PROVING THINGS 258: GENERIC WITNESS STATEMENTS RARELY IMPRESS A COURT: CLAIM FOR £50,190.24 REDUCED TO £1,197: A CAR CRASH OF A CASE
In David Wiltshire v Aioi Nissay Dowa Insurance Company of Europe [2025] EWCC 13 District Judge Lumb rejected most of the claimant’s claim for damages following damage to his car. The claimant’s oral evidence differed greatly from his witness statement. These differences…
THE CURRENT IMPORTANCE OF PLEADINGS 2: YOU CAN’T ADVANCE CAUSES OF ACTION NOT PLEADED IN THE CLAIM FORM
Having determined to look more closely at cases where the statements of case are at issue cases seem to come forward in abundance. The failure of a claimant to plead a cause of action in a claim form was considered…
PROVING THINGS 254: WHICH EXPERT IS GOING TO BE ACCEPTED? AN IMPORTANT ISSUE CONSIDERED IN A CLINICAL NEGLIGENCE CASE
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of HHJ Baddeley in Lochrie -v- Edwards (County Court in Sheffield 07/01/2025), a copy of which is available here. Final Lochrie v Edwards Judgment G48YJ355 …
COURT ALLOWS A CLAIMANT IN A CLINICAL NEGLIGENCE CASE TO CHANGE EXPERTS: THIS WAS NOT CASE OF “EXPERT SHOPPING”
In Alan Prescott-Brann v Chelsea and Westminsters Hostpital NHS Foundation Trust & Anor [2024] EWHC 3314 (KB) Mr Justice Sweeting allowed and appeal and thus permitted the claimant in a clinical negligence case to rely on a new expert on key issues…
ITS NOT TOO LATE IN THE YEAR FOR “CLAIM FORM” CASES: JUDGE ALLOWS APPEAL AND GRANTS CLAIMANT EXTENSION OF TIME TO SERVE THE PARTICULARS OF CLAIM: CPR 3.9 & DENTON DID NOT APPLY
I am grateful to solicitor Chris Topping of Broudie Jackson Canter for sending me a copy of the judgment of HHJ Bird in Brown -v- the Chief Constable of Greater Manchester Police (5th December 2024). The judge allowed an appeal against the…
CLAIMANT’S EXPERT EVIDENCE ON CAUSATION NOT ACCEPTED AT TRIAL: HIGH COURT DECISION TODAY
I am grateful to barrister Andrew Ward for sending me a copy of the judgment of Mrs Justice Yip in Fraser -v- Ministry of Defence [2024] EWHC 2977 (KB). It is a case where the claimant’s expert evidence on causation…
DELAY, DENTON AND MISTAKES BY THE COURT OF APPEAL: THE COURT’S FAILINGS MEANT THAT IT WAS FAIR AND JUST TO GRANT AN EXTENSION OF TIME
It is rare to see a judgment where the Court of Appeal openly issues an apology for its own administrative errors. We have such an apology in the judgment in Rana v First-Tier Tribunal (Immigration & Asylum Chamber) [2024] EWCA…
THE DIFFICULT ISSUE OF THE CHILD CLAIMANT AND LOSS OF EARNINGS CLAIMS: WEBINAR 14th OCTOBER 2024
For many years now I have been researching and writing about the particular problems that face practitioners when they are dealing with a claim by a child who could suffer loss of earnings in the future as a result of…
A CLAIM FORM CASE: ACTION FAILS BECAUSE THE CLAIMANTS’ SOLICITORS FAILED TO NOTICE THAT DEFENDANTS’ SOLICITORS HAD AGREED TO ACCEPT SERVICE
I am grateful to my colleague Sarah Lawrenson for sending me a copy of the decision of Master Clark in Keilaus -v- Houghton [2024] EWHC 2108. It involves an action failing because the claimants’ solicitor failed to notice that the…
PROVING THINGS 243: CLINICAL NEGLIGENCE: THE ACCURACY OF WITNESSES & “STORY CREEP”: GIVING THE DEFENDANT A FIVE STAR REVIEW IS NOT A STRONG BASIS FOR AN ACTION IN NEGLIGENCE
The result of clinical negligence cases sometimes rest on the views of expert witnesses. Sometimes it is the evidence of witnesses with different recollections of events. On many occasions it is the two issues combined. In Deakin-Stephenson v Behar &…
WITNESS STATEMENTS, WITNESS EVIDENCE AND COMPLIANCE: CLAIMANT ORDERED TO FILE COMPLIANT WITNESS STATEMENTS: IT COULD HAVE BEEN THE SOLICITORS NECK ON THE LINE…
We are returning to the judgment of Chief Master Shuman in In IlliquidX Ltd v Altana Wealth Ltd & Ors [2024] EWHC 2191 (Ch). This time looking at the issues relating to witness statements. There is a detailed consideration of the rules,…
DRAFTING PLEADINGS: THERE ARE RULES YOU KNOW – THE KINGS BENCH GUIDE CONSIDERED: “PLAIN AND OBVIOUS” DEFICIENCIES WILL LEAD TO PROBLEMS
In Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB) HHJ Bird (sitting as Judge of the High Court) made some important observations on the way in which the Particulars of Claim were drafted….
