“INTERROGATION” OF A DRAFT JUDGMENT IS EXCESSIVE: COURT OF APPEAL JUDGMENT TODAY
We have seen many cases relating to issues arising following the sending out of draft judgments. Another example can be viewed in the Court of Appeal judgment today in C & Ors, Re (Care Proceedings: Fact-Finding) [2023] EWCA Civ 38…
COST BITES 51: CASE FOR FALSE IMPRISONMENT WAS APPROPRIATE FOR THE FAST TRACK NOT SMALL CLAIMS TRACK: DECISION UPHELD ON APPEAL
In Wilkins v Serco Ltd [2023] EWHC 61 (KB) Mrs Justice Heather Williams rejected the defendant’s appeal in relation to allocation of a case for false imprisonment. She upheld a finding that the case would have been allocated to the…
PROVING THINGS 247: A NON-CONVICTION CANNOT IMPOSE A CIVIL DUTY OF CARE: CLAIMANT FAILS IN PERSONAL INJURY ACTION
In Lewin v Gray [2023] EWHC 112 (KB) HHJ Robinson (sitting as a Judge of the High Court) decided the issue of liability against the claimant. The case involved questions relating to the duty of care and the impact of…
COST BITES 50: USEFUL LINKS ON COSTS FROM KINGS CHAMBERS: TAKE YOUR PICK…
There are a large number of helpful links on Kings Chambers’ Resource page. Here I link specifically to those relating to costs. Firstly the newsletters and articles and secondly the regular series of webinars. NEWSLETTERS Costs Litigation Newsletter:…
COST BITES 49: ARE THE COSTS OF A MEDICAL AGENCY RECOVERABLE IN THE FIXED COSTS REGIME? DISTRICT JUDGE FINDS THAT THEY ARE
Are the costs of a medical agency recoverable under the fixed costs regime? I am grateful to barrister John Meehan for sending me a copy of the judgment of District Judge Phillips in Wilkinson-Mulvaney -v- UK Insurance Ltd (19th January…
WEBINAR ON FATAL ACCIDENTS 1: SEEING THE CLIENT FOR THE FIRST TIME AND PREPARING FOR THE INQUEST: 1st FEBRUARY 2023
On the 1st February 2023 solicitor Hilary Wetherell is presenting the first in a series of webinars on fatal accidents. This webinar deals with the essential elements of the first meeting with the client and preparing for the inquest. Booking…
MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT
I am grateful to Express Solicitors for sending me a report of a decision in Oxford County Court relating to the Damages Claim Portal. The claimant had used the Portal to issue against the Crown. The Portal cannot be used…
REPEAT SERIES OF WHAT THEY DON’T TEACH YOU AT LAW SCHOOL II: “80% OF VALUE COMES FROM 20% OF ACTIVITIES”
This “repeat” looks at the second in the series “What they don’t teach you at School”, it based on one article by Susan Carter Liebel 9 Things I wish they’d taught me at Law School. “9 THINGS I (REALLY,…
MULTIPLE INJURIES AND TARIFF CASES: ASSESSING DAMAGES – A PRIMER
Following the judgment on Friday in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 there is now a clear cut approach to assessing damages where a claimant’s injuries include damages for matters not within the whiplash tariff. Here…
COSTS REDUCED BY 70% BECAUSE OF MISCONDUCT IN ASSESSMENT (AFTER BEING REDUCED BY 95% DURING THE ASSESSMENT): CLAIMANT’S APPLICATION FOR PERMISSION TO APPEAL REFUSED
The judgment of Mr Justice Murray in AB v Secretary of State for Justice [2023] EWHC 72 (KB) is part of an extraordinary saga in relation to a costs assessment. Costs had been reduced by 95% on assessment and reduced…
COURT OF APPEAL JUDGMENT TODAY: WHIPLASH TARIFF INJURIES AND COMMON LAW DAMAGES: HOW SHOULD THE COURT DEAL WITH “MIXED” CLAIMS?
