THIRD PARTY FUNDING: YOU WANT THE PROFITS YOU TAKE THE RISKS: EXCALIBUR IN THE COURT OF APPEAL
In Excalibur Ventures LLC -v- Texas Keystone LLC [2016] EWCA Civ 1144 the Court of Appeal confirmed that commercial funders are liable to indemnify on the indemnity costs basis. “I can see no principled basis upon which the funder can…
THE DANGER OF NOT REPLYING TO CORRESPONDENCE: COSTS AWARDED AGAINST DEFENDANTS (& THE NEED FOR CO-OPERATION WHEN INSTRUCTING EXPERTS)
The judgement of Chief Master Marsh in UPL Europe Limited -v- Agchemaccess Chemicals Limted [2016] EWHC 2898 (Ch) provides an object lesson in the dangers of failing to reply to correspondence. The judgment also contains important observations about need for…
FUNDAMENTAL DISHONESTY FINDING SET ASIDE ON APPEAL
The judgment of His Honour Judge Hodge QC in Meadows -v- La Tasca Restaurants Limited [2016]EW Misc B28 (CC) (16 June 2016) is now available on Bailli. It contains some important observations about findings of fundamental dishonesty. “In my judgment,…
BEING A LITIGATOR – WHEN IT ALL GETS TOO MUCH (AND IT IS YOU THAT HAS TO PICK UP THE PIECES)
There have been a number of reported cases recently of young lawyers (sometimes trainees) obviously becoming overwhelmed by their workload. This is not a new phenomenon, nor is it necessarily confined to young members of the profession. However it is…
OBTAIN AN INJUNCTION: PAY TENS OF MILLIONS IN COMPENSATION: ANOTHER WARNING LESSON
This blog has looked several times at the dangers of obtaining injunctions. A particular danger is the undertaking in damages that has to be given when obtaining an injunction to freeze assets. The judgment of Mr Justice Males in Fiona…
ATTRITIONAL WARFARE; UNMERITORIOUS POINTS AND UNFOUNDED ALLEGATIONS OF BAD FAITH: SO MUCH (AND MORE) IN ONE JUDGMENT
The judgment today of Mr Justice Edis in Hayden -v- Maidstone & Tunbridge Wells NHS Trust makes for uncomfortable reading on the issue of the general attitude of the lawyers towards the conduct of the litigation. In addition to…
EXTENSION OF THE CLAIM FORM: A RARE SUCCESS FOR A CLAIMANT (BUT IT HAS GOT A LOT TO DO WITH CONDUCT)
Most cases relating to extensions of time for service for the claim form end badly for the claimant. The decision of Mr Justice Roth in The Khan Partnership LLP -v- Infinity Distribution Limited [2016] EWHC 1390 (Ch) is an exception….
PROVING THINGS 20: ALLEGATIONS OF IMPROPER CONDUCT HAVE TO BE PROVEN: INDEMNITY COSTS ORDERED
In Collins -v- Thanet District Council Collins anor v Thanet DC anor (19 4 16)(Jud) 2 [2016] EWHC 1008 (QB) His Honour Judge Yelton (sitting as a Judge of the High Court) considered the evidence available to support allegations of misfeasance…
I WROTE LOTS OF UNEDIFYING, AGGRESSIVE AND UNCOOPERATIVE LETTERS: LOOK WHERE IT GOT ME
One of aspects of the judgment in McTear -v- Englehard [2016] EWCA Civ 487 that could easily be overlooked is the observations of Lord Justice Vos in relation to the nature of the correspondence between the parties. “It would seem…
APPLICATION TO WITHDRAW ADMISSION REFUSED: SUMMARY JUDGMENT GRANTED
NB – THE JUDGE’S DECISION NOT TO ALLOW THE FIRST DEFENDANT TO WITHDRAW FROM THE ADMISSION WAS SUBSEQUENTLY OVERTURNED ON APPEAL. See the post here. The judgment yesterday in Wood -v- Days Health UK Ltd & Others [2016] WHC 1079…
THE INTERCHANGE BETWEEN LAWYERS & EXPERTS: A DIFFICULT ISSUE
