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…
WHEN YOU’VE SPENT ALL YOUR MONEY ON LEGAL COSTS: NO REMEDY AVAILABLE: LITTLE SYMPATHY WHEN YOUR NET INCOME IS THE SAME AS A CIRCUIT JUDGE
This blog usually looks at family cases in the context of evidence or costs. The decision in Daga v Bangur [2018] EWFC 91 has a salutary tale to tell in relation to costs. There is also an interesting comparison in relation…
DETAILED ASSESSMENTS WILL NOT OVERSTEP THE MARK: THE COURTS WILL NOT (GENERALLY) REVISIT MATTERS RELATING TO THE CONDUCT OF THE CASE ON ASSESSMENT
There is an interesting and important judgment by Deputy Master Friston in Andrews v Retro Computers Ltd [2019] EWHC B2 (Costs) which highlights the dangers of attempting to use detailed assessment as a means of challenging the receiving party’s conduct. I…
NON-PARTY COSTS ORDER AGAINST INSURER: UNTANGLING THE WEB
In Various Claimants v Giambrone & Law (a firm) & Ors [2019] EWHC 34 (QB) a non-party costs order was made against the defendant insurers. It provides a (fairly complex) example of a court determining a non-party order. This “summary procedure”…
THE CONSEQUENCES WHEN SERVICE OF THE CLAIM FORM GOES WRONG: SOLICITOR’S LIEN OVERRIDDEN: NOT KNOWING THE RULES IN RELATION TO SERVICE AMOUNTS TO “MISCONDUCT”
The judgment in Higgins & Ors v TLT LLP [2017] EWHC 3868 (Ch) shows another case that has been made problematic because of basic errors in failure of service of the claim form. The errors made by the solicitors in that…
COSTS AND “ABSURD” CONDUCT IN LITIGATION: HOW TO WASTE £1 MILLION…
This blog rarely looks at family cases. When it does it is often in relation to costs. Which is why the judgment of Mr Justice Francis in ABX v SBX [2018] EWFC 81 caught my eye. It raises one fundamental dilemma…
RUN UP COSTS OF £1.4 MILLION: EXPECT TO PAY A LARGE CHUNK OF THEM YOURSELF: “NO ONE ENTERS LITIGATION SIMPLY EXPECTING A BLANK CHEQUE”
There are interesting (and important) observations on the running up of costs in the judgment of Mr Justice Francis in WG v HG [2018] EWFC 70. This blog does not normally follow family law cases. However the question of costs is…
THE EFFECT OF A WITHDRAWN PART 36 OFFER : DEFENDANTS NOT ENTITLED TO COSTS, BUT LED TO NO ORDER FOR COSTS THROUGHOUT
There is an interesting judgment in Britned Development Ltd v ABB AB & Anor [2018] EWHC 3142 (Ch) which should be read by anyone thinking of withdrawing a Part 36 offer. The defendants in this case made a Part 36 offer…
EXPERTS BEHAVING BADLY: WHY RECENTLY CROSS-EXAMINED EXPERTS SHOULD NOT E-MAIL THE OTHER SIDE’S COUNSEL…
In D (A child : parental alienation) [2018] EWFC B64 HHJ Clifford Bellamy had to deal with the unusual situation in which an expert witness e-mailed counsel who had cross-examined him. “I was surprised, therefore, to receive an email from Mr…
“PUT BLUNTLY THESE ARGUMENTS ARE MISCONCEIVED”: ADMINISTRATIVE COURT IN A VERY ROBUST MOOD OVER COSTS
In Kay, R (On the Application Of) v Scan-Thors (UK) Ltd & Anor (Costs) [2018] EWHC 2842 (Admin) the Divisional Court dealt robustly with arguments made by an interested party attempting to resist an order for costs. “Put bluntly, these submissions…
LITIGATOR’S HALLOWEEN SPECTRES OF 2018: THAT STUFF YOU GET FROM “THE OTHER SIDE”
Last year we looked at those things that caused litigators stress and fear. This year we are looking at annoying things from “the other side”. That can mean from beyond the grave, or those people who are instructed to represent…
COSTS IN AN ESTATE CLAIM: REFUSAL TO ENGAGE IN MEDIATION WAS A FACTOR TO BE TAKEN INTO CONSIDERATION
