INDEMNITY COSTS IN PUBLIC LAW PROCEEDINGS: FAILURE BY THE EXECUTIVE TO COMPLY WITH CONSENT ORDER TAKES THE CASE OUT OF THE NORM
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
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…
LAWYERS AS SCHOOCHILDREN IN THE PLAYGROUND: BAD-TEMPERED LITIGATION: THE SUMMARY ASSESSMENT OF COSTS: THE TAIL TO AND NOT THE DOG ITSELF
In Crypto Open Patent Alliance v Wright [2022] EWHC 242 (Ch) HHJ Paul Matthews (sitting as a High Court Judge) made some trenchant observations in relation to arguments about costs on summary assessment. The criticisms of the way that litigation…
THE NEED FOR VARIATION OF THE TONE OF CORRESPONDENCE IN LITIGATION: OUTRAGED OFFENCE AND BEING PASSIVE-AGGRESSIVE IS USUALLY OFF KEY
I am grateful to solicitor Richard Harrison for allowing me to reproduce his post on “The importance of tone in litigation”. This blog has looked, many times, at judicial criticism of intemperate correspondence. Richard’s observations here will strike a chord…
CONDUCT AND COSTS: SUCCESSFUL DEFENDANT RECOVERS – NOTHING
In European Real Estate Debt Fund (Cayman) Ltd v Treon & Ors [2021] EWHC 2866 (Ch) Mr Justice Miles considered issues relating to costs after a defendant had succeeded at trial because the claimant’s action was statute barred. The judge…
IS A CONDITIONAL FEE AGREEMENT UNENFORCEABLE IF THE SOLICITOR BREACHES THE CODE OF CONDUCT? MUCH TO THINK ABOUT?
The judgment of Mr Justice Trower in Winros Partnership v Global Energy Horizons Corporation [2021] EWHC 3410 (Ch) gives much for lawyers to think about. Here I want to concentrate on one element of that judgment- does a failure to…
COSTS OF ASSESSMENT CAN BE REDUCED BECAUSE BILL WAS REDUCED: NO NEED FOR MISCONDUCT OR SKULDUGGERY
In Milbrooke Construction Ltd v Jones [2021] EWHC B20 (Costs) Costs Judge Brown found that the reduction of a bill of costs by a major percentage can be grounds, in itself, for disallowing part of the receiving party’s costs of…
RUDE CORRESPONDENCE: A RECAP: JUST REMEMBER WHAT YOU WRITE COULD END UP ON A BLOG SOME DAY (FOR THE WHOLE WORLD TO SEE…)
Several search terms that led people to this blog today related to the “arrogant tone of solicitor correspondence”. This seems like a good time to recap on Guidance and case law where, shall we say “assertive” correspondence has been considered…
COURT SETS ASIDE CONTENTIOUS BUSINESS AGREEMENT: CONTENTS WERE UNFAIR AND UNREASONABLE
In Tripipatkul v WH Lawrence Ltd (t/a WH Lawrence Solicitors) [2021] EWHC B13 (Costs) Costs Judge Brown set aside a contentious business agreement between a solicitor and their former client. “The decision in ex parte Cathcart requires the court to…
“THERE IS A WORRYING TREND… IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES”
There is an important point about a litigant’s responsibility for the conduct of their own experts (and expert’s conduct generally) in Beattie Passive Norse Ltd & Anor v Canham Consulting Ltd (No. 2 Costs) [2021] EWHC 1414 (TCC). This was…
LAWYERS FAILURE TO PROVIDE OVERSIGHT OF EXPERTS LEADS TO EXCLUSION OF THEIR EVIDENCE: EXPERT EVIDENCE IS “NOT A MATTER OF RIGHT”
Over the years we have seen some biting judgments about the conduct of experts in civil litigation. I struggle to recall one as extraordinary as the judgment of Mrs Justice Joanna Smith in Dana UK AXLE Ltd v Freudenberg FST…
CAN THE COURT MAKE A COSTS ORDER AFTER A THE FIRST PART OF A SPLIT TRIAL? THE RELEVANCE OF A PART 36 OFFER
In Original Beauty Technology Company Ltd & Ors v G4k Fashion Ltd & Ors [2021] EWHC 954 (Ch) David Stone (sitting as a High Court judge) considered the question of whether the court should make a costs order after a…
CASES WHERE JUDGES GOT TO READ THINGS THAT LAWYERS WISH THEY HAD NEVER WRITTEN
The earlier post about judges reading information about lawyers online has given rise to a lot of comments and commentary. There are occasions when judges, as part of their job, get to read things that lawyers wish they had never…
BUNDLES AGAIN: JUDGES WASTING THEIR BREATH: “HOW MANY YEARS – DECADES – HAVE TO PASS BEFORE THOSE WHO KNOW BETTER AND WHO… ARE BEING HANDSOMELY REMUNERATED COMPLY WITH THEIR OBLIGATIONS?”