In a week where there is a report of an application being made for a doctor to be committed for contempt* it is prudent to consider that difficult issue of the relationship between the lawyers in a case and the…
EXPERT REPORTS IN THE ADMINISTRATIVE COURT: PART 35 APPLIES
In the judgment today in Khaled -v- Secretary of State for the Home Department [2016] EWHC 857 (Admin) Mr Justice Garnham considered Part 35 of the CPR and the admissibility of expert reports in proceedings in the Administrative Court. “The…
WITNESS STATEMENTS: THE LAWYER'S DUTY NOT TO MISLEAD
There are some important observations by Mr Justice Leggatt in Al-Saadoon & Others -v- the Secretary of State for Defence [2016] EWHC 773 (Admin). The case relates to witness statements and the duty of the lawyer when they know that…
IT'S ALL ABOUT THE COSTS (AND A LOT OF TROUBLE): COURT OF APPEAL CASE CONSIDERED
The Court of Appeal judgment today in Patience -v- Tanner [2016] EWCA Civ 158 is a classic example of the difficulties that arise when a case is, in essence, all about the costs. It shows the danger of making, and…
LITIGATION: WHAT IS AN APPROPRIATE CASE LOAD AND IS IT IMPORTANT?
I have been planning to write on litigators’ workloads for a considerable time. It is an important issue and, as far as I can tell, very little is written about it. The issue is a fundamental one. What is the…
MOVING FROM PUBLIC FUNDING TO CFA: NOT A REASONABLE STEP IN THIS CASE
NB see the appeals related to these issues discussed here This blog has already reviewed several of the cases where the courts have considered the reasonableness of moving from public funding to a conditional fee agreement. The issue is significant…
WHAT IS THE POINT OF THE PORTAL? INSURERS CONTACTING CLAIMANTS DIRECTLY: STILL
I post (with his permission) a letter from Kerry Kirkbride. It relates to the regular issue of insurers ignoring claimant solicitors and writing to claimants directly after notification on the Portal. WHAT IS THE PURPOSE OF THE PORTAL? “I am…
THIS IS A SORRY TALE OF WOE:SPECULATIVE SKELETON ARGUMENTS ARE OF NO ASSISTANCE
In Lokhova -v- Tymula [2016] EWHC 225(QB) Mr Justice Dingemans set out a sorry tale of procedural issues in relation to applications in a defamation action. There are important observations in relation to co-operation; service of witness evidence and the…
"NEAR MISS" RULE NO LONGER APPLICABLE: COURT OF APPEAL OVERTURNS DECISION ON COSTS
In Sugar Hut Group Limited -v- AJ Insurance Services [2016] EWCA Civ 46 the Court of Appeal overturned an award of costs made against a successful party. “The Claimants’ recovery exceeded the Part 36 offer by a comfortable margin and…
ANOTHER CASE OF INDEMNITY COSTS BECAUSE OF A REFUSAL TO MEDIATE
The decision on Master Simons in Bristow -v- The Princess Alexander Hospital NHS Trust [2015] EWHC B22 (Costs) contains examples of two mistakes that can be made on assessment of costs. The most telling is the defendant’s failure to respond…
THE DANGERS OF NOT PAYING THE CORRECT COURT FEE: CASES BARRED BY LIMITATION BECAUSE WRONG COURT FEE WAS PAID
In Richard Lewis & Others -v- Ward Hadaway [2015] EWHC 3503 (Ch) Mr John Male QC summary judgment was given for the defendants on the grounds that a deliberate decision to pay an incorrect court fee on issue meant…
CIVIL LITIGATION REVIEW OF 2015: POETRY, CARPET BOMBING AND DISAPPEARING EXPERTS
