COSTS BITES 457 — A FAILED FRAUD CLAIM, INDEMNITY COSTS AND 14 DAYS TO PAY: “I CONSIDER THAT THIS WAS COMMERCIAL CONDUCT OUT OF THE NORM” (OH, AND YOU DON’T GET MORE TIME TO PAY JUST BECAUSE YOU’RE A LARGE ORGANISATION)
For the second time today we are looking at an argument about costs after judgment. Here both sides argued that they could recover costs. The judge held that the claimant had to pay the defendant’s costs on the indemnity basis….
THE CRITICAL IMPORTANCE OF COMPLYING WITH TIME LIMITS: “THERE WAS A WHOLESALE FAILURE TO ACKNOWLEDGE THE DEFAULTS”; “IT WAS ALL AS IF COMPLIANCE WERE OPTIONAL”
Over the years we have seen some strongly worded judgments on failure to comply with the rules. Few are as strongly worded as this. The judge felt that the defendant felt it was entitled to provide documents late; there was…
TRYING TO RE-OPEN THE CASE AFTER BEING SENT A DRAFT JUDGMENT: “IT IS NOT INTENDED TO PROVIDE AN OPPORTUNITY TO ANY PARTY … TO REOPEN OR REARGUE THE CASE”
For the second time in a fortnight we are looking at an attempt to persuade a judge to re-open their decision after a draft judgment has been sent out. This approach had the same result as the previous case. “This…
COST BITES 454: PERSISTENT DISHONESTY LEADS TO INDEMNITY COSTS AGAINST ALL THE DEFENDANTS : “THEY WERE ALL IN IT TOGETHER”: LIMITED MEANS DID NOT JUSTIFY REFUSING AN ORDER FOR AN INTERIM PAYMENT OF COSTS
There are a number of costs issues considered in this judgment. Should indemnity costs be awarded? Should each defendant be liable to the same extent? Should the defendants’ financial position play a part in the decision on costs? Should there…
THROWBACK FRIDAY “AN OBJECT LESSON IN HOW MODERN LITIGATION SHOULD NOT BE CONDUCTED” (WITH THE ADDED BONUS OF AN OBJECT LESSON IN HOW NOT TO DRAW UP A COURT ORDER): NOVEMBER 2013
This case provides two object lessons. Firstly in how not to conduct litigation; secondly in how not to draw up a court order. Both points are important. The second issue is a remarkable attempt by a part to “re-write” a…
LITIGATOR’S LIFELINE 2: WHEN A SOLICITOR MOVES FIRMS: TEN POINTS ON FORMER CLIENTS, CONFIDENTIAL INFORMATION AND INFORMATION BARRIERS
Earlier this week we looked at a case where a defendant made an application to prevent the claimant’s solicitors continue acting. This was on the basis that a solicitor who he had dealings with at a previous firm had now…
WRITING LETTERS TO THE JUDGE AFTER A DRAFT JUDGMENT IS CIRCULATED: “THIS IS ABOUT AS FAR AWAY FROM THE CONDUCT OF SOLICITORS CONDUCTING LITIGATION AS IT IS POSSIBLE TO GET”
We have had many examples of parties writing to the court after receiving a draft judgment. On occasions such correspondence has been ill-advised. However I cannot recall any case where the letter from a losing party’s solicitor was as vitriolic…
THE COURT REFUSES DEFENDANT’S APPLICATION FOR AN ORDER THAT THE CLAIMANT’S SOLICITORS CEASE TO ACT FOR HER: THERE IS NO AUTOMATIC CONFLICT AND EVIDENCE IS REQUIRED
It is not at all unusual for solicitors to move firms. It is often the case that the new firm will be engaged in cases which involve the solicitor’s previous firm. Is the “new” firm conflicted thereafter and must it…
“THIS IS NOT THE MANNER IN WHICH AN APPLICATION SHOULD BE MADE”: EMAILS TO THE COURT CANNOT TAKE THE PLACE OF APPLICATIONS
We have seen a large number of cases where a party, or a proposed party, writes directly to the court to seek an order in their favour. Here we have a case where this course of action was adopted. The…
WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (2): EMBARGOED JUDGMENTS: TEN KEY POINTS AND SUGGESTIONS FOR HOW A LETTER TO THE CLIENT SHOULD BE DRAFTED
The previous post looked at the latest case in relation to breaches of an embargo on a draft judgment. The judge observed that the solicitor had given good advice and stated “I do not know what the answer to that…
ANOTHER CASE ON BREACH OF A JUDGMENT EMBARGO: WHAT IS TO BE DONE WITH LITIGANTS WHO CAN’T KEEP SECRETS (1)?
