INDEMNITY COSTS AGAINST FUNDERS : WHO PAYS WHAT FOR WHEN?
In Excalibur Ventures & others -v- Psari Holdings & ors [2014] EWHC 3436 Christopher Clarke LJ awarded costs on an indemnity basis against third party funders. Many important matters of general importance are considered. THE CASE The claimants brought what…
SOLICITORS RETAINER WAS UNLAWFUL & NO COSTS PAYABLE: COURT OF APPEAL DECISION CONSIDERED
In the judgment given today Rees -v- Gateley Wareing [2014] EWCA Civ 1351 the Court of Appeal held that a retainer between the solicitor and client was unlawful, overturning the first instance decision on the matter. Consequently the solicitors could…
RELIEF FROM SANCTIONS GRANTED FOLLOWING FAILURE TO GIVE NOTIFICATION OF CFA & ATE
In Caliendo -v- Mischon De Reya [2014] EWHC 3414 (Ch) Mr Justice Hildyard considered an application for relief from sanctions under the post-Denton regime. He also made interesting observations in relation to applications in relation to considering the relevance of…
COSTS ASSESSED AT NIL WHEN SOLICITOR FAILED TO MAKE PROPER INVESTIGATIONS INTO CLIENT'S FUNDING
The case of McDaniel & Co -v- Clark (QBD Hickinbottom J 15/10/14) contains a clear warning that solicitors must make proper enquiries about funding at a very early stage. (This post is based on the Lawtel note of the judgment…
PLEAD A DEFENCE PROPERLY OR BE STRUCK OUT: A HIGH COURT CASE CONSIDERED
The case of De Vere Holding Company -v- Belgravia Wealth Management KFT & Ors [2014] (QBD Judge Parkes QC) 15/10/14 was briefly reported on Lawtel today. It contains important observations on the role of pleadings. (This post is based on…
COSTS CAPPING IN THE COURT OF APPEAL: ANOTHER EXAMPLE OF COSTS CAPPING BEING REFUSED
We have looked before at issues relating to costs capping in the Court of Appeal. I am grateful to Claire Darwin of Matrix Chambers for bringing my attention to the case of Black -v- Arriva North East Ltd [2014] EWCA…
FAILING TO TURN UP TO HEARINGS AND SERVING WITNESS STATEMENTS LATE: AN EXAMPLE OF THE DISCRETION BEING EXERCISED: RELIEF GRANTED UPON CONDITION THAT DEFAULTING PARTY PAYS COSTS AND PAYS £25,000 INTO COURT
The question of relief from sanctions after witness statements were served late has been discussed several times on this blog. The issue was considered by HH Judge Mackie QC in Carlton Advisers -v- Dorchester Holdings Ltd [2014] EWHC 3341 (Comm)….
FINDINGS OF FACT AND CREDIBILITY: THE COURT OF APPEAL WILL RARELY INTERFERE
The decision of the Court of Appeal today in Exsus Travel Ltd -v- James Turner [2014] EWCA Civ 1331 reinforces the points made in earlier posts about the reluctance of the Court of Appeal to interfere with findings of fact…
SETTING ASIDE JUDGMENT, MITCHELL AND DENTON: THE COURT OF APPEAL'S VIEW
The question of how far the “Mitchell/Denton” principles apply to applications by defendants to set aside judgments was considered by the Court of Appeal in Regione Piemonte -v- Dexia Credop SpA [2014] EWCA Civ 1298. It can be seen that these principles…
DRAFTING A SKELETON OR WANT TO SERVE AN ADDITIONAL SKELETON ARGUMENT? THEN YOU HAD BETTER READ THIS
We have looked before at judicial complaints about the length and extent of skeleton arguments. Similar grievances can be seen in the judgment of the Court of Appeal earlier this week in Tchenguiz -v- Director of the Serious Fraud Office…
A JUDGE SHOULD RARELY RECUSE THEMSELVES: COURT OF APPEAL DECISION IN OTKRITIE CONSIDERED
In Otkritie International Investment -v- Mr George Urumov [2014] EWCA Civ 1315 decided today the Court of Appeal reviewed the circumstances in which a judge should recuse themselves for bias. It is clear that this cannot be done lightly. In…
LIES, EVIDENCE, DISCLOSURE AND PROCEDURE : AA -v- LONDON BOROUGH OF SOUTHWARK CONSIDERED
It is certain that the decision in AA -v- London Borough of Southwark [2014] EWHC 500 QB will receive considerable coverage. It is a remarkable case. There are enormous implications for local authorities. Here we look at the procedural issues in…
THE DUTIES OWED TO THE COURT ON A WITHOUT NOTICE APPLICATION: A VERY HIGH STANDARD
In Standard Bank -v- Just Oil LLC [2014] EWHC 2687 (Comm) the Hon Mr Justice Walker considered the duties owed when a party makes an without notice application to the court. Strong words are said. THE FACTS The claimant had…
PUTTING "WITHOUT PREJUDICE" ON LETTERS DOES NOT NECESSARILY MAKE THEM PRIVILEGED: AVONWICK -v- WEBINVEST CONSIDERED
Putting “without prejudice” on inter partes correspondence does not mean that the court will not look at them. This issue was considered by Mr Justice David Richards in Avonwick -v-Webinvest [2014] EWHC 3322 (Ch). The case also contains a short…
RELIEF FROM SANCTIONS, VERY LATE SERVICE OF WITNESS STATEMENTS AND DOCUMENTS: A DECISION TODAY
The judgment of the Hon Mrs Justice Asplin DBE given today in Lictor Anstalt -v- MIR Steel UK Ltd [2014] EWHC 3316 (Ch) contained a consideration of the Denton criteria in relation to late service of witness evidence and documents….
