ANOTHER INTERESTING DISCUSSION (ABOUT INTEREST…): THE STARTING POINT IS THAT THE CLAIMANT IS ENTITLED TO BE COMPENSATED FOR BEING OUT OF ITS MONEY (NO MATTER WHAT IT WOULD HAVE DONE WITH IT…)
Here is a relatively short judgment on an important point – if the purpose of interest is compensatory what is the position if a claimant would never have earned interest on the money in any event? As we shall see…
WHEN A COURT MAY MAKE NO ORDER FOR COSTS: THE FACTORS CONSIDERED: 12 KEY POINTS AND A USEFUL CHECKLIST FOR PRACTITIONERS
Some posts earlier this week concentrated on a case where the judge made no order for costs. This is an unusual outcome, but still one that has to be considered and the client warned about. Here we take a…
COST BITES 437: SHOULD THE DEFENDANT’S CONDUCT OF THE ACTION LEAD TO INDEMNITY COSTS BEING AWARDED? YES IT SHOULD…
In this case the judge decided that the defendant’s conduct of the litigation warranted an award of indemnity costs being made. There is an interesting consideration of the case law relating to when costs will be reduced because of lack…
INTEREST ON DAMAGES: (1) GENERALLY; (2) AFTER THE DEFENDANT FAILS TO BEAT A PART 36 OFFER: THERE IS NO NEED TO FIND DISHONESTY OR SERIOUS CONDUCT TO AWARD ENHANCED INTEREST
There are two issues of interest in this case. Firstly the judge’s decision on the appropriate rate for interest on damages generally. Secondly the judge’s observations that there is no need for the court to find misconduct to award enhanced…
WITNESS EVIDENCE WEDNESDAY: RED FLAGS AND WITNESS STATEMENTS (1): THE WITNESS THAT GIVES THE COURT THEIR OPINION
We have below a series of posts about the dangers of putting “opinion” evidence into witness statements. It has been a constant theme on this site for, at least, 12 years. There is no sign of this abating. Attempts have…
A WIDOW CANNOT BRING AN ACTION UNDER THE FATAL ACCIDENTS ACT WHERE HER HUSBAND SETTLED THE PERSONAL INJURY ACTION AGAINST A CONCURRENT TORTFEASOR IN HIS LIFETIME
This case emphasises a long existing principle that a second action cannot be brought if a claimant, now deceased, has settled proceedings in their lifetime. This principle extends to concurrent tortfeasors. There are also important observations outside the realm of…
COST BITES 436: THE DEFENDANT FAILED TO BEAT THE CLAIMANT’S PART 36 OFFER: WAS IT UNJUST FOR THE USUAL CONSEQUENCES TO APPLY? THE IMPORTANCE OF INTEREST
Here we look at a judgment where the court considered an argument that the claimant had not beaten its own Part 36 offer. The judge held that the defendant’s argument fell at the first post because it failed to take…
COST BITES 435: ANOTHER APPLICATION TO REVISE A COSTS BUDGET (DURING A TRIAL): WITH A DIFFERENT RESULT: SOME INTERESTING COMMENTS ON CONDUCT ALONG THE WAY…
We have had a number of cases relating to amending costs budgets recently. This one has a different result. The need to revise the budget arose from the judge’s decision that there should be a separate hearing on damages. This,…
MEMBER NEWS: HOW TO UPDATE YOUR CARD DETAILS TO MAKE SURE YOUR SUBSCRIPTION STAYS LIVE: FOUR SIMPLE STEPS IF YOU FIND THAT YOU CAN’T GET ONTO THE SITE
I have had a number of enquiries asking how to update card details when a card has expired. I have outlined the four steps that need to be taken below. THE METHOD Log in to My Account on CLB….
