“OUR CASE WAS SO HOPELESS YOU SHOULD HAVE APPLIED TO STRIKE US OUT”: LOSING PARTY SHOULD PAY THE COSTS OF CLAIMANTS PURSUING SPECULATIVE CLAIM: YOU CAN’T HAVE YOUR CAKE AND EAT IT
The judgment of Mrs Justice Lambert today in Bailey & Anorv Glaxosmithkline UK Ltd [2020] EWHC 1766 (QB) reflected the normal rule that the losing party should pay the costs of an action. In this case the losing party was…
SOLICITORS GIVING EVIDENCE: A DUTY TO BE COMPLETELY HONEST AND SCRUPULOUSLY ACCURATE
There are particular dangers for solicitors giving evidence. This morning I wrote about the common (but totally wrong) practice of solicitors using witness statements to argue points of law. In Ras Al Khaimah Investment Authority v Azima [2020] EWHC 1686…
FARMER -v- THE CHIEF CONSTABLE OF LANCASHIRE: COSTS DISALLOWED IN FULL: FULL JUDGMENT NOW AVAILABLE
I wrote yesterday about the two useful articles on the case of Farmer v The Chief Constable of Lancashire [2019] EWHC B18 (Costs). The full judgment is now available on BAILLI. “Anybody around this table being of the costs persuasion…
WHEN MISCONDUCT ON ASSESSMENT LEADS TO NO AWARD OF COSTS
It is illuminating to read two reports of the case of Farmer -v- the Chief Constable of Lancashire, where a party’s conduct on assessment led to no award of costs being made. Indeed the claimant was ordered to pay the…
SURVEILLANCE EVIDENCE, ALLEGATIONS OF MALINGERING AND INDEMNITY COSTS (AGAINST THE DEFENDANT)
I had no sooner finished a webinar about surveillance evidence this afternoon when I received an email and a copy of a case from solicitor Steve Evans.* The judgment of HHJ Yelton (sitting in the High Court) in Kilbey -v-…
COVID REPEATS 46: IF YOU CAN’T BE BOTHERED TO CONDUCT YOUR CLIENT’S LITIGATION – THEN JUST MAKE IT ALL UP
Of all the many cases that have featured on this blog the judgment in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm) is the one that I found hardest to…
COVID REPEATS 45: WE DON’T CARE WHAT THE JUDGE ORDERED WE ARE GOING TO PUT WHAT WE WANT INTO THIS ORDER
There are many strange examples of conduct reported on this blog. One example is in Webb Resolutions Ltd v JV Ltd (t/a Shepherd Chartered Surveyors) [2013] EWHC 509 (TCC). Put simply a judge made an order at a hearing, one…
INDEMNITY COSTS ORDERED WHERE DEFENDANT ASKED FOR JSM BUT MADE NO OFFER: “A WASTE OF TIME AND MONEY”
On the Kings Chambers website there is a report, and transcript, of the decision in EAXB v. University Hospitals of Leicester NHS Trust: 4-8th November 2019 and 6th January 2020. The report is of a case where the claimant was successful…
COVID REPEATS 22: DRESSING FOR COURT: NO RIPPED JEANS, BUT NO TOP HAT, TAILS AND SPATS EITHER
I thought hard about whether repeating a post about dressing for court is appropriate for the current times. We will have to go back to court one day, and current guidance dictates that (the top half of us at least)…
UNSUCCESSFUL DEFENDANTS ORDERED TO PAY SUCCESSFUL DEFENDANT’S COSTS: THE RELEVANT FACTORS CONSIDERED
One of the most difficult decisions in litigation, particularly personal injury litigation, can be deciding which defendant to sue. This can be a problem with occupier’s liability or construction site cases where potential defendants are blaming each other. A defendant…
A DRAFT JUDGMENT IS NOT AN INVITATION TO TREAT: PARTIES SHOULD NOT ATTEMPT TO REOPEN THEIR CASE
In Michael Wilson & Partners Ltd v Sinclair & Anor (No. 2) [2020] EWHC 1017 (QB) Mr Justice Chamberlain added a postscript to the judgment about attempt to “re-open” draft judgments. “Professional lawyers ought to know that the circulation of…
CLAIMANT BEATS OWN PART 36 OFFER: DEFENDANT ORDERED TO PAY INDEMNITY COSTS FOR AN EXTENDED PERIOD BECAUSE OF ITS CONDUCT
I am grateful to Sam Hayman from Bolt Burdon Kemp for drawing my attention to the decision today of Mr Justice Griffiths in DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB). The defendant was ordered to pay indemnity…
BAR STANDARDS BOARD: COMPLYING WITH GOVERNMENT GUIDANCE NOT A BREACH OF BSB HANDBOOK
The Bar Standards Board has made it totally clear that a barrister complying with Government or Public Health Guidance is not in breach of the Bar Handbook. This has been done in a press release this morning. THE…
EXPERT’S CONDUCT DID NOT LEAD TO EVIDENCE BEING DISALLOWED: CLAIMANT’S CASE REMAINS ON TRACK
In Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors [2020] EWHC 387 (TCC) HHJ Davies (sitting as a High Court judge) carried out a detailed consideration of the conduct of an expert when considering,…
APPLICATIONS TO THE COURT AND THE DUTY OF CANDOUR: THE JUDGE MUST SEE DOCUMENTS THAT ARE ADVERSE TO YOUR CASE
In Short & Ors, R (On the Application Of) v Police Misconduct Tribunal & Anor [2020] EWHC 385 (Admin) Mr Justice Saini issued a warning about the duty of candour owed to the court, particularly on a without notice application….
