UNREASONABLE FAILURE TO USE PROTOCOL WILL LEAD TO FIXED COSTS BEING AWARDED: COURT OF APPEAL DECISION: CPR 44 RULES THE DAY
In Williams v The Secretary of State for Business, Energy & Industrial Strategy [2018] EWCA Civ 852 the Court of Appeal considered the issue of the personal injury protocol and fixed costs. It was held that CPR 44 has sufficient width…
THE JUDGMENT IN ALI -V- CHANNEL 5 2: CLAIMANTS FAILED TO BEAT PART 36 OFFER, NO GOOD REASON TO DEPART FROM NORMAL COSTS CONSEQUENCES
This is the second post about the decision on costs in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch). Here we look at the issue relating to Part 36. The defendant had made a Part 36 offer….
THE JUDGMENT IN ALI -V- CHANNEL 5 1: THE ALLEGED FAILURE TO MEDIATE
The judgment on costs issues today in Ali & Anor v Channel 5 Broadcast Ltd [2018] EWHC 840 (Ch) covers a number of issues. I am dealing with each distinct issue in a separate post. The first deals with costs following…
MAKING UNWARRANTED ASSERTIONS LEADS TO INDEMNITY COSTS – AGAINST A SECRETARY OF STATE
There are numerous cases where the courts have considered conduct that leads to indemnity costs. In Secretary of State for the Home Department v Barry [2018] EWCA Civ 790 the Court of Appeal found that the Home Department’s conduct of an…
CIVIL PROCEDURE – BACK TO BASICS 3: THE STATEMENT OF TRUTH
The aim of this series is to look at things that litigators do every day – almost automatically. Signing a statement of truth is one of those things. This is a regular occurrence in many solicitor’s offices. It is a…
CLAIMANTS COSTS REDUCED BECAUSE OF FAILURE ON CERTAIN POINTS: 15% AND 50% REDUCTION
In Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt reduced the costs of the successful party due to the fact that the claimants failed on some issues. THE CASE The claimants had been successful in an action…
WHEN THE JUDGE IS ENTITLED NOT TO DECIDE ON THE EVIDENCE: PLUS THE IMPORTANT ISSUE OF CONDUCT AND COSTS
The Court of Appeal decision today in Constandas v Lysandrou & Ors [2018] EWCA Civ 613 illustrates two distinct issues: The position when a judge is unable to make a finding on the evidence. What conduct can lead to a successful…
NO “GRANDSTANDING” PLEASE: THE COURT IS NOT ASSISTED BY RHETORICAL POINTS
It has been a week for the courts commenting on advocates. Earlier we had complaints of advocates interrupting each other. Today we have complaints of “grandstanding”. Reminding advocates that their task is to deal with the legal issues at hand…
SIR RUPERT JACKSON ON THE DAY OF HIS RETIREMENT: A REVIEW OF SOME JUDGMENTS ON PROCEDURE
It is well known that Sir Rupert Jackson retires on the 7th March. There are several reviews of the work Sir Rupert has done in re-shaping civil procedure. Here I want to look at a few of his judgments that…
SOLICITORS, SAVAGE POODLES: LAWYERS AND THEIR DOGS – 70 YEARS OF LEGAL PRACTICE
I bought a copy of “The Savage Poodle: Tales from Legal Practice” from Wildys on Wednesday. I didn’t plan to review it, but then a plan hatched in my mind… THE BOOK The book consists of selected extracts from the…
FUNDAMENTAL DISHONESTY A DOZEN THINGS TO THINK ABOUT: A RECAP
Given recent decisions on fundamental dishonesty this may be a good time to rake over some key points. “I assure the Committee that the way that the clause is drafted should not result in the courts using the measures lightly….
FACT FINDING IN THE FAMILY COURT: ERRATIC WITNESSES AND BEHAVIOUR ON DISCLOSURE WHERE THE CONDUCT WAS NOT FAR SHORT OF CONTEMPT
We have looked at “fact finding” by the courts many times. The fact finder in a family case has a particularly arduous and unenviable task . The judge has to assess evidence that is often highly charged, and where there…
THE HOURLY RATE FOR INCURRED COSTS: WHY IT IS IMPORTANT THAT THESE ARE SET OUT CORRECTLY: HIGHER HOURLY RATES THAN THE RETAINER SHOULD START THE ALARM
I am grateful to Benjamin Petrecz, Associate and Costs Lawyer at Keoghs LLP, for bringing my attention to a decision of Master Rowley in Tucker -v- Griffiths & Hampshire Hospitals NHS Foundation Trust (19/05/17) in relation to costs budgeting. A…
THE DANGER OF ISSUING UNDER PART 8 AND THEN DOING VERY LITTLE: COURT UPHOLDS REFUSAL TO LIFT STAY: ACTION STRUCK OUT
I am grateful to barrister Richard Whitehall for sending me a copy of the decision of His Honour Judge Pearce in the case of Lyle -v- Allianz Insurance plc (Liverpool CC 21st December 2017). It is a case that illustrates…
CIVIL LITIGATION REVIEW OF 2017 (IV): COSTS, BUDGETS, PROCEDURAL GAMES AND MISCONDUCT ON ASSESSMENT
This year has been a surprisingly muted year for costs cases, particularly in the higher courts. Several judgments were expected, however they rarely proved to be definitive or wide ranging. 2018 may be the year that some issues are resolved….
