INDEMNITY COSTS IN PUBLIC LAW PROCEEDINGS: FAILURE BY THE EXECUTIVE TO COMPLY WITH CONSENT ORDER TAKES THE CASE OUT OF THE NORM
In Butt, R (on the application of) v Secretary of State for the Home Department (Indemnity costs) [2022] UKUT 69 (IAC) the Upper Tribunal found that it had power to order indemnity costs, further, on the facts of this case…
WHEN WECHAT MESSAGES ARE LOST OR DESTROYED – BY A TWO YEAR OLD: THE ADVERSE INFERENCES A COURT CAN DRAW
In ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm) Mr Justice Calver considered a case where Wechat messages had been “lost”. The judge concluded that the “loss” was deliberate and…
LAWYERS AS SCHOOCHILDREN IN THE PLAYGROUND: BAD-TEMPERED LITIGATION: THE SUMMARY ASSESSMENT OF COSTS: THE TAIL TO AND NOT THE DOG ITSELF
In Crypto Open Patent Alliance v Wright [2022] EWHC 242 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) made some trenchant observations in relation to arguments about costs on summary assessment. The criticisms of the way that litigation…
“THERE IS A DANGER … THAT PROPORTIONATE ORDERS END UP UNDERMINING THE GENERAL RULE THAT COSTS FOLLOW THE EVENT”: SUCCESSFUL CLAIMANT GETS 100% OF THEIR COSTS
In Deutsche Bank AG London v Comune Di Busto Arsizio [2022] EWHC 219 (Comm) Mrs Justice Cockerill considered, and rejected, the defendant’s arguments that there should be a “proportionate” costs order. The judgment serves as a reminder of the basic…
THE NEED FOR VARIATION OF THE TONE OF CORRESPONDENCE IN LITIGATION: OUTRAGED OFFENCE AND BEING PASSIVE-AGGRESSIVE IS USUALLY OFF KEY
I am grateful to solicitor Richard Harrison for allowing me to reproduce his post on “The importance of tone in litigation”. This blog has looked, many times, at judicial criticism of intemperate correspondence. Richard’s observations here will strike a chord…
SHOULD A RESPONDENT RECEIVE HIS COSTS FOR BEING SENT TO PRISON? JUDGE CONSIDERS ISSUES AFTER CONTEMPT OF COURT HEARING
In Kea Investments Ltd v Watson [2022] EWHC 5 (Ch) Lord Justice Nugee considered the question of what costs order should be made after a respondent had been committed to prison for contempt. The applicant had succeeded on some, but…
CONDUCT AND COSTS: SUCCESSFUL DEFENDANT RECOVERS – NOTHING
In European Real Estate Debt Fund (Cayman) Ltd v Treon & Ors [2021] EWHC 2866 (Ch) Mr Justice Miles considered issues relating to costs after a defendant had succeeded at trial because the claimant’s action was statute barred. The judge…
IS A CONDITIONAL FEE AGREEMENT UNENFORCEABLE IF THE SOLICITOR BREACHES THE CODE OF CONDUCT? MUCH TO THINK ABOUT?
The judgment of Mr Justice Trower in Winros Partnership v Global Energy Horizons Corporation [2021] EWHC 3410 (Ch) gives much for lawyers to think about. Here I want to concentrate on one element of that judgment- does a failure to…
THE SOLICITOR, SOCIAL MEDIA AND THE DUTY TO DISCLOSE: WHEN A SOLICITOR ADVISES THAT DOCUMENTS BE DELETED OR HIDDEN…
There is an interesting/alarming report of an (unnamed) case on Kennedy’s website here, as part of a general discussion about wasted costs. Discussing issues relating to fundamental dishonesty there is an account of a recent case where a claim had…
SOLICITOR SHOULD NOT HAVE BEEN COMPELLED TO ATTEND COURT TO GIVE EVIDENCE IN A WASTED COSTS APPLICATION
In Hunt v Annolight Ltd & Ors [2021] EWCA Civ 1663 the Court of Appeal overturned a decision that a solicitor should be compelled to attend court to give evidence in a wasted costs application. “Any requirement for a solicitor…
RECORDING COURT PROCEEDING WITHOUT PERMISSION: THE PROBLEM ARISES – AGAIN
In Business Mortgage Finance 4 Plc & Ors v Hussain & Ors [2021] EWHC 2766 (Ch) Mr Justice Miles gave a judgment in another case where a party had recorded proceedings without permission. Permission was given retrospectively, however this was…
COSTS OF ASSESSMENT CAN BE REDUCED BECAUSE BILL WAS REDUCED: NO NEED FOR MISCONDUCT OR SKULDUGGERY
In Milbrooke Construction Ltd v Jones [2021] EWHC B20 (Costs) Costs Judge Brown found that the reduction of a bill of costs by a major percentage can be grounds, in itself, for disallowing part of the receiving party’s costs of…
WASTED COSTS AND THE SOLICITOR AS TARGET: “HEAVY SATELLITE LITIGATION IS TO BE DEPRECATED”
The judgment of Mr Justice Bryan in Lakatamia Shipping Co Ltd v Su & Ors [2021] EWHC 2702 (Comm) is essential reading for anyone contemplating making a wasted costs application. It is, of course, equally important for anyone defending such…
DRAFT JUDGMENTS AND THE USE OF EMAIL EXPLODERS: MORE CAUTION IS NEEDED
One particular aspect of the judgment in Optis Cellular Technology Inc & Anor v Apple Retail UK Ltd & Ors [2021] EWHC 2694 (Pat)that requires highlighting is the judge’s consideration of the use of “e-mail exploders” used by the parties when…
NO MATTER HOW BIG YOU ARE, OR HOW IMPORTANT (YOU THINK) YOU ARE – YOU HAVE TO COMPLY WITH THE RULES: SECRETARY OF STATE REFUSED PERMISSION TO RELY ON EXPERT EVIDENCE
In Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWHC 2595 (TCC) Mr Justice Fraser issued a clear and stark warning that expert evidence has to comply with the…
LITIGATION, DELAY AND THE DOCTRINE OF LACHES: IT WOULD BE “UNCONSCIONABLE FOR THE COURT TO GRANT THE APPLICANT ANY RELIEF”
The judgment of ICC Judge Barber in CSB 123 Ltd, Re [2021] EWHC 2506 (Ch)is interesting for a large number of reasons. Not least the total failure of the applicant to establish major (if not all) parts of its case,…
RUDE CORRESPONDENCE: A RECAP: JUST REMEMBER WHAT YOU WRITE COULD END UP ON A BLOG SOME DAY (FOR THE WHOLE WORLD TO SEE…)
Several search terms that led people to this blog today related to the “arrogant tone of solicitor correspondence”. This seems like a good time to recap on Guidance and case law where, shall we say “assertive” correspondence has been considered…
JUDGE ENTITLED TO FIND A CLAIMANT WAS NOT DISHONEST: IT MAY BE MORE BENEFICIAL TO DIRECT ATTENTION TO SOLICITOR RATHER THAN THE “HAPLESS CLIENT”
In Michael v I E & D Hurford Ltd (t/a Rainbow) [2021] EWHC 2318 (QB) Mrs Justice Stacey refused the defendant’s appeal in a case where the trial judge had found the claimant not to be fundamentally dishonest. The claimant…
“THERE IS A WORRYING TREND… IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES”
There is an important point about a litigant’s responsibility for the conduct of their own experts (and expert’s conduct generally) in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC). This was…
CLAIMANTS RECOVER NO COSTS AT ALL WHEN ANSWERS TO QUESTIONS WERE “DIRECTLY UNTRUE”: ALSO LIABLE FOR INDEMNITY COSTS FOR A PERIOD
This blog has looked twice at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). There is now a sequel. In Beattie Passive Norse Ltd & Anor v Canham Consulting…
LAWYERS FAILURE TO PROVIDE OVERSIGHT OF EXPERTS LEADS TO EXCLUSION OF THEIR EVIDENCE: EXPERT EVIDENCE IS “NOT A MATTER OF RIGHT”
Over the years we have seen some biting judgments about the conduct of experts in civil litigation. I struggle to recall one as extraordinary as the judgment of Mrs Justice Joanna Smith in Dana UK AXLE Ltd v Freudenberg FST…
PROVING THINGS 211: PROVING DAMAGES AND CAUSATION: CLAIM £3 MILLION GET £2,000: “A WEAK AND SPECULATIVE CLAIM”
We have already looked once at the judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC). However given that the claimants were seeking in excess of £3 million and…
A LOT ABOUT LITIGATION CONDUCT HERE: SIGNATURE OF THE STATEMENT OF TRUTH: POOR BUNDLES: POOR WITNESS STATEMENTS AND THE TOTAL LACK OF WISDOM IN SENDING MATERIAL DIRECTLY TO THE JUDGE IN THE MIDDLE OF A TRIAL…
The judgment of Mr Justice Fraser in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd [2021] EWHC 1116 (TCC) demonstrate some “unusual” conduct in litigation. Not least the claimant’s solicitors wrote to the judge, in the middle of…
CAN THE COURT MAKE A COSTS ORDER AFTER A THE FIRST PART OF A SPLIT TRIAL? THE RELEVANCE OF A PART 36 OFFER
In Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors [2021] EWHC 954 (Ch) David Stone (sitting as a High Court judge) considered the question of whether the court should make a costs order after a…
CASES WHERE JUDGES GOT TO READ THINGS THAT LAWYERS WISH THEY HAD NEVER WRITTEN
The earlier post about judges reading information about lawyers online has given rise to a lot of comments and commentary. There are occasions when judges, as part of their job, get to read things that lawyers wish they had never…
BUNDLES AGAIN: JUDGES WASTING THEIR BREATH: “HOW MANY YEARS – DECADES – HAVE TO PASS BEFORE THOSE WHO KNOW BETTER AND WHO… ARE BEING HANDSOMELY REMUNERATED COMPLY WITH THEIR OBLIGATIONS?”
Another post that adds to the dozens, if not hundreds, of cases about bundles. The trial bundles were the subject of considerable criticism by Sir James Munby in C (A Child) [2021] EWFC 32. “I forebear from further judicial exhortation…
“THERE ARE NOT TWO SETS OF RULES FOR LITIGATION IN THIS JURISDICTION”: COURT AWARDS INDEMNITY COSTS AGAINST A LITIGANT IN PERSON
In Sir Henry Royce Memorial Foundation v Hardy [2021] EWHC 817 (Ch) HHJ Paul Matthews (sitting as a High Court judge) awarded indemnity costs against a litigant in person. “There are not two sets of rules for litigation in this…
COSTS, CONDUCT AND ASSESSMENT ON THE INDEMNITY BASIS: £2 MILLION SPENT TO RECOVER £40,666.47
An earlier post looked at the construction of the Part 36 offer in Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division). Here we look at…
“THIS APPLICATION WAS A SIGNIFICANT ABUSE OF THE PROCEDURES … AND SHOULD NEVER HAVE BEEN MADE”: THE ADMINISTRATIVE COURT, DUTIES TO THE COURT AND THE HAMID JURISDICTION
In the judgment today in DVP & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2021] EWHC 606 (Admin) the Administrative Court exercised considered a case referred to it under the “Hamid” jurisdiction…
LAWYERS (AND ALL LITIGANTS) REMEMBER THAT YOU CANNOT WRITE TO THE COURT WITHOUT COPYING IN THE PARTIES TO THE LITIGATION
For the second time in two days I am writing of a case where a party has written to the court unilaterally, without copying in the other parties. It was a matter raised in the judgment of Mr Justice Fordham…
SEEKING TO ADD A JOINT EXPERT INTO THE ACTION 2: A COSTLY PROCESS: INCURRING LIABILITY FOR £90,000 IN AN ATTEMPT TO RECOVER £16,000
I am grateful to my colleague Colm Nugent for giving me further details of the costs involved in the defendant’s unsuccessful application to join a joint expert into the action which was discussed in a post earlier today. Colm also…
DELIBERATELY DESTROYED DOCUMENTS IN LITIGATION, ADVERSE INFERENCES AND… REINDEERS
In the judgment today in Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm) Mr Justice Calver considered the inferences that should be drawn when he found that a party…
WHEN A SOLICITOR SAYS “BURN IT” IN RELATION TO DOCUMENTS THIS GIVES RISE TO A PRIMA FACIE ISSUE OF CONTEMPT OF COURT: COURT OF APPEAL DECISION TODAY
In the judgment today in Ocado Group PLC & Anr v McKeeve [2021] EWCA Civ 145 the Court of Appeal overturned a decision that the court should not allow an application for contempt of court against a solicitor to proceed….
COSTS NOT REDUCED BECAUSE OF THE WAY A DEFENDANT CONDUCTED ITS CASE: THE PRAGMATIC PRUNING OF A CASE SHOULD NOT BE DETERRED
We are returning again (and not for the last time) to the judgment of Mr Justice Turner in Municipio De Mariana & Ors v BHP Group PLC & Anor [2021] EWHC 146 (TCC). This time we are looking at the claimants’ argument…
SOLICITOR DID NOT HAVE GOOD GROUNDS TO TERMINATE THE RETAINER UNDER A CFA: CLAIM FOR £16,200 IN COSTS FAILS
I am returning to the judgment of Master Haworth in Murray & Anor v Richard Slade and Company Ltd [2021] EWHC B3 (Costs). This time looking at the decision in relation to termination of a conditional fee agreement. The Master held…
WHAT HAPPENS IF YOU DON’T SETTLE AFTER A MEDIATION: NO ISSUE BASED ORDER, INDEMNITY COSTS AND £127,000 ON ACCOUNT OF COSTS
There is much for litigants and litigators to learn from the judgment on costs of James Mellor QC (sitting as a High Court judge) in Cranstoun & Anor v Notta [2021] EWHC 133 (Ch). The dangers of rejecting offers of…
PROVING THINGS 196: PROVING THAT FILES WERE (OR WERE NOT) DELIVERED IS MORE TRICKY THAN YOU MIGHT THINK
The judgment of Master Clark in The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd [2021] EWHC 2 (ChD) highlights the difficulties involved in proving, or disproving, that a document was delivered. In…
IT IS UNLAWFUL TO TAKE PHOTOGRAPHS OF A TRIAL CONDUCTED REMOTELY
In SLF Associates Inc v (1) HSBC (UK) Bank Plc & Ors [2021] EWHC 5 (Ch) Master Kaye pointed out that taking photographs of participants in a remote court was unlawful. THE CASE The Master was giving judgment in a…
WHEN A LITIGANT HAS “FAILED IN ITS DUTY AT EVERY POINT”: COUNCIL FOUND AT FAULT AND IN DEFAULT
In Nur & Anor, R (On the Application Of) v Birmingham City Council [2020] EWHC 3526 (Admin) Mr David Lock QC (sitting as a Deputy High Court Judge) commented on the failure of the defendant council to comply with the…
THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL’S JUDGMENT IN O’CONNELL
Draft judgments are often sent to parties in advance, but sent out on an “embargoed” basis – not to be disclosed until after the date they are formally handed down. Recent comments on Twitter leads me to think that this…