BACK TO BASICS MONDAY: LITIGATORS HAVE TO WARN THEIR CLIENTS THAT SOMETIMES A COURT MAKES NO ORDER FOR COSTS AT ALL: THE PERILS IF YOU DON’T
This post obviously follows on from the post earlier today where the judge made no award for costs after a trial. Neither side had “won” and, in any event, the amount spent in pursuit of the claim was disproportional. This…
COST BITES 434 : JUDGE REFUSES TO INCREASE CLAIMANT’S BUDGET AFTER TRIAL, EVEN THOUGH IT WAS NOT OPPOSED BY THE DEFENDANT: A PARTY MADE NO ATTEMPT TO EXPLAIN WHY IT NEEDED TO SPEND THE PRICE OF THE AVERAGE UK HOUSE ON ADDITIONAL DISCLOSURE
We are looking at another attempt to vary a costs budget. In this case the attempt was made after the trial and after judgment. Both parties, initially, sought large variations. Only the claimant proceeded with the application in relation to…
COST BITES 435: £4 MILLION SPENT IN COSTS AND NEITHER PARTY WILL RECOVER A PENNY FROM THE OTHER: A “PYRHHIC” VICTORY LEADS TO NO ORDER FOR COSTS…
This is case that should be considered by every litigator, and litigant. It involves legal expenditure on a major scale, with very little benefit to the parties at the end. The final result is unlikely to please either of the…
GIVING AN UNDERTAKING AS TO DAMAGES WHEN OBTAINING AN INJUNCTION: REMEMBER IT CAN COME BACK TO BITE (AND SOMETIMES BITE HARD…)
When a party obtains an injunction they, usually, have to give an undertaking as to damages. There are now a number of cases where litigants have been found liable to pay damages as a result of that undertaking. We have…
CAN DELAY IN APPLYING TO STRIKE OUT AN ACTION FOR ABUSE OF PROCESS BE AN ABUSE OF PROCESS IN ITSELF? THE DANGERS OF LETTING TIME GO BY
Here we have a case where it was argued that the defendant’s delay in bringing an application to strike out for abuse of process was an abuse of process in itself. The case points to authorities that “acquiescing” in an…
THROWBACK FRIDAY: SIMILAR FACT EVIDENCE IN CIVIL CASES: AN OVERVIEW AND THE RELEVANT GUIDANCE CONSIDERED (AUGUST 2020)
Man of the posts in August 2020 concerned the impact of Covid. This post is the exception. It arose out of a Court of Appeal decision that month that reviewed the principles relating to similar fact evidence in civil cases….
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
ATTEMPTS TO “REVISIT” THE PRELIMINARY ISSUES REFUSED: ALSO THE JUDGE WOULD HAVE PREFERRED TO SEE WITNESS STATEMENTS NOT JUST DOCUMENTS…
This is another case where a party attempts to “revisit” preliminary issues/a statement of issues that have been agreed and approved by the court. That application did not get very far. Further the judge observed that, although the parties were…
ADVOCACY THE JUDGE’S VIEW A RECAP OF THE SERIES 3: “THERE IS A SPECIAL RING IN HELL FOR A CERTAIN TYPE OF ADVOCATE”: WHY ALL LITIGATORS SHOULD KNOW THESE THINGS…
Back in the dim and distant days of 2018 this site ran its third series on “Advocacy: the Judge’s View”. A new series will start shortly. However before that we are “recapping” on the guidance given in the four previous…
WITNESS EVIDENCE WEDNESDAY: THE PAUCITY OF EVIDENCE PROVIDED BY THE DEFENDANTS: AN APPLICATION FOR SUMMARY JUDGMENT CANNOT BE DEFENDED BY “BARE ASSERTION”