I am grateful to barrister James Miller for sending me a copy of the decision of HHJ Truman in Nicholls -v- Nicholls (19th June 2018), available here NICH19062018APP. The judgment is solely concerned with costs in relation to an action…
INDEMNITY COSTS: CAN BE AWARDED WHEN CLAIMANT DISCONTINUES FOUR DAYS INTO A SIX WEEK TRIAL
In Hosking & Anor v Apax Partners LLP & Ors [2018] EWHC 2732 (Ch) Mr Justice Hildyard awarded indemnity costs in a case where the claimant discontinued four days into a six week trial. “My assessment is that this was high-risk…
COURT STEPS OUTSIDE THE FIXED COSTS REGIME: DEFENDANT’S CONDUCT AMOUNTED TO AN ABUSE
The Intellectual Property Enterprise Court (IPEC) guards its fixed costs regime very jealously. Prior to the decision in Link Up Mitaka Ltd (t/a Thebigword) v Language Empire Ltd & Anor [2018] EWHC 2728 there appears to have only been one previous…
AGGRESSIVE LITIGATION IS COUNTER-PRODUCTIVE: JUDGE REFUSES DEFENDANT’S APPLICATION TO STRIKE OUT WITNESS STATEMENTS (WITH A COMMENT, OR TWO, AMONG THE WAY)
I am grateful to barrister Adam Heppinstall for sending me a copy of the judgment of Mr Justice Fraser today in Bates -v- The Post Office [2018] EWHC 2968 (QB). This is a forceful judgment and what the judge had…
STRESS, LITIGATORS AND LITIGATION: A RECAP
For World Mental Health Day I am re-posting posts on this blog that deal with stress, for litigators and those involved in the litigation process. Part of my work, dealing with relief from sanctions and limitation, means I come across…
COST LAWYERS – SHOW THEM SOME RESPECT: OBSERVATIONS FROM THE HIGH COURT
There is a footnote to the judgment of Master Leonard yesterday in Allen v Brethertons LLP [2018] EWHC B15 (Costs) that is worth reading for anyone involved in costs litigation. “Ms Moore, when acting as a Costs Lawyer with a right…
THERE ARE GOOD REASONS NOT TO CALL AN OPPONENT’S ‘RIDICULOUS’ : PARTICULARLY IF THEY ARE, IN FACT, CORRECT
This blog has looked at issues relating to written submissions many times. Included in this has been the need to avoid hyperbole, which often backfires. A good example, borrowed from the United States, is the judgment in Bennett -v- Start…
EXPERTS ACTING ON A CONDITIONAL FEE BASIS: A MAJOR PROBLEM AREA: DETAILED CONSIDERATION FROM THE UPPER TRIBUNAL
I am grateful to Graham Hain for pointing out the decision of the Upper Tribunal (Lands) Chamber in Gardiner & Theobald LLP v Jackson (VO) (RATING – procedure) [2018] UKUT 253 (LC). This specifically relates to experts in the Lands Chamber,…
APPLYING FOR AN EXTENSION OF TIME FOR FILING A DEFENCE – AFTER THE DEFENCE IS DUE: DENTON PRINCIPLES APPLIED: FULL TRANSCRIPT NOW AVAILABLE
The judgment of Deputy Master Pickering in Billington v Davies & Anor [2016] EWHC 1919 (Ch) has only recently appeared on BAILLI. It raises an interesting issue of how the courts should approach the question of a late application to extend…
INDEMNITY COSTS AGAINST CLAIMANTS IN GROUP LITIGATION ORDER: INDEMNITY COSTS APPROPRIATE: AN EXHAUSTING READ
The judgment of Master Fontaine in The VW NOx Emissions Group Litigation [2018] EWHC 2308 (QB) is a warning to any litigator thinking of applying for a Group Litigation Order (“GLO”). The rule is clear basically – get your case in…
COSTS IN THE COURT OF PROTECTION: “ARROGANCE” AND “PETULANCE” LEADS TO AN AWARD OF COSTS AGAINST A LOCAL AUTHORITY
In London Borough of Lambeth v MCS & Anor [2018] EWCOP 20 Mr Justice Newton did not follow the normal practice in Court of Protection cases. He ordered costs to be paid against the Local Authority and the Lambeth Commissioning Group….