There are numerous cases on breach of a draft judgment embargo on this blog. In this case the solicitor had given clear advice about the embargo but the client, inadvertently, breached it. The case highlights the need for litigants (on…
“LITIGATION SHOULD BE CONDUCTED BY APPLICATIONS AND ORDERS”: “THESE EPISTOLARY COMMUNICATIONS WERE LESS THAN SATISFACTORY…”
There is one brief observation in this judgment which is of some importance in relation to the way that litigators communicate with the court. Attempting to manage a case by correspondence is usually not satisfactory. “Court systems are not well…
SERVICE POINTS 55: THE SOLICITORS DISCIPLINARY TRIBUNAL FINDS THAT A SOLICITOR WAS TELLING LIES ABOUT SERVICE: SOLICITOR STRUCK OFF (DON’T LET THIS HAPPEN TO YOU…)
We have looked many times at issues relating to non or mis-service of the claim form. Here we have a case where a solicitor’s evidence as to service was disbelieved by a Circuit Judge. The case shows many familiar mistakes…
PARTIES SHOULD NOT ASSUME THAT EXTENSIONS OF TIME WILL BE GRANTED: JUDGE HIGHLY CRITICAL OF DEFENDANT’S CONDUCT OF LITIGATION
If there is a theme for today it is the importance of compliance with rules and directions. Here we have very strong criticism of the defendant Secretary of State (more accurately his legal team). The judge observed that the defendant’s…
ARTIFICIAL INTELLIGENCE HALLUCINATIONS – CAUSING PROBLEMS FOR THE PROFESSION AGAIN: “… THIS DECISION ILLUSTRATES THE CONSIDERABLE PROCEDURAL DIFFICULTIES WHICH CAN ARISE WHEN INAPPROPRIATE USE IS MADE OF AI”
I have today received a copy of the second edition of Andrew Hogan’s book on AI for Lawyers (a review of which will be appearing soon). Problems with the use of AI continue to blight the profession (at home and…
WHEN POSSIBLE FRAUDULENT CONDUCT EMERGES – CAN A SOLICITOR SIMPLY CARRY ON AS BEFORE? THE ISSUES CONSIDERED
Here we look at difficult conduct issue. This is in the context of applications for judicial review. However some of the problems are universal. What does the lawyer do if there are “red flags” that indicate that the solicitor is…
COST BITES 450: IF THE CLAIMANT SUCCEEDED ON A CASE THAT WAS NOT PLEADED SHOULD IT THEN PAY THE DEFENDANTS’ COSTS?
Here the “Cost Bites” series interacts with the “Present Importance of Pleadings”. The judge considered issues relating to liability to pay costs when the claimant had succeeded, but on a basis that was not pleaded. In these circumstances should the…
COST BITES 449 : YOUR CASE AGAINST ME WAS DISMISSED BECAUSE YOU HAD NO PROPER CAUSE OF ACTION: SHOULD I GET 100% OF MY COSTS ON THE INDEMNITY BASIS? (LIFE IS MORE NUANCED THAN THIS…)
Here we look at a case where a defendant was successful in having an action against him struck out because there was no viable cause of action. The questions addressed here were – should the claimant recover 100% of his…
COST BITES 448: THE FINANCIAL CONDUCT AUTHORITY HAS TO PAY THE FULL COSTS OF LOSING AN ACTION: ARGUMENTS ABOUT “CHILLING EFFECT” WERE NOT ESTABLISHED AND NOT EVIDENCED IN ANY EVENT
Here we look at some unusual arguments from an unsuccessful defendant as to why it should not be liable to pay the claimants’ costs in full. In the end the defendant succeeded in reducing the costs of a single claimant…
MORE ON THE USE OF ARTIFICIAL INTELLIGENCE AND “HALLUCINATING” CASE LAW AND LEGAL PRINCIPLES: THE SOLICITORS DISCIPLINARY TRIBUNAL GIVES A CLEAR VIEW…
We have now looked at numerous court cases where lawyers have come to grief because of the use of Artificial Intelligence to cite law incorrectly, or simply manufacture false cases and equally false legal principles and citations. Here we have…
COST BITES 446 : SHOULD THE COURT HAVE MADE A NON-PARTY COSTS ORDER? SHOULD THE APPELLANT HAVE BEEN CROSS-EXAMINED AND WAS THE COURT BOUND TO ACCEPT HIS EVIDENCE?