We civil litigators cannot be left out of the, apparently universal, need for an annual review. The annual review last year was headed with the words “prolixity”, “sanctions” and creative writing. Here we look at poetry, carpet bombing and disappearing…
PART 36: WHEN THE NORMAL COSTS PENALTIES MAY NOT APPLY
In Yentob -v-MGN Ltd [2015] EWCA Civ 1292 the Court of Appeal upheld a decision of the judge not to impose the normal penalties when a claimant failed to beat a Part 36 offer. KEY POINTS When a party fails…
CHILDREN AND SUCCESS FEES 3: APPEAL WITHDRAWN
Earlier posts looked at the decision of Regional Cost Judge Lumb in A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015). The second judgment on costs is now available on Bailli. These posts deal with deduction of…
NO SPECIAL RULES FOR LITIGANTS IN PERSON: COSTS DO NOT FOLLOW THE EVENT FOLLOWING UNREASONABLE CONDUCT
Master Mathews faced an unusual scenario in Jones -v- Longley [2015] EWHC 3362 (Ch). This case highlights the fact that litigants in person are not subject to any special rules and are liable to have orders for costs made against…
ASSESSMENT OF COSTS & FAILURE TO MEDIATE: CLAIMANT BEATS OWN OFFER AND COSTS INCREASED BY 10%
The claimant beat its own Part 36 offer on costs in the case of Reid -v- Buckinghamshire Healthcare NHS Trust [2015] EWHC B21. Consequently costs were increased by 10% and additional interest accrued. “If the party unwilling to mediate is…
CLAIMANT CAN RECOVER COSTS AGAINST A DEFENDANT NOT NAMED IN THE CFA
In Engeham -v- London & Quadrant Housing Ltd & Academy of Plumbing Ltd (01/12/2015) * the Court of Appeal upheld a finding that a consent order which stated that damages and costs were to be paid by a defendant not named…
COSTS AFTER RELIEF FROM SANCTIONS: A SUMMARY ASSESSMENT
An earlier post looked at the decision of Mr Justice Edwards-Stuart in North Midland Construction plc -v- Geo Networks Ltd [2015] 2384 (TCC). Here we look at the subsequent order in relation to costs. THE CASE The claimant failed to…
WASTED COSTS ORDER MADE AGAINST SOLICITORS: COMPLIANCE WITH ORDERS, ABSENT STATEMENTS AND LATE BUNDLES
In F-v-M [2015] EWHC 3259 (Fam) Mr Justice Cobb made a wasted costs order against a firm of solicitors. The judgment is (and was designed to be) an object lesson in the need to comply with court directions and court…
COSTS WHERE CLAIMANTS ARE REPRESENTED BY MORE THAN ONE FIRM OF SOLICITORS: IT CAN GET DIFFICULT
In Ong -v- Ping [2015] EWHC 3258 (Ch) Mr Justice Morgan considered the relevant order to make as to costs when the claimants in an action had been represented by separate solicitors. THE CASE Four claimants had been successful in…
PROPORTIONALITY AND SURVIVAL FOR LITIGATORS 4: CLAIM ONLY WHAT YOU CAN PROVE
Proportionality is, mostly, about money. The problems that proportionality causes increase in those cases where the sums recovered are much less than those originally sought. The over-claiming of damages is a dangerous tactic for many reasons. Not least it…
DOES EVERY FIRM NEED A "PROPORTIONALITY" TSAR? PROPORTIONALITY AND SURVIVAL FOR LITIGATORS 3
In January this year I started a series “Proportionality and Survival for Litigators”. I predicted it would be a lengthy series. I want to look at practical ways in which litigators can ensure that costs remain “proportional”. This, most probably,…
ANOTHER CASE WHERE THERE WAS AN INVALID PART 36 OFFER; NO RESPONSE TO OFFERS TO MEDIATE AND NEITHER PARTY RECOVERED COSTS
