MR BATES AND THE POST OFFICE 3: THE POST OFFICE’S APPLICATION THAT THE JUDGE RECUSE THEMSELVES BECAUSE HE WAS “BIASED” AGAINST THEM
The Post Office was so convinced of the righteousness of its case that it determined that any findings against it must be due to judicial bias. Having lost some applications before the trial judge it attempted to have the judge…
MR BATES AND THE POST OFFICE 2: THE JUDGE’S VIEW ON WITNESS CREDIBILITY
I am repeating a post first written in 2019. Matters that are in the public consciousness now were very much in the consciousness of the legal profession then. This post dealt with the trial judge’s view of the credibility of…
OPENING LINES OF JUDGMENTS 2023: DRAGONS, VENUS, BOMBS, WAR AND THE BEAUTY OF NIDDERDALE (TO NAME JUST A FEW)
It is now too close to Christmas to write the traditional material of this blog. However it is a good time to review some of the best opening lines of judgments for 2023. If you feel I have missed some…
A CLAIMANT, ALLEGING FRAUD, IS NOT ENTITLED TO DELIBERATELY BREACH A COURT ORDER AND THE RULES OF COURT: HIGH COURT JUDGMENT GIVES LITIGATORS MUCH TO THINK ABOUT
Those who draft pleadings, particularly those alleging fraud and misconduct, have much to learn from the judgment of Mr Justice Johnson in AXA Insurance UK PLC v Kryeziu & Ors [2023] EWHC 3233 (KB). The fact that a party is…
COST BITES 128: WHEN IT IS APPROPRIATE FOR THE JUDGE TO MAKE NO ORDER FOR COSTS
In Guy & Ors v Brake & Ors (Re Moratorium Cancellation Costs) [2023] EWHC 3179 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) found that it was appropriate to make no order for costs in relation to an…
COST BITES 125:JOCKEYING FOR POSITION: ALLEGATIONS OF CONDUCT INCREASING COSTS – BUT THERE WAS NO DEDUCTION FROM SUCCESSFUL PARTY’S COSTS:
In Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Limited & Ors [2023] EWHC 2923 (Ch) Mr Justice Mellor considered whether certain issues relating to the action meant that there should be a reduction of the…
COST BITES 123: COSTS OF BUDGETING REDUCED BY 25% TO REFLECT CLAIMANT’S UNREALISTIC BUDGET
In Reid v Wye Valley NHS Trust & Anor [2023] EWHC 2843 (KB) Master Brown reduced the recoverable costs of budgeting by 25% to reflect the unrealistic nature of the claimant’s budget. There are important issues here for those who…
COSTS OF £50,000 ORDERED TO BE PAID BY LITIGATION FRIEND: “HE WILLINGLY TOOK ON THE ROLE OF LITIGATION FRIEND AND HIS PERFORMANCE HAS BEEN WHOLLY INADEQUATE”
In Y v Z [2023] EWFC 205 HHJ Edward Hess ordered that the litigation friend for the respondent pay, personally, the applicant’s costs caused by the need to adjourn a hearing. The respondent had not prepared at all for the…
DOES WHAT YOU WEAR MATTER? GUIDANCE FOR ADVOCATES AND LITIGANTS: ANOTHER ISSUE REVISITED
This is a part of the series revisiting previous posts. Here we go back to November 2018. The question was asked – does how you dress affect how you are perceived? This followed a tweet (from the USA) where a …
COST BITES 111: LOOKING AT DETAILED ASSESSMENTS (1): YOU SHOULDN’T BE CLAIMING 62.3 HOURS FOR DRAFTING A LETTER OF CLAIM
It is surprising how few legal practitioners have actually been to a detailed assessment hearing, my own enquiries suggest it is a tiny fraction of litigators. A much higher percentage, however, have had cause to comment, possibly complain, about the…