INTEREST AND COSTS WHEN A CLAIMANT BEATS THEIR OWN PART 36 OFFER: WATCHORN –v- JUPITER CONSIDERED
There have been relatively few cases dealing with the approach of the courts under the new Part 36 provisions when a claimant beats their own Part 36 offer at trial. The judgment of HH Judge Purle QC in Watchorn -v-…
TRIAL PREPARATION, BUNDLES & WITNESS STATEMENTS: THE JUDGE'S LAMENT
The earlier post on the decision in Weathford -v- Hydropath concentrated upon the application for a non-party costs order. However in the primary judgment on liability the judge made some all too common criticisms in relation to trial preparation, skeleton…
NON-PARTY COSTS ORDERS: ALL THE LAW IN ONE USEFUL PLACE
Making an application for a non-party costs order can be a controversial step in the proceedings. The, principles, law and practice are thoroughly reviewed by Mr Justice Akenhead in Weatherford Global Products Ltd -v- Hydropath Holdings Ltd [2014] EWHC 3243…
ROBUST DECISIONS, CASE MANAGEMENT AND WITNESS EVIDENCE: AVOIDING REVERSE MACROCOSM
In Tindall Cobham 1 Ltd -v- Adda Hotel [2014] EWHC 2637 (Ch) Peter Smith J made robust orders to ensure that an application would be heard within days rather than months. He also made some telling observations in relation to…
SOME THINGS MAY BE BETTER MEDIATED THAN LITIGATED: NEIGHBOUR DISPUTES FOR INSTANCE
There are some very important observations in the judgment of Norris J in the case of Bradley -v- Heslin [2014] EWHC 3276 (Ch) today. This was given in a neighbour dispute over access and gates which could have been remedied…
PRE-ACTION DISCLOSURE WAS JUSTIFIED AND REASONABLE: COURT OF APPEAL DECISION
In the judgment today in Jet Airways (India) Ltd -v- Barloworld Handling Ltd [2014] EWCA Civ 1311 the Court of Appeal reiterated the criteria for pre-action disclosure. The Court upheld a decision ordering pre-action disclosure and were extremely firm in…
VERY, VERY LATE APPLICATION TO AMEND PARTICULARS OF CLAIM ALLOWED
In MacLeod -v- Mears [2014] EWHC 3140 QB Mr Justice Hamblen allowed the claimant to amend the particulars of claim very late, after a trial in fact. THE FACTS The claimant brought an action alleging a failure to pay a…
MATERIAL NON-DISCLOSURE ON WITHOUT NOTICE APPLICATIONS: A SALUTARY REMINDER
The previous post on the Evans’ case highlights the duty of full and frank disclosure on an ex parte application. In the Evans case it would have been impossible for the claimant to argue material non-disclosure (if indeed there was…
DENTON APPLIES TO APPLICATIONS TO SET ASIDE DEFAULT JUDGMENTS: HOCKLEY -v- NORTH EAST LINCOLNSHIRE CONSIDERED
The issue of whether the “Mitchell/Denton/CPR 3.9” criteria apply to applications by a defendant to set aside a default judgment has been discussed several times on this blog. In Hockley -v- North Lincolnshire & Goole NHS Trust (19th September 2014)…
SORTING MAJOR PROBLEMS OUT IN THE MIDDLE OF A TRIAL: SCHEDULES AND STATEMENT OF ISSUES SHOULD BE PREPARED IN ADVANCE NOT DURING A TRIAL
The major purpose of case management is to ensure that when a matter reaches trial the parties, and the judge, know precisely what the issues are in Redd Factors -v- Bombadier Transportation [2014] EWCH 3138 (QB) this process clearly went…
A PARTY UNREASONABLY REFUSES TO MEDIATE BUT RECOVERS ALL ITS COSTS: WHY NORTHGROP GRUMMAN (2) IS ESSENTIAL READING
The question of costs liability following an “unreasonable” failure to mediate remain a developing area of law. This is an area with profound practical implications for litigators and their clients. That is why the decision of Mr Justice Ramsey in…
RELIEF FROM SANCTIONS GRANTED: RESPONDENT'S "OPPORTUNISTIC" BEHAVIOUR CONDEMNED
In Long -v- Value Properties [2014] EWHC 2981 (Ch) Mr Justice Barling roundly condemned the defendants for taking opportunistic points in litigation. The judge overturned a decision by the Master refusing relief from sanctions. THE FACTS This was an application…
CALDERBANK OFFER HAD NO EFFECT ON OUTCOME IN RELATION TO COSTS:
Some parties make “Calderbank” offers in place of Part 36 offers. The effect of a Calderbank offer and whether it should affect an order for costs was considered by the Court of Appeal today in Coward -v- Phaesetos [2014] EWCA…
PLEADING AND PROVING ALLEGATIONS OF FRAUD OR DISHONESTY: MULLARKE -v- BROAD: USEFUL LINKS AND GUIDANCE
Great care needs to be taken in pleading allegations of fraud or dishonesty. In particular the pleader needs to be sure that there is sufficient evidence to justify the pleading. This was considered in some detail by Lewison J in…
NO INDEMNITY COSTS: GORGEOUS BEAUTY 2
We looked at the Gorgeous Beauty case earlier in the context of witness evidence. I am grateful to Jon Lord for bringing my attention to the subsequent decision on costs. The judge declined to order indemnity costs and awarded the…
INVOLUNTARY BAILMENT AND CIVIL PROCEDURE: CAMPBELL -v- REDSTONE CONSIDERED
The law as to bailment sometimes raises its head in civil procedure. It is relevant for instance when someone damages a car which is borrowed. It is more significant in relation to the duties owed in relation to goods left…
"GRABBING THE CASE BY THE SCRUFF OF THE NECK": CASE MANAGEMENT IN THE FAMILY DIVISION
For the second time in two days we are looking at a report from the Family Division, seeking inspiration for civil lawyers. The robust case management decisions by Holman J in Abuchian -v-Maksoud [2014] EWHC 3104(Fam) are, in part, decisions…
MAKING AN APPLICATION IN THE CHANCERY DIVISION AFTER THE 1ST OCTOBER 2014: NO BUNDLE NO HEARING
The Chancery Division has introduced strict new provisions which apply from 1st October 2014. No bundle no hearing. Here we look at the essential elements of the guidance and application bundles. THE PRACTICE NOTE The Practice Note states: “Old and…
MORE ON CHILD CLAIMANTS AND THE RECOVERY OF SUCCESS FEES: AN EXTREMELY HELPFUL NOTE FROM THE CLAIMANT'S SOLICITORS
The post yesterday on children and success fees got a lot of attention. I am grateful to Daniel Higgins head of costs at Gavin Edmonson Solicitors Ltd who was involved in that appeal. His note (reproduced with his permission below)…
SUCCESS FEES IN CHILDREN CASES: LIVERPOOL AND MANCHESTER PRACTICE
The question of deducting success fees from the damages of a child remains a vexed one. I am grateful to Gillian Shaw from Paul Rooney LLP Solicitors who sent me the following note in relation to the practice in Liverpool…
COSTS CAPPING IN THE COURT OF APPEAL: DON'T BANK ON THE TIDE BEING IN YOUR FAVOUR
In Tidal Energy -v- Bank of Scotland Plc Arden L.J. considered, and rejected, an application for costs capping in relation to a forthcoming Court of Appeal hearing. The Court was keen to discourage satellite litigation in the Court of Appeal….
THINKING OF ISSUING WITHOUT A LETTER BEFORE ACTION? THINK AGAIN IT MAY BE BAD FOR YOUR HEALTH(CARE)
In Baxter Healthcare UK Ltd -v- Fresenius Kabi* (17/09/14) Judge Hacon set out the dangers of issuing proceedings without sending a letter before action. THE ISSUES The claimant issued proceedings without sending a letter before action. The dispute was resolved….
