MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
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…
COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
The judgment of Mr Justice Murray in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…
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)…
COST BITES 46: NON PARTY COSTS ORDER MADE AGAINST DIRECTOR OF INSOLVENT COMPANY
In Asprey Capital Ltd v Rediresi Ltd & Anor (Re Non-Party Costs Order) [2023] EWHC 28 (Comm) Patricia Robertson KC (sitting as a Deputy High Court Judge) made a non-party costs order against a director of the defendant company. THE…
FIRST POST ON PART 36 IN 2023: IT WAS NOT UNJUST FOR THE DEFENDANTS TO BEAR THE NORMAL CONSEQUENCES OF FAILING TO BEAT CLAIMANTS’ PART 36 OFFER
In Von Westenholz & Ors v Gregson & Anor [2022] EWHC 3374 (Ch) Robin Vox, sitting as a Deputy High Court Judge, found that it was not unjust for the defendants to face the normal consequences of failing to beat…
2022 IN REVIEW (IV): CASE OF THE YEAR: PART 36 OFFERS AND MISTAKES
Choosing a case of the year is never easy. There are many significant judgments throughout a year all of which have an impact on civil procedure. However this year I am returning to a decision in January. The decision of…
WHEN THE DEFENDANTS FAILED TO BEAT THE CLAIMANTS’ PART 36 OFFER, BUT MONEY IS NOT DUE IMMEDIATELY: WHAT ARE THE CONSEQUENCES?
We are looking again at the judgment of Mr Justice Hildyard in Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch). Having determined that a valid and effective Part 36 offer had been made by…
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…
AN ACTION ISSUED ON BEHALF OF AN ESTATE BY SOMEONE WITHOUT AUTHORITY AT THE TIME OF ISSUE IS “A DEAD THING INTO WHICH NO LIFE COULD BE INFUSED”
One search term that regularly leads people to this site is “can I issue on behalf of an estate when I don’t have letters of administration”. There are variations on this, but the central theme is always the same. The…
COST BITES 40: NO ONE GETS THE COSTS OF AN AMENDMENT (WHICH WERE FAR TOO HIGH ANYWAY)
In Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2022] CAT 52 the Competition Appeal Tribunal considered the principles relating to the costs of amendments to statements of case after a contested hearing. On the facts of this case…
IF YOU DON’T COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS YOUR CASE CAN (AND THIS CASE DID) GO DOWN THE DRAIN
In Brendon International Ltd v Water Plus Ltd & Anor [2022] EWHC 3321 (Ch)HHJ Cadwallader (sitting as a High Court Judge) found that numerous elements of the defendant’s witness statements were defective and non-compliant with the rules. The case is…
DEFENDANT’S APPLICATION TO VACATE TRIAL DATE, AND FOR A FOUR YEAR STAY, REFUSED: JUSTICE IS ACHIEVED BY THE TRIAL DATE BEING MET
In Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) Mr Justice Ritchie refused the defendant’s application for an adjournment of a trial date. The defendant argued that medical uncertainty meant that it was…
A DRAFT JUDGMENT IS NOT AN INVITATION FOR A SECOND BITE OF THE CHERRY: HIGH COURT JUDGMENT TODAY
In Shepherd & Co Solicitors v Brealey [2022] EWHC 3229 (KB) Mr Justice Cavanagh made some observations on the practice of making submissions once a judgment is sent out in draft. This was not an invitation to the parties to…
SHOULD AN ISSUE IN THE REPLY BE IN THE PARTICULARS OF CLAIM? A WORKING EXAMPLE
In Griffiths & Anor v Gilbert [2022] EWHC 3122 (TCC) HHJ Sarah Watson considered a pleading issue. Should a point made in a Reply have been pleaded in the Particulars of Claim. She held that, on the facts of that…
IF YOU DON’T SAY WHO YOU ARE THEN YOU CANNOT ARGUE POINTS AT A DETAILED ASSESSMENT OF COSTS
In Wright v Person Or Persons Unknown Responsible for the Operation and Publication of the Website bitcoin.org [2022] EWHC 2982 (SCCO) Costs Judge Rowley held that if a paying party wanted to take part in a detailed assessment of costs…
WHEN THE WORDING OF THE CLAIM FORM COMES UNDER CLOSE SCRUTINY: SOMETHING TO REMEMBER
