COSTS & CONDUCT 1: MULTIPLE PARTIES, "BULLOCK" AND "SANDERSON" ORDERS AND INDEMNITY COSTS TO THE DEFENDANTS
There are several cases today where the courts have considered the issue of where costs should fall and how judicial discretion should be exercised. The first we consider is Asghar -v- Ahmad [2015] EWHC 2234 (QB) a decision of Mr…
THE PRIMACY OF ORAL TESTIMONY: ABSENT WITNESSES ORDERED TO ATTEND AND LATE AMENDMENTS REFUSED: ALL IN ONE CASE
There is an interesting report of two separate decisions of Mr Justice Peter Smith in Harb -v- HRH Price Abdul Aziz Bin Fahd Bin Abdul Aziz [2015] EWHC 2195 (Ch). This relates to two decisions made on the first day…
IF YOU ENTER INTO A CONTENTIOUS BUSINESS AGREEMENT WITH YOUR CLIENT ARE YOU PLAYING RUSSIAN ROULETTE?
The judgment of Master Campbell in Addleshaw Goddard LLP -v- Wood & Hellard [2015] EWHC B12 (Costs) has some interesting observations on contentious business agreements and the nature of litigation financing generally. THE CASE The claimant solicitors had entered into…
NEW RULES RELATING TO "NEUTRAL EVALUATION" ; LITIGANTS IN PERSON; ASSESSMENT; SPECIALIST FINANCIAL LIST (AND MORE…)
New rules have been introduced which (for the most part) come into force on the 1st October 2015. Here we look at the key changes. THE RULES The Civil Procedure (Amendment No.4) Rules 2014 were laid before Parliament on the…
POST MITCHELL PRE-DENTON RELIEF FROM SANCTIONS APPEAL: MITCHELL PRINCIPLES WERE NOT HERE TO STAY
The appeal in Michael Wilson & Partners Ltd -v- Sinclair [2015] EWCA Civ 774 involves the Court of Appeal considering the Mitchell/Denton divide. KEY POINTS The Court overturned a decision, made post-Mitchell but prior to Denton, where a judge refused…
THINKING OF ALLEGING OR PLEADING FRAUD: BETTER READ THIS FIRST
In NGM Sustainable Developments Ltd -v- Wallis [2015] EWHC 2089 (Ch) Mr Justice Peter Smith highlighted the importance of full and accurate pleading of a case alleging fraud. “…in commercial matters the parties and their lawyers tend to work long…
CONDITIONAL FEE AGREEMENTS NOT SENT TO COVENTRY: KEY POINTS AND LINKS
The decision in Coventry -v- Lawrence [2015] UKSC 50 has not led to any major change in practice and procedure (in relation to a costs regime that had already ended anyway). A link to the judgment is here KEY POINTS…
SERVICE OF THE CLAIM FORM – FURTHER PROBLEMS: YOU CANNOT ALWAYS RELY ON WHAT YOU ARE TOLD
Service of the claim form is an issue that continues to cause problems. There is a brief report on Lawtel today of the decision of Stewart J in Dzekova -v- Thomas Eggar PPL (QBD 17/07/2015)*. It is another example of…
ISSUE BASED COSTS ORDER IN THE ADMINISTRATIVE COURT: A MATTER OF RISKS AND REWARDS
In The Queen on the application of British Academy of Songwriters, Composers and Authorts -v- the Secretary of State for Business, Innovation and Skills [2015] EWHC 2401 (Admin) Mr Justice Green made an issue based costs order. THE CASE The…
SETTING ASIDE NOTICE OF DISCONTINUANCE IN A QOCS CASE: TWO INTERESTING DECISIONS
I am grateful to Rebecca Jones of Hardwicke Chambers for sending me details of an important decision in relation to setting aside a notice of discontinuance served by a claimant in a costs case. The note of the judgment below…
THE IMPORTANCE OF THE STATEMENT OF TRUTH: COMMENTS IN THE ADMINISTRATIVE COURT: THE SIGNATORY CANNOT HIDE BEHIND THE DRAFTSMAN
The signing of a statement of truth is now an everyday event in litigation. With documents signed by clients, or by lawyers on behalf of their clients. Recent cases highlight the significance of the statement of truth. It is important…
SOLICITORS ARE ENTITLED TO ARGUE THEY SHOULD BE PAID AND ARE NOT LITIGANTS IN PERSON: A HIGH COURT DECISION CONSIDERED
In EMW Law LLP -v- Halborg [2015] EWHC 2005 (Ch) His Honour Judge Purle QC considered some important elements in relation to the ability of solicitors to recover their costs. The judge also found that solicitors are not “litigants in person”…
MAKING A FINDING OF FRAUD WITHOUT EVIDENCE 3: THE COURTS ARE NOT EASILY AFFRONTED
For the third time in a fortnight the courts have sent out a clear message of the dangers of judges making findings of fraud without having all the evidence to hand. THE CASE In Alpha Rocks Solicitors -v- Alade [2015]…
LITIGATION RISKS AND MITIGATION OF LOSS: "MEDIATION IS A JUDGMENT CALL": WHEN IS A REFUSAL TO MEDIATE REASONABLE?