The need to provide evidence and not simply make bare assertions is as important in applications as at trial. Here we see a case where the claimant obtained summary judgment in the face of a “paucity of evidence” from the…
COST BITES 433: WHAT ARE “SIGNIFICANT DEVELOPMENTS” WHEN YOU WANT TO VARY A COSTS BUDGET? WHY THERE WERE NO SUCH DEVELOPMENTS HERE
We are continuing our consideration at the appeal case where the defendant’s appeal against a decision to vary the claimant’s budget. The first reason the appeal was successful was because the first instance judge found that there were no “significant…
COST BITES 432: THE COURT CANNOT ALTER THE COSTS BUDGET UNLESS THERE ARE “SIGNIFICANT DEVELOPMENTS” : HIGH COURT DECISION
This case reiterates the essential point that the court has no freestanding discretion to vary a costs budget. An essential prerequisite of variation is that there must be a “significant development” that warrants a variation. There was no such development…
COST BITES 431: A CASE WHERE BOTH SIDES NEEDED RELIEF FROM SANCTIONS SO THAT THEY COULD ARGUE ISSUES OF COSTS: THE PROBLEMS FLOCK TOGETHER…
Here we look at a case where both parties required an extension of time in order to raise very significant arguments in relation to costs. The claimant had been late in filing essential documents for his own costs protection, the…
SERVICE POINTS 53: HOW DOES THE COURT PROTECT THE POSITION OF A PARTY WHO WANTS TO APPEAL DECISION IN RELATION TO JURISDICTION BUT RISKS “ACCEPTING” JURISDICTION IN THE MEANTIME? A PUZZLE SOLVED BY THE COURT OF APPEAL
This judgment highlights the risk that a party who wishes to dispute jurisdiction can accidentally accept it. What, if any, steps should the courts take to protect an appellant in these circumstances. The litigant may wish to appeal to a…
SHOULD AN ASSESSMENT OF DAMAGES GO AHEAD PENDING AN APPEAL? £8 MILLION COSTS COULD HELP AVOID £45 MILLION: THE TRIAL COULD MATERIALLY ADVANCE THE LITIGATION AND NARROW FUTURE DISPUTES
Here the court considered whether an assessment of damages should be stayed pending the claimants’ application for permission to appeal. This raised issues in relation to costs management and proportionality. The judge engaged in an exercise of looking at the…
FAILING TO GIVE THE SOURCE OF INFORMATION AND BELIEF IN A WITNESS STATEMENT: THE JUDGE MAY THINK THAT THERE IS SOMETHING FISHY GOING ON HERE…
There is, it appears, no end to the number of cases in which non-compliant witness statements are served. We have another example here. One major issue relates to the failure to give the source of information and belief for the…
CLAIMANT’S SUCCESSFUL APPEAL AGAINST THE STRIKING OUT OF A CASE BECAUSE A WITNESS STATEMENT HAD NOT BEEN PROVIDED: THE SMALL CLAIMS PROTOCOL IS (VERY) DIFFERENT…
I am grateful to barrister Simon Murray for sending me a copy of this decision that deals with some important procedural issues on the Small Claims Track. In particular it highlights the fact that witness statements are not mandatory on…
COST BITES 430 : THE ARMED FORCES HEARING LOSS LITIGATION? WHO WON AND WHO SHOULD PAY THE COSTS?
The issue of “who won” in litigation is usually a relatively easy one. Here we have a judgment in a complex series of test cases where the parties disagreed who had been successful. There was a major difference in views….