The precise wording of the claim form came under close scrutiny in the judgment of Mr Justice Trower in Honda Group-UK Pension Scheme Trustee Ltd & Ors v Mercer Ltd & Anor [2022] EWHC 3197 (Ch). It is one of…
CLAIMANT’S LATE ACCEPTANCE OF A PART 36 OFFER DID NOT PERMIT DEFENDANT TO SET OFFCOSTS AGAINST DAMAGES: QOCS PRINCIPLES REIGN SUPREME
In Chappell v Mrozek [2022] EWHC 3147 (KB) Master Stevens rejected the defendant’s argument that the defendant’s entitlement to costs, arising from late acceptance of a Part 36 offer, could be enforced from the claimant’s damages. The judgment examines the…
WHEN COSTS INCURRED AT A CASE MANAGEMENT CONFERENCE ARE ORDERED AGAINST THE DEFENDANT: DON’T ALWAYS ASSUME IT WILL BE “COSTS IN THE CASE”
It may be imprudent to assume that arguments that take place at the case management stage will always be subject to an order for costs in the case. In University of Manchester v John McAslan & Partners Ltd & Anor…
APPLICATION FOR INDEMNITY COSTS CONSIDERED BUT NOT AWARDED: STILL A SIGNIFICANT LESSON FOR LITIGATORS (AND LITIGANTS) HERE
In Tejani v Fitzroy Place Residential Ltd & Ors (Re Costs and Interest) [2022] EWHC 3153 (TCC) Ms Vernonique Buehrlen K.C. (sitting as a High Court Judge) declined an application that an unsuccessful claimant pay the defendants’ costs on the…
COST BITES 37: DRAFTING THE SCHEDULE FOR SUMMARY ASSESSMENT: DEFECTS, DEFAULTS AND REMEDIES
The judgment of Tribunal Judge Amanda Brown KC in Harris v Revenue and Customs (COSTS – complex track application for idemnity costs on the basis of unreasonable behaviour – application in response to strike out for failure to meet terms…
APPLICATIONS TO AMEND PLEADINGS SHOULD NORMALLY BE SUPPORTED BY A DRAFT AND WITNESS EVIDENCE AS TO THE MERITS: A RIGHT ROYAL ISSUE
In Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria de Borbon y Borbon (Rev1) [2022] EWCA Civ 1595 the Court of Appeal set out the importance of having a draft pleading to hand when seeking permission to amend a statement…
PART 36 CONSIDERED IN DETAIL: PRE-ISSUE OFFER WAS VALID; EMAIL SERVICE DID NOT NUGATE THE OFFER: DEFENDANT TO BEAR (MOST OF) THE USUAL CONSEQUENCES
There are some interesting discussions and findings in relation to the rules relating to Part 36 offers in the judgment of Vernonique Buehrelen KC (sitting as a High Court Judge) in Coldunell Ltd v Hotel Management International Ltd [2022] EWHC…
YOU SHOULD REALLY NOTICE WHEN YOU HAVE FAILED TO COMPLY WITH A COURT ORDER AND REQUIRE RELIEF FROM SANCTIONS: “THE COURT’S PATIENCE WAS BEING SORELY TESTED”
A short part of the judgment of Master Stevens in Bailey v Bijlani & Anor [2022] EWHC 2821 (KB) records the fact that the applicant defendant required relief from sanctions, but was not proposing to ask for it. “… I…
RELIEF FROM SANCTIONS REFUSED: TRIAL BUNDLES, LATE WITNESS STATEMENTS AND LATE DISCLOSURE: CASES NEED TO BE PREPARED PROPERLY
I am grateful to my colleague Eleanor Temple for sending me a copy of the decision of HHJ-Davis-White KC in the case of Ball -v- Ball (11th October 2022), a copy of the judgment is available here Ball v Ball…
COST BITES 36: THE POINT OF A PAYMENT ON ACCOUNT IS TO REIMBURSE THE SUCCESSFUL PARTY IMMEDIATELY
In Tulip Trading Ltd v Ver [2022] EWHC 2970 (Ch) Mrs Justice Falk considered the factors involved when making an interim payment on account of costs. “The point of a payment on account is to provide the successful party with…
A PARTY CANNOT SIMPLY ADD A PENAL NOTICE TO A COURT ORDER: IF THE COURT DOESN’T ORDER IT THEN IT SHOULD NOT BE IN THE ORDER
In Taray Brokering Ltd, Re [2022] EWHC 2958 (Ch) HH Pearce held it was not open to a party to place a penal notice on a court order when the court itself had not placed such a notice on the…
HAVE THE DEFENDANTS’ SOLICITORS STATED THAT THEY WILL ACCEPT SERVICE? ANOTHER TRICKY CLAIM FORM ISSUE
In Motorola Solutions, Inc & Anor v Hytera Communications Corporation Ltd & Ors [2022] EWHC 2887 (Comm) Mr Justice Picken considered an issue relating to valid service. A firm of solicitors, that stated it would accept service of proceedings, argued…