This is a case about non-party costs orders that has some unusual elements. Firstly an argument that since the appellant was not cross-examined the court was bound to accept his assertions that he had no direct financial interest in the…
WITNESS EVIDENCE WEDNESDAY: “BACKDATING LETTERS” TO DELIBERATELY MISLEAD COULD COST YOU: £4.58 MILLION IN THIS CASE: (METADATA COMES INTO PLAY NOW)
We are looking here at a judgment about witness credibility made by an Employment Tribunal several years ago. In particular the Tribunal found that the Defendants’ witnesses had deliberately backdated letters in an attempt to mislead. The reason we are…
COST BITES 445: “AN APPALLING WASTE OF RESOURCES FOR WHICH BOTH PARTIES AND THEIR REPRESENTATIVES BEAR RESPONSIBILITY”: THE FAMILY COURT IS NOT BEST PLEASED…
Here we take a look at a judgment in a family case which contains an exhortation about running up unnecessary costs. This is normally a regime in which inter partes costs are not awarded. The conduct in this case led…
COST BITES 441: NO ORDER FOR COSTS – EVEN THOUGH THE APPLICANT WAS SUCCESSFUL: THERE ARE MANY LESSONS TO LEARN HERE…
Last week this blog had a fairly detailed review of those circumstances which often lead to no order for costs being made. We have another example here. The applicant had succeeded in the application it had made, however the judge…
COST BITES 440: WHY INDEMNITY COSTS WERE ORDERED A LOOK AT THE CLAIMANTS’ PLEADED CASE: FIRSTLY IT WAS PLEADED TOO WIDELY, SECONDLY THERE WERE THEN ATTEMPTS TO PUT THE CASE OUTSIDE THE PLEADINGS
We look again at the award of indemnity costs in the Associated Newspaper case. The reasons for this were manifold. However there were two important factors relating to the statements of case. Firstly the case was pleaded far too widely;…
COST BITES 438 : CLAIMANT’S UNTENABLE ARGUMENTS LEADS TO REDUCTION IN COSTS RECOVERED: HOURLY RATES FAR TOO HIGH, EVEN WHEN THE CLAIM WAS “ONLY” FOR £9 MILLION
This decision as to costs gives rise to two interesting issues. Firstly the claimant’s costs of an injunction application were reduced substantially because assertions were put forward on a basis that were “unsustainable” and which should never have been pursued,…
WHEN A COURT MAY MAKE NO ORDER FOR COSTS: THE FACTORS CONSIDERED: 12 KEY POINTS AND A USEFUL CHECKLIST FOR PRACTITIONERS
Some posts earlier this week concentrated on a case where the judge made no order for costs. This is an unusual outcome, but still one that has to be considered and the client warned about. Here we take a…
COST BITES 437: SHOULD THE DEFENDANT’S CONDUCT OF THE ACTION LEAD TO INDEMNITY COSTS BEING AWARDED? YES IT SHOULD…
In this case the judge decided that the defendant’s conduct of the litigation warranted an award of indemnity costs being made. There is an interesting consideration of the case law relating to when costs will be reduced because of lack…
BACK TO BASICS MONDAY: LITIGATORS HAVE TO WARN THEIR CLIENTS THAT SOMETIMES A COURT MAKES NO ORDER FOR COSTS AT ALL: THE PERILS IF YOU DON’T
This post obviously follows on from the post earlier today where the judge made no award for costs after a trial. Neither side had “won” and, in any event, the amount spent in pursuit of the claim was disproportional. This…
COST BITES 435: £4 MILLION SPENT IN COSTS AND NEITHER PARTY WILL RECOVER A PENNY FROM THE OTHER: A “PYRHHIC” VICTORY LEADS TO NO ORDER FOR COSTS…
This is case that should be considered by every litigator, and litigant. It involves legal expenditure on a major scale, with very little benefit to the parties at the end. The final result is unlikely to please either of the…
AN ORDER FOR WASTED COSTS NARROWLY AVERTED – BUT THERE WERE ISSUES ON BOTH SIDES: “NONE OF THE LEGAL PROFESSIONALS IN THIS CASE HAVE COVERED THEMSELVES WITH GLORY”
This is a case where the judge found the conduct of a firm of solicitors “utterly extraordinary”. However there were, in fact, a number of errors by both sides. This may (and probably would) have led to a wasted costs…
COST BITES 427: WHEN A SOLICITOR ABANDONS AN ASSESSMENT: PERSONAL LIABILITY AND INDEMNITY COSTS FOLLOW
We have looked before at these cases relating to the assessment of costs in the pelvic mesh actions. So far as the assessments were concerned nothing much has happened for several years. Here we look at the consequences of this….