In the judgment today in Hassam & Anor v Rabot & Anor [2023] EWCA Civ 19 the Court of Appeal (by a majority view) decided that the Civil Liability Act 2018 did not impact on the assessment of damages for…
“HYPERBOLIC COMMENT” NOT WELCOME IN LITIGATION: HIGH COURT JUDGE SENDS OUT A WARNING: PLANE LANGUAGE IS BEST…
In Peregrine Aviation Bravo Ltd & Ors v Laudamotion GmbH & Anor [2023] EWHC 48 (Comm) Mr Justice Henshaw was critical of “hyperbolic comment” in relation to the witness evidence. This is not the first time that a judge has…
EVERYONE ELSE IN THE TRAIN CARRIAGE CAN HEAR YOU KNOW: THE DANGERS OF WORKING (AND TALKING) ON THE TRAIN
Twice in the past two days lawyers have tweeted experiences of people sitting in a train carriage and openly discussing ongoing cases. “What offers are we going to make”, on both occasions. One tweeter observed that he knew the subject…
COST BITES 49: A LAWYER WHO ACTS FOR HIMSELF HAS … A DIFFICULT TIME GETTING PAID: SOLICITOR DEFENDANT CONFINED TO LITIGANT IN PERSON RATES
In Patel -v- Karmakar (12th January 2023) District Judge Lumb, sitting as a Regional Costs Judge, decided that a solicitor acting for himself in litigation could only recover the litigant in person rate. A copy of the judgment is available…
IS THE PEN MIGHTIER THAN THE SWORD? WHAT IS THE BEST ADVICE ON COSTS YOU CAN GIVE TO A YOUNG LAWYER? WIN A PEN – WITH HISTORY BEHIND IT
What single piece of Advice on costs would you give to a young lawyer? What would help them throughout their career? I would be interested to know and, thanks to the generosity of David Bentley at Wig and Pens, I…
PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS
We are looking again at the judgment in Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 from a slightly different stance. The appeal was about QOCS and setting aside a notice of discontinuance. However the process that led…
COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM
In Excalibur & Keswick Groundworks Ltd v McDonald [2023] EWCA Civ 18 the Court of Appeal rejected the defendant’s appeal, which was an attempt to subvert the principles of Qualified One Way Costs Shifting (“QOCS”). The claimant discontinued the action…
COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF “METAPHORICAL WARFARE”
We are returning to the judgment of Costs Judge Leonard in Reed v Woodward Property Developments Ltd & Anor [2023] EWHC 36 (SCCO) to look at two other aspects of the case. The first relates to the relevance of the costs…
COST BITES 47: PROVING (OR DISPROVING) THAT THERE WAS A VALID RETAINER: APPORTIONING RECOVERABLE COSTS BETWEEN TWO DEFENDANTS
In Reed v Woodward Property Developments Ltd & Anor [2023] EWHC 36 (SCCO) Costs Judge Leonard considered a number of issues. Firstly the court’s approach when there was a dispute as to whether there was a valid retainer. Secondly questions…
A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY £17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE
I am grateful to barrister Ashley Blood-Halvorsen for bringing my attention to the judgment of District Judge Lumb in Reed -v- Boswell (06/12/2022) a copy of which is available here. It is a rare example of costs being awarded against…
WHAT THEY DON’T TEACH YOU IN LAW SCHOOL: A REPRISE : EARLY MORNING STARTS AND LEGAL CHEEK STARTED A SERIES
Back in the dim and distant days of 2017 I wrote a series “What they don’t teach you at law school”. The series also got a lot of input from other lawyers. This seems a good time to reprise the…
COMMENTING ON A DRAFT JUDGMENT – WHEN THE JUDGE HAS ASKED YOU TO: THE CIRCULATION OF A DRAFT JUDGMENT IS NOT THE END OF THE BEGINNING OF THE LITIGATION BUT THE BEGINNING OF THE END
There have been several cases over the years where judges have commented on the practice of parties attempting to rewrite draft judgments. In Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd & Ors [2022] EWHC 3275 (TCC)…
COST BITES 46: NON PARTY COSTS ORDER MADE AGAINST DIRECTOR OF INSOLVENT COMPANY
In Asprey Capital Ltd v Rediresi Ltd & Anor (Re Non-Party Costs Order) [2023] EWHC 28 (Comm) Patricia Robertson KC (sitting as a Deputy High Court Judge) made a non-party costs order against a director of the defendant company. THE…
COST BITES 45: COURT REJECTS DEFENDANT’S APPLICATION THAT CASE INVOLVING A CHILD BE BUDGETED: ACCEPTS CLAIMANT’S APPLICATION FOR AN INTERIM PAYMENT ON COSTS – BUT NOT THE AMOUNT CLAIMED
In CXS v Maidstone and Tunbridge Wells NHS Trust [2023] EWHC 14 (KB) Master Cook considered issues relating to costs in a case concerning a child where the matter is unlikely to be resolved for many years. The Master rejected…
PROVING THINGS 245: DEFENDANTS FLOORED: THEY FAILED TO ESTABLISH THAT DISCLOSURE GIVEN INADVERTENTLY “ON THIS QUESTION, THE EVIDENCE BEFORE ME FROM THE DEFENDANTS IS LIMITED AND UNSATISFACTORY”
In Flowcrete UK Ltd & Ors v Vebro Polymers UK Ltd & Ors [2023] EWHC 22 (Comm) Mr Nigel Cooper KC (sitting as a High Court Judge) refused the defendants’ application to prevent the claimant from using certain documents that…
NON-PARTY COSTS ORDER AGAINST EXPERT WITNESS SET ASIDE ON APPEAL: THE FACT THAT AN EXPERT’S CONCLUSIONS CAN BE CRITICISED DOES NOT AMOUNT TO A FLAGRANT DISREGARD OF THEIR DUTY
I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of Mr Justice Sweeting in Robinson -v- Liverpool Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB), a copy of the judgment is available here. …
THE COSTS JUDGE OVER YOUR SHOULDER 2023 – MAXIMISING RECOVERY: WEBINAR 6th APRIL 2023
The recent judgment in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 9 (SCCO) illustrates the problems that receiving parties can cause for themselves. The claimant’s bill was reduced by 31% (£16.9 million) despite the assessment being on an indemnity…
COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?