CIVIL PROCEDURE REVIEW OF 2017 (III): EXPERTS: SNEAKINESS, DISCLOSURE OF CONFLICTS, ARROGANCE AND NO CONCEPT OF THE DUTY OWED TO THE COURT
There have been plenty of interesting cases on experts this year. Here are a few select cases. ATTEMPTS TO SNEAK EXPERT EVIDENCE IN There have been a number of cases where parties have attempted to “disguise” expert evidence. Teva UK…
CIVIL LITIGATION AND THE MARTIAL ARTS: MCGANN -V- BISPING: ROUND 2: WHEN A WITNESS DISCUSSES THEIR EVIDENCE
The judgment in McGann v Bisping [2017] EWHC 2951 (Comm) deals with numerous procedural issues, many of which arose in the course of the trial. We have looked at one of these already. The case also involved a witness, during the course…
CIVIL LITIGATION AND THE MARTIAL ARTS: McGANN -v- BISPING: ROUND 1: DISPUTING THE AUTHENTICITY OF DOCUMENTS WITHOUT SERVICE OF A NOTICE UNDER CPR 32.19
The judgment today in McGann v Bisping [2017] EWHC 2951 (Comm) involves multiple issues in relation to civil evidence, procedure and witness credibility. Here I want to look at just one issue – the failure to serve a notice under CPR…
LAST REMINDER OF NEW YEAR’S RESOLUTION FOR 2017: WITHOUT NOTICE APPLICATIONS ARE SO, SO, DANGEROUS: THE DUTY OF FULL DISCLOSURE EXTENDS TO WEAKNESSES IN YOUR OWN CASE
The one New Year’s Resolution I recommended to litigators for 2017 was to be very, very, wary of without notice applications. As we get near to the end of the year this advice is borne out by the judgment of…
COURT OF APPEAL STATES INDEMNITY COSTS SHOULD HAVE BEEN AWARDED: SHOULD HAVE BEEN MORE BULLISH IN BRADFORD…
It is unusual for the Court of Appeal to interfere with a discretionary order in relation to costs. It is even more unusual for the court to replace an order for costs on the standard basis with indemnity costs. This…
COSTS DISALLOWED IN FULL DUE TO MISCONDUCT IN ASSESSMENT PROCESS: COURT OF APPEAL DECISION
In GSD Law Ltd v Wardman & Ors [2017] EWCA Civ 2144 the Court of Appeal upheld a decision whereby the claimants’ costs were disallowed because of misconduct during the assessment process. “The alleged misconduct in this case goes to…
WRITING TO THE COURT ON A UNILATERAL BASIS: COURT OF APPEAL SAYS DON’T DO IT
Several passages in the judgment in Zuma’s Choice Pet Products Ltd & Anor v Azumi Ltd & Ors [2017] EWCA Civ 2133 emphasise a point made earlier this year. A litigant should not write to the court on a unilateral basis….
ADVOCACY – THE JUDGE’S VIEW, SERIES 2 PART 4: THREATENING YOUR OPPONENT WITH A “PROCTOLOGY EXAMINATION” AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
This series is about learning from judges. Here I advocate (hopefully in a civil way) learning from one judgment. That is the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC….
