Columns and Comments on English Civil Procedure Cases
and other matters related to (mainly civil) litigation


by Dr John Birchall, Barrister - Professional English, Legal English, and Common Law Training


Assessment of costs : when are London solicitors' fees reasonable?: The thorny question of whether it was reasonable for a litigant from outside London to instruct London solicitors (and hence recover costs at London rates) was considered this week by Eady J on appeal, in David Gazley v (1) Rebekah Wade (2) News Group Newspapers Ltd [2004] EWHC 2675 (QB) (written Nov. 2005).

Setting aside default judgment: does it matter whether the defendant had actual notice?: Akram v Adam [2004] EWCA Civ 1601 (written Nov. 2004: please note the more recent case of  Nelson v Clearsprings [2006] EWCA Civ 1252 involving an application to set aside judgment followign trial where the defendant had no actual notice).

The Lords revisit 'the factual matrix':  Sirius International Insurance Company (Publ) (Appellants) v. FAI General Insurance Limited and others (Respondents) [2004] UKHL 54 (written Dec. 2004).

Court fees rise again; No remission of deposit in bankruptcy petitions: R v Lord Chancellor, ex parte Lightfoot COURT OF APPEAL (CIVIL DIVISION) [2000] QB 597, [1999] 4 All ER 583, [2000] 1 WLR 318 (written Dec. 2004).

Cell confessions Pringle v. R (Jamaica) [2003] UKPC 9 (written Jan. 2005).

Special measures for vulnerable witnesses, and the right to a fair trial:  R. v. Camberwell Green Youth Court, (ex parte D), and (ex parte DPP, respondent G) [2005] UKHL 4 (written Jan. 2005).

Solicitors’ conflict of interest reaches the Lords: Hilton v. Barker Booth Eastwood [2005] UKHL 8 (written Feb. 2005).

If a judge directs a jury to convict, the conviction will automatically be unsafe: R v. Wang [2005] UKHL 9 (written Feb. 2005).

Barristers’ (and solicitors’) negligence: a footnote to Hall v Simmons: whether Counsel had been negligent (a) to advise against accepting the £150,000 while it was still on the table; and (b) even if that was not negligent, whether counsel had been negligent in failing to spell out to Mr. Moy the reasoning which her advice was based on:  Moy v. Pettmann Smith & another [2005] UKHL 7 (written Feb. 2005).

Did we have a contract? Was the case settled or not?  Beardall and others v Vinamul Ltd. [2005] EWHC 204 (QB) (written Feb. 2005, plese note the judgment discussed was later reversed on appeal:  [2006] EWCA Civ 31 ).

Cracks appear in a building. Engineers advise how to stop the problem. They are negligent, and the repairs fail. New cracks appear. The building owner wants to sue the engineers in tort. When does limitation start to run? Abbott v. Will Gannon [2005] EWCA Civ 198 (written Mar. 2005).

Jemma Trust: a moral tale of trustees and beneficiaries: Jemma Trust v Kippax Beaumont Lewis [2005] EWCA Civ 248 (written Mar. 2005).

April is the cruellest month:  the introduction of the Criminal Procedure Rules (written Mar. 2005).

Expert witness shopping:  the Court of Appeal in Hajigeoriou v Vasiliou [2005] EWCA Civ 236 said that where a party in a civil case has consulted one expert, then chosen to rely on another, it will be usual to order disclosure of the first expert’s report, so as to discourage witness shopping. (written Apr. 2005).

The law on the two kinds of disqualification for judicial bias is recovering from a wrong turn taken in the Pinochet case: Meerabux v AG of Belize PC (written Apr. 2005).

Two costs cases. One, on the need for broad-brush adjustments to do justice on costs - and be very careful about refusing ADR! Burchell v Bullard CA The other says, you  can enforce your judgment debt but not your costs order against unnamed members of a unincorporated club which loses its case: Howells v. Dominion Insurance [2005] EWHC 552 (QB).  (written Apr. 2005).

Setting aside a consent order:  Scammell v. Dicker [2005] EWCA Civ 405 (written Apr. 2005).

American Securities law: In Dura Pharmaceuticals the Supreme Court insisted that causation must be properly pleaded and proved. (written Apr. 2005).

Some sidelights on Bowman v Fels [2005] EWCA Civ 226, which overrules the controversial decision in P v P that lawyers must report their clients and their opponents to the authorities, on the basis of mere suspicion of minor financial crime, without telling their clients they are doing so (written May 2005).

