WITNESS STATEMENTS & DISCLOSURE: OMISSIONS MEAN THAT CASE FAILS AT SECOND HURDLE AND HAS TO GO BACK TO THE START
S When a proponent of proportionate litigation, such as Jackson L.J., orders a retrial in a case where the judgment was for £4,449 the case merits examination. In Knowles -v- Watson [2016] EWCA Civ 1122 a re-trial was ordered because…
PROPORTIONATE COST ORDERS WHEN COSTS ARE £8 MILLION AND £10 MILLION APIECE: HIGH COURT DECISION
We have already looked at the decision in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496 (TCC) in relation to the question of proportionality. However the judgment contains much more of interest in relation to costs. It provides an…
PROPORTIONALITY DOES NOT AFFECT A PROPORTIONATE COSTS ORDER: HIGH COURT DECISION
There are many aspects of the judgment in Amey LG Limited -v- Cumbria County Council [2016] EWHC 2496 (TCC) that are of interest to readers of this blog. Here I want to explore the judgment in relation to proportionality. “The…
THIRD PARTY FUNDING: YOU WANT THE PROFITS YOU TAKE THE RISKS: EXCALIBUR IN THE COURT OF APPEAL
In Excalibur Ventures LLC -v- Texas Keystone LLC [2016] EWCA Civ 1144 the Court of Appeal confirmed that commercial funders are liable to indemnify on the indemnity costs basis. “I can see no principled basis upon which the funder can…
THE DANGER OF NOT REPLYING TO CORRESPONDENCE: COSTS AWARDED AGAINST DEFENDANTS (& THE NEED FOR CO-OPERATION WHEN INSTRUCTING EXPERTS)
The judgement of Chief Master Marsh in UPL Europe Limited -v- Agchemaccess Chemicals Limted [2016] EWHC 2898 (Ch) provides an object lesson in the dangers of failing to reply to correspondence. The judgment also contains important observations about need for…
PROVING THINGS 38: PROVING INABILITY TO PAY ON A SECURITY FOR COSTS APPLICATION
A party opposing an application for security costs sometimes has to argue that the ordering of security would “stifle” a genuine claim. This means giving evidence as to that party’s inability to pay. This test was considered by Mr Richard…
WITNESS STATEMENT OF OPINION IS OF NO ASSISTANCE AND WAS NOT ADMITTED
There is a telling passage in the judgment of Richard Salter QC in St Vincent European General Partner Ltd -v- Robinson [2016] EWHC 2920 (Comm). A statement of bare opinion, with nothing to support it, was not admitted in evidence….
QADER 2: REMAINING PROBLEMS AND ISSUES: THE CONTINUING DEBATE
The post yesterday on the Qader decision has led to a large number of comments. These are easy to overlook. I have placed the comments here since these outline the issues that remain unresolved. I have added some sub-headings, but…
IF ONLY SOMEONE WOULD WRITE A BOOK ON EXPERTS…
There have been many occasions on this blog where I have commented on expert evidence. The links below show many cases where experts have caused major problems (usually for the party instructing them). There are numerous reports of cases where…
PROVING THINGS 37: ROBIN HOOD RIDES AGAIN: AN APPROACH TO DAMAGES THAT WAS "FUNDAMENTALLY DEFICIENT THROUGHOUT"
I have written before about the decision in relation to the the decision in the liquidation in the Robin Hood Centre. In the judgment at first instance the Registrar held that the claim against former directors had been vastly over-stated…
QADER IN THE COURT OF APPEAL: FIXED COSTS NO LONGER APPLY TO ACTIONS ALLOCATED TO THE MULTI TRACK
Perhaps the most surprising thing about the decision of the Court of Appeal in Qadar -v- Esure [2016] EWCA Civ 1109 is the route that had to be taken to get to the result. The Court of Appeal added, to…
TALES FROM COSTS LAW CONFERENCE IV: PROPORTIONALITY – A LITIGATOR'S SURVIVAL GUIDE V
The issue of proportionality raised its head more than once at the recent ACL conference. However I addressed the issue directly (or perhaps obliquely). My central argument being that proportionality requires a fundamentally different approach to litigation. Further there is…
TALES FROM COSTS LAW CONFERENCE III: SATELLITE NAVIGATION, MERRIX AND COSTS BUDGETING
One issue discussed at the Association of Costs Lawyers in Manchester on the 24th October was the decision in Merrix -v- Heart of England NHS Foundation Trust [2016] EWHC B28 (QB). The question of whether a detailed assessment is needed…
LEGAL REPRESENTATIVE SIGNING THE DISCLOSURE STATEMENT II: SEE WHAT THE COMMERCIAL COURTS GUIDE SAYS: BUT…
The post on legal representatives signing the disclosure statement written earlier in the week had a lot of response. My attention has been drawn to the Admiralty & Commercial Courts Guide which suggests (in certain undefined circumstances) a legal representative…
