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…
COURT MAKES 5% REDUCTION IN SUCCESSFUL CLAIMANT’S COSTS RATHER THAN AN ISSUE BASED COSTS ORDER
This is the fourth look this blog looks at the judgment in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387. This time we are looking at the question of whether there should be a deduction in…
DEFENDANT’S CONDUCT OF THE CASE LED TO INDEMNITY COSTS BEING PAID: MAKING ALLEGATIONS OF “NOT ACTING IN GOOD” FAITH: A SPECULATIVE & WEAK CASE: EXPERTS WITH A CONFLICT OF INTEREST
This is the third (but not the last) look at the judgment on costs in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387. The judge held that the defendant’s conduct of the case was such that…
“PREPARED IN A WAY THAT MAKES ME ASHAMED OF MY PROFESSION”: ENSURING WITNESS STATEMENTS ARE ACCURATE IS AN IMPORTANT TASK – IF YOU WANT TO KEEP YOUR JOB…
There are nearly 800 posts on this blog that deal with issues relating to witness statements. The importance of ensuring that a statement is accurate is seen in the judgment of the Solicitors Disciplinary Tribunal in SRA -v- Gilfillan, available…
NEWTON’S LAW AND COMMUNICATING WITH THE COURT: THE NEED FOR PARTIES TO GO THROUGH THE APPROPRIATE PROCEDURE
There are is brief passage in the judgment of Mr Recorder Allen QC in G v C [2020] EWFC B35 (OJ) (16 July 2020) that is of general application. “The communication has served to demonstrate Newton’s third law of…
COURTESY AND CORRESPONDENCE: “NOTHING WAS SAID TO ACKNOWLEDGE OR ACCEPT THE JUDGE’S CRITICISM OF THE HIGH-HANDED MANNER IN WHICH THE ASSOCIATE SOLICITOR HAD SOUGHT TO TELL THE COURT HOW THE TRIAL WAS GOING TO BE CONDUCTED”
The post yesterday on the decision in Gubarev & Anor v Orbis Business Intelligence Ltd & Anor [2020] EWHC 2167 (QB) mentioned the issue that the Divisional Court had with the way in which the claimant’s solicitors had attempted to dictate…
REMOTE HEARINGS THE SOLICITOR’S DUTIES: (1) READ THE ORDERS MADE; (2) DO NOT BE IN CONTEMPT OF COURT
In the judgment today in Gubarev & Anor v Orbis Business Intelligence Ltd & Anor [2020] EWHC 2167 (QB) the Divisional Court sent out a clear message that lawyers must follow orders of the court. Live trials cannot be transmitted…
“SUCCESSFUL” CLAIMANT RECOVERS 60% OF HIS COSTS BUT PAYS THE COSTS OF TRIAL: ISSUED BASED COSTS ORDERS CONSIDERED
The vast majority of people who read the cases discussed in this blog will (I would wager a bet) often be thinking “Was there a Part 36 offer?” “What happened about costs?” We can get a glimpse into these issues…
“INTEMPERATE DEBATE” IN LEGAL CORRESPONDENCE: A REVIEW OF THE GUIDANCE AND CASES
The judgment yesterday in Collier & Ors v Bennett [2020] EWHC 1884 (QB) contained some judicial observations as to “intemperate debate” in correspondence. This provides an opportunity to review guidance and judicial observations on this topic. THE CASE The judge…
COSTS ISSUES IN A CASE WHERE THE CLAIMANTS HAVE TO PAY £30 MILLION: WHY IT IS UNWISE TO BANK ON WINNING
A reminder of the sheer size, and major dangers, of group litigation can be seen in the judgment today in Sharp & Ors v Blank & Ors [2020] EWHC 1870 (Ch). The judgment relates to the costs of the action…
PART 36 CONSEQUENCES APPLY (IN PART) WHEN CLAIMANT MAKES AN OFFER OF A 0.3% DISCOUNT
In Rawbank SA v Travelex Banknotes Ltd [2020] EWHC 1619 (Ch) Mr Justice Zacaroli ordered that some of the consequences of Part 36 should apply when a claimant made an offer to settle a debt for a slightly reduced figure. …
ALLEGATIONS OF JUDICIAL BIAS REJECTED: HIGH COURT DECISION TODAY
In Ameyaw v McGoldrick & Ors [2020] EWHC 1787 (QB) Mrs Justice Steyn refused an application that she recuse herself. The first part of the judgment summarises the law in relation to bias when the judge knows the counsel involved….
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