CLAIMANT’S MEDICAL EXPERT ORDERED TO PAY DEFENDANT’S COSTS: EXPERTS PLEASE NOTE (EXPERTS’ INSURERS NOTE CAREFULLY)
In Thimmaya -v- Lancashire NHS Foundation Trust (30th January 2020, Manchester County Court) HHJ Claire Evans ordered that a medical expert pay a significant part of the defendant’s costs when she found that the expert had failed in his duties…
INDEMNITY COSTS ON THE GROUNDS OF CONDUCT: FAILURE TO BEAT A DEFENDANT’S PART 36 OFFER: A GARDEN THAT GETS MORE AND MORE EXPENSIVE…
The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 is the second time this case, about a garden, has been on appeal. On this occasion the Court of Appeal held that the claimants’ conduct…
WITNESS STATEMENTS, WITNESS EVIDENCE AND SELF-PROTECTION FOR THE LAWYER
Every few years I repeat advice given in relation to the need for “self-protection” when drafting witness statements. This is often caused by something I have seen in practice, questions I am asked, or a transcript of a case. The…
DISCLOSURE OF SURVEILLANCE EVIDENCE LATE: THE FACT THAT THE GENIE IS OUT OF THE BOTTLE IS NOT ENOUGH: AN INTERESTING HIGH COURT DECISION
Angus Fergusson has kindly sent me a copy of the judgment of Mr Justice Birss in Grant -v- Newport City Council [2018] EWHC 3813, it is an interesting case where the judge, on appeal, upheld a decision to refuse…
“THEY LOST”: THE DANGERS OF OVERCONFIDENCE IN CORRESPONDENCE
“Never write anything you will be embarrassed by the court reading” is an essential piece of advice for all lawyers (and one I suspect we have all, occasionally, breached). An example can be seen in the opening lines of the…
CLAIMANT DISCONTINUES – BUT NO ORDER FOR COSTS: THE PRINCIPLES CONSIDERED
In Sheinberg v Abdon & Ors [2019] EWHC 3220 (Ch) Master Clark decided that there should be no order for costs after a claimant discontinued his case. The conduct of the defendants was a highly relevant factor. “The amount involved…
ARGUE A WEAK CASE ON EACH AND EVERY POINT, GET INDEMNITY COSTS AWARDED AGAINST YOU
In Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2019] EWHC 3300 (Comm) Mr Justice Teare held that a claimant, who had pursued a weak case in a robust manner, should pay indemnity costs. There is…
EXPERTS, IMPARTIALITY AND CELEBRITY BEDSPREADS: BE CAREFUL OF THE WAY YOU INSTRUCT EXPERTS AND YOU MAY SLEEP TIGHTLY (YOU SHOULD BE SO LUCKY)
In Ashley Wilde Group Ltd v BCPL Ltd [2019] EWHC 3166 (IPEC) HHJ Melissa Clarke considered, and was critical of, the way in which an expert was instructed. The difficulty was that the appointed expert moved from “hired gun” hired…
UNWARRANTED FRAUD ALLEGATION LEADS TO INDEMNITY COSTS BEING AWARDED
In Natixis SA v Marex Financial & Ors [2019] EWHC 2549 (Comm) an award of indemnity costs was made against a party who had alleged fraud all the way up to closing submissions. It highlights the dangers of pleading fraud…
CIVIL PROCEDURE BACK TO BASICS 69 : SOCIAL MEDIA AND THE LITIGATOR: A RECAP
The earlier post on the judgment last Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 was another case in which social media played a part. The defendant holiday company found social media entries which appeared inconsistent…
COMMITTAL PROCEEDINGS CAN BE BROUGHT IN RELATION TO PRE-ACTION WITNESS STATEMENTS: COMMITTAL PROCEEDINGS CAN BE AMENDED TO ALLEGE FALSE STATEMENTS ARE MADE IN THE COURSE OF THOSE PROCEEDINGS
In Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 the Court of Appeal held that committal proceedings can be brought in relation to allegedly false witness statements made and disclosed under the pre-action protocols. It is…
INSURER NOT LIABLE TO PAY CLAIMANTS’ COSTS: TRAVELERS INSURANCE DECISION OVERTURNED BY THE SUPREME COURT