Another post that adds to the dozens, if not hundreds, of cases about bundles. The trial bundles were the subject of considerable criticism by Sir James Munby in C (A Child) [2021] EWFC 32. “I forebear from further judicial exhortation…
“THERE ARE NOT TWO SETS OF RULES FOR LITIGATION IN THIS JURISDICTION”: COURT AWARDS INDEMNITY COSTS AGAINST A LITIGANT IN PERSON
In Sir Henry Royce Memorial Foundation v Hardy [2021] EWHC 817 (Ch) HHJ Paul Matthews (sitting as a High Court judge) awarded indemnity costs against a litigant in person. “There are not two sets of rules for litigation in this…
COSTS, CONDUCT AND ASSESSMENT ON THE INDEMNITY BASIS: £2 MILLION SPENT TO RECOVER £40,666.47
An earlier post looked at the construction of the Part 36 offer in Kings Security Systems Ltd v King & Anor [2021] EWHC 653 (Ch) Andrew Lenon Q.C. (sitting as a Deputy Judge of the Chancery Division). Here we look at…
“THIS APPLICATION WAS A SIGNIFICANT ABUSE OF THE PROCEDURES … AND SHOULD NEVER HAVE BEEN MADE”: THE ADMINISTRATIVE COURT, DUTIES TO THE COURT AND THE HAMID JURISDICTION
In the judgment today in DVP & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2021] EWHC 606 (Admin) the Administrative Court exercised considered a case referred to it under the “Hamid” jurisdiction…
LAWYERS (AND ALL LITIGANTS) REMEMBER THAT YOU CANNOT WRITE TO THE COURT WITHOUT COPYING IN THE PARTIES TO THE LITIGATION
For the second time in two days I am writing of a case where a party has written to the court unilaterally, without copying in the other parties. It was a matter raised in the judgment of Mr Justice Fordham…
DELIBERATELY DESTROYED DOCUMENTS IN LITIGATION, ADVERSE INFERENCES AND… REINDEERS
In the judgment today in Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm) Mr Justice Calver considered the inferences that should be drawn when he found that a party…
WHAT HAPPENS IF YOU DON’T SETTLE AFTER A MEDIATION: NO ISSUE BASED ORDER, INDEMNITY COSTS AND £127,000 ON ACCOUNT OF COSTS
There is much for litigants and litigators to learn from the judgment on costs of James Mellor QC (sitting as a High Court judge) in Cranstoun & Anor v Notta [2021] EWHC 133 (Ch). The dangers of rejecting offers of…
PROVING THINGS 196: PROVING THAT FILES WERE (OR WERE NOT) DELIVERED IS MORE TRICKY THAN YOU MIGHT THINK
The judgment of Master Clark in The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd [2021] EWHC 2 (ChD) highlights the difficulties involved in proving, or disproving, that a document was delivered. In…
IT IS UNLAWFUL TO TAKE PHOTOGRAPHS OF A TRIAL CONDUCTED REMOTELY
In SLF Associates Inc v (1) HSBC (UK) Bank Plc & Ors [2021] EWHC 5 (Ch) Master Kaye pointed out that taking photographs of participants in a remote court was unlawful. THE CASE The Master was giving judgment in a…
WHEN A LITIGANT HAS “FAILED IN ITS DUTY AT EVERY POINT”: COUNCIL FOUND AT FAULT AND IN DEFAULT
In Nur & Anor, R (On the Application Of) v Birmingham City Council [2020] EWHC 3526 (Admin) Mr David Lock QC (sitting as a Deputy High Court Judge) commented on the failure of the defendant council to comply with the…