DRAFTING COUNTER-SCHEDULES SOME ADVICE: WITH A LITTLE HELP FROM MY FRIENDS AND A FEW CASES ALONG THE WAY
The post last week on the judgment in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB) has led me to revisit an earlier post giving advice on the drafting of counter-schedules. That post contained advice from the social media…
CHANGE TO THE COURT FUNDS OFFICE SPECIAL ACCOUNT RATE: DOWN FROM 6% TO 5.25%: ALSO A USEFUL CALCULATOR
I am grateful to barrister Matthew White for pointing out that there was an (unheralded) change to the Court Funds Office Special Account on 12/6/24. The rate was reduced from 6% to 5.25%. THE ANNOUNCEMENT The announcement was not made…
CLAIMANT FOUND TO BE FUNDAMENTALLY DISHONEST: EXAGGERATING SYMPTOMS IS PLAINLY DISHONEST
We are returning to the judgment of HHJ Karen Walden-Smith in Hamed -v- Ministry of Justice (County Court in Cambridge – 7th June 2024). The judge found that the claimant had been fundamentally dishonest in the presentation of their symptoms. This…
IT IS NOT APPROPRIATE TO USE PART 11 WHEN CHALLENGING A TRADE UNION’S RIGHT TO BRING AN ACTION FOR DEFAMATION
In Prospect v Evans [2024] EWHC 1533 (KB) Mrs Justice Steyn held that a challenge to a trade union’s right to bring defamation proceedings should not have been made by using Part 11. Part 11 applications deal with jurisdiction. The…
THE JUDGE HAD ADJOURNED THE HANDING DOWN OF A JUDGMENT AND RETAINED A DISCRETION OVER PERMISSION TO APPEAL: AN ISSUE LIKE LONDON BUSES – TWO ARRIVE ALMOST AT ONCE
I cannot recall a case where, in the space of a week, there have been two cases about the circumstances in which a trial judge can give permission to appeal after judgment has been handed down. The second for the…
TALES FROM THE LEGAL ACTION GROUP HOUSING LAW CONFERENCE (1): BUNDLES (OF COURSE): WHERE DO EXHIBITS TO WITNESS STATEMENTS GO IN THE TRIAL BUNDLE?
I spent last Friday slightly outside my comfort zone lecturing at the Legal Action Group Housing Law Conference, some aspects of which will feature in future blog posts. Needless to say all the housing lawyers were lovely and I went…
COST BITES 156: COSTS BUDGETING WAS APPROPRIATE IN THE CASE OF A SERIOUSLY INJURED CHILD: IT HELPS THE CLAIMANT AS MUCH AS THE DEFENDANT
I am grateful to PJ Kirby KC for sending me a copy of the judgment of Master Brown in the case of PXT -v- Atere-Roberts [2024] EWHC 1372 (KB), a copy of which is available here Judgment PXT final 6…
FUNDAMENTAL DISHONESTY COST CLAIMANT £325,000 IN DEFENCE COSTS EVEN AFTER THE CLAIM HAD BEEN DISCONTINUED
I am grateful to Louise Jackson from Clyde & Co for drawing my attention to her piece about a recent settlement in a case where fundamental dishonesty was alleged. This is not a case that got to trial. However it…
SKELETON ARGUMENTS TOO LONG: YOU CAN’T RELY ON THEM: DO THEM AGAIN, AND YOU WON’T GET PAID FOR THEM
There is a short procedural note in the judgment of Mrs Justice Cockerill in Al-Aggad v Al-Aggad & Ors [2024] EWHC 673 (Comm) in relation to skeleton arguments. Both sides had exceeded the maximum length of time for skeleton arguments….