COST BITES 107: A NON-PARTY COSTS ORDER SHOULD NOT BE MADE AGAINST A SOLICITOR REPRESENTING A CLAIM ON A CFA BASIS: SEEKING A FINANCIAL BENEFIT DID NOT MEAN THEY WERE ACTING OUTSIDE THEIR ROLE AS SOLICITOR
I am grateful to Sam Hayman from Bolt Burdon Kemp for sending me a copy of the decision of Mr Justice Freedman in The Scout Association -v- Bolt Burdon Kemp [2023] EWHC 2575 (KB). On appeal Freedman J upheld the…
COST BITES 104: “THE LATEST BATTLE IN A WIDER FORENSIC LEGAL WAR”: DEFENDANT NOT ENTITLED TO NON-PARTY COSTS ORDER AGAINST A COMPANY IT ASSERTED WAS “THE REAL PARTY” IN THE DISPUTE
In the judgment given today in Soares v Wilson [2023] EW Misc 11 (CC) HHJ Luba KC rejected an application that costs be paid by a non-party. The defendant’s application that a PLC pay the costs of the action because…
FIXED COSTS: ADDITIONAL AMOUNTS FOR “UNREASONABLE BEHAVIOUR”
We are continuing with our bite sized examination of the fixed costs regime by looking at CPR 45.13. This allows the court to reduce, or increase, the fixed costs for “unreasonable behaviour”. The rule appears only to allow this variation…
DELAYS, ADJOURNMENTS AND THE SIZE OF THE TRIAL BUNDLE: NOT JUST AN ACADEMIC PROBLEM: ELECTRONIC BUNDLES DOESN’T MEAN YOU CAN JUST THROW EVERYTHING IN
The judgment of Mr Justice Constable in Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2023] EWHC 2394 (TCC) contains another interesting insight into the preparation of trial bundles and how that, in itself, can become highly contentious. …
PART 36 APPLIES TO CLAIMS THAT ARE NOT ABOUT MONEY: SILENCE DID NOT INDICATE A REFUSAL TO ENTER ADR: PART 36 CONSEQUENCES APPLIED
In Jones v Tracey & Ors (Re Costs) [2023] EWHC 2256 (Ch) Master Marsh (sitting in retirement) found that Part 36 applied to cases that were not about money. It was held that the fact that the action would be…
THE COVER UP IS INVARIABLY WORSE THAN THE ERROR: WHAT TO DO WHEN MISTAKES ARE MADE
The post earlier this week based on the article by the Honourable Joseph Quinn led to to look in detail at one point made – that of avoiding a “cover up” and acting immediately to deal with mistakes. This led…
RUDE OR “ROBUST” CORRESPONDENCE? GUIDANCE ON AVOIDING INFLAMMATORY LANGUAGE OR BEING GRATUIOUSLY OFFENSIVE
This is a repeat of a post first written in August 2017. At that time the Solicitors Regulatory Authority had just issued on “Offensive communications” (the link is to an updated version from 2019). It gave me a chance to…
SUCCESSFUL CLAIMANT’S PART 36 OFFER: “PART OF THE POINT OF THE PENAL CONSEQUENCES OF PART 36 IS TO PREVENT THE SORT OF COSTS ARGUMENT THAT MIGHT OTHERWISE BE MADE”
In Green v White Lantern Film (Britannica) Ltd [2023] EWHC 1391 (Ch) Mr Justice Michael Green considered arguments as to conducts and costs in a case where the claimant had beaten her own Part 36 offer. The normal Part 36…
COST BITES 90: CLAIMANTS LIABLE TO PAY 5% OF DEFENDANT’S COSTS: HUMAN RIGHTS, PERSONAL INJURIES AND “MIXED CLAIMS”
In ABC & Ors v Derbyshire County Council & Ors, Re Costs [2023] EWHC 1337 (KB) Mrs Justice Hill considered the liability of the claimants to pay costs in a “mixed claim” which was, primarily, a personal injury claim. She…
WHEN AN EXPERT DECLAIMS A POINT “WITH A LEVEL OF SCIENTIFIC CERTAINTY”: BUT THE HANDWRITING SAMPLE WAS NOT FROM THE CLAIMANT
There are plenty of examples of difficulties with expert’s giving evidence on this blog. Another example of problematic expert report can be seen in the judgment of Mr Justice Saini in Packham v Wightman & Ors [2023] EWHC 1256 (KB)….