ATTEMPTING TO RE-WRITE A DRAFT JUDGMENT: THIS HARDLY EVER (IF EVER) PERSUADES A JUDGE THAT THEY WERE WRONG
The practice of sending out draft judgments in advance is undoubtedly helpful. It does, however, lead to some procedural difficulties in itself. We have seen numerous examples of the draft embargo on a judgment being breached. It is sometimes seen…
COST BITES 421 : THE AMY WINEHOUSE CASE IS BACK IN COURT: CLAIMANT’S AGGRESSIVE CONDUCT OF A CASE WHERE HE LOST “ON EVERY MATERIAL POINT OF FACT AND LAW” LEADS TO AN ORDER FOR INDEMNITY COSTS TO PAY COSTS ON THE INDEMNITY BASIS
We are looking at another case where the claimant’s conduct of the case has led to costs being awarded on an indemnity basis. The judgment is clear that the claimant deliberately adopted an aggressive case which had no factual merit…
COST BITES 420 : INDEMNITY COSTS AWARDED: “YOU SHOULD HAVE APPLIED TO STRIKE US OUT” OR “YOU COULD HAVE MADE A LOWER OFFER” ARE NOT AN ATTRACTIVE ARGUMENTS IN THIS CONTEXT
Here we look at some interesting arguments when claimants were attempting to avoid an award of indemnity costs. The judge was not impressed by the submission that the defendant should have applied to strike the action out. He was equally…
ANOTHER BREACH OF JUDGMENT EMBARGO CASE: WHY SOLICITORS MUST BADGER THEIR CLIENTS ABOUT COMPLIANCE: “THE COURT EMBARGO IS FUNDAMENTALLY DIFFERENT FROM JOURNALIST EMBARGO”
Here we have yet another breach of the embargo on the handing down of a court judgment. The breach appears to have occurred because of a misunderstanding as to the important distinction between a court embargo and a journalism embargo. …
COST BITES 419: HOW CLAIMING COUNSEL’S FEES ON AN N260 CAN LEAD TO REFERRAL TO THE ATTORNEY GENERAL FOR CONTEMPT OF COURT PROCEEDINGS TO BE CONSIDERED: SIGNATORY BEWARE
Cost Schedules are signed and served every day. This case shows why they must be checked carefully before signature. Here the judge found that a claim made for counsel’s fees on an N260 had been false. This was one of…
“STING OPERATIONS”, SECRET AGENTS, NAIVE SOLICITORS DISCLOSING THEIR CLIENT’S PRIVILEGED INFORMATION, STRIKING OUT AND ABUSE OF PROCESS: COURT OF APPEAL DECISION HIGHLIGHTS THE MAJOR RISKS OF “PRIVILEGE HUNTING”
Here the Court of Appeal looks at one of the most remarkable issues of “litigation conduct” that has occurred in recent years. The claimants hired a “black ops” operative to befriend and obtain privileged and confidential information from the defendants’…
WHAT SHOULD A SOLICITOR DO IF A CLIENT IS PUTTING FORWARD AN ACCOUNT THAT MAY BE UNTRUE AND THEN THERE ARE “RED FLAGS”? WHEN IS THE LINE CROSSED: THE DUTIES CONSIDERED IN DETAIL
A solicitor is, generally, not under a duty to satisfy themselves that their client is telling the truth. However what happens when there are “red flags” which indicate the client is using the solicitor’s services in furtherance of a fraud? …
MAZUR MATTERS 65 (YES THEY ARE STILL CROPPING UP…): WAS A COMPANY SUING FOR A DEBT IT HAD PURCHASED BREACHING THE LEGAL SERVICES ACT?