We are returning to the judgment of Mrs Justice Stacey in TRX v Southampton Football Club [2022] EWHC 3392 (KB). The judge made some observations in relation to the costs of the assessment process. In particular the interplay of CPR 47.20…
COST BITES 43: CLAIMANT’S COSTS INCURRED BEFORE CFA SIGNED WERE RECOVERABLE
In TRX v Southampton Football Club [2022] EWHC 3392 (KB) Mrs Justice Stacey considered a number of issues relating to costs. One of those was the question of whether pre-CFA costs were recoverable. This required a close consideration of the…
UNDERSTANDING FATAL ACCIDENT LAW: A SERIES OF FIVE WEBINARS THIS YEAR
Together with solicitor Hilary Wetherell we are presenting a series of five seminars on fatal accident law and litigation. These take you through seeing the client for the first time, understanding the law relating to fatal claims, preparing a Schedule,…
COST BITES 42: INDEMNITY COSTS, CONDUCT AND CORRECTING MISTAKES: PROVIDING SUFFICIENT MATERIAL ON ASSESSMENT IS ESSENTIAL
In Deutsche Bank AG v Sebastian Holdings Inc [2023] EWHC 9 (SCCO) Senior Costs Judge Gordon-Saker held that a claimant was only entitled to 70% of its costs of assessment. There were difficulties in the way that the claimant had…
LAWYERS, FONTS, THE RULES AND SKELETON ARGUMENTS BEING REJECTED: A RECAP
Every so often there are discussions on Twitter about the appropriate fonts for lawyers to use. At times these can be heated discussions, including consideration of whether the use of the word “fonts” is itself appropriate. This led me to…
EXPERT EVIDENCE: KING CRIMSON, KANYE WEST: CONSIDERATION OF THE PRINCIPLES (AND THE COSTS): WE ARE IN THE 21st CENTURY NOW
In Declan Colgan Music Ltd v Umg Recordings, Inc [2023] EWHC 4 (Ch) Deputy Master Henderson refused the claimant’s application for permission to call expert evidence in relation to the construction and consequences of an agreement to licence music. There…
COST BITES 41: PREJUDGMENT INTEREST ON COSTS – CONSIDERED BUT REFUSED
In Adcock & Ors v Blemain Finance Ltd [2022] EWHC 3280 (SCCO) Costs Judge Whalan considered, and rejected, the claimants’ arguments that they should have pre-judgment interest on costs. “It is clear nonetheless that the incipitur rule constitutes the…
THE COURTS IN AN ERA OF AUSTERITY: BROKEN LIFTS AND BROKEN PROMISES
It would be a pity if the speech of Sir James Munby THE FAMILY COURT IN AN ERA OF AUSTERITY: PROBLEMS AND PRIORITIES is only read by family lawyers. There is much of interest to all litigators. It was a…
A CLEAR WARNING FOR THOSE WHO SIGN WITNESS STATEMENTS AND SOLICITORS WHO SIGN STATEMENTS OF COMPLIANCE: IT IS NOT A JUNGLE OUT THERE
In Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd [2022] EWHC 3379 (Ch) HHJ Pearce sent out an important message to those who sign witness statements. He also sent out an, arguably more important message, to those solicitors…
DO YOU WANT TO BE A LEGAL BLOGGER? A TRAINING EVENT BY ZOOM – 5th FEBRUARY 2023
The Transparency Project is looking for legal bloggers, training will be provided Full details of the project can be found here. THE NEW INITIATIVE “At the end of January 2023, a new reporting pilot will launch in three courts…
FIRST POST ON PART 36 IN 2023: IT WAS NOT UNJUST FOR THE DEFENDANTS TO BEAR THE NORMAL CONSEQUENCES OF FAILING TO BEAT CLAIMANTS’ PART 36 OFFER
In Von Westenholz & Ors v Gregson & Anor [2022] EWHC 3374 (Ch) Robin Vox, sitting as a Deputy High Court Judge, found that it was not unjust for the defendants to face the normal consequences of failing to beat…
2022 IN REVIEW (IV): CASE OF THE YEAR: PART 36 OFFERS AND MISTAKES
Choosing a case of the year is never easy. There are many significant judgments throughout a year all of which have an impact on civil procedure. However this year I am returning to a decision in January. The decision of…
WHEN THE DEFENDANTS FAILED TO BEAT THE CLAIMANTS’ PART 36 OFFER, BUT MONEY IS NOT DUE IMMEDIATELY: WHAT ARE THE CONSEQUENCES?