CLAIMANT OBTAINS INDEMNITY COSTS AFTER DEFENDANT’S LATE ACCEPTANCE OF PART 36 OFFER: “BIMBLING” AND OTHER TALES OF MODERN LITIGATION
On the Leigh Day website there is a link to a judgment of H.H.J Alan Gore QC (sitting as a High Court Judge) in the case of Holmes -v- West London Mental Health NHS Turst (29th June 2018). The judge…
COSTS: PHONE HACKING AND REPUTATION: PROPORTIONALITY IS NOT JUST ABOUT THE SUMS AT STAKE
In Various Claimants (In Wave 1 of the Mirror Newspapers Hacking Litigation) v MGN Ltd [2018] EWHC B13 (Costs) Master Gordon-Saker addressed the elements of “proportionality”. “The rule does not prevent the recovery of costs in an amount greater than the…
COSTS & PROPORTIONALITY: ITS NOT ALL ABOUT THE MONEY: DEFENDANT’S COSTS WERE NOT DISPROPORTIONAL
Proportionality was the central issue in the judgment of Master Leonard in Arjomandkhah v Nasrouallahi [2018] EWHC B11 (Costs). The Master rejected the claimant’s argument that the defendant’s costs (roughly one-third of the claimant’s costs budget) was disproportional. “In contrast to…
SHAMEFUL LETTERS, LATE DISCONTINUANCE, INDEMNITY COSTS (AND A REFUSAL TO MEDIATE HARDLY COUNTS): THE CLAIMANT WHO LOST SIGHT OF “ANY BASIC STANDARD OF DECENT & COMPASSIONATE BEHAVIOUR”
Earlier posts have looked at the issue of aggressive correspondence. Others have looked at the issues of conduct, refusal to mediate and questions relating to indemnity costs. I am grateful to David Turner QC for drawing my attention to a…
UNDERPAYMENT OF COURT FEES IS AN ABUSE OF PROCESS: HOWEVER DESPITE THIS AN ACTION WAS ISSUED WITHIN TIME & WOULD NOT BE STRUCK OUT
In the judgment today in Atha & Co Solicitors v Liddle [2018] EWHC 1751 (QB) Mr Justice Turner considered the issue of whether a failure to pay the correct fee on the issue of proceedings meant that a claim was…
CASE STRUCK OUT BECAUSE WITNESS EMAILED SOLICITORS AND COUNSEL & SPOKE TO THIRD PARTIES WHILST IN THE COURSE OF GIVING EVIDENCE
NB THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 In Hughes Jarvis Limited v Searle [2018] EW Misc B6 (CC) Her Honour Judge Clarke struck out the claimant’s case…
COURTESY, CONDUCT AND LITIGATION: A ROUND UP OF THE POSTS
Last week I set out the responses on Twitter about professional courtesy and conduct. This is a good opportunity to recap on the four posts on this subject. “AGGRESSIVE CORRESPONDENCE” AND EFFECTIVE LITIGATION: ARE THE TWO SYNONYMOUS OR DIAMETRICALLY OPPOSED…
AGGRESSIVE INTER-SOLICITOR CORRESPONDENCE: PISTOLS AT DAWN & THE DANGERS OF TALKING ON TRAINS: LESSONS FROM TWITTER
Earlier this week I tweeted a link to earlier posts on this blog “aggressive correspondence”. The responses on Twitter make for interesting (and entertaining) reading. The legal Twitterati provide quite a few lessons here – from the art of brevity…
CORONER ORDERED TO PAY COSTS: CAMDEN RESIDENTS WILL PICK UP THE BILL…
In Adath Yisroel Burial Society & Anor, R (on the application of) v HM Senior Coroner for Inner North London [2018] EWHC 1286 (Admin) the Divisional Court held that a coroner, who was unsuccessful in defending an application for judicial review,…