BACK TO BASICS MONDAY: THE 70 KEY POINTS OF THE DENTON JUDGMENT: REVISITING THE BASICS AFTER TWELVE YEARS…
It is now twelve years since the judgment in Denton -v- White [2014] EWCA Civ 906. However it is still a judgment that appears regularly in the reports (we will be looking at such a case this week). Over the years…
COST BITES 429: A REMINDER THAT A CLAIMANT IS STILL LIABLE TO PAY COSTS EVEN IF PROCEEDINGS ARE NEVER SERVED: SOMETHING ABOUT PRE-ACTION CONDUCT TOO…
This judgment illustrates two important things. Firstly that a claimant’s liability to pay costs starts upon issue and remains even if proceedings are never served. Secondly that pre-action conduct can have an impact on the decision that a judge makes…
SETTING ASIDE A JUDGMENT OBTAINED BY FRAUD: WHAT IF ONE OF THE PARTIES WAS INNOCENT? COURT OF APPEAL CONSIDERS THE ISSUE: SOMETHING ABOUT LACHES TOO…
Setting aside a judgment obtained by fraud is very different to other applications to set aside. It requires a separate action and there is a high burden of proof. However what should happen if one of the parties to the…
ENFORCEMENT BULLETIN 5: AN APPLICATION FOR RECOVERY OF MONEY PAID TO ENFORCEMENT AGENT DISMISSED: IT WAS TOO LATE AND MISCONCEIVED IN ANY EVENT
There are several issues in the case of general importance, particularly for those seeking to challenge Enforcement Agents. Firstly as to the strict timetable involved; secondly as to what constitutes “controlled goods” and finally as to the appropriate means for…
A MYRIAD OF PROCEDURAL ISSUES A BANKRUPT CLAIMANT; AN APPLICATION TO RESILE FROM AN ADMISSION AND AN ATTEMPT TO STRIKE OUT A COUNTERCLAIM FOR “WAREHOUSING”
This is a case that bristles with procedural issues. Firstly as to what happens when a claimant, involved in a partnership with others, goes bankrupt. Secondly whether that litigant could withdraw an admission that he had not status. Thirdly whether…
THROWBACK FRIDAY: THE DUTY TO PUT YOUR CASE: FINDINGS MADE ON KEY POINTS THAT WERE NOT PUT TO THE WITNESS OVERTURNED ON APPEAL (AUGUST 2017)
This week we look at an important decision of the Judicial Committee of the Privy Council from 2017. It is a reminder of the need for a party to put their case to the other side’s witnesses at trial. Here…
THE CURRENT IMPORTANCE OF PLEADINGS 88: ANOTHER CASE STRUCK OUT BECAUSE OF INADEQUATE PLEADINGS: “THE DEFENDANTS ARE ENTITLED TO KNOW THE CASE AGAINST THEM…”
I am always wary of being repetitive yet here we have our second case today of a claimant being struck out because of inadequate pleadings. This repetition is simply a reflection of the cases that are going through the courts….
THE CURRENT IMPORTANCE OF PLEADINGS 87: A CLAIM CAN BE STRUCK OUT ON AN ANALYSIS OF THE PLEADED CASE
This judgment confirms a decision to strike out a case on the basis of inadequate pleadings. It emphasises the fact that there is no need to wait for a defence to be filed before such an application is heard. It…
EXPERT WATCH 64: LOOKING AT THE CONSEQUENCES OF AN EXPERT REPORTING BADLY
Here we are looking at the consequences of an expert reporting badly. So badly that the parties agreed that a judgment based on the expert’s report must be set aside. The judge held, however, that earlier orders that prevented…
COST BITES 428 : IF THERE IS NO CHARGING CLAUSE IN THE WILL CAN THE SOLICITOR GET PAID?
Here we look (not for the first time) at a case where there was no charging clause in a will and a solicitor executor charged for their services. The solicitor attempted to rely on the circumstances in which the will…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
COURT REFUSES PERMISSION TO CHANGE NAME OF THE CLAIMANT AFTER THE EXPIRY OF THE LIMITATION PERIOD: THE DANGERS OF LEAVING THINGS LATE
Many of the “problem” cases we look at on this blog have similar themes. Leaving the issue of proceedings until the last possible moment and then compounding that by leaving service until the last minute. This case has an additional…
THIS CASE SHOULD BE HEARD IN MANCHESTER: ANOTHER ADMINISTRATIVE COURT CASE TRANSFERRED AWAY FROM LONDON