WITNESS CREDIBILITY:”BLAMING LEGAL ADVISERS FOR LEGAL DOCUMENTATION”: A CASE IN POINT
The judgment of HHJ Richard Williams (sitting as a High Court Judge) in Rancom Security Ltd v Girling & Ors [2023] EWHC 1115 (Ch) provides an interesting example of the assessment of witness credibility. It also highlights the point that…
THE KING’S BENCH DIVISION GUIDE: THE NEW BITS (1): LAWYERS STAY OUT OF THE MEETING OF EXPERTS
A new edition of the King’s Bench Division Guide was published last week (although it is dated March 2023). I will take a short look at the major changes. Firstly looking at a new passage in relation to the instruction…
COST BITES 82: WHEN THE SIZE OF THE COSTS STARTS TO SWAMP THE SIZE OF THE ESTATE: AN EXHORTATION TO PARTIES INVOLVED IN INHERITANCE CLAIMS
The judgment of Master Brightwell in Amnir & Ors v Bala & Ors [2023] EWHC 1054 (Ch) contains a warning to many, if not all, litigants, particularly those involved in Inheritance Act claims. The size of the costs in the…
COSTS BITES 80: WHERE THE BILL OF COSTS WAS FOR IMAGINARY WORK AND “JUST FICTION”: ASSESSMENT SHINES A CLEAR LIGHT OF DEFICIENCES IN BILLS: AT SUBSTANTIAL COST TO THE CLAIMANTS’ SOLICITOR
The judgment of Senior Costs Judge Gordon-Saker in Ikin -v- Shawbrook Bank Limited [2023] EWHC 1075 (SCCO) contains many, many lessons of importance for those drafting and those signing bills of costs. The judge found that there were manifold failures…
WHAT TO DO WHEN THINGS GO WRONG IN LITIGATION: WEBINAR 25th APRIL 2023
This blog spends a lot of time looking at cases where things have gone wrong, for one reason and another. This webinar on the 25th April 2023 looks at the main problem areas in litigation and the practical steps that…
EXPERT WITNESS OBTAINS ANONYMITY: BUT THEIR TONE DEMONSTRATED DISRESPECT FOR THE COURT
An earlier post dealt with the judge’s decision in M v F & Anor [2022] EWFC. However there is a subsequent judgment that demonstrates an extraordinary response on the part of the expert involved. In a second judgment, M v F &…
PART 36, COSTS: THE JUDGE WAS CORRECT NOT TO FIND THAT PART 36 CONSEQUENCES SHOULD NOT APPLY: A DISPUTE “CONDUCTED IN AN ENTIRELY DISPROPORTIONATE WAY AND AT ENTIRELY DISPROPORTIONATE COST”
In Lampor & Ors v Jones [2023] EWHC 667 (Ch) Mr Justice Mellor dismissed the appeals by both parties in relation to costs orders made following Part 36 offers. The trial judge had held that the defendant had failed to…
PERSONAL PEJORATIVE REMARKS IN WITNESS STATEMENTS DO NOT HELP: RECENT DECISIONS AND A REVIEW OF THE CASES
Some recent comments by HHJ Edward Hess in TM -V- KM [2022] EWFC 155 as to the language used in witness statements gives me a chance to reprise the guidance as to the lack of wisdom of using intemperate language…
WHEN ONLINE DISCUSSIONS THAT YOU NEVER THOUGHT WOULD BE MADE PUBLIC – GET SEEN: LAWYER’S TALES: “CHURN THAT BILL BABY”
Recent events have shown that even the most prominent people in public office can put material on social media sites that they assume will never be seen, and come to regret it. However politicians are not the only ones. This…
JUDGMENT OF A FINDING OF FUNDAMENTAL DISHONESTY – BUT THIS CASE GOES MUCH FURTHER: COLLUSION IS FOUND
Here we are looking at a case where District Judge Lumb made a clear finding of fundamental dishonesty on the part of a personal injury claimant. That finding was confirmed, or perhaps compounded, by the judge’s views in relation to…
THE JUDGE INTERRUPTED A BIT TOO MUCH… COURT OF APPEAL JUDGMENT
In Keane v Sargen & Ors [2023] EWCA Civ 141 the Court of Appeal commented that interruptions of the cross examination of a witness by the trial judge had not been helpful and, indeed, inappropriate. “I add a few words…
COST BITES 59: COSTS AGAINST THE CLAIMANT EVEN THOUGH THE DEFENDANTS’ APPLICATION WAS UNSUCCESSFUL: HOWEVER THE JUDGE FELT TOTALLY UNABLE TO RELY ON A COSTS SCHEDULE
Another example of costs not following the event can be seen in the judgment of Mrs Justice Smith in The Financial Conduct Authority v Papadimitrakopoulos & Anor [2022] EWHC 3048 (Ch). The judgment also raises other issues in relation to…
CLAIMANT FAILS IN AN APPLICATION FOR WASTED COSTS AGAINST HIS OWN LAWYERS: HOWEVER THERE IS AN IMPORTANT LESSON HERE
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
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
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
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
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”
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
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”
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?
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
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
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
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
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
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
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
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
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
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…
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