COURT ORDERS DISCLOSURE AGAINST HEALTHCARE SAFETY INVESTIGATION BOARD
In Turner & Anor Sheffield Teaching Hospital NHS Foundation Trust & Anor [2023] EWHC 3452 (KB) Master Brown allowed an application by the claimant for disclosure of statements made to the Healthcare Investigation Board. “A trial judge faced with deciding…
APPEAL AGAINST COSTS BUDGETING DECISION ALLOWED: JUDGE SHOULD HAVE CONSIDERED THE RELEVANCE OF THE OPPONENT’S BUDGET (EVEN IF THAT BUDGET WAS AGREED)
In Woolley v Ministry of Justice [2024] EWHC 304 (KB) Mr Justice Kerr allowed an appeal against a costs budget and remitted it to another judge for reconsideration. The case shows the importance of a judge allowing a party to…
A “BEGUILING APPARENT COST SAVING SHORT CUT” TURNED OUT TO BE A MISTAKE: PLEADINGS MAY WELL BE NECESSARY WHEN AN ACTION IS TRANSFERRED FROM PART 8 TO PART 7
There is a short passage in the judgment of HH Judge Davis-White KC in Chapman & Anor v Celtic Property Developments Ltd (Re Celtic Property Developments Ltd and Companies Act 2006) [2024] EW Misc 6 (CC) which reflects an issue…
SECOND CLAIM FORM CASE OF THE YEAR: SERVICE ABROAD, ANTARCTICA AND CPR PART 11
The judgment of Master Thornett in Lunn v Antarctic Logistics Centre International (Pty) Ltd [2023] EWHC 2856 (KB) relates to a defendant disputing jurisdiction. It was held that it was open to the defendant to dispute jurisdiction. That application has…
ACCEPTANCE OF PART 36 DOES NOT DISPLACE FIXED COSTS – NOR WERE THERE “EXCEPTIONAL CIRCUMSTANCES”: CLAIMANT COMES TO GRIEF
I am grateful to Simon Fisher, Costs Lawyer, of DWF for sending me a copy of the judgment of District Judge Carter (as he then was) in the case of Bosley -v- Whitecroft, (County Court at Nottingham, 8th November 2023)…
CLAIMANTS’ SOLICITORS WERE ON NOTICE THAT AN EXPERT’S REPORTS COULD NOT BE RELIED UPON: THE ISSUE OF PROCEEDINGS WAS AN ABUSE OF PROCESS
We are returning to the judgment of District Judge Dawson in Jagger (& others) -v- Axa Insurance PLC, has enough material to keep this blog going for a month. (The judgment is available on a link from the Law Society Gazette here). …
COSTS OF £50,000 ORDERED TO BE PAID BY LITIGATION FRIEND: “HE WILLINGLY TOOK ON THE ROLE OF LITIGATION FRIEND AND HIS PERFORMANCE HAS BEEN WHOLLY INADEQUATE”
In Y v Z [2023] EWFC 205 HHJ Edward Hess ordered that the litigation friend for the respondent pay, personally, the applicant’s costs caused by the need to adjourn a hearing. The respondent had not prepared at all for the…
UNREALISTIC TIME ESTIMATES; FAILURE TO CHALLENGE AUTHENTICITY OF DOCUMENTS; INCORRECT USE OF TRANSLATED WITNESS STATEMENTS: ALL ADDS UP TO AN EXPENSIVE ADJOURNMENT
The short judgment of HHJ Mark Pelling KC in Hua She Asset Management (Shanghai) Co Ltd v Hung & Anor [2023] EWHC 2445 (Comm) highlights several things which have been the subject of many posts on this blog: (i) a…
THE “SLIP RULE” CONSIDERED IN DETAIL: ALSO THE COURT’S INHERENT POWERS TO VARY ITS ORDERS (APPLICANT UNSUCCESSFUL ON BOTH COUNTS…)
The “slip rule” in civil procedure is often mentioned, but rarely considered at length. There is a detailed consideration of the rule and relevant authorities in the judgment of Mr Justice Henshaw in Deutsche Bank AG v Sebastian Holdings Inc…
THE UNSETTLING TRUTH ABOUT SETTLING PART II: MORE MISSIVES FROM CANADA: “BRING DARTS, DICE AND A OUIJA BOARD”
