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Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. 4-5 Gray's Inn Square, London.
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CLAIMANT FAILS IN AN APPLICATION FOR WASTED COSTS AGAINST HIS OWN LAWYERS: HOWEVER THERE IS AN IMPORTANT LESSON HERE

CLAIMANT FAILS IN AN APPLICATION FOR WASTED COSTS AGAINST HIS OWN LAWYERS: HOWEVER THERE IS AN IMPORTANT LESSON HERE

February 1, 2023 · by gexall · in Conduct, Costs, Wasted Costs

In  Costa v Dissociadid Ltd & Anor [2023] EWHC 49 (IPEC) the claimant was unsuccessful in an application for wasted costs against his own lawyers.  However the judgment tells us more than that. It is an object lesson in the…

ANOTHER CASE OF DISCLOSURE OF AN EMBARGOED COURT OF APPEAL JUDGMENT: LIABILITY FOR CONTEMPT MAY BE STRICT, BUT IN THIS CASE NEED GO NO FURTHER

ANOTHER CASE OF DISCLOSURE OF AN EMBARGOED COURT OF APPEAL JUDGMENT: LIABILITY FOR CONTEMPT MAY BE STRICT, BUT IN THIS CASE NEED GO NO FURTHER

January 30, 2023 · by gexall · in Appeals, Committal proceedings, Conduct

In Interdigital Technology Corporation & Ors v Lenovo Group Ltd & Ors [2023] EWCA Civ 57 the Court of Appeal considered another case where the results a draft embargoed judgment was disclosed (although not the judgment itself).   Liability for the…

MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT

MAKING A MISTAKE ON THE DAMAGES CLAIM PORTAL IS NOT NECESSARILY AN ABUSE OF PROCESS: AN APPLICATION THAT PROVED COSTLY FOR THE DEFENDANT

January 24, 2023 · by gexall · in Applications, Costs, Striking out

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…

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

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

January 20, 2023 · by gexall · in Appeals, Applications, Assessment of Costs, Conduct, Costs

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…

EVERYONE ELSE IN THE TRAIN CARRIAGE CAN HEAR YOU KNOW: THE DANGERS OF WORKING (AND TALKING) ON THE TRAIN

EVERYONE ELSE IN THE TRAIN CARRIAGE CAN HEAR YOU KNOW: THE DANGERS OF WORKING (AND TALKING) ON THE TRAIN

January 19, 2023 · by gexall · in Conduct

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 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF "METAPHORICAL WARFARE"

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”

January 17, 2023 · by gexall · in Assessment of Costs, Conduct, Costs

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 46: NON PARTY COSTS ORDER MADE AGAINST DIRECTOR OF INSOLVENT COMPANY

COST BITES 46: NON PARTY COSTS ORDER MADE AGAINST DIRECTOR OF INSOLVENT COMPANY

January 13, 2023 · by gexall · in Applications, Costs

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…

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"

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”

January 12, 2023 · by gexall · in Civil evidence, Civil Procedure, Disclosure, Witness statements

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…

COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?

COST BITES 44: THE COSTS OF ASSESSMENT: THE RELEVANCE OF CONDUCT, ARE PART 36 OFFERS SIGNIFICANT?

January 11, 2023 · by gexall · in Appeals, Assessment of Costs, Costs, Part 36

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 7: INDEMNITY COSTS WHEN A CLAIMANT HAS TRIED TO HAVE A SECOND BITE OF THE LITIGATION CHERRY

COST BITES 7: INDEMNITY COSTS WHEN A CLAIMANT HAS TRIED TO HAVE A SECOND BITE OF THE LITIGATION CHERRY

July 18, 2022 · by gexall · in Applications, Assessment of Costs, Conduct, Costs

In Tinkler v Esken Ltd (Costs) [2022] EWHC 1802 (Ch) Mr Justice Leech ordered indemnity costs against a claimant who, in essence, attempted to relitigate a case he had lost on previously.   “A principal difference between an order for…

THE COSTS JUDGE OVER YOUR SHOULDER 2: THERE WAS NO MISCONDUCT BY THE CLAIMANTS, HOWEVER THE COSTS OF ARGUING ABOUT CONDUCT WERE NOT ALLOWED

THE COSTS JUDGE OVER YOUR SHOULDER 2: THERE WAS NO MISCONDUCT BY THE CLAIMANTS, HOWEVER THE COSTS OF ARGUING ABOUT CONDUCT WERE NOT ALLOWED

June 24, 2022 · by gexall · in Assessment of Costs, Conduct, Costs

In  Balaj & Ors v Secretary of State for the Home Department [2022] EWHC 1627 (SCCO) Costs Judge James considered, and rejected, the defendant’s arguments that the claimant’s conduct should lead to costs being reduced.  However the costs of the…

ED SHEERAN: SONGWRITING, CONDUCT AND COSTS: THE WINNING PARTY GETS PAID: THE COURT WOULD NOT TURN REALITY ON ITS HEAD

ED SHEERAN: SONGWRITING, CONDUCT AND COSTS: THE WINNING PARTY GETS PAID: THE COURT WOULD NOT TURN REALITY ON ITS HEAD

June 21, 2022 · by gexall · in Conduct, Costs

In Sheeran & Ors v Chokri & Ors [2022] EWHC 1528 (Ch) Mr Justice Zacaroli rejected an argument that conduct during an action should lead to costs being disallowed.   “This, however, is to turn reality on its head. The…