The Court of Appeal approve the concept of a ‘factual precedent’: R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 (written Oct. 2005).

When should a prosecutor resort to a charge of public nuisance? When can a claimant apply for an injunction to restrain a public nuisance? R. v. Rimmington and R v. Goldstein [2005] UKHL 63 (written Nov. 2005).

Some underlying principles relevant to default judgment: Strachan v. The Gleaner PC (written Dec. 2005).

Service of the Claim form: the rules are strict, know their details, and never leave service to the last minute again! Also, if an application fails for strike-out goes against you, even when it is only decided paper, it is normally incorrect to ask the same judge to reconsider it; County Courts which have been permitting that to happen will have to change their practice. Nutifafa Kuenyehia & Ors. v. International Hospitals Group Ltd [2006] EWCA Civ 21, and Collier v Williams & 3 other appeals [2006] EWCA Civ 20 (written Jan. 2006).

A question of when knowledge accrued for purposes of Limitation Act 1980 s. 14 Haward & ors v. Fawcetts.& ors [2006] UKHL 9 (written Mar. 2006).

If you have a court-door settlement, and if costs are the only stumbling block, can the parties agree to leave the question of costs alone to the judge? And if they do, how should the judge decide? Promar International Limited v. Philip Clarke [2006] EWCA Civ 332 (written Apr. 2006).

The judgment on indemnity costs in the BCCI v Bank of England case will stimulate the profession, and perhaps the judiciary, to reflect on the ways in which the courts can regulate the conduct of litigation. Three Rivers District Council v. The Governor and Company of the Bank of England [2006] EWHC 816 (Comm) (written Apr. 2006).

The question of limitation in tort claims for sex abuse: A v Iorworth Hoare [2006] EWCA Civ 395 (this case is on extending time in assault cases; on PI claims for child abuse see Young v Catholic Care [2006] EWCA Civ 1534; article written May 2006. Both articles went out of date following A v Hoare [2008] UKHL 6, which overruled previous HL authority, so that now claims for deliberate injury to the person are to be treated under the sections of the Limiation Act 1980 relating to personal injury, not those relating to tort in general).

Limitation in Economic Fraud: Where negligence has caused a contingent loss – i.e. the possibility of damage – does the cause of action accrue when the contingent loss is incurred, or only when the contingency, the possibility, becomes a reality? Law Society v Sephton & Co. (a firm) & Ors [2006] UKHL 22 (written May 2006).

A Group Litigation Order was refused because partly on the ground that the costs in the case were already disproportionate high, and some alternative to litigation should have been tried: Hobbs & Ors v. Ashton Morton Slack Solicitors & Ors. [2006]EWHC 1134 (QB) (written Jun. 2006).

The High Court can refuse to follow precedent on human rights grounds: C plc v P [2006] EWHC 1226 (Ch) (written Jun. 2006).

A third  party served with a freezing order owes no duty of care to the beneficiary of that order to comply with it: Her Majesty's Commissioners of Customs and Excise v Barclays Bank Plc [2006] UKHL 28 (written Jul. 2006).

Analysing the scope of the 'Without Prejudice' rule: Bradford & Bingley Plc v Rashid [2006] UKHL 37 (written Jul. 2006).

Paul MaKenna wins a libel claim over the allegation that a doctorate, awared based largely on life experience by a college run by a fraudster, was bogus: McKenna v MGN Ltd [2006] EWHC 1996 (QB) (written Jul. 2006).

A Canadian case on what happens where there are errors in separating out privileged material from evidence siezed in a serach order: Canada Bearings Ltd. v. Celanese Canada Inc. 2006 SCC 36 (written Aug. 2006).

Estranged fathers in the family courts and the Court of Appeal: transparency, a fair hearing,  B (A child) and O (Children) [2006] EWCA Civ 1199; and the rules on Mackenzie friends In the matter of the children of Mr O'Connell, Mr Whelan and Mr Watson [2005] EWCA Civ 759 (written Sep. 2006).

The Employment Appeal Tribunal have created a new public policy ground for excluding evidence in Amwell View School v Dogherty [2006] UKEAT 0243_06_1509 (written Sep. 2006).

Reynolds privilege, protecting responsible journalism from defamation suits, have been interpreted far too narrowly by the lower courts, according a unanimous House of Lords: Jameel v Wall Street Journal [2006] UKHL 44 (written Oct. 2006).