THE TRIAL JUDGE COULD SAY BULLOCKS TO THE COST ORDER: ON APPEAL, HOWEVER, THE CLAIMANT SHOULD NOT HAVE BEEN SO BULLISH
In Fouladi v Darout Ltd & Ors [2019] EWHC 1674 (Ch) Mr Justice Henry Carr refused an appeal against the making of a “Bullock” order in relation to the costs of a fourth defendant. The claimant, however, was not successful…
PART 36 OFFER WAS NOT AN EFFECTIVE ONE AND DEFENDANT HAD TO PAY COSTS
In Bull v Desporte [2019] EWHC 1669 (QB) Mr Justice Knowles rejected the defendant’s argument that a Part 36 offer meant that she did not have to pay costs. THE CASE The claimant succeeded in an action for misuse of…
CIVIL PROCEDURE BACK TO BASICS 50: THE POSTS SO FAR
The “back to basics” series has been going since April 2018. It has covered a surprising amount of topics. From how to draft an application to “litigation wishful thinking”. Some people have expressed surprise and how “basic” some points are…
WITHOUT NOTICE INJUNCTIONS 1: CLAIMANT’S APPLICATION FOR AN INJUNCTION GOES DOWN THE PAN
The judgment in Brothers Enterprises Ltd v New World Hospitality UK Ltd [2017] EWHC 2455 (Ch) has only recently arrived on BAILLI. However it is a case that shows the importance of disclosure in relation to without notice injunctions. What…
ATTEMPTING TO OBTAIN EXTENSIONS OF TIME BY INFORMAL EMAIL : THE COURT TAKES A “SINGULARLY DIM VIEW” OF ATTEMPTS BY PARTIES TO CIRCUMVENT THE RULES (OH, AND BUNDLES AGAIN)
In Saint Benedict Land Trust Ltd v London Borough of Camden & Anor [2019] EWHC 1433 (Ch) (17 May 2019) Mr Justice Marcus Smith took a very dim view indeed of an attempt by a litigant to obtain an extension…
ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION
In Hilson v McCarthy [2019] EWHC 1110 (Admin) the Divisional Court confirmed that the appellants had harassed a judge unlawfully and amounted to harassment. It is an important case for anyone involved in the legal system. “in examining the nature…
WHY THE LYING LITIGANT SHOULD FRET: COURT OF APPEAL DECISION ON CONTEMPT: WHEN FACEBOOK FLATLY CONTRADICTS PART 18 REPLIES
In Zurich Insurance Plc v Romaine [2019] EWCA Civ 851 allowed an appeal by an insurer so that an application for committal for contempt of court can proceed. No substantive findings of fact have been made. The judgment shows that…
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…
COURT COULD NOT GO OUTSIDE FIXED COSTS REGIME: HOWEVER AN ORDER SEEKING INDEMNITY COSTS IS NOT AN “INTERIM” APPLICATION
I am grateful to Matthew Hoe from Taylor Rose for sending me a copy of the judgment of Mrs Justice Carr in Parsa -v- D.S. Smith PLC (25th March 2019) Parsa v D.S. Smith PLC – Approved Judgment -…
A CASE WHERE LAWYERS BECOME RESPONDENTS TO THE ACTION WHERE A PARTY IS SEEKING TO RECOVER COSTS: ALSO WAIVING PRIVILEGE IN WITHOUT PREJUDICE CORRESPONDENCE
Technically speaking, the judgment of Mrs Justice Andrews in Willers v Joyce & Ors [2019] EWHC 937 (Ch) is about the “without prejudice” rule. However the point that has caught everyone’s attention is the fact that lawyers, previously acting for…
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…
LAWYERS: WHAT DO YOU DO WHEN THINGS HAVE GONE WRONG? MEANINGFUL ADVICE FROM PEOPLE WHO KNOW (AND CARE): WHEN YOU THINK SOMETHING IS HITTING THE FAN
Last night I did a post on using social media to help young lawyers (and some not so young lawyers). Specifically on how it is possible to gather information and advice from around the professions (and indeed around the world)….
ADVICE FOR THE ASPIRANT OR TYRO LAWYER: WHEN TWITTER CAN BE YOUR FRIEND (IN FACT YOU CAN HAVE DOZENS OF FRIENDS GIVING YOU ADVICE)
This is a post started almost by accident. It started with a tweet when a barrister was happy to be sitting on her sofa, for a change and said this is the reality of legal life. It led to dozens…
“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…
EXPERTS WHO CAN’T REPORT IN TIME: BETTER READ THIS: IF YOU CAN’T REPORT ON TIME PROBABLY BEST NOT TO TAKE INSTRUCTIONS AT ALL…
In X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 HH Clifford Bellamy (sitting as a Deputy Circuit Judge) made some observations in relation to the role of the expert, particularly when that expert cannot report timeously. The…
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…
THE DANGERS OF TAKING A ONE-SIDED WITNESS STATEMENT – A RECAP
A number of recent posts have looked at difficulties caused the the way in which evidence was collected and witness statements drafted. The taking of one-sided witness statements led to major difficulties for the party who were attempting to rely…
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 EXPERTS REPORT THINGS THAT HAVE NEVER BEEN SAID: IT NEVER GOES WELL (WHEN THEY ARE FOUND OUT AT LEAST)
There was report in the Scottish newspaper The Herald earlier this week about disciplinary proceedings being brought against a doctor who had prepared a “misleading and inaccurate” medical report. In essence the expert reported, as facts, matters that the interviewee…
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…
INTRANSIGENT EXPERT’S APPROACH LEADS TO “SIGNIFICANT PART OF CLAIMANT’S CASE BEING STRUCK OUT”: A CASE FOR EVERY EXPERT AND LITIGATOR TO READ – NOW
The judgment of Mr Justice Males in Mayr & Ors v CMS Cameron McKenna Nabarro Olswang LLP [2018] EWHC 3669 (Comm) is one of the most robust I have seen in relation to expert evidence. An expert’s failure to properly engage…
“A MISUSE OF JUDICIAL POWER”: A WITNESS SPEAKING TO LAWYER IN THE COURSE OF GIVING EVIDENCE DOES NOT JUSTIFY COMMITTAL OR STRIKING OUT A CASE
In the judgment today in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ the Court of Appeal robustