AN IMPORTANT CASE ON COSTS; "INTERESTED PARTY" COSTS; RELIEF FROM SANCTIONS AND SUMMARY ASSESSMENT
In Group M Uk Ltd -v- The Cabinet Office [2014] EWHC 3863 (TCC) Mr Justice Akenhead mad some important observations as to the liability to pay the costs of “interested parties”; the late serving of costs schedules; relief from sanctions…
CLAIMANT OBTAINED COSTS OF ACTION EVEN AFTER DISCONTINUANCE: WATCH THE WORDING OF CORRESPONDENCE
In Rokvic -v- Peacock [2014] EWHC 3729 (TC) the claimant obtained an order for costs against the defendant even though the claimant had discontinued the action. It is, if anything, a warning to be totally precise in wording when making offers and…
CLAIMANTS HAD COMPLIED WITH PEREMPTORY ORDER: CASE NOT STRUCK OUT
There is a brief report on Lawtel of the case of Sharma -v- Quality Redfern Solicitors (Ch D Judge Behrens 19/11/2014). The decision concerns the striking out of a claim for breach of an order and the judge finding, on…
STRESS AND THE LITIGATION PROCESS: HOW CAN LAWYERS MAKE MATTERS BETTER?
There is a very useful article in the Solicitors Journal on stress and litigation (to avoid hyperbole I will not use the word “brilliant” but it deserves it.) Hugh Koch analyse the sources of stress for litigants. This made me…
OFFER TO SETTLE HAS MAJOR IMPACT ON COSTS OF CASE: NO SUGARING OF THIS PILL
In Sugar Hut Group Ltd -v- AJ Insurance [2014] EWHC 3775 (Comm) Mr Justice Eder held that an offer of settlement had a major impact on costs even though it was not a valid Part 36 offer and the claimant…
EXTRAORDINARY CASE: THE SOLICITOR MADE LITIGATION UP: THE CONSEQUENCES FOR THE CLIENT
The opening paragraphs of the judgment set out an almost unbelievable set of facts in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm). The judgment considered the consequences for…
RIGHT TO INDEMNITY COSTS ARISES OUT OF CONTRACTUAL TERM
In Renewable Power & Light Ltd -v- McCarthy Tetrault [2014] EWHC 3848 (Ch) Mr Justice Morgan held that a defendant was entitled to indemnity costs when a claimant discontinued a claim half way through a trial. Indemnity costs were awarded…
LIMITATION: DELIBERATE CONCEALMENT BY THE DEFENDANT EXTENDS THE LIMITATION PERIOD
In IT Human Resources PLC -v- Land [2014] EWHC3812 (Ch) Mr Justice Morgan considered when the limitation period started when there had been concealment by a defendant. It is an important example of s.32 of the Limitation Act 1980 in…
ROUTE OF APPEAL FOR AN UNALLOCATED CASE: LIE -v- MOHILE
In Lie -v- Mohile [2014] EWHC 3709 (Ch) Mr Justice David Richards considered an argument that an appeal in an action that had not been allocated should be appealed to the Court of Appeal. THE ACTION This was a partnership…
APPLICATIONS TO SET ASIDE DEFAULT JUDGMENT & THE MITCHELL/DENTON PRINCIPLES: ANOTHER HIGH COURT CASE
There are now several cases that deal with how the “Mitchell/Denton” principles effect applications to have judgment set aside. In Robinson -v- Kensington & Chelsea Royal London Borough (Sir Michael Tugendhat 03/011.204 QB)* a default judgment was set aside on…
WANT TO KNOW ABOUT ONEROUS PART 18 QUESTIONS; DISCLOSURE, COSTS CAPPING & BUDGETS: JUST GOOGLE IT
In Hegglin -v- Persons Unknown & Google Inc [2014] EWHC 3793 (QB) Mr Justice Edis considered some interesting issues of costs management and costs capping. The short judgment is important reading in relation to the scope of Part 18 questions…
WHEN DOES MENTIONING LEGAL ADVICE IN A WITNESS STATEMENT LEAD TO WAIVER OF PRIVILEGE
In The National Crime Agency -v- Perry [2014] EWHC 3759 Mr Justice Wilkie considered the issue of when mention of legal advice in a witness statement leads to waiver of privilege so the legal advice should be disclosed. THE ISSUES…
"MADNESS" OVER COSTS AND USELESS TRIAL BUNDLES : VIEWS FROM ANOTHER JURISDICTION
Civil practitioners may benefit from reading the observations of Mostyn J in J -v- J [2014] EWHC 3654 (Fam). It suggests that family lawyers may soon be subject to much more rigorous costs budgeting. There are also important observations about…
SOLICITOR'S BILL OF COSTS STRUCK OUT BECAUSE CLAIM WAS EXAGGERATED AND (IN PART) FALSE
In Alpha Rocks Solicitors -v- Alade [2014] EWHC 3606 (Ch) Kevin Prosser Q.C., sitting as a judge of the High Court, struck out part of the solicitor’s bill as an abuse of process. The case makes instructive reading. It involved…