THE IMPORTANCE OF EMBARGOED JUDGMENTS: A REMINDER OF THE COURT OF APPEAL’S JUDGMENT IN O’CONNELL
Draft judgments are often sent to parties in advance, but sent out on an “embargoed” basis – not to be disclosed until after the date they are formally handed down. Recent comments on Twitter leads me to think that this…
JUDGE REFUSES TO RECONSIDER CRITICISMS OF EXPERT WITNESS IN A JUDGMENT: EXPERT DUTIES CANNOT BE DELEGATED
In Neurim Pharmaceuticals (1991) Ltd & Anor v Generics UK Ltd (t\a MYLAN) [2020] EWHC 3270 (Pat) Mr Justice Marcus Smith made some observations about the role of the expert witness and the importance of their evidence being criticised in…
COURTESY, THE ADVOCATE AND THE LAWYER: TEN THINGS TO THINK ABOUT TO HELP YOUR CLIENTS (AND YOURSELVES)
A tweet from a barrister, this afternoon complained, in essence about the “pointless aggression” of an opponent. It has gathered lots of support. One thing that judges, from around the world, are universally keen on is courtesy. This gives me…
WHEN A LITIGANT SEEKS TO DEFEND A CLAIM AT ALL COSTS: A HIGHWAY TO HELL: WHY, IN LITIGATION, IT IS IMPORTANT THAT YOU CAN SEE THE WOOD FOR THE TREES
The judgment of HHJ Mithani QC in Colar v Highways England Company Ltd [2019] EW Misc 17 (CC) has recently arrived on BAILLI. It provides an illustration of the danger of defending a claim “at all costs”. The judge was…
“ALL MATTERS WERE INFECTED FROM THE OUTSET WITH A REGRETTABLE INJUDICIOUS AND PEREMPTORY LACK OF PROFESSIONAL ASSIDUOUSNESS” : FROM AN ORGANISATION THAT SHOULD KNOW MUCH, MUCH, BETTER: JUST TAKE A WITNESS STATEMENT
This blog has looked, many times, at cases that have floundered at trial because of basic failures to investigate the primary facts. Sometimes applications fail because of a fundamental lack of knowledge as to what “facts” are. The judgment…
10 TIPS ON WHAT TO DO WHEN THINGS GO WRONG: “FESS UP”, “SEEK HELP”, “THEY SKY WON’T FALL IN”
Here I have selected 10 pieces of advice from Twitter on what to do when things go wrong. These are not the “top 10” tips because, frankly, every one of the pieces of advice given in the original post are…
DEFENDANT’S CONDUCT LEADS TO NO ORDER FOR COSTS ON CLAIMANT’S DISCONTINUANCE: A DEED NOT SENT IN TIME
In Hewson v Wells & Ors [2020] EWHC 2722 (Ch) Master Clark varied the usual rule and made no order for costs following the claimant’s discontinuance. “In my judgment, the change in circumstances was brought about by unreasonable behaviour…
THE DANGERS OF LAWYERS WORKING WHILST TRAVELLING: TOP TEN TIPS (& A BONUS) TO KEEP YOU ON THE RAILS
Todays top 10 tips follows on from yesterday. In the previous post PJ Kirby recorded how he was able to draft a letter that included: “We acknowledge receipt of your letter which was expected as Mr X was discussing the…
TOP TEN (SHORT) PIECES OF ADVICE FOR LAWYERS ABOUT CORRESPONDENCE: AVOID ADVERBS (BASICALLY), OH AND DISCUSSING YOUR CASE LOUDLY ON A TRAIN…
Continuing with the series on guidance for new entrants to the profession (and a useful reminder for the rest of us). This is ten pieces of advice from the lawyers of Twitter after I wrote a piece on the lack…