COST (MEGA) BITES 35: THE DETAILED ASSESSMENT THAT LASTED 104 DAYS : COSTS JUDGE REFUSES TO VARY EARLIER DECISION
In Deutsche Bank AG v Sebastian Holdings Inc. & Anor [2022] EWHC 2920 (SCCO) Senior Costs Judge Gordon-Saker gave a judgment which finalised a detailed assessment that had lasted 104 days. The judge found that, prior to the assessment concluding, …
WHEN SHOULD COSTS BE SUMMARILY ASSESSED OR SUBJECT TO DETAILED ASSESSMENT? HIGH COURT CONSIDERS THE ISSUES
In Brake & Anor v Guy & Ors (Costs) [2022] EWHC 2907 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) considered an argument that the costs of an application should be subject to detailed assessment rather than summarily…
CIVIL PROCEDURE BACK TO BASICS 94: CLAIMANTS – DO NOT SHOW APPROVAL ADVICES TO THE DEFENDANT
An issue I have seen periodically, but twice this week, is a belief by some claimant solicitors that an advice obtained for the purpose of approval of a civil action for a protected party has to be shown 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…
DEFENDANT SOLICITOR IN COSTS ASSESSMENT NEED NOT RESPOND TO PART 18 REQUESTS ABOUT PREMIUMS: “THE GENERAL QUESTIONS POSED ARE A PARADIGM EXAMPLE OF A FISHING EXPEDITION”
I am grateful to Nick McDonell from Kain Knight for sending me a copy of the judgment of Costs Judge Rowley in Brown -v- JMW Solicitors LLP [2022] 2848 (SCCO). In that case the judge refused to make an order…
PROVING THINGS 242: A SOLICITOR’S SHORTHAND NOTE OF WHAT HAPPENED IN THE MAGISTRATES’ COURT IS NOT GOING TO CARRY ANY WEIGHT AT ALL
The judgment of Mr Justice Garnham in Correia v Williams [2022] EWHC 2824 (KB), was looked at yesterday on this blog. The judgment also contains an interesting approach to civil evidence at trial. The claimant’s solicitor prepared a witness statement annexing her…
COST BITES 34: INTERLOCUTORY COSTS ORDERS CAN BE MADE AGAINST PARTIES WITH THE PROTECTION OF QOCS (IT IS ENFORCEMENT THAT MAY BE AN ISSUE)
In Atmani & Ors v Royal Borough of Kensington & Chelsea & Ors [2022] EWHC 2618 (KB) Senior Master Fontaine considered the costs consequences of the decisions made in her judgment, considered in an earlier post. The Master held that…
JUDGMENT ON ADMISSIONS ONLY AVAILABLE WHERE LIABILITY TO PAY DAMAGES IS ADMITTED: INTERIM COSTS ORDERS REQUIRE SCHEDULES TO BE AT COURT: LESSONS FROM THE GRENFELL LITIGATION
In Abdel-Kader & Ors v Royal Borough of Kensington and Chelsea & Ors [2022] EWHC 2006 (QB)Senior Master Fontaine considered the basis for applying for judgment and interim costs. The claimants had not identified the basis upon which judgment was…
TWO ISSUES: WITNESS CREDIBILITY: ATTEMPTING TO RE-OPEN A JUDGMENT ON THE BASIS OF OMISSIONS IN THE JUDGMENT: ADVOCATES NEED TO CONSIDER THE POSITION CAREFULLY
There are two aspects of the judgment of Mr Justice Mostyn in Cazalet v Abu-zalaf [2022] EWFC 119 that are of general interest to litigators. Firstly the judge’s observations as to witness credibility. Secondly the observations in relation to re-opening…
ONCE AGAIN: COMMENTARY AND COMMENT IN A WITNESS STATEMENT: IT NEVER HELPS (THE CLIENT) AND IS ALMOST ALWAYS HARMFUL
We see a familiar story in the judgment of HHJ Stephen Davies (sitting as a High Court judge) in Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC). The witness statements of the claimant…
WHAT GOES ON IN LEEDS STAYS IN LEEDS: ANOTHER MISSIVE FROM THE ADMINISTRATIVE COURT
In Bhimsinhji & Anor v Secretary of State for the Home Department (Determination as to Venue) [2022] EWHC 2556 (Admin) Mr Justice Fordham reiterated a point that has been made several times before in relation to venue for hearing in…
COST BITES 23: CLAIMANT FAILS IN APPLICATION FOR DELIVERY OF A SOLICITOR’S BILL OF COSTS: CHAMBERLAIN BILLS HAD BEEN SENT; A SIGNATURE ON AN EMAIL WAS SUFFICIENT; ELECTRONIC DELIVERY COMPLIED WITH THE SOLICITORS ACT
In Elias v Wallace LLP [2022] EWHC 2574 (SCCO) Senior Costs Judge Gordon-Saker dismissed the claimant’s application for a delivery of a bill of costs. He found that (i) the bills delivered were “Chamberlain” bills and had sufficient information for…