SERVING WITNESS STATEMENTS LATE: THERE IS NO CLEARWAY BACK
In Clearway Drainage Systems Ltd -v- Miles Smith Ltd (08/11/2016) the Court of Appeal upheld a decision not to grant the claimant relief from sanctions when witness statements were served late. Here we look at the first instance decision in…
PART 36: OFFER DID NOT COVER COSTS OF ADJUDICATIONS
In Wes Futures Limited -v- Allen Wilson Construction Limited [2016] EWHC 2863 (TCC) Mr Justice Coulson considered the terms of an offer from the claimant that the Defendant accepted 10 months afterwards. Curiously it was the claimant that was arguing…
SOLICITOR SIGNING THE STATEMENT OF TRUTH IN A DISCLOSURE STATEMENT: NOT PERMISSIBLE AND NOT ADVISABLE
There has been a lot of discussion on Twitter recently in relation to a search term that arrived on this blog “solicitor signing disclosure statement”. So many people contributed to that discussion that I cannot thank them all. However it…
A DISPOSAL IS A "TRIAL": COURT OF APPEAL DECISION TODAY
Several people have kindly sent me details of the Court of Appeal decision in Bird -v- Acorn Group Limited [2016] EWCA Civ 1096. The Court considered whether a matter listed for a disposal under the EL/PL Protocol was a “trial”…
THE DANGERS OF RELYING ON EXPERT EVIDENCE: BEWARE YE THE PARTISAN EXPERT: "UNBALANCED AND HIGHLY MISLEADING"
Some types of litigation are heavily reliant upon expert evidence. Clinical negligence cases are often determined by the judge’s assessment of the experts involved. It is disturbing to see the matters raised in judgment today of His Honour Peter Hughes…
HOURLY RATES, SUCCESS FEES, RELIEF FROM SANCTIONS – ALL IN ONE CASE
There is a great deal of material covered in the judgment of Master Gordon-Saker in Various Claimants -v- MGN Limited [2016] EWHC B29 (Costs). THE CASE The court was determining various preliminary issues in relation to costs in the “phone…
ANOTHER EXAMPLE OF THE DIFFICULTY IN REVISING A BUDGET: AN ACUTE CHANGE OF CASE IS REQUIRED
I am grateful to Michael Davidson from Acumension who has sent me a copy of the judgment of District Judge Hovington in the case of Warner -v- The Pennine Acute Hospital NHS Trust (Manchester County Court 23rd September 2016) (available…
"SECOND HAND" SIGNATURES WILL NOT DO -"PRE-SIGNING" THE STATEMENT OF TRUTH? – NOT A GOOD IDEA
This blog has covered the importance of the statement of truth on many occasions. However the issues revealed in the Solicitors Disciplinary hearing in SRA -v- Jackson reveals a remarkably insouciant approach to the statement of truth. THE CASE The…
PROVING THINGS 36: CREDIBILITY & CONTEMPORANEOUS DOCUMENTS: WORKING WITH CHILDREN AND ANIMALS
One of my colleagues tweeted that the judgment in Harris -v-Miller [2016] EWHC 2438 (QB) was “short on the law and long on the facts”. This is a correct assessment. The case shows just how important the facts are in…
WHAT IS MEANT BY AN "INDEPENDENT" EXPERT? CASES ON EXPERTS THIS WEEK III
In Hopkinson -v- Hickton [2016] EWCA Civ 1057 the Court of Appeal considered what was meant by an “independent” expert. KEY POINTS The fact that a valuer, appointed to value a property by the parties under the terms of a…
THE INTERACTION BETWEEN LAWYER AND EXPERT: CASES ON EXPERTS THIS WEEK II
We have already looked at the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21 in relation to costs budgeting. Here I want to isolate one aspect of that budgeting exercise – in relation to…
EXPERT EVIDENCE NOT NECESSARY: CASES ON EXPERTS THIS WEEK 1
In Daniel Alfredo Condori Vilca -v- Xstrate Limited [2016] EWHC 2757 (QB) Mr Justice Foskett refused an application to rely on an expert witness. The case was unusual, however the principles are universal. The questions were whether there was an…
COSTS IN A FAMILY CASE: £1.32 MILLION: WIFE PAYS 50% OF COSTS ON AN INDEMNITY BASIS
The family courts occasionally have to decide issues of costs. Often there is a “no costs” presumption. In AB -v- CD Limited [2016] ewhc 2482 (Fam)Mrs Justice Roberts determined the liability for costs in a case where that presumption did not…
THE PARTIES CANNOT CONTRACT OUT OF COSTS BUDGETING (& A LITTLE BIT ABOUT WITHOUT PREJUDICE CORRESPONDENCE)
An earlier post dealt with the decision of Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21. However an earlier ruling in the same case contains a consideration of whether the parties can agree to sidestep budgeting….