The issue of whether a failure to mediate represented a failure to mitigate loss was considered by Judge Pelling QC (sitting as a High Court judge) in Orientfield Holdings Ltd -v- Bird & Bird [2015] EWHC 1963 (Ch). “Having embarked…
JUDGES AND WITNESSES 4: THE LITIGANT IN PERSON AND THE ABSENT WITNESS
In Otou -v- Brierley [2015] EWHC 1938 (Ch) Edward Murray (sitting as s Deputy Judge of the Chancery Division) was in an unusual situation. A witness statement drafted by a litigant in person contrasted to a witness statement by a…
JUDGES AND WITNESSES 3: "UNCHALLENGED" EVIDENCE AND CREDIBILITY
In Various Claimants -v- Giambrone [2015] EWHC 1946 (QB) Mr Justice Foskett looked at issues relating to the credibility of witnesses where it was alleged that their evidence had not been “challenged” in certain respects. “…the days of the “I…
JUDGES AND WITNESSES 2: POISE AND POLISH IS FAR FROM CONCLUSIVE
This is the second post today on the issue of how judges assess witnesses. In Mudroglu -v- Reddish LLP [2015] EWHC 1044 (Ch) His Honour Judge Keyser QC had to consider issues relating to the credibility of two witnesses. THE…
THE NEW UNINSURED DRIVERS' MIB AGREEMENT: COMING INTO FORCE ON THE 1st AUGUST 2015
For those with Motor Insurers Bureau claims a new Uninsured Driver Drivers agreement comes into force on the 1st August 2015. Here we look at the major changes. THE KEY POINT The rules are now much simpler. The key points…
COSTS: INDEMNITY COSTS; IMMEDIATE ASSESSMENT OF COSTS; SET OFF & POTENTIAL INSOLVENCY: A HIGH COURT DECISION
In Rawlinson & Hunter Trustees SA -v- ITG [2015] EWHC 1924 (Ch) Mr Justice Morgan considered issues relating to indemnity costs and whether assessment of costs ordered on an interlocutory hearing should take place forthwith. KEY POINTS Although the conduct…
ELECTRONIC SIGNATURE OF WITNESS STATEMENTS: IS IT VALID? A FIRST INSTANCE DECISION
The question of whether a witness statement can be signed electronically is often described as an “open” issue. It was considered by District Judge Jenkinson in Fitzpatrick -v- AIG Europe Ltd (Liverpool County Court 1st July 2015*). THE CASE The…
THE PROFOUND LACK OF WISDOM IN SIGNING STATEMENTS OF TRUTH ON BEHALF OF YOUR CLIENT
The observations of the Administrative Court in MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) were considered in an earlier post. However there is one further aspect of the case that justifies examination. A CAVEAT…
THE LIMITS OF ISSUE BASED COSTS ORDERS: COMMERCIAL LITIGATION IS ABOUT MONEY (WHO KNEW?)
In The Northampton Regional Livestock Centre Company Ltd -v- Cowling [2015] EWCA Civ 651 the Court of Appeal made some important observations about costs, issue based orders and success, particularly in commercial cases. THE CASE The Court of Appeal were…
EXTENDING TIME FOR SERVING PARTICULARS OF CLAIM: AN APPLICATION AHEAD OF TIME SAVES THE DAY
In Lachaux -v- Independent Print Ltd [2015] EWHC 1847 (QB) Mr Justice Nicol considered the question of whether the court has power to prospectively order an extension of time for service of the particulars of claim. He also considered the…
MAKING FINDINGS OF FRAUD WITHOUT A PARTY BEING REPRESENTED 2: A HEARING IN THE ADMINISTRATIVE COURT
In MRH Solicitors -v- The County Court sitting at Manchester [2015] EWHC 1795 (Admin) the Administrative Court, in essence, overturned findings of fraud against solicitors who had not been notified of the allegations and not given any opportunity to respond….