We have looked many times at judgments where the courts have determined that regional centres are the appropriate venue for certain cases. We have another example here. The claimant wanted the matter heard in London. The court directed it be…
A QUICK REMINDER OF THE CLB WEBINARS NOW AVAILABLE “ON DEMAND”: ALSO (AND UNRELATED) SAYING AU REVOIR TO THE LITTLE WHITE DOG
There are a number of CLB webinars that are available “on demand”. There is a reduction for CLB members. This is also an opportune time to say au revoir to the little white dog that has been gracing the pages…
SERVICE POINTS 52: $28 MILLION CLAIM LOST BECAUSE OF A FAILURE TO SERVE A CLAIM FORM PROPERLY (THESE CAN BE EXPENSIVE MISTAKES…)
This is a case ostensibly about limitation. However the central point for most litigators is that, in reality, it is about a failure to serve a claim form properly. The first claim was issued within the limitation period (following a…
“GRASPING THE NETTLE”: “THERE HAS BEEN ENOUGH DELAY” IN THIS APPEAL: COURT CUTS THROUGH ISSUES AND REQUIRES APPELLANT TO MAKE AN ELECTION AS TO WHETHER HE REQUIRES AN ORAL HEARING
In this case an order for possession was obtained because of arrears of rent. The tenant appellant appealed. The arrears stand at £73,000 and there was a risk of further delay. The judge “grasped the nettle” in making the appellant…
A PARTY CANNOT ADVANCE ONE CASE IN ONE SET OF PROCEEDINGS AND THE OPPOSITE CASE IN ANOTHER: ESTOPPEL BY CONDUCT LEADS TO A COUNTERCLAIM BEING STRUCK OUT: COURT OF APPEAL DECISION
Here we have a case where the Court of Appeal struck out a counterclaim. The defendant had argued one set of facts in Employment Tribunal proceedings and sought to argue a totally different version. The Court was not best pleased…
COST BITES 426: COURT OF APPEAL OVERTURNS DECISION THAT A CLAIMANT IN THE SMALL CLAIMS TRACK SHOULD PAY COSTS AFTER DISCONTINUING: “THE SMALL CLAIMS TRACK IS DESIGNED TO BE DIFFERENT”
This case gives a clear message from the Court of Appeal about the critical importance of the “costs neutral” status of the Small Claims Track. The judgment makes it clear that the starting point is that costs are not recoverable…
COST BITES 425: THE EAT OVERTURNS AN ORDER “ASSESSING” COSTS: THE ET APPLIED THE WRONG TEST IN RELATION TO THE CLAIANT’S MEANS, AND THEN FAILED TO SHOW IT HAD ASSESSED THE COSTS SCHEDULE AT ALL..
Here we are (unusually) looking at a decision of the Employment Appeal Tribunal. The case is unusual because the EAT overturned an order as to costs that had been made by the Employment Tribunal. One of the grounds may be…
SHOULD UNDUE DELAY AND “GROVIT” ABUSE LEAD TO AN ACTION BEING STRUCK OUT UNLESS THERE ARE COMPELLING REASONS NO TO DO SO? THE COURT OF APPEAL CONSIDER THE ISSUES
This is an important decision by the Court of Appeal on how the court should respond to an abuse of process caused by delay. The answer is that this kind of abuse is treated similarly to other types of abuse….
BACK TO BASICS MONDAY: WHAT DOCUMENTS NEED TO BE IN AN APPEAL BUNDLE? A JUDGMENT ON THAT VERY POINT:”DOCUMENTS GENUINELY REQUIRED FOR DETERMINATION OF THE APPEAL”
Over the years we have seen many dozens of cases where judges have been critical of the contents of bundles. I cannot recall a case where a judge has determined the contents in advance. We now have an example here. …
ATTEMPTING TO RE-WRITE A DRAFT JUDGMENT: THIS HARDLY EVER (IF EVER) PERSUADES A JUDGE THAT THEY WERE WRONG
The practice of sending out draft judgments in advance is undoubtedly helpful. It does, however, lead to some procedural difficulties in itself. We have seen numerous examples of the draft embargo on a judgment being breached. It is sometimes seen…
ARTIFICIAL INTELLIGENCE IN COURT: AN INTERESTING PRACTICE DIRECTION FROM THE HIGH COURT IN IRELAND : GOOD ADVICE FOR US ALL
In England and Wales we are still considering appropriate guidance for the use of Artificial Intelligence in the courts. The High Court in Ireland has issued a specific Practice Direction on the use of Generative AI in Court Documents. It…
You must be logged in to post a comment.