COSTS AFTER LATE ACCEPTANCE OF A DEFENDANT’S PART 36 OFFER: CLAIM £21.5 MILLION, ACCEPT £125,000: THE IMPORTANCE OF CLEAR VISION ON DAMAGES FROM THE OUTSET
In Optical Express Ltd & Ors v Associated Newspapers Ltd [2017] EWHC 2707 (QB) Mr Justice Warby considered arguments in relation to costs after late acceptance of a Part 36 offer. On the facts of that case he ordered that the…
SOLICITOR AND OWN CLIENT ASSESSMENTS: PROPORTIONALITY CONSIDERED
In October last year I wrote how a speaker at the Association of Cost Lawyers Conference predicted a rise in the number of solicitor and own-client assessments. It has to be said that there have been some interesting cases in…
“BREATHTAKINGLY RUDE” LETTERS INDICATED AN INTENT TO ABUSE THE PROCESS: DEFENDANT’S CONDUCT IN FAILING TO PAY FOR PITCH CROSSED THE LINE
In Bernard Sport Surfaces Ltd v Astrosoccer4u Ltd [2017] EWHC 2425 (TCC) Mr Justice Coulson had strong words to say about correspondence and conduct which, he held, were simply attempts to avoid a debt that was lawfully due. “… all of…
CONDUCT AND LITIGATION: THE SEPARATION OF POWERS AND THE RULE OF LAW: A SECRETARY OF STATE DOES “NOT REQUIRE KINDERGARTEN-TYPE ELABORATION”
The headnote in R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC) appears relatively benign, Mr Justice McCloskey deciding that the upper…
THE BANK OF IRELAND CASE ROUND TWO: APPROPRIATE SUMS FOR AN INTERIM PAYMENT ON ACCOUNT OF COSTS: INDEMNITY COSTS ORDERED BECAUSE OF CONDUCT OF EXPERT
In an earlier post we looked at the judgment in Bank of Ireland -v- Watts Group PLC [2017]EWHC 1667 (TCC) where Mr Justice Coulson was particularly excoriating about the claimant’s expert. Having lost the case the bank had to pay the…
BEHAVIOUR IN THE COURTROOM – IT GOES FURTHER THAN YOU THINK: SOME CASES AND SOME GUIDANCE
The vast majority of studies on behaviour in the courtroom concentrate on the interaction between the judge, the advocates and the witnesses. However the courtroom is a big place. Twice in recent weeks we have seen judges refer to the…
WHEN A JUDGMENT STARTS “OH DEAR, OH DEAR, OH DEAR”: CAR CRASHES AND MOTORWAY PILE UPS IN THE UPPER TRIBUNAL: UPPER TRIBUNAL JUDGE RENDERED SPEECHLESS
This blog sometimes looks at tribunal decisions, primarily in the context of procedural issues. These issues abound in the decision of Upper Tribunal judge Nicholas Wikeley in AF v Secretary of State for Work and Pensions (DLA) (No2) (Tribunal procedure and…
NON-COMPLIANCE WITH PEREMPTORY ORDERS: THE FULL JUDGMENT IN POWELL -v- WATFORD BOROUGH COUNCIL
I have written before about the judgment of Mr Justice Jay in Powell -v- Watford Borough Council [2017] EWHC 2283 (QB). The full transcript has now become available. It deals with an important point about the need to follow the…
SENSIBLE CONCESSIONS PLAY NO PART IN THE ORDERING OF INDEMNITY COSTS: ORDER MADE ON MERIT
I have written about the substantive judgment in Imperial Chemical Industries Limited -v- Merit Merrell Technology Limited [2017] EWHC 1763 (TCC) several times already. There is a shorter judgment on costs at Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2017] EWHC…
AN EXPERT REPORT THAT WAS “EXTRAORDINARY IN ITS PRESENTATION AND SHOT THROUGH WITH BREATH TAKING ARROGANCE”: THIS DOESN’T END WELL
Problems caused by expert witnesses feature heavily on this blog. I am grateful to barrister Brian McCluggage for sending me a copy of the decision of Her Honour Judge Belcher in Hatfield -v- Drax Power Ltd (18/08/2017) which contains robust…
“ROBUST” BUT NOT GRATUITOUSLY OFFENSIVE:” SRA GUIDANCE ON COMMUNICATIONS WITH OTHER FIRMS AND LITIGANTS IN PERSON: THE FUTILITY OF RUDENESS
The Solicitors Regulatory Authority has issued guidance today on “Offensive communications” It gives me a chance to recap on earlier posts about the futility of rudeness. “Your role is to act in the client’s best interests; antagonising the other side…
COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: A RECAP AND REVIEW OF THE EARLIER CASE MENTIONED
I am writing, again, about the the judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB). The point the case makes about the correct route of appeal has been commented on, however I had not anticipated…
DESTINATION OF APPEALS FROM A DISTRICT JUDGE ALLOCATED A CIRCUIT JUDGE’S WORK: IMPORTANT WORDS ON COMMUNICATING WITH THE COURT
The judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB) is of considerable importance in relation to the correct route for appeals. It was held that the correct route of appeal from a district…
COSTS AFTER A PART 36 OFFER AFFECTED BY THE CHANGE IN THE DISCOUNT RATE: CONDUCT OF DEFENCE ALONE SUFFICIENT TO JUSTIFY INDEMNITY COSTS
I have written several times about the judgment of Thirlwall LJ in Marsh -v- MOJ*. I have been provided with a copy of a note of the judgment on costs given on the 31st July 2017. I am grateful to…
YOU OFFERED ME £100,000: I’VE ACCEPTED £15,000- OH AND I WANT MY COSTS: THE DANGERS OF NOT NEGOTIATING AND WHY THE CLAIMANT HAD TO PAY INDEMNITY COSTS
I tried to summarise the judgment of Mr Justice Mann in Jordan -v- MGN Limited [2017] EWHC 1937 (Ch) and I found it difficult. Every word of the judgment is important. It shows, at least, a very insouciant, approach by the…
GET £15,000 FOR YOUR COSTS PAY £20,000 IN COSTS: CONDITIONAL FEE AGREEMENT UNFAIR AND UNREASONABLE AND WAS SET ASIDE
In Vilvarajah -v- West London Law Limited [2017] EWHC B23 (Costs) Master Gordon Saker declared a conditional fee agreement unreasonable and set it aside. The history and circumstances of this action make for interesting reading. “There is no correspondence between…
“WE WILL FIGHT THEM ON THE BUDGET”: COSTS BUDGETING: STOP PLAYING PROCEDURAL GAMES: COULSON J PROVIDES CLEAR GUIDANCE
Costs budgeting is not a place for the playing of procedural games. Mr Justice Coulson made this clear in his judgment published today in Findcharm Ltd -v- Churchill Group Ltd [2017] EWHC 1109 (TCC). It is a clear warning of…
DUTY TO DRAW ADVERSE AUTHORITIES TO THE ATTENTION OF THE COURT: HOW FAR DOES IT GO?