This is the third in our series looking at the articles by the retired Canadian judge, The Honourable Joseph Quinn. This is the second part of an article where the (retired) judge considers the advantages, and disadvantages, of settling cases…
PROVING THINGS 231: “WITNESS STATEMENTS” THAT ARE IN FACT EXPERT REPORTS: IDENTICAL PASSAGES IN WITNESS STATEMENTS: THIS DOES NOT END WELL FOR THE PARTY IN DEFAULT
In Cheshire Estate and legal Limited -v- Blanchfield & Others* HHJ Bever, sitting as a Judge of the High Court, considered witness statements served by the claimant that failed to comply with the Practice Direction. One was expert evidence posing…
WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT
The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility. It also highlights the point that…
COSTS BITES 80: WHERE THE BILL OF COSTS WAS FOR IMAGINARY WORK AND “JUST FICTION”: ASSESSMENT SHINES A CLEAR LIGHT OF DEFICIENCES IN BILLS: AT SUBSTANTIAL COST TO THE CLAIMANTS’ SOLICITOR
The judgment of Senior Costs Judge Gordon-Saker in Ikin -v- Shawbrook Bank Limited [2023] EWHC 1075 (SCCO) contains many, many lessons of importance for those drafting and those signing bills of costs. The judge found that there were manifold failures…
Social media, personal injury litigation and personal injury lawyers: Webinar 5th May 2023
The use of social media in litigation is now widespread. An understanding of how and why it is used is essential to the modern litigator. The webinar will looks the use of social media in the courts: examining the case…
EXPERT WITNESS OBTAINS ANONYMITY: BUT THEIR TONE DEMONSTRATED DISRESPECT FOR THE COURT
An earlier post dealt with the judge’s decision in M v F & Anor [2022] EWFC. However there is a subsequent judgment that demonstrates an extraordinary response on the part of the expert involved. In a second judgment, M v F &…
CLAIMANT’S APPLICATION FOR RELIEF FROM SANCTIONS REFUSED – IN CATEGORICAL TERMS
In 889 Trading Ltd v Clydesdale Bank Plc & Ors [2023] EWHC 215 (Ch) HHJ Hodge KC, sitting as a judge of the High Court, refused the claimant’s application for relief. That refusal was in very categorical terms. The claimant…
COSTS BITES 53: POSSIBILITY OF AN APPEAL AND INABILITY TO RELY ON COSTS BUDGET ARE NOT GROUNDS FOR REFUSING AN INTERIM ORDER FOR COSTS
In Isaac v Tan & Anor (Re Costs) [2022] EWHC 3478 (Ch) Mr Justice Adam Johnson considered issues of costs following an unsuccessful unfair prejudice application relating to the shares of Cardiff City Football Club. He held that the application…
COMMENTING ON A DRAFT JUDGMENT – WHEN THE JUDGE HAS ASKED YOU TO: THE CIRCULATION OF A DRAFT JUDGMENT IS NOT THE END OF THE BEGINNING OF THE LITIGATION BUT THE BEGINNING OF THE END
There have been several cases over the years where judges have commented on the practice of parties attempting to rewrite draft judgments. In Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd & Ors [2022] EWHC 3275 (TCC)…
THE COSTS JUDGE OVER YOUR SHOULDER 2023 – MAXIMISING RECOVERY: WEBINAR 6th APRIL 2023
The recent judgment in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 9 (SCCO) illustrates the problems that receiving parties can cause for themselves. The claimant’s bill was reduced by 31% (£16.9 million) despite the assessment being on an indemnity…