In the judgment today in Travelers Insurance Company Ltd v XYZ [2019] UKSC 48 the Supreme Court held that the insurer was not liable to pay the costs of those claimants who had proceeded (unknowingly) against uninsured defendants. This is…
STAYING SANE AS A LITIGATOR 1: “OWN YOUR MISTAKES”
Today I am speaking at the Motor Accidents Solicitors Society annual conference on the topic of “Avoiding a Breakdown – Helping Your Clients by Helping Yourself”. I thought this would be a good day to start a new series on…
NO COSTS ORDER AGAINST SOLICITORS OR COUNSEL WHO WERE ACTING ON A CONDITIONAL FEE BASIS
In Willers v Joyce & Ors [2019] EWHC 2183 (Ch) Lady Justice Rose dismissed an application for costs against solicitors and counsel who had represented an unsuccessful party on a conditional fee basis. “… there is a strong public interest…
COURT REFUSES TO MAKE ORDER THAT A DEFENDANT DISCLOSES FUNDING ARRANGEMENTS
In Rudd v Bridle & Anor [2019] EWHC 1986 (QB) Mr Justice Warby refused a claimant’s application for disclosure of the defendants’ funding arrangements. “Beyond this is the common-sense point, that the Court will not be keen to allow…
“A BIT OF A SHORT BALL”: STATING THE JUDGE’S PRELIMINARY VIEW AS TO CREDIBILITY DOES NOT AMOUNT TO BIAS
There is an interesting discussion as to Judicial bias in the judgment of Mrs Justice Theis in X v Y (Permission to Appeal) [2019] EWHC 1713 (Fam). “The interjections by the judge during the hearing should be viewed not as…
I DON’T WANT YOUR SOLICITORS TO ACT FOR YOU: CLAIMANT’S APPLICATION FOR AN INJUNCTION REFUSED
In Glencairn IP Holdings Ltd & Anor v Product Specialities Inc (t/a Final Touch) & Anor [2019] EWHC 1733 (IPEC) HHJ Hacon dismissed the claimant’s application for an injunction to prevent the defendants’ solicitors acting for them. THE CASE The…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
THINKING OF MAKING AN APPLICATION FOR A WITHOUT NOTICE INJUNCTION? BEST READ THIS JUDGMENT
Any public body, indeed anyone, considering making an application for a without notice injunction is best advised to read the judgment of Mr Justice Warby in Birmingham City Council v Afsar & Ors [2019] EWHC 1560 (QB). “Urgency can…
WITHOUT NOTICE INJUNCTIONS 1: CLAIMANT’S APPLICATION FOR AN INJUNCTION GOES DOWN THE PAN
The judgment in Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch) has only recently arrived on BAILLI. However it is a case that shows the importance of disclosure in relation to without notice injunctions. What…
ATTEMPTING TO OBTAIN EXTENSIONS OF TIME BY INFORMAL EMAIL : THE COURT TAKES A “SINGULARLY DIM VIEW” OF ATTEMPTS BY PARTIES TO CIRCUMVENT THE RULES (OH, AND BUNDLES AGAIN)
In Saint Benedict Land Trust Ltd v London Borough of Camden & Anor [2019] EWHC 1433 (Ch) (17 May 2019) Mr Justice Marcus Smith took a very dim view indeed of an attempt by a litigant to obtain an extension…
ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION
In Hilson v McCarthy [2019] EWHC 1110 (Admin) the Divisional Court confirmed that the appellants had harassed a judge unlawfully and amounted to harassment. It is an important case for anyone involved in the legal system. “in examining the nature…
A CAVALCADE OF COSTS CASES: HOLIDAY READING: SOMETHING TO CHEER UP COST LAWYERS OVER THE BANK HOLIDAY WEEKEND…
A number of costs cases have arrived on BAILLI all are decisions of Master Rowley relating to costs. EXCLUDING INTEREST ON COSTS MEANS THAT THIS IS NOT A PART 36 OFFER Ngassa v The Home Office & Anor [2018] EWHC…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
CIVIL PROCEDURE BACK TO BASICS 44: JUST DON’T WRITE RUDE THINGS : LANGUAGE THAT IS “FAR REMOVED FROM THE PROFESSIONAL COURTESY THAT SOLICITORS ARE EXPECTED TO SHOW EACH OTHER”
