Rose today in Bao Xiang International Garment Centre -v-…
RESPONDENT TO APPLICATION TO AMEND PLEADINGS ORDERED TO PAY COSTS BECAUSE THEY SHOULD HAVE CONSENTED
I am grateful to Tobias Haynes from Regulatory Legal solicitors for sending me details of a judgment given today in relation to the costs of amendment. This is based on Tobias’ note of the judgment which was given today (30th…
PLEADINGS PROOF AND EVIDENCE: CONFUSION IN ONE OFTEN LEADS TO PROBLEMS WITH THE OTHER
In Mann -v- Shelfside Holdings Limited [2015] EWHC 2583 (QB) the pleadings required rectifying at the start of the trial. The case is an interesting example of problems with pleading and proof. “This is not just a minor pleading point…
THAT "PARTIAL" ADMISSION: IT IS STILL BINDING AND YOU MAY NOT BE ALLOWED TO RESILE FROM IT
The judgment of Mr Justice William Davis in Cavell -v- Transport for London [2015] EWCA 2283 (QB) has some important observations in relation to admissions and attempts to resile from admissions. “It cannot be in those interests to permit the…
NEW RULES RELATING TO "NEUTRAL EVALUATION" ; LITIGANTS IN PERSON; ASSESSMENT; SPECIALIST FINANCIAL LIST (AND MORE…)
New rules have been introduced which (for the most part) come into force on the 1st October 2015. Here we look at the key changes. THE RULES The Civil Procedure (Amendment No.4) Rules 2014 were laid before Parliament on the…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT
The observations of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) were considered in an earlier post. However there is one further aspect of the case that justifies examination. A CAVEAT…
AMENDING PLEADINGS: WELL I'M JUST GOING TO ISSUE SEPARATE PROCEEDINGS – IS THAT RELEVANT?
The earlier post looked at the general principles in relation to late amendment of pleadings. There was one further point considered in CIP Properties -v- Galliford Try [2015] EWHC 135 (TCC). The claimant argued that the amendments should be allowed…
AMENDING PLEADINGS : A REVIEW OF THE PRINCIPLES: WHAT IS MEANT BY "LATE"?
We have looked at the case of CIP Properties -v- Galliford Try twice before in the context of costs budgeting. The case came before Mr Justice Coulson again [2015] EWHC 1345 (TCC) on the topic of amendment of pleadings. It is…
"TAKING THE STATEMENT OF TRUTH LIGHTLY": CONTEMPT OF COURT WHEN DOCUMENTS WERE "CREATED" LONG AFTER THE EVENT
In GB Holdings Ltd -v- Short [2015] EWHC 1378 (TCC) Mr Justice Coulson reviewed the authorities and principles relating to applications for contempt of court when it is alleged that a witness has forged documents in relation to the action….
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