PROCEDURAL AND EVIDENTIAL PROBLEMS WHEN REPRESENTING FOREIGN DEFENDANTS: WITNESSES COULD NOT GIVE EVIDENCE BY VIDEO LINK: AN INCORRECT TRANSLATION OF A REPORT HAD BEEN PROVIDED
The judgment of HHJ Howells in Evans v R&V Allgemeine Verischerung AG [2022] EWHC 2436 (QB) shows the difficulties that can occur when representing foreign defendants. The defendant was not permitted to allow witnesses to give video evidence from abroad. …
A WEEK IS A LONG TIME IN POLITICS: FOUR WEEKS IS EVEN LONGER IN LAW: CLAIMANT REFUSED INJUNCTION BECAUSE THEY HAD NOT ISSUED PROCEEDINGS
In Hayes v Pack & Ors [2022] EWHC 2508 (KB) Mr Justice Johnson refused to grant an injunction. The unusual nature of the application should not hide the fact that the application was refused because the claimant had failed to…
COST BITES 21: RECEIVING PARTY NOT CONFINED TO PROVISIONAL ASSESSMENT COSTS WHEN THE BILL SETTLES FOR LESS THAN £75,000: “IT WAS WITHIN THE DEFENDANT’S GIFT TO MAKE A REALISTIC PART 36 OFFER”
In UK Sovereign Investments Ltd v Hussain [2022] EWHC 2390 (SCCO)Deputy Costs Judge Campbell rejected an argument that a receiving party’s costs should be confined to provisional assessment costs when the parties had agreed those costs at £59,000. The case…
WHY APPLYING FOR AN EXTENSION OF TIME TO SERVE THE CLAIM FORM IS A DANGEROUS BUSINESS: A CASE TODAY AND SOME REMINDERS
The judgment of HHJ Hodge KC in Harrington Scott Ltd v Coupe Bradbury Solicitors Ltd (PROFESSIONAL NEGLIGENCE – Solicitors – Loss of opportunity to pursue claim to trial – Damages – Defendant’s application to strike out and for summary judgment)…
COST BITES 18: APPROPRIATE CHARGING RATES WHEN A GRADE C IS CHARGED AT NOTHING: THE NEED FOR A “BLENDED” APPROACH
There are several interesting aspects to the judgment of Mr Justice Miles in Eurohome UK Mortgages 2007-1 Plc v Deutsche Bank AG, London Branch & Anor [2022] EWHC 2408 (Ch). One issue was the appropriate hourly rate when a grade…
FAILING TO COMPLY WITH THE REQUIREMENTS FOR WITNESS STATEMENTS: A PARTY WAS NOT “NIT PICKING”
In McKinney Plant & Safety Ltd v Construction Industry Training Board [2022] EWHC 2361 (Ch) Richard Farnhill (sitting as a Deputy Judge of the Chancery Division) considered the appropriate response where a party fails to comply with the requirements for…
THE COURT WILL NOT READILY RE-OPEN THE AMBIT OF ELECTRONIC DISCLOSURE: DECISION OF THE COMPETITION TRIBUNAL
I am grateful to Aidan Robertson KC for sending me a copy of the decision of the Competition Appeal Tribunal, Mr Justice Marcus Smith, in Sportradar AG -v- Football Dataco Limited [2022] CAT 37 a copy of which can be…
COURT REFUSES TO GRANT RESTRICTIONS ON CLAIMANT’S ACCESS TO FORMER SOLICITOR’S FILE: NOT A CASE OF LIEN ON ME
In Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm) His Honour Judge Pearce refused to place any restrictions on the disclosure of a litigation file to the claimant. The claimant was bringing an action alleging professional negligence…
CASES ON SERVICE OF THE CLAIM FORM IN 2022: WHAT LITIGATORS CAN, AND MUST LEARN FROM THEM: WEBINAR 14th OCTOBER 2022
2022 has seen some significant decisions in relation to service of the claim form, with many claimants coming to grief due to basic errors made when serving, or attempting to serve. This webinar “One Day Out” but still too late:…
RELIEF FROM SANCTIONS APPLICATIONS: RE-VISITING THE BASICS: 10 POINTS TO IMPROVE THE ODDS:
It is now just over 8 years since the Denton decision. Cases in relation to relief from sanction are still being reported regularly. This is a good time to re-visit the advice given shortly after the case as to increasing…
AN APPLICATION FOR COMMITTAL THAT WAS “WHOLLY FRIVOLOUS” AND “BORDERS ON VEXATIOUS”: CLAIMANT NOW REQUIRES PERMISSION TO BRING SIMILAR COMMITTAL PROCEEDINGS…
For the second time today I am writing about an injunction case which failed because the claimant had failed to prove compliance with an order for service. However this particular case has more sinister overtones. The claimant attempted to bring…
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