2022 IN REVIEW (III): OPENING LINES OF JUDGMENTS 2022: AT HOME AND ABROAD: PADDINGTON, CARNIVALS, RAISING COMMONWEALTHS AND RUINING KINGS
Our annual review continues with the best “opening lines of judgments” for 2022. This year there are a number of strong international contenders. Worries about misguided endeavours The Serious Fraud Office & Anor v Litigation Capital Ltd [2022] EWHC 3053…
PART 36 APPLIED TO COMPLEX OFFER: PART 36 WAS ENGAGED AND THE NORMAL CONSEQUENCES FOLLOWED
In Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch) Mr Justice Hildyard considered whether Part 36 applied to a complex offer made by the applicants. This post looks at the judgment relating to…
COST BITES 38: THE COSTS OF AN APPEAL SHOULD BE PAID BY THE LOSING PARTIES
In Frasers Group Plc v The Official Receiver & Ors [2022] EWHC 3184 (Ch) Sir Paul Morgan (sitting as a judge of the Chancery Division) held that the appropriate order, following a successful appeal, was for the respondents to the…
DEFENDANT GRANTED SUMMARY JUDGMENT ON A SINGLE EVIDENTIAL ISSUE: CPR 24.2 CAN BE USED IN THIS CONTEXT
In Holdgate v Bishop [2022] EWHC 2850 (KB) Master Thornett granted the defendant’s application for summary judgement on a specific issue. The Master granted the defendant judgment on the issue of whether the claimant had instructed solicitors to sell land…
CONSEQUENTIAL ISSUES AFTER JUDGMENT IS HANDED DOWN: NO TIME TO START ACTING UP
The judgment of Mr Justice Foxton in Royal & Sun Alliance Insurance Ltd & Ors v Tughans (a firm) [2022] EWHC 2825 (Comm) shows considerable concern about the way in which parties are attempting to deal with issues following the…
ESCAPING FIXED COSTS: KINGS CHAMBERS WEBINAR: 2nd NOVEMBER 2022
My colleagues Andrew Hogan and Paul Hughes are presenting a webinar on the 2nd November 2022 4 – 5pm on “escaping fixed costs”. The webinar is free. Booking details are available here. NB the live event is now “full”. It…
EXPERT WAIVED PRIVILEGE WHEN MENTIONING ANOTHER REPORT IN HIS REPORT: “TRIAL BY AMBUSH IS NO LONGER THE ORDER OF THE DAY”
We are looking again at the judgment of HHJ Paul Matthews (sitting as a High Court judge) in Pickett v Balkind [2022] EWHC 2226 (TCC) . Again it is in relation to an issue relating to experts. An expert had…
QOCS APPLIES TO LEGALLY AIDED CASES: HIGH COURT DECISION
In Macaulay v Karim & Anor [2022] EWHC 1270 (SCCO) Senior Costs Judge Gordon-Saker found that a legally aided claimant had the protection of QOCS. A defendant who had a costs order in its favour could not enforce that order…
“SUBSTANTIAL INJUSTICE” AND FUNDAMENTAL DISHONESTY: WE’LL KNOW IT WHEN WE SEE IT BUT WE DON’T SEE IT HERE: JUDGE’S DECISION NOT TO IMPOSE USUAL PENALTIES OVERTURNED ON APPEAL
In Woodger v Hallas [2022] EWHC 1561 (QB) Mr Justice Julian Knowles overturned a decision of the Circuit Judge that the usual principles of a finding of fundamental dishonesty should not apply to the claimant. The judgment involves a consideration…
SUMMARY ASSESSMENT OF COSTS: HOURLY RATE TOO HIGH AND LAWYERS SHOULD LEARN TO DELEGATE
In Rushbrooke UK Ltd v 4 Designs Concept Ltd [2022] EWHC 1416 (Ch) HHJ Paul Matthews (sitting as a Judge of the High Court) considered the costs to be paid to a successful respondent. The judge did not allow the…