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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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DELAY BY THE CLAIMANT WAS NOT "WAREHOUSING" AND DID NOT LEAD TO A STRIKE OUT: A PARTY ALLEGING DELAY WAS ABUSE MUST ACT PROMPTLY

DELAY BY THE CLAIMANT WAS NOT “WAREHOUSING” AND DID NOT LEAD TO A STRIKE OUT: A PARTY ALLEGING DELAY WAS ABUSE MUST ACT PROMPTLY

February 2, 2023 · by gexall · in Applications, Conduct, Striking out

There are several significant aspects to the judgment of Mr Justice Eyre in Morgan Sindall Construction and Infrastructure Ltd v Capita Property and Infrastructure (Structures) Ltd & Anor [2023] EWHC 166 (TCC). Firstly the distinction between proceedings issued for the…

MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT

MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT

January 24, 2023 · by gexall · in Applications, Costs, Striking out

I am grateful to Express Solicitors  for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown.  The Portal cannot be used…

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

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

January 18, 2023 · by gexall · in Appeals, Civil Procedure, QOCS

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…

TOO MANY CLAIMANTS SPOIL THE CLAIM FORM: THREE STRIKES ... AND YOU'RE OUT

TOO MANY CLAIMANTS SPOIL THE CLAIM FORM: THREE STRIKES … AND YOU’RE OUT

July 15, 2022 · by gexall · in Applications, Civil Procedure, Personal Injury

In Abbott & 3,499 Ors v Ministry of Defence [2022] EWHC 1807 (QB) Master Davison rejected the claimant’s arguments that it was permissible to issue 3,500 disparate claims on one claim.  The matters had a common defendant, and some common…

COURT OF APPEAL OVERTURNS DECISION TO STRIKE OUT “UNMANAGEABLE” COURT PROCEEDINGS

July 11, 2022 · by gexall · in Abuse of Process, Appeals, Case Management

In Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 the Court of Appeal overturned a decision to strike out a claim.    The Court doubted whether an action could ever be described…

FAILURE TO COMPLY WITH THE RULES LEADS TO PARTS OF A CLAIMANT'S WITNESS STATEMENT BEING STRUCK OUT: COMPLY WITH THE RULES - OR ELSE

FAILURE TO COMPLY WITH THE RULES LEADS TO PARTS OF A CLAIMANT’S WITNESS STATEMENT BEING STRUCK OUT: COMPLY WITH THE RULES – OR ELSE

May 25, 2022 · by gexall · in Applications, Civil evidence, Witness statements

In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch) HHJ Paul Matthews, sitting as a judge of the High Court, struck out parts of the claimant’s witness statement due to its failure to comply with the rules. …

WHY YOU SHOULDN'T BANK ON SUMMARY JUDGMENT: THE COURT SHOULD NOT CONDUCT A "MINI TRIAL" ON SUMMARY JUDGMENT APPLICATIONS

WHY YOU SHOULDN’T BANK ON SUMMARY JUDGMENT: THE COURT SHOULD NOT CONDUCT A “MINI TRIAL” ON SUMMARY JUDGMENT APPLICATIONS

March 15, 2022 · by gexall · in Appeals, Applications, Striking out, Summary judgment

In  Philipp v Barclays Bank UK Plc [2022] EWCA Civ 318 the Court of Appeal allowed an appeal against an order giving the defendant summary judgment in favour of the defendant bank.  The court emphasised that summary judgment applications should…

WHEN A PARTY FILES A WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THERE IS NO GOOD REASON AND THE PARTY IN DEFAULT PAYS A PRICE...

WHEN A PARTY FILES A WITNESS STATEMENT THAT DOES NOT COMPLY WITH THE RULES: THERE IS NO GOOD REASON AND THE PARTY IN DEFAULT PAYS A PRICE…

January 18, 2022 · by gexall · in Civil evidence, Civil Procedure, Witness statements

In the judgment today in  Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) Mr Nicholas Thompsell  (sitting as a Deputy Judge of the High Court) considered the appropriate response to a witness statement that failed…

ACTION STRUCK OUT WHEN CLAIMANT GIVES WRONG ADDRESS ON THE CLAIM FORM

ACTION STRUCK OUT WHEN CLAIMANT GIVES WRONG ADDRESS ON THE CLAIM FORM

January 18, 2022 · by gexall · in Abuse of Process, Civil Procedure, Striking out

I am grateful to solicitor  Hamish Cameron Blackie  for sending me a copy of the judgment of HHJ Bloom in Conlon -v- Ringway Infrastructure Services Ltd (County Court at Luton, 2nd December 2021) where the judge struck out an action…

CASE STRUCK OUT DUE TO CLAIMANT'S INACTIVITY: YOU CAN'T "WAREHOUSE" A COURT ACTION

CASE STRUCK OUT DUE TO CLAIMANT’S INACTIVITY: YOU CAN’T “WAREHOUSE” A COURT ACTION

January 14, 2022 · by gexall · in Abuse of Process, Applications, Striking out

In Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm) HHJ Pearce (sitting as a High Court judge) struck out an action on the grounds of the claimant’s delay.  The case had been “warehoused” and the claimant had not adduced…