LAWYERS, MISTAKES AND EMAIL: PUSH THOSE BUTTONS AT YOUR OWN (AND SOMETIMES YOUR CLIENT’S) PERIL
There are some issues in legal practice that reoccur with surprising frequency. Yesterday a lawyer on Twitter recounted how that had accidentally been copied into an email chain that they were, most definitely, not meant to see. It is a…
IF YOU ARE IN COURT AND NOT SPEAKING TO THE JUDGE: SHUT UP: “RIVAL TRIBES” IN THE COURTROOM NEVER HELP
There is one passage in the judgment in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) that I had to read twice. It is something that emphasises the need to remember that the judge…
DEFENDANT’S CONDUCT OF THE CASE LED TO INDEMNITY COSTS BEING PAID: MAKING ALLEGATIONS OF “NOT ACTING IN GOOD” FAITH: A SPECULATIVE & WEAK CASE: EXPERTS WITH A CONFLICT OF INTEREST
This is the third (but not the last) look at the judgment on costs in Essex County Council v UBB Waste (Essex) Ltd (No. 3) [2020] EWHC 2387. The judge held that the defendant’s conduct of the case was such that…
“PREPARED IN A WAY THAT MAKES ME ASHAMED OF MY PROFESSION”: ENSURING WITNESS STATEMENTS ARE ACCURATE IS AN IMPORTANT TASK – IF YOU WANT TO KEEP YOUR JOB…
There are nearly 800 posts on this blog that deal with issues relating to witness statements. The importance of ensuring that a statement is accurate is seen in the judgment of the Solicitors Disciplinary Tribunal in SRA -v- Gilfillan, available…
COURTESY AND CORRESPONDENCE: “NOTHING WAS SAID TO ACKNOWLEDGE OR ACCEPT THE JUDGE’S CRITICISM OF THE HIGH-HANDED MANNER IN WHICH THE ASSOCIATE SOLICITOR HAD SOUGHT TO TELL THE COURT HOW THE TRIAL WAS GOING TO BE CONDUCTED”
The post yesterday on the decision in Gubarev & Anor v Orbis Business Intelligence Ltd & Anor [2020] EWHC 2167 (QB) mentioned the issue that the Divisional Court had with the way in which the claimant’s solicitors had attempted to dictate…
REMOTE HEARINGS THE SOLICITOR’S DUTIES: (1) READ THE ORDERS MADE; (2) DO NOT BE IN CONTEMPT OF COURT
In the judgment today in Gubarev & Anor v Orbis Business Intelligence Ltd & Anor [2020] EWHC 2167 (QB) the Divisional Court sent out a clear message that lawyers must follow orders of the court. Live trials cannot be transmitted…
“SUCCESSFUL” CLAIMANT RECOVERS 60% OF HIS COSTS BUT PAYS THE COSTS OF TRIAL: ISSUED BASED COSTS ORDERS CONSIDERED
The vast majority of people who read the cases discussed in this blog will (I would wager a bet) often be thinking “Was there a Part 36 offer?” “What happened about costs?” We can get a glimpse into these issues…
“INTEMPERATE DEBATE” IN LEGAL CORRESPONDENCE: A REVIEW OF THE GUIDANCE AND CASES
The judgment yesterday in Collier & Ors v Bennett [2020] EWHC 1884 (QB) contained some judicial observations as to “intemperate debate” in correspondence. This provides an opportunity to review guidance and judicial observations on this topic. THE CASE The judge…
ALLEGATIONS OF JUDICIAL BIAS REJECTED: HIGH COURT DECISION TODAY
In Ameyaw v McGoldrick & Ors [2020] EWHC 1787 (QB) Mrs Justice Steyn refused an application that she recuse herself. The first part of the judgment summarises the law in relation to bias when the judge knows the counsel involved….