COURTESY, THE ADVOCATE AND THE LAWYER: TEN THINGS TO THINK ABOUT TO HELP YOUR CLIENTS (AND YOURSELVES)
A tweet from a barrister, this afternoon complained, in essence about the “pointless aggression” of an opponent. It has gathered lots of support. One thing that judges, from around the world, are universally keen on is courtesy. This gives me…
WHEN A LITIGANT SEEKS TO DEFEND A CLAIM AT ALL COSTS: A HIGHWAY TO HELL: WHY, IN LITIGATION, IT IS IMPORTANT THAT YOU CAN SEE THE WOOD FOR THE TREES
The judgment of HHJ Mithani QC in Colar v Highways England Company Ltd [2019] EW Misc 17 (CC) has recently arrived on BAILLI. It provides an illustration of the danger of defending a claim “at all costs”. The judge was…
“ALL MATTERS WERE INFECTED FROM THE OUTSET WITH A REGRETTABLE INJUDICIOUS AND PEREMPTORY LACK OF PROFESSIONAL ASSIDUOUSNESS” : FROM AN ORGANISATION THAT SHOULD KNOW MUCH, MUCH, BETTER: JUST TAKE A WITNESS STATEMENT
This blog has looked, many times, at cases that have floundered at trial because of basic failures to investigate the primary facts. Sometimes applications fail because of a fundamental lack of knowledge as to what “facts” are. The judgment…
10 TIPS ON WHAT TO DO WHEN THINGS GO WRONG: “FESS UP”, “SEEK HELP”, “THEY SKY WON’T FALL IN”
Here I have selected 10 pieces of advice from Twitter on what to do when things go wrong. These are not the “top 10” tips because, frankly, every one of the pieces of advice given in the original post are…
DEFENDANT’S CONDUCT LEADS TO NO ORDER FOR COSTS ON CLAIMANT’S DISCONTINUANCE: A DEED NOT SENT IN TIME
In Hewson v Wells & Ors [2020] EWHC 2722 (Ch) Master Clark varied the usual rule and made no order for costs following the claimant’s discontinuance. “In my judgment, the change in circumstances was brought about by unreasonable behaviour…
THE DANGERS OF LAWYERS WORKING WHILST TRAVELLING: TOP TEN TIPS (& A BONUS) TO KEEP YOU ON THE RAILS
Todays top 10 tips follows on from yesterday. In the previous post PJ Kirby recorded how he was able to draft a letter that included: “We acknowledge receipt of your letter which was expected as Mr X was discussing the…
TOP TEN (SHORT) PIECES OF ADVICE FOR LAWYERS ABOUT CORRESPONDENCE: AVOID ADVERBS (BASICALLY), OH AND DISCUSSING YOUR CASE LOUDLY ON A TRAIN…
Continuing with the series on guidance for new entrants to the profession (and a useful reminder for the rest of us). This is ten pieces of advice from the lawyers of Twitter after I wrote a piece on the lack…
LAWYERS, MISTAKES AND EMAIL: PUSH THOSE BUTTONS AT YOUR OWN (AND SOMETIMES YOUR CLIENT’S) PERIL
There are some issues in legal practice that reoccur with surprising frequency. Yesterday a lawyer on Twitter recounted how that had accidentally been copied into an email chain that they were, most definitely, not meant to see. It is a…
IF YOU ARE IN COURT AND NOT SPEAKING TO THE JUDGE: SHUT UP: “RIVAL TRIBES” IN THE COURTROOM NEVER HELP
There is one passage in the judgment in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) that I had to read twice. It is something that emphasises the need to remember that the judge…
SEEK PERMISSION TO APPEAL PROMPTLY (AND TELL THE JUDGE ABOUT IT): “A close analysis of the parties’ cases thus reveals a fractal pattern of progressively complex and ever-finer recursive detail of sharply declining significance.”
The judgment of Mr Justice Turner in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) discloses an unusual turn of events in relation to an appeal. It contains some important observations about the…
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