COSTS MANAGEMENT AND PROPORTIONALITY IN ACTION
Issues of costs budgeting and proportionality were considered by Mr Justice Roth in Agents’ Mutual Limited -v- Gascoigne Halman [2016] CAT 21. It provides an interesting example of the judicial approach to proportionality and costs budgeting. “Proportionality is fundamental to…
WITNESS CREDIBILITY, DELAY AND DENTON.
There is an interesting discussion of the credibility of witnesses in the judgment of Mr Registrar Briggs in Preston -v- Green (Liquidator of Cre8atsea Limited) [2016] EWHC 25222 (Ch). The Registrar also had to consider whether to exercise his discretion…
FUNDAMENTAL DISHONESTY FINDING SET ASIDE ON APPEAL
The judgment of His Honour Judge Hodge QC in Meadows -v- La Tasca Restaurants Limited [2016]EW Misc B28 (CC) (16 June 2016) is now available on Bailli. It contains some important observations about findings of fundamental dishonesty. “In my judgment,…
PROPORTIONALITY AND COSTS: A JUDGMENT ON APPEAL
In the judgment today in Tui UK Ltd -v- Tickell & Others [2016] EWHC 2741 (QB) Mrs Justice Elisabeth Laing DBE (sitting with Master Leonard as an assessor) dismissed an appeal by the defendants on an argument that the costs…
"DID NOT PRETEND TO UNDERSTAND THINGS ATTRIBUTED TO HER IN HER WITNESS STATEMENT…"
There are several high profile cases in which judges have expressed scepticism (sometimes profound scepticism) about whether a witness statement really reflects the knowledge of a witness. A short, but telling, passage in the judgment of Mr Justice Mitting in…
TALES FROM COSTS LAW CONFERENCE II: THE RISE OF SOLICITOR AND OWN CLIENT COSTS DISPUTES
One of the predictions made by several speakers at the Association of Costs Lawyers conference last week was the likelihood of a rise in the number of solicitor and own client disputes in relation to costs. Clients are now paying…
COSTS BUDGETING: PILOT SCHEME IN THE CHANCERY DIVISION IN LEEDS
Leeds District Registry has a pilot scheme in relation to costs budgeting. It enables the parties to agree to limit the extent of costs budgeting. The parties can, by agreement, file a simple costs budget with the Directions Questionnaire. If…
ANOTHER EXPERT WITNESS GOES AWRY: PATENTLY A PROBLEM
It is easy for the non-technical reader to pass over judgments relating to patents. These often involve highly technical issues. However there is one aspect of the judgment in Thoratec Europe Limited -v- AIS GMBH Aachen Innovative Solutions [2016] EWHC…
COSTS BUDGETING: IT'S JUST A PHASE I'M GOING THROUGH
One advantage of going to conferences is that it usually gives rise to ideas for the blog. So speaking at the Association of Costs Lawyers conference yesterday has given rise to a whole host of issues which will be explored…
EVIDENCE, RETAINERS, ATTENDANCE NOTES AND WITNESS CREDIBILITY
There have been a number of recent cases where disgruntled clients have attempted to sue their lawyers. The judgments highlight the difficulties for trial judges who have to assess evidence after some lapse of time. They also highlight the importance…
PART 36 OFFERS AND COSTS: COSTS NOT TAKEN INTO ACCOUNT WHEN CONSIDERING WHETHER AN OFFER HAS BEEN "BEATEN"
In Transocean Drilling UK Ltd -v- Providence Resources PLC [2016] EWHC 2611 (Comm) Mr Justice Popplewell considered the impact of a Part 36 offer in unusual circumstances. These circumstances led the court to consider whether the impact of costs should…
HIGH COURT OVERTURNS DECISION TO GRANT RELIEF FROM SANCTIONS: NON-COMPLIANCE CANNOT AMOUNT TO "GOOD REASON"
In Pittville Ltd -v- Hunters & Frankau Limited [2016] EWHC 2683 Mr Justice Snowden overturned the decision of a Deputy Master granting relief from sanctions. The judgment contains an important consideration of the question of “good reasons” for…
WHEN SHOULD A WINNING PARTY PAY THE COSTS OF THE OTHER SIDE?