“OUR CASE WAS SO HOPELESS YOU SHOULD HAVE APPLIED TO STRIKE US OUT”: LOSING PARTY SHOULD PAY THE COSTS OF CLAIMANTS PURSUING SPECULATIVE CLAIM: YOU CAN’T HAVE YOUR CAKE AND EAT IT
The judgment of Mrs Justice Lambert today in Bailey & Anorv Glaxosmithkline UK Ltd [2020] EWHC 1766 (QB) reflected the normal rule that the losing party should pay the costs of an action. In this case the losing party was…
INACCURATE TRANSCRIPTS WERE NOT AUTHENTIC: HIGH COURT DECISION
One reliable element in most litigation is a transcript of a judgment. In Ghassemian v de Beaumont & Anor [2020] EWHC 1642 (Ch) Mr Justice Birss had cause to question the accuracy of a transcript of his own judgment. “The…
FARMER -v- THE CHIEF CONSTABLE OF LANCASHIRE: COSTS DISALLOWED IN FULL: FULL JUDGMENT NOW AVAILABLE
I wrote yesterday about the two useful articles on the case of Farmer v The Chief Constable of Lancashire [2019] EWHC B18 (Costs). The full judgment is now available on BAILLI. “Anybody around this table being of the costs persuasion…
WHEN MISCONDUCT ON ASSESSMENT LEADS TO NO AWARD OF COSTS
It is illuminating to read two reports of the case of Farmer -v- the Chief Constable of Lancashire, where a party’s conduct on assessment led to no award of costs being made. Indeed the claimant was ordered to pay the…
AN EXPERT WITH A CONFLICT OF INTEREST: SHOULD NEVER HAVE BEEN INSTRUCTED
I am giving a webinar on the 29th June 2020 on the Perils and Pitfalls of Expert Evidence. I have not found that there is any shortage of material. That material is added to in the judgment of Mr Justice…
SURVEILLANCE EVIDENCE, ALLEGATIONS OF MALINGERING AND INDEMNITY COSTS (AGAINST THE DEFENDANT)
I had no sooner finished a webinar about surveillance evidence this afternoon when I received an email and a copy of a case from solicitor Steve Evans.* The judgment of HHJ Yelton (sitting in the High Court) in Kilbey -v-…
COVID REPEATS 46: IF YOU CAN’T BE BOTHERED TO CONDUCT YOUR CLIENT’S LITIGATION – THEN JUST MAKE IT ALL UP
Of all the many cases that have featured on this blog the judgment in Islamic Investments Company of the Gulf (Bahamas) Ltd -v- Symphony Gems NV & others [2014] EWHC 377 3777 (Comm) is the one that I found hardest to…
COVID REPEATS 45: WE DON’T CARE WHAT THE JUDGE ORDERED WE ARE GOING TO PUT WHAT WE WANT INTO THIS ORDER
There are many strange examples of conduct reported on this blog. One example is in Webb Resolutions Ltd v JV Ltd (t/a Shepherd Chartered Surveyors) [2013] EWHC 509 (TCC). Put simply a judge made an order at a hearing, one…
INDEMNITY COSTS ORDERED WHERE DEFENDANT ASKED FOR JSM BUT MADE NO OFFER: “A WASTE OF TIME AND MONEY”
On the Kings Chambers website there is a report, and transcript, of the decision in EAXB v. University Hospitals of Leicester NHS Trust: 4-8th November 2019 and 6th January 2020. The report is of a case where the claimant was successful…
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