There is a brief report on Lawtel of the Court of Appeal decision in NJ Rickard Ltd -v- Holloway (CA 03/11/2015)*. It is an example of: (i)the importance of making a valid Part 36 offer; (ii)an example of the consequences…
WHAT IS MEANT BY "PROPORTIONALITY"? CONSIDERATION BY THE SENIOR COURTS COSTS OFFICE
In Hobbs -v- Guy’s and St Thomas’ NHS Foundation Trust [2015] EWHC B20 (Costs) Master O’Hare considered the question of proportionality in the context of a low value clinical negligence case. “In my judgment, although it was reasonable for the…
YOU'RE AS BAD AS EACH OTHER: NO-ONE IS GETTING ANY COSTS: POWERFUL WORDS IN THE HIGH COURT
In GBM Minerals Engineering Consultants Limited -v- GM Minerals Holdings Limited [2015] EWHC 3091 (TCC) Mr Justice Fraser had some some strong words to say about conduct and costs, resulting in a decision that no order for costs should be…
APPLICATION FOR INDEMNITY COSTS REFUSED: A HIGH COURT DECISION
In the judgment today in Harlequin Property (SVG) Limited -v- Wilkins Kennedy [2015] EWHC 3050 (TCC) Mr Justice Coulson refused an application for indemnity costs and reduced the sum claimed from £51,787.50 to £35,000. THE CASE The claimant made a…
IS THIS A PART 36 OFFER I SEE BEFORE ME? THAT'S A REALLY IMPORTANT QUESTION
The decision of Mr Justice Morgan in Tim-Alexander Gunther Nikolaus Hertel -v- Artemis International Sarl [2015] EWHC 2848 (Ch) involves a complex set of facts but is extremely important in terms of construction of Part 36 offers. (It is perhaps…
DEFENDANT COUNTERCLAIMING EXEMPLARY DAMAGES AGAINST FRAUDULENT CLAIMANTS: AN INTERESTING REPORT
There is a report in the DWF update section of the case of Akhtar & Khan -v- Ball, a decision of HHJ Gregory on 10.7.15. It raises an interesting issue in relation to a counterclaim by a defendant faced with…
COSTS, CFAS, ADDITIONAL LIABILITIES AND GOING OUTSIDE PUBLIC FUNDING 1: HYDE -v- MILTON KEYNES
NB SEE THE APPEAL ON THESE ISSUES DISCUSSED HERE The decision of Master Rowley in Hyde -v- Milton Keynes Hospital NHS Foundation Trust [2015] EWHC B17 (Costs) has today become available on Bailli. It contains important observations in relation to…
DELAY AND STRIKING OUT FOR ABUSE OF PROCESS: SOME INTERESTING LESSONS
The judgment of Master Bowles in Solland International Ltd -v- Clifford Harris & Co [2015] EWHC 2018 (Ch) contains several matters of interest to litigators. Not only the fact that the action was struck out but some of the allegations…
"CONDUCT UNRAVELS ALL": INDEMNITY COSTS AND COSTS ON ACCOUNT: A FAMILY CASE
In the judgment today in Joy -v- Joy-Morancho (No 3) [2015] EWHC 2507 (Fam) Mr Peter Singer awarded indemnity costs against the respondent husband. Many of the observations in relation to costs are of general relevance to civil litigators as…
MISCONDUCT ON ASSESSMENT LEADS TO REDUCTION OF COSTS BY 50%: KERINS -V- HEART OF ENGLAND NHS FOUNDATION TRUST
There is a report on Lawtel today of the decision of District Judge Griffith in Kerins -v- Heart of England NHS Foundation Trust (Birmingham, 31st July 2015). The claimant’s costs were reduced by 50% because of misconduct in the assessment…
LITIGATION AS IT SHOULD NOT BE DONE: GOTCH -v- ENELCO
In Gotch -v- Enelco Ltd [2015] EWHC 1802 (TCC) Mr Justice Edwards-Stuart had strong words to say about the conduct of litigation and costs. KEY POINTS This is a case where five short passages from the judgment itself gives the…