EXPERT WHO WALKED "ON THE PAVEMENT HAND IN HAND" WITH THE CLIENT: EXPERT WITH ALL THE HALLMARKS OF THE MENTALITY OF AN ADVOCATE

EXPERT WHO WALKED “ON THE PAVEMENT HAND IN HAND” WITH THE CLIENT: EXPERT WITH ALL THE HALLMARKS OF THE MENTALITY OF AN ADVOCATE

June 14, 2022 · by gexall · in Civil evidence, Expert evidence, Uncategorized

We have already looked at the judgment of Mr Justice Mostyn in Gallagher v Gallagher (No.2) (Financial Remedies) [2022] EWFC 53 in relation to costs.  There are some telling observations in that judgment in relation to the role of the expert…

"IT WAS UNNECESSARY FOR MATTERS TO BE DEALT WITH SO EXPENSIVELY": ANOTHER COMMENT ON LACK OF FOCUS IN THE COMMERCIAL COURT

“IT WAS UNNECESSARY FOR MATTERS TO BE DEALT WITH SO EXPENSIVELY”: ANOTHER COMMENT ON LACK OF FOCUS IN THE COMMERCIAL COURT

May 13, 2022 · by gexall · in Applications, Conduct

For the second time today I am writing about judicial comments on profligacy in the Commercial Court.  This time Mr Justice Andrew Baker in Invest Bank PSC v El-Husseini & Ors [2022] EWHC 894 (Comm).   “Even in the context…

ANOTHER CASE OF A JUDGMENT EMBARGO BEING BREACHED: ALL RECIPIENTS NEED TO UNDERSTAND THE IMPORTANCE AND BREADTH OF THE EMBARGO ON DRAFT JUDGMENTS

ANOTHER CASE OF A JUDGMENT EMBARGO BEING BREACHED: ALL RECIPIENTS NEED TO UNDERSTAND THE IMPORTANCE AND BREADTH OF THE EMBARGO ON DRAFT JUDGMENTS

March 23, 2022 · by gexall · in Appeals, Civil Procedure, Conduct

In The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 368 the Court of Appeal considered yet another case of breach of an embargoed judgment. There was clearly a breach (somewhere) which…

A CLAIMANT WHO OBTAINS AN ORDER UNDER SECTION 33 IS "SUCCESSFUL": COSTS, CONDUCT AND INTERIM PAYMENTS ON ACCOUNT OF COSTS CONSIDERED

A CLAIMANT WHO OBTAINS AN ORDER UNDER SECTION 33 IS “SUCCESSFUL”: COSTS, CONDUCT AND INTERIM PAYMENTS ON ACCOUNT OF COSTS CONSIDERED

March 23, 2022 · by gexall · in Conduct, Costs, Interim Payments, Limitation

In Aderounmu v Colvin (Costs) [2022] EWHC 637 (QB) Master David Cook made an order for costs in favour of a claimant who had succeeded on a preliminary issue.  A discount was made because certain aspects of the case had…

"WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM": PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE

“WHY IS IT FAIR FOR ONE PARTY TO FOLLOW THE RULES, BUT THE OTHER PARTY TO IGNORE THEM”: PAINTING THE OTHER PARTY IN PERJORATIVE TERMS WILL NOT ASSIST YOUR CASE

March 22, 2022 · by gexall · in Civil evidence, Civil Procedure, Conduct, Witness statements

In WC v HC (Financial Remedies Agreements) [2022] EWFC 22 Mr Justice Peel had some stringent criticisms of the way in which a party attempted to bypass the rules on witness statement length. Also he highlighted the futility of making…

EXPERTS GOING WRONG - AGAIN : THIS TIME IT HAS COST (SOMEONE) £225,000: THE WORK TURNS INTO DUST

EXPERTS GOING WRONG – AGAIN : THIS TIME IT HAS COST (SOMEONE) £225,000: THE WORK TURNS INTO DUST

March 10, 2022 · by gexall · in Applications, Civil evidence, Conduct, Credibility of experts, Expert evidence, Experts

It is rare for me to write about judgments from secondary sources.  However the judgment of Senior Master Fontaine in Patricia Andrews & Ors v Kronospan Limited [2022] EWHC 479 (QB)   is noted in two reliable sources and it is a case…

INDEMNITY COSTS IN PUBLIC LAW PROCEEDINGS: FAILURE BY THE EXECUTIVE TO COMPLY WITH CONSENT ORDER TAKES THE CASE OUT OF THE NORM

INDEMNITY COSTS IN PUBLIC LAW PROCEEDINGS: FAILURE BY THE EXECUTIVE TO COMPLY WITH CONSENT ORDER TAKES THE CASE OUT OF THE NORM

March 10, 2022 · by gexall · in Conduct, Costs

In Butt, R (on the application of) v Secretary of State for the Home Department (Indemnity costs) [2022] UKUT 69 (IAC) the Upper Tribunal found that it had power to order indemnity costs, further, on the facts of this case…

WHEN WECHAT MESSAGES ARE LOST OR DESTROYED - BY A TWO YEAR OLD: THE ADVERSE INFERENCES A COURT CAN DRAW

WHEN WECHAT MESSAGES ARE LOST OR DESTROYED – BY A TWO YEAR OLD: THE ADVERSE INFERENCES A COURT CAN DRAW

February 16, 2022 · by gexall · in Conduct, Disclosure

In ED & F Man Capital Markets Ltd v Come Harvest Holdings Ltd & Ors [2022] EWHC 229 (Comm) Mr Justice Calver considered a case where Wechat messages had been “lost”. The judge concluded that the “loss” was deliberate and…

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