DAMAGES CLAIMED BUT NOT PLEADED: REALLY STRANGE WITNESS STATEMENTS; PARTISAN EXPERTS: THE ICI CASE IS BACK IN COURT
If you are ever looking for an example of matters going awry in litigation then read the judgment of Mr Justice Fraser in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2018] EWHC 1577 (TCC). All the usual problematic issues…
5th BIRTHDAY REVIEW 2: WHAT THEY DON’T TEACH YOU AT LAW SCHOOL: 10 POSTS THAT STARTED ON A TRAIN STATION
I am continuing looking back at series on this blog over the past five years. A series of posts in early 2017 was probably the most “collaborative” work on this blog. Dozens of people participated in giving advice to law…
MISCONDUCT ON ASSESSMENT LEADS TO COSTS BEING HALVED: IMPORTANT DECISION ON SOLICITOR’S DUTIES & DELEGATION OF ASSESSMENT PROCESS
I am grateful to Dominic Regan* for sending me a copy of the Court of Appeal decision today in Gempride Ltd -v Bamrhah [2018] EWCA Civ 1367. A case that concerns misconduct on assessment. (This is a preliminary post on…
COURT OF APPEAL STATES THAT NO ORDER FOR COSTS IS THE APPROPRIATE ORDER: “THIS IS A MELANCHOLY TALE”
In Sirketi v Kupeli & Ors [2018] EWCA Civ 1264 the Court of Appeal overturned an order for costs in favour of the claimants with an order for no costs. It was, as Lord Justice Hickinbottom observed “a melancholy tale”. The…
PROVING THINGS 100: IT IS DIFFICULT TO PROVE ANYTHING WHEN EVERYONE IS LYING: “A FESTIVAL OF MENDACITY”
The judgment of Mr Justice Turner today in Rashid v Munir & Ors [2018] EWHC 1258 (QB) illustrates the difficult task of the trial judge when all of the witnesses are strangers to the truth. “Attempting to establish the common but…
60% OFF AT MORRISONS: SUCCESSFUL CLAIMANTS ONLY RECOVER 40% OF THEIR COSTS: HIGH COURT DECISION
In Various Claimants v WM Morrison Supermarkets Plc [2018] EWHC 1123 Mr Justice Langstaff held that the claimants’ conduct of the claim led to unnecessary costs being incurred. Consequentially the defendant was ordered to pay the claimants 40% of the…
LITIGANTS IN PERSON & FREEDOM OF INFORMATION: MINISTRY OF JUSTICE COULD BE ON THE NAUGHTY STEP
Just to keep people up to date with the recent posts about the Ministry of Justice and the disclosure of the research in relation to litigants in person. The MOJ has now been reported to the Information Commissioner. A RECAP…
FAILING TO TAKE A PROPER PROOF OF EVIDENCE IS UNREASONABLE CONDUCT AND LEADS TO COSTS CONSEQUENCES FOR DEFENDANT – EVEN WHEN CLAIMANT DISCONTINUES
The judgment today in Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB) illustrates the importance of taking adequate witness statements. It shows that a failure to review the situation and take a full proof of evidence…
LITIGANTS IN PERSON: THE FULL STORY EMERGES: LITIGANTS IN PERSON COST THE JUSTICE SYSTEM MORE
Last week I commented on Buzzfeed’s piece on research that the MOJ carried out on litigants in person. After a freedom of information request the MOJ, reluctantly, handed over a six page summary of research it carried out on litigants…
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