The duty to draw the court’s attention to authorities that do not support your case is an important one. In Weir -v- Hildson [2017] EWHC 983 (Ch) Mr Justice Nugee discusses the extent of this duty. THE CASE The applicant…
INTEREST ON DAMAGES AT 8% (AND THE DEFENDANT’S CONDUCT MATTERS): COURT OF APPEAL DECISION CONSIDERED
In Perry -v- Raleys Solicitors [2017] EWCA Civ 314 the Court of Appeal decided that the appropriate rate for interest on damages was 8% from the date of breach. It is not often that questions of interest on damages are…
PRESSING THE WRONG BUTTON: THE PERILS OF EMAIL “REPLY ALL” IN LITIGATION (OR ARBITRATION)
Many, if not all, of us will have made some errors with emails on some occasion. There is a danger, however, when this happens in litigation. This can be seen in the judgment of Mr Justice Popplewell in T -v-…
BILL OF £101,677.21 AND THE CLAIMANT ENDS UP WITH £2,515.60: MISCONDUCT DURING THE ASSESSMENT PROCESS HAS SERIOUS CONSEQUENCES
I am grateful to Justin Edwards of BLM solicitors for sending me a copy of the decision of Master Whalan in Jago -v-Whitbread a decision of Master Whalan. A copy of that case is attached here ( 2016.10.05 – Approved Judgment)….
BE CAREFUL WHAT YOU WRITE: THE SUPREME COURT MAY READ IT ONE DAY (AND IT MAY END UP ON A BLOG SOMEWHERE…)
There has already been some interesting debate on Twitter about one aspect of the Supreme Court decision in Times -v- Flood [2017] UKSC 33 that has not made the headlines. Dominic Regan observed that the case is another example…
WHEN A PUBLIC OFFICIAL SIGNS A “CARELESS” WITNESS STATEMENT THAT WAS “FALSE AND TENDED TO MISLEAD”: NOT IMPRESSIVE TO SAY THE LEAST
There are many cases that show a surprisingly insouciant approach to accuracy by those who draft, and those who sign, witness statements. This insouciance is even more surprising when the person who has signed the statement is a public official,…
“SOLICITOR FORCING ME TO SIGN AN INCORRECT WITNESS STATEMENT”: A VERY FRIGHTENING SEARCH TERM
It is possible to see some of the search terms that lead people to this blog (I should stress that there are no details of who made the search). One of the search terms yesterday was “solicitor forcing me to…
NO ISSUE BASED COSTS ORDER WHEN UNSUCCESSFUL CLAIMANT HAD TURNED DOWN A PART 36 OFFER OF £500,000
In Lyons -v- Fox Williams LLP [2017] EWHC 532 (QB) Mr Justice Turner considered issues relating to costs after a claimant had been unsuccessful in a claim for professional negligence. THE CASE The claimant had been unsuccessful in a claim…
EXPERT EVIDENCE AND EXPERT CREDIBILITY: DISCLOSING KNOWLEDGE OF THE PARTIES IS IMPORTANT
In Thefaut -v- Johnson [2017] EWHC 497(QB) Mr Justice Green made some important observations about the need for experts to be candid about their prior knowledge of, and relationships with, the parties to the action. A failure to mention knowledge…
COSTS AFTER NOMINAL DAMAGES AND PART 36 OFFERS: THE CLAIMANTS WHO TURNED DOWN £1.5 MILLION AND GOT £2.00 INSTEAD
We looked at the decision of Mr Justice Leggatt in Marathon Asset Management LLP -v- Seddon [2017] EWHC 300 (Comm) in an earlier post. The judge held that the defendants were in breach but that the claimants had suffered no loss….
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