In Hospira UK Limited -v- Cubist Pharmaceuticals LLC [2016] EWHC 2661 Pat Mr Justice Henry Carr considered the question of when an “issue based” costs order should be made. “In my view, this apparent dichotomy may be resolved by a…
REASONABLENESS AND PROPORTIONALITY: A DIRECT IMPACT UPON LITIGATION DECISIONS
I have been writing for some time about the impact of “proportionality” upon the practice of litigation itself. One example of this can be found in the judgment of Master James in Briggs & 598 others -v- First Choice Holidays…
WHEN IS EXPERT EVIDENCE ADMISSIBLE: A MASTERLY EXPOSITION
The judgment of Master Matthews in Darby Properties Ltd -v- Lloyds Bank Plc [2016] 2494 (Ch) contains an important consideration of the rules relating to the admissibility of expert evidence. In particular when is expert evidence “necessary”? “… although I…
SURVEILLANCE EVIDENCE A BREACH OF ARTICLE 8 RIGHTS: ECHR DECISION
In Vukota-Bojic -v- Switzerland the European Court held that the surveillance of an insurance claimant represented a breach of Article 8 rights (but use of that evidence at a hearing was not a breach of Article 6 rights). It could…
NO RELIEF FROM SANCTIONS WHEN COSTS BUDGET FILED LATE: THE DECISION IN DETAIL
We have looked, briefly, at the Court of Appeal decision in Jamadar -v- Bradford Teaching Hospitals NHS Trust [2016] EWCA Civ 1001. I am grateful to Aaron Vodden of Hempsons for sending me a copy of the transcript which…
PAYING THE CORRECT COURT FEE AND LIMITATION: HIGH COURT DECISION CONSIDERING THE RELEVANT PRINCIPLES
One decision that has led to interlocutory skirmishing and opportunistic applications is Lewis v Ward Hadaway [2016] 4 WLR 6, [2015] EWHC 3503 (Ch) and the consequences of failing to pay the correct court fee on issue. This has left many…
PROVING THINGS 35: RECONSTRUCTION, DOCUMENTS AND MEMORY
Most law reports will look at the findings of law made in a judgment. In this blog we are interested in findings of fact and the way in which a judge goes about making those findings. A good example can…
PROVING THINGS 34 : THERE IS NO PRIMER FOR SCUTTLERS: WHEN YOUR SHIP DOESN'T COME IN
We have looked at many different types of case during this series. However this is the first time we have looked at an Admiralty case and at case about the “scuttling” of a ship. The judgment of Mr Justice…
LATE ACCEPTANCE OF CLAIMANT'S PART 36 OFFERS: TWO CONTRASTING CASES & THE GREAT DEBATE
There is an ongoing debate about whether the Defendant should, or does, face any adverse consequences when a Claimant’s Part 36 offer is accepted late. I had a recent email from solicitor John McQuater of Atherton Godfrey. Here I…
A JUDGMENT ON THE RELATIONSHIP BETWEEN COSTS BUDGETING AND THE ASSESSMENT OF COSTS: MAPPING & SURVEYING THE TERRAIN
In a judgment given today in Merrix -v-Heart of England NHS Foundation Trust Regional Costs Judge District Judge Lumb (sitting in Birmingham) considered the extent to which the costs budgeting regime fettered the powers and discretion of the costs judge…
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