WITNESS CREDIBILITY; DOCUMENTS; RECOLLECTION AND PLAYING AWAY FROM HOME WHEN THERE ARE MILLIONS AT STAKE
Earlier posts have looked at the issue of witness credibility in the context of civil trials. Here we look at the issue of witness evidence in the context of a multi million pound dispute between corporations. The judgment, given earlier…
"IN TIME" APPLICATION FOR EXTENSION OF TIME TO SERVE PARTICULARS OF CLAIM REFUSED: A DANGER AREA TO WATCH
In Frontier Estates -v- Berwin Leighton Paisner (Ch D 30/10/2014)* John Male QC upheld a decision not to grant an extension of time for service of the particular of claim. What makes this case important is that the application was…
RELIEF FROM SANCTIONS CAN BE HEARD WITHOUT A FORMAL APPLICATION: CUTLER -V- BARNET
In Cutler -v- Barnet (QBD 31/10/14)* Supperstone J held that an application for relief from sanctions could be heard even if it were not made formally in writing. THE CASE The defendant was resisting a claim for possession. She had…
CASE NOT STRUCK OUT BECAUSE OF A FAILURE TO FILE TRIAL BUNDLE & PAY COURT FEES
One of the most read posts on this blog was, in the middle of the Mitchell Madness period, when a judge struck out an action because the trial bundle had been lodged late. This issue was considered by Hickinbottom J…
MITCHELL: THE CASE THAT KEEPS ON GIVING: EXPERT EVIDENCE; SIMILAR FACT EVIDENCE AND THE EDITING OF WITNESS STATEMENTS
Regular readers of this blog will need no introduction to the procedural issues that Mitchell -v- News Group Newspapers Ltd has given rise to already. Procedural issues have arisen again and were considered by Mr Justice Warby (2014 EWHC 3590…
CASE STRUCK OUT BECAUSE DELAY WAS AN ABUSE OF PROCESS: WEARN -v- HNH CONSIDERED
In Wearn -v- HNH International Holdings Ltd [2014] EWHC 3542 (Ch) Mr Justice Barling struck out a claim for delay, holding that the claimant’s delay amounted to an abuse of process. There are also a few interesting observations about the…
COSTS BUDGETS IN HIGH VALUE CASES, ADR AND CASE MANAGEMENT: A VERY IMPORTANT HIGH COURT CASE
In CIP Properties (AIPT) Ltd -v- Galliford Try Infrastructures Ltd [2014] EWHC 3546 (TCC) Mr Justice Coulson set out important principles in relation to granting specific stays to allow ADR, Case Management and the ability of the court to impose…
IF YOU THINK THE WHEELS OF JUSTICE CAN GRIND SLOWLY: TRY THE EU! IMPORTANT DECISION ON DISCLOSURE, CONFIDENTIALITY, REDACTION AND THE POWER OF THE COURT TO REVIEW ITS EARLIER ORDERS
A decision by Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC was considered in the previous post. However another issue arose in the same case which is at [2014] EWHC 3513 (Ch). The application was of an…
SUMMARY JUDGMENT AND STRIKING OUT: COMPLEX ISSUES CANNOT BE DECIDED SUMMARILY
The decision of Peter Smith J in Emerald Supplies Ltd -v- British Airways PLC [2014] EWHC 3514 (Ch) highlights the difficulties in seeking summary determinations or striking out of cases and issues in complex cases. The judge declined to grant…
ADJOURNMENT OF SUMMARY JUDGMENT HEARING TO ARGUE NOVATION? NO VAY
In A.T. Stannard Ltd -v- James Tobutt and Thomas Tobutt [2014] EWHC 3491 (TCC) Mr Justice Akenhead refused an application for the adjournment of a hearing for summary judgment to allow the defendants to, belatedly, argue novation of a contract. THE…
SHOULD THE ASSESSMENT OF COSTS BE IN PUBLIC OR IN PRIVATE? WHEN IS LEGAL PROFESSIONAL PRIVILEGE WAIVED?
In Eurasian Natural Resources Ltd -v- Dechert LLP [2014] EWHC 3389 Mr Justice Roth addressed the issue of whether an assessment of solicitor and own client costs should be in private or in public. The judgment also considers important issues…
RESPONDING TO A COMMITTAL APPLICATION: A POINT TO WATCH
The brief report in Lawtel of Royal & Sun Alliance -v- Fahad (QBD Spencer J 17/10/14) brings home an important procedural point in relation to committal applications. THE FACTS The applicant was seeking to commit the respondent for making false…
HEARINGS IN PRIVATE AND REPORTING RESTRICTIONS: THE GENERAL RULE IS THAT HEARINGS SHOULD BE IN PUBLIC
In a short judgment today in V -v- T [2014] EWHC 3432 (Ch)Civ Mr Justice Morgan reviewed the law relating to hearings in private and weighed this up against the protection given by reporting restrictions. It contains an important observation…
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…