“NO SERIOUS PRIVATE PAYING LITIGANT” WOULD CONTEMPLATE SPENDING £50,000 IN COSTS FOR A £3,000 CLAIM: ACTION SHOULD NEVER HAVE BEEN ISSUED IN THE HIGH COURT

November 18, 2021 · by gexall · in Case Management, Civil Procedure, Striking out

In Johnson v Eastlight Community Homes Ltd [2021] EWHC 3069 (QB) Master Thornett accepted, in large part, a defendant’s application in a case where a claim for £3,000 had been issued in the High Court and the costs claimed by…

WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS

WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS

May 5, 2021 · by gexall · in Abuse of Process, Applications, Civil evidence, Civil Procedure, Striking out

In Dixon v Santander Asset Finance Plc & Anor [2021] EWHC 1044 (Ch) HHJ Saffman (sitting as a High Court Judge) granted the defendant summary judgment on the basis that the claim against it was clearly statute barred. The judge…

WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING

WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING

March 12, 2021 · by gexall · in Abuse of Process, Applications, Striking out, Witness statements

The judgment of Mr Justice Francis in Brack v Brack [2020] EWHC 2142 (Fam) is an example of a case where the judge has the opportunity to see a draft statement and a final statement.  The judge struck out an…

AN APPLICATION THAT WAS "OPPORTUNISTIC AND WITHOUT MERIT": NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL

AN APPLICATION THAT WAS “OPPORTUNISTIC AND WITHOUT MERIT”: NON-PAYMENT OF THE COURT FEE WITHIN EXISTING PROCEEDINGS DOES NOT GIVE RISE TO A LIMITATION DEFENCE: JARNDYCE -v- JARNDYCE CONSIDERED IN THE COURT OF APPEAL

February 25, 2021 · by gexall · in Appeals, Civil Procedure, Court fees, Limitation, Striking out

The issue of non-payment, or under-payment, of court fees was considered by the Court of Appeal in the judgment today in  Butters & Anor v Hayes [2021] EWCA Civ 252. THE CASE During the course of an action the court…

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] . …

FAILURE TO COMPLY WITH CIVIL PROCEDURE RULES AND PAY CORRECT COURT FEE CAN (BUT DIDN'T) LEAD TO AN ACTION BEING STRUCK OUT

FAILURE TO COMPLY WITH CIVIL PROCEDURE RULES AND PAY CORRECT COURT FEE CAN (BUT DIDN’T) LEAD TO AN ACTION BEING STRUCK OUT

February 9, 2021 · by gexall · in Civil Procedure, Court fees, Striking out

In  Udeshi & Ors v Sieratzki [2021] EWHC 213 (Ch) Master Kaye considered an argument that a failure to pay the correct fee, and other breaches of the CPR, should lead to an action being struck out.  Given that the…

MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT'S STATEMENT LARGELY STRUCK OUT AS AN ABUSE

MORE ON OPINION EVIDENCE IN WITNESS STATEMENTS: DEFENDANT’S STATEMENT LARGELY STRUCK OUT AS AN ABUSE

November 26, 2020 · by gexall · in Applications, Civil evidence, Witness statements

The judgment in Flaxby Park Ltd v Harrogate Borough Council [2020] EWHC 3204 (Admin) that was looked at yesterday referred to the earlier case of JD Wetherspoon plc v Harris [2013] 1 WLR 3296.  Since that decision pre-dated this blog. I thought it…

STRIKING OUT A MULTI-PARTY CASE AS AN ABUSE OF PROCESS: WHEN CASE MANAGEMENT IS "AKIN TO TRYING TO BUILD A HOUSE OF CARDS IN A WIND TUNNEL"

STRIKING OUT A MULTI-PARTY CASE AS AN ABUSE OF PROCESS: WHEN CASE MANAGEMENT IS “AKIN TO TRYING TO BUILD A HOUSE OF CARDS IN A WIND TUNNEL”

November 9, 2020 · by gexall · in Abuse of Process, Striking out

Returning to the substantive issue in the judgment of Turner J in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). The judge struck out the claims of 202,600 claimants on the grounds that…

SUMMARY JUDGMENT AND  STRIKING OUT: COVID MATTERS ARE A GOOD REASON TO DETERMINE ISSUES NOT DELAY THEM

SUMMARY JUDGMENT AND STRIKING OUT: COVID MATTERS ARE A GOOD REASON TO DETERMINE ISSUES NOT DELAY THEM

October 15, 2020 · by gexall · in Applications, Coronavirus, Summary judgment

In TKC London Ltd v Allianz Insurance PLC [2020] EWHC 2710 (Comm)  Mr Richard Salter QC (sitting as a High Court Judge) considered the issue of whether issues relating to the COVID pandemic should be a factor in considering a…

CIVIL LITIGATION BRIEF 25 YEARS AGO:  A QUARTER OF A CENTURY OF CIVIL PROCEDURE

CIVIL LITIGATION BRIEF 25 YEARS AGO: A QUARTER OF A CENTURY OF CIVIL PROCEDURE

September 25, 2020 · by gexall · in Civil Procedure, Striking out

Nobody knew what a “blog” was 25 years ago. However at that time Civil Litigation Brief  did exist, it was a monthly column in the Solicitors Journal.  It is interesting to see how much (or how little) matters have moved…

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