IF FINDINGS OF DISHONESTY ARE TO BE MADE THEN WITNESSES HAVE TO BE HEARD
Two cases in two days have shown the difficulties that arise when findings of dishonesty are made by judges without hearing evidence. Here we look at the difficulties that arose when a judge held a trial without hearing evidence and…
PREVIOUS COSTS ORDERS STAND EVEN AFTER DISCONTINUANCE: A HIGH COURT DECISION
In Dar Al Arkan Real Estate Company -v- Al Refai [2015] EWHC 1793 (Comm) Mr Justice Andrew Smith considered whether discontinuance of an action should have an effect on previous costs orders. THE CASE The claimants had agreed terms of…
INCREASED COSTS AND "MYSTIFYING" PLEADINGS: A WARNING TO THOSE DRAFTING DEFENCES: IT'S GOING TO COST YOU
The judgment of Mr Justice Edis in Davies -v- Forrett [2015] EWHC 1761 QB is an object lesson on the dangers of lax pleading. Denying the relevance of a conviction in a pleading led to the joinder of a number…
RELIEF FROM SANCTIONS REFUSED FOLLOWING INADEQUATE E-DISCLOSURE:
The case of Smailes -v- McNally [2015] EWHC 1755 (Ch) has appeared in the reports before. In his judgment today His Honour Judge Pelling QC refused relief from sanctions after the claimant had failed to give adequate disclosure in compliance…
TRUSTEE IN BANKRUPTCY NOT LIABLE FOR COSTS INCURRED BEFORE ADOPTION OF PROCEEDINGS: SUPREME COURT DECISION TODAY
In a short judgment today in BPE Solicitors -v- Gabriel [2015] UKSC 39 the Supreme Court considered the question of whether a Trustee in Bankruptcy who adopts proceedings thereby becomes liable for the previous costs incurred in that action. THE…
IF YOU CAN'T PROVE IT YOU DON'T GET IT: CALLING EVIDENCE AT COURT TO PROVE A LOSS: A WORKING EXAMPLE
A party claiming damages must bring evidence to court to prove the losses it claims. This is a simple statement. However adducing evidence which actually proves the losses claimed often gives rise to difficulties in all spheres of litigation. The…
SETTING ASIDE AN EARLIER ORDER: A WIDE AND UNFETTERED DISCRETION?
In Cole -v- Howlett [2015] EWHC 1697 (Ch) Mr Justice Peter Smith conducted detailed consideration of the power, and discretion, to review and set aside orders already made. The judge agreed to set aside his earlier order striking out the…
OPINION EVIDENCE IN WITNESS STATEMENTS AND THE CASE THAT MAY HAVE SPARKED OFF THE JACKSON REFORMS: Multiplex -v- Cleveland Bridge
Whilst doing some work on the problems caused when lay witnesses attempt to give expert evidence I came across the case of Multiplex Constructions (UK) LImited -v- Cleveland Bridge UK Limited [2008] EWHC 2220(TCC). It makes interesting reading for a…
COSTS, INDEMNITY COSTS AND CONDUCT WHEN CONSIDERING COSTS FOLLOWING AN ORDER FOR CROSS-EXAMINATION AT AN INTERLOCUTORY STAGE
In JSC Mezhdumarodiniy Promyshlenniy Bank -v- Pugachev [2015] EWHC 1694 (Ch) Mr Justice Hildyard considered the issue of whether a respondent to an order for cross-examination should be ordered to pay the costs of that application and whether those costs…
DENTON IN THE CONTEXT OF JUDICIAL REVIEW: PUBLIC INTEREST A HIGHLY SIGNIFICANT CONSIDERATION
In The Queen (on the application of Charith Missaka Wijesinghe) -v- Secretary of State for the Home Department [2015] EWHC 1558(Admin) HH Judge Deborah Taylor (sitting as a judge of the High Court) considered the Denton principles in relation to an…
THE MEETING OF EXPERTS: CASE LAW AND GUIDANCE
The case of Cintas Corp No 2 -v- Rhino Developments (2015 Ch D Newey J 10/6/2015) * reported on Lawtel today provides an interesting scenario in relation to the conduct of an expert and joint meetings. There is relatively little…
HOW TO GET SUED, MAKE A LOSS AND BE MISERABLE (2015 EDITION): LEEDS 30th JUNE 2015
If you are a litigator and feeling happy, confident and have no concerns at all about getting things wrong, being sued or making a loss, then something may be missing from your life. TO MAKE YOUR LIFE COMPLETE Come to…
ANOTHER MIS-SERVED CLAIM FORM: CLAIMANTS DO NOT PASS GO AND DO NOT GET TO THE BANK
There are a number of issues considered by Mr Justice Arnold in Chopra -v- Bank of Singapore [2015] EWHC 1549 (Ch). However the claimants failed at the very first, and very familiar, hurdle – service of the claim form. THE…
INVESTMENT BANK SPECIAL ADMINISTRATORS CANNOT USE CFAS: HIGH COURT DECISION
Today appears to be a day for exceptions. An earlier post dealt with the remaining provisions whereby litigants can recover insurance premiums this post deals with the limited circumstances in which administrators can litigate and recover additional liabilities. The question…
PHONE HACKING, MISSING DOCUMENTS AND THE ABSENT WITNESS: IMPORTANT ISSUES OF CIVIL EVIDENCE
The issues raised in the “phone hacking” trial are well known. However Mr Justice Mann also made some important observations about civil evidence. In particular the inferences to be drawn when witnesses are not called or evidence not available. These…
AMENDING PLEADINGS: WELL I'M JUST GOING TO ISSUE SEPARATE PROCEEDINGS – IS THAT RELEVANT?