ADDUCING A SECOND EXPERT WITNESS LATE IN THE DAY: THWAYTES -v- SOTHEBYS CONSIDERED
There is a brief report on Lawtel today of a decision of Rose J in Thwaytes -v- Sothebys (16/09/2014) where permission was given for the defendant to rely on an additional expert and the application was heard six weeks before…
INDEMNITY COSTS, COSTS BUDGETING AND WITNESS STATEMENTS:INTERVIEW ON KELLIE -v- LLOYD
There is a feature on the Lexis Nexis Dispute Resolution Blog where I answer questions about the implications of the judgment in Kellie and another v Wheatley & Lloyd Architects Ltd [2014] EWHC 2886 (TCC), [2014] All ER (D) 152 (Aug)…
CHANGES TO CHANCERY PROCEDURE FROM 1st OCTOBER
Master Marsh has put out two Practice Notes which deal with changes in Chancery Procedure from the 1st October 2014. The first deals with lodging of documents electronically and in hard copy. Documents will not be able to be filed…
LITIGATION: EVIDENCE; MITIGATION OF LOSS AND "BLACK BOXES" IN THE EVIDENCE
The case of Rentokil Initial -v- Goodman Derrick LLP [2014] EWHC 2994 (Ch) contains some interesting observations on evidence. In particular what is the position when a party claims privilege and fails to disclose legal advice relating to a settlement…
INTERIM COSTS ORDERS: USEFUL GUIDES AND LINKS
I was asked to speak at the Inaugural meeting of the Yorkshire Branch of the Association of Cost Lawyers recently. One matter that came up in discussion was how rarely applications were made for interim applications for costs. This can…
CAN YOU GET AN ORDER FOR QOCS TO APPLY ON AN APPEAL? CPR 59.2A CONSIDERED BY THE COURT OF APPEAL
In JE -v- Secretary of State for the Home Department [2014] EWCA Civ 192 the Court of Appeal considered whether a QUOCs type order could be made in the Court of Appeal. The Court also emphasised the importance of prompt…
LIMITATION IN A BREACH OF CONTRACT CLAIM: DATE OF ACCRUAL; LATENT DAMAGE AND AMENDING UNDER CPR 17.4.(2): A CASE IN POINT
In Interface Europe Ltd -v- Premier Hanks Dyers Ltd [2014] EWHC 2610 (QB) Judge Saffman (sitting as a judge of the High Court) considered the issue of the relevant date of accrual of a cause of action in a breach…
SERVICE OF THE PARTICULARS OF CLAIM TWO DANGEROUS POINTS TO WATCH
Most of the cases and commentary in relation to service concentrate upon late service of the claim form. However it is possible to fall foul of the rules and serve the particulars of claim late even when the claim form…
COSTS AFTER VARIATION OF A PART 36 OFFER TO BE LESS ADVANTAGEOUS TO THE RECIPIENT: BURRETT -v- MENCAP CONSIDERED
The decision of District Judge Ackroyd in Burreett -v- Mencap Ltd (14th May 2014) was reported on Lawtel earlier this week and is available on Bailli. It contains an important lesson to both defendants and claimants as to costs when…
E-BUNDLES COMING TO THE SUPREME COURT AND PRIVY COUNCIL VERY, VERY SOON
The Supreme Court has issued guidance on the use of electronic bundles which will be mandatory for a trial period. Parties given permission to appeal in the Supreme Court and Privy Council after the 1st October 2014 will be expected…
THE RISK OF INDEMNITY COSTS: WHAT ARE YOU GOING TO TELL YOUR CLIENT?
The idea of costs budgeting was, in part at least, to give the parties some certainty as to the costs they would have to face it they lost an action. However the decision in Kellie & Kellie -v- Wheatley &…
DENTON APPLIED IN THE TAX & CHANCERY CHAMBER: LEEDS -v- COMMISSIONERS CONSIDERED
One of the places where Mitchell, and subsequently Denton, had a major impact was the specialist tribunals. As we have seen in this blog Mitchell principles were applied with some vigour and the “clarification” by Denton has also had an effect….
PART 36 OFFERS AND NON-MONETARY CLAIMS: A HIGH COURT CASE CONSIDERED
We have looked before at the advantages to a claimant in making an early Part offer. If the claimant matches or beats that offer at trial then there are advantages in costs and interests. There can also be a 10%…