Don’t write rude things. Not even in internal emails or texts. One day it may (and probably will) come back to haunt you. Read the judgment of HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor…
PROVING THINGS 148: FUNDAMENTAL DISHONESTY PROVEN: NO NEED TO WAIT FOR ASSESSMENT OF DAMAGES
In Patel v Arriva Midlands Ltd & Anor [2019] EWHC 1216 (QB) HHJ Melissa Clarke (sitting as a High Court Judge) accepted the defendant’s argument that the claimant was fundamentally dishonest. The claim was struck out under Section 57 of…
NOT COMPLYING WITH DIRECTIONS OR REPLYING TO CORRESPONDENCE – AND THEN BLAMING THE OTHER SIDE: IT DOES YOU NO CREDIT
There are several matters of general interest in the judgment of Mrs Justice Pepperall in Essex County Council v UBB Waste (Essex) Ltd [2019] EWHC 819 (TCC) (02 April 2019). Here we look at the dangers of simply failing to…
SOCIAL MEDIA AS A SOCIAL GOOD:WE’RE LOOKING FOR ADVICE FOR LAWYERS WHEN THE SKY FALLS IN
Two posts last weeks dealt with the hundreds of replies I got when I asked on Twitter what advice should be given to smooth the path young or aspirant lawyers. This led to wider coverage than I could have imagined…
“CAN SOLICITORS BE RUDE IN THEIR CORRESPONDENCE TO THE OPPOSING CLIENT”? A RECAP OF ADVICE ON CONDUCT AND COURTESY
“Can solicitors be rude in their correspondence to the opposing client.” This was a search term that led someone to this blog earlier today. We don’t know whether this search was from a solicitor proposing to be rude, or the…
WHO HAS WON AND WHO SHOULD PAY THE COSTS? WHEN “WHO PAYS THE CHEQUE” IS NOT A SUFFICIENT ANSWER
In Hamad M Aldrees & Partners v Rotex Europe Ltd [2019] EWHC 526 (TCC) Sir Antony Edwards-Stuart considered a case where it was far from clear that the “winning” party should recover its costs, The case is useful in that it…
CASE MANAGEMENT, “RELEVANCE” AND ATTEMPTS TO HOLD THE COURT “IN TERROREM”: MORE ON THE POST OFFICE CASE (SOME EXTRAORDINARY ISSUES HERE)
I am returning to the judgment in Bates & Ors v Post Office Ltd (No 3) [2019] EWHC 606 (QB) because parts of the judgment set out arguments and conduct of litigation that is, to say the least, unusual. This part…
“THE CLAIMANTS MUST RUE THE DAY THEY REJECTED THE DEFENDANT’S OFFER”: CLAIMANT TO PAY STANDARD COSTS AFTER REJECTING VERY EARLY PART 36 OFFER
The costs judgment in Burgess & Anor v Lejonvarn [2019] EWHC 369 (TCC) is probably a judgment that should be shown to all litigants. The claimant rejected an offer of £25,000 and failed to beat that offer at trial. The defendant’s…
ALLEGED “MISCONDUCT” DURING ASSESSMENT PROCESS DID NOT LEAD TO COSTS BEING DISALLOWED OR REDUCED: ATE PREMIUM WAS REASONABLE
In Murray v Oxford University Hospitals NHS Trust [2019] EWHC 539 (QB) Mr Justice Stewart rejected an argument that mistakes made by a claimant during the assessment of costs process should have led to costs being disallowed or reduced. The…
WITNESS EVIDENCE: GRAPPLE WITH THOSE DIFFICULTIES: KNOW WHETHER YOU CAN PROVE YOUR CASE: OTHERWISE IT IS GOING TO COST YOU (ALSO THE IMPORTANCE OF AN OFFER)
The previous post looked at the witness evidence of some of the claimants against one of the defendants in the case of Zagora Management Ltd & Ors v Zurich Insurance Plc & Ors [2019] EWHC 140 (TCC). Here we look at the…
WHEN LITIGATION BECOMES A “VERBAL BRAWL”: DISCLOSURE MUST BE PROPORTIONATE
In Canary Riverside Estate Management Ltd v Circus Apartments Ltd [2019] EWHC 154 (Ch) Master Shuman observed how disclosure applications could quickly become disproportional. The litigation had become a “verbal brawl”. It is an example of the dangers of losing sight…
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