The earlier post looked at the general principles in relation to late amendment of pleadings. There was one further point considered in CIP Properties -v- Galliford Try [2015] EWHC 135 (TCC). The claimant argued that the amendments should be allowed…
AMENDING PLEADINGS : A REVIEW OF THE PRINCIPLES: WHAT IS MEANT BY "LATE"?
We have looked at the case of CIP Properties -v- Galliford Try twice before in the context of costs budgeting. The case came before Mr Justice Coulson again [2015] EWHC 1345 (TCC) on the topic of amendment of pleadings. It is…
INDEMNITY COSTS AGAINST RESPONDENT IN RELIEF FROM SANCTIONS APPLICATION: WHAT A WASTE?
There is a brief report on Lawtel* of the decision of Popplewell J in Viridor Waste Management Ltd -v- Veolia Es Ltd (QBD (Comm) 22/05/2015. THE CASE The claimant was bringing an action for £27 million unjust enrichment. The claim…
"TOUCH SENSITIVE" WITNESS STATEMENTS AND OTHER FORMS OF EVIDENCE: WHEN THE CLAIMANTS COLLECT THE EVIDENCE THEMSELVES
The decision of Recorder Amanda Michaels (sitting as a Deputy Enterprise Judge) in Minder Music Ltd -v- Sharples [2015] EWHC 1454 (IPEC) raises some interesting issues in relation to witness statements and evidence. In particular the problems when a party…
HELL IT WAS IN "THAT FEBRILE TIME": OSTRICHES, MITCHELL, DENTON AND THE "BRILLIANT READJUSTMENT"
There are some interesting observations made by Lord Dyson MR in The English Experience of Access to Justice Reform. In particular the look back at the “febrile” atmosphere that Mitchell created and the rationale of the subsequent “revision” in Denton….
INCREASED INTEREST AND COSTS AFTER CLAIMANT BEATS ITS OWN PART 36 OFFER: JUDGMENT FOR THREE TIMES MORE THAN CLAIMANT'S OFFER
In Thai Airways International Public Company Ltd -v- KI Holdings Co Ltd [2015] EWHC 1476 (Comm) Mr Justice Leggat made slight modifications to the additional amounts to be awarded to a claimant which had beaten its own part 36 offer….
DEFAULT JUDGMENT CAN BE OBTAINED WHEN ACKNOWLEDGMENT OF SERVICE IS SERVED LATE
NB THIS DECISION HAS SINCE BEEN OVERTURNED BY A CHANGE IN THE RULES, SEE THE POST HERE. A claimant can enter judgment in default of acknowledgement of service. What is the position if the acknowledgment of service is served late….
"TAKING THE STATEMENT OF TRUTH LIGHTLY": CONTEMPT OF COURT WHEN DOCUMENTS WERE "CREATED" LONG AFTER THE EVENT
In GB Holdings Ltd -v- Short [2015] EWHC 1378 (TCC) Mr Justice Coulson reviewed the authorities and principles relating to applications for contempt of court when it is alleged that a witness has forged documents in relation to the action….
INDEMNITY COSTS AND REDUCED INTEREST ON DAMAGES BECAUSE OF DELAY: COURTS WILL STAY ON THE RAILS
There is a short interesting judgment by Mr Justice Akenhead in Network Rail Infrastructure Ltd -v- Handy [2015] EWHC 1460 (TCC) which deals with the principles relating to indemnity costs and interest. A further interesting point is that the claimant…
FAILURE TO COMPLETE PRE-TRIAL REVIEW QUESTIONNAIRE FULLY LEADS TO DEFENCE AND COUNTERCLAIM BEING STRUCK OUT
In Waterman Transport Ltd -v- Torchwood Properties Ltd [2015] EWHC 1446 (TCC) Mr Justice Akenhead entered judgment for a claimant and struck out a counterclaim after the defendant failed to file a completed pre-trial review questionnaire properly. THE CASE The…
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