We are looking again at the judgment of Mr Justice Hildyard in Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch). Having determined that a valid and effective Part 36 offer had been made by…
2022 IN REVIEW (III): OPENING LINES OF JUDGMENTS 2022: AT HOME AND ABROAD: PADDINGTON, CARNIVALS, RAISING COMMONWEALTHS AND RUINING KINGS
Our annual review continues with the best “opening lines of judgments” for 2022. This year there are a number of strong international contenders. Worries about misguided endeavours The Serious Fraud Office & Anor v Litigation Capital Ltd [2022] EWHC 3053…
2022: IN REVIEW (II): THE QUIRKIER STUFF
Some stranger statistics from the blog this year. Looking at the busiest times, the busiest day, referrers and the countries that visit most (and least). BUSIEST DAY AND TIME The busiest day is Tuesday. The busiest time is 11.00…
PART 36 APPLIED TO COMPLEX OFFER: PART 36 WAS ENGAGED AND THE NORMAL CONSEQUENCES FOLLOWED
In Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor [2022] EWHC 3366 (Ch) Mr Justice Hildyard considered whether Part 36 applied to a complex offer made by the applicants. This post looks at the judgment relating to…
2022 IN REVIEW (1) : SOME FACTS AND FIGURES
2022 has been another busy year on this blog. It is always interesting to see what people have been reading. The most recent posts are not always the most read. Instead posts on basic issues, from earlier years, dominate the…
ANOTHER POTENTIAL BREACH OF AN EMBARGO ON A JUDGMENT: JUDGE DECIDES TO TAKE FURTHER ACTION TO INVESTIGATE
The judgment in Wright v McCormack [2022] EWHC 3343 (KB) shows a variation on the risks of disclosing the contents of an embargoed judgment. The claimant did not disclose the full judgment but various messages on social media could be…
AN ACTION ISSUED ON BEHALF OF AN ESTATE BY SOMEONE WITHOUT AUTHORITY AT THE TIME OF ISSUE IS “A DEAD THING INTO WHICH NO LIFE COULD BE INFUSED”
One search term that regularly leads people to this site is “can I issue on behalf of an estate when I don’t have letters of administration”. There are variations on this, but the central theme is always the same. The…
COST BITES 40: NO ONE GETS THE COSTS OF AN AMENDMENT (WHICH WERE FAR TOO HIGH ANYWAY)
In Walter Hugh Merricks CBE v Mastercard Incorporated and Others [2022] CAT 52 the Competition Appeal Tribunal considered the principles relating to the costs of amendments to statements of case after a contested hearing. On the facts of this case…
IF YOU DON’T COMPLY WITH THE RULES RELATING TO WITNESS STATEMENTS YOUR CASE CAN (AND THIS CASE DID) GO DOWN THE DRAIN
In Brendon International Ltd v Water Plus Ltd & Anor [2022] EWHC 3321 (Ch)HHJ Cadwallader (sitting as a High Court Judge) found that numerous elements of the defendant’s witness statements were defective and non-compliant with the rules. The case is…
DEFENDANT’S APPLICATION TO VACATE TRIAL DATE, AND FOR A FOUR YEAR STAY, REFUSED: JUSTICE IS ACHIEVED BY THE TRIAL DATE BEING MET
In Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) Mr Justice Ritchie refused the defendant’s application for an adjournment of a trial date. The defendant argued that medical uncertainty meant that it was…
PROVING THINGS 244 (& COST BITES 39): WHY COSTS LAWYERS HAVE TO KNOW ABOUT PROVING THINGS
We are returning to the decision on Mr Justice Cavanagh in Shepherd & Co Solicitors v Brealey [2022] EWHC 3229 (KB) to consider another aspect of the rules relating to costs. The solicitors were seeking to persuade the court to…
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