Here we are looking at an argument that a company, that had purchased a debt and issued proceedings, was breaching the Legal Services Act. The argument was forcibly put and, just as forcibly, rejected. The judge was clear that a…
THROWBACK FRIDAY: ANOTHER (YES ANOTHER) CASE WHERE A LITIGANT ARGUED “MY CASE WAS SO HOPELESS I SHOULDN’T HAVE TO PAY YOUR COSTS” (OCTOBER 2024)
This week we have been looking at could broadly be called “ambitious” arguments by, or on behalf of, litigants as to why they should not pay costs. There are a surprising number of such cases. Here we revisit a post…
WE HAD SUCH A HOPELESS CASE WE SHOULDN’T PAY ALL THE COSTS BECAUSE YOU SHOULD HAVE APPLIED TO STRIKE US OUT: ARGUMENTS WITH AN “AIR OF UNREALITY” ABOUT THEM
A post yesterday looked at two cases where attempts were made to attribute some blame to a litigant’s opponents for not spotting certain issues arising from that litigant’s own conduct. Here we look at a case where this type of…
CIVIL PROCEDURE, OPAQUE EVIDENCE AND “YOU SHOULD HAVE KNOWN”: ARGUMENTS THAT HAVE BEEN REJECTED BY THE COURTS – TWO EXAMPLES AND THE UNHAPPY CONSEQUENCES FOR THE LITIGANTS…
We are looking at an argument deployed in a case we considered earlier today. It was an argument that the defendants should have been able to “divine” from the oblique nature of the claimant’s evidence that funding was not in…
COST BITES 413: GET YOUR FUNDING IN PLACE AND TELL EVERYONE IF THE MUSIC HAS STOPPED: CAT AWARDS COSTS ON THE INDEMNITY BASIS DUE TO CONDUCT
It goes without saying that this is a decision that must be music to the defendants’ ears. Not only was the claim dismissed the claimant was ordered to pay costs on an indemnity basis for a large part of the…
COST BITES 412: SHOULD THE CLAIMANT’S FAILURE TO GIVE FULL AND FRANK DISCLOSURE ON AN APPLICATION TO SERVE OUT LEAD TO THE DEFENDANTS RECOVERING INDEMNITY COSTS: CONDUCT CONSIDERED
This judgment considers whether certain, admitted, failures by the claimant to give full and frank disclosure should lead to costs being awarded against it, even though it defeated the defendants’ application to set aside the order that was made. The…
COST BITES 411: NON-PARTY COSTS ORDER MADE AGAINST CLAIMANT’S DIRECTOR : HE WHO EXPECTS TO BENEFIT RUNS A RISK OF PAYING THE COSTS…
This case considers the issue of whether it was appropriate to make a non-party costs order. The Master reached a clear conclusion that it was. The individual in question was effectively the driving force behind the litigation in addition to…
EXPERT WATCH 56: A SECTION OF A JUDGMENT THAT SPECIFICALLY CRITICISES A MEDICAL EXPERT: “I WAS STRUCK BY THE ABSENCE OF A RIGOROUS AND CAREFUL MULTIDISCPLINARY APPROACH TO THIS ISSUES IN THIS CASE”
One of the fascinating things about procedure is how the same principles apply across a whole range of cases. This is particularly the case with issues relating to evidence, particularly expert evidence. Earlier we looked at expert evidence in relation…
COST BITES 409: A PART 36 CASE TO FINISH OFF THE WEEK: CLAIM £8.4 MILLION GET £102,000 (HAVING TURNED DOWN AN OFFER OF £3.175 MILLION): IT IS NOT “UNJUST” FOR THE CLAIMANT TO FACE TO NORMAL PART 36 CONSEQUENCES, NOR WOULD THE COURT “PICK AND CHOOSE” IN RELATION TO THE COSTS PAYABLE
If ever a case served as a warning to the risks of litigation it is this one. The claimant sought damages of up to £8.4 million but obtained judgment of £102,000. This turned out to be expensive litigation, with the…
RELIEF FROM SANCTIONS: AS STRONGLY WORDED A REFUSAL AS I HAVE SEEN: THE CONCEPT “DOES NOT EMBODY A PRINCIPLE OF “BREACH NOW REPENT LATER”
Here we look at a strongly worded judgment where relief from sanctions was refused. A party had exceeded the page limit set by court directions and also served the statement late. The judge dismissed the arguments that the other side…
COST BITES 405: SHOULD A SUCCESSFUL CLAIMANT’S CONDUCT LEAD TO A DEDUCTION OF 45% OF THEIR COSTS? A TOOTH DECISION…
This is a case where the judge had to consider whether a successful claimants costs should be reduced because of conduct. The judge found that there were grounds to criticise the claimant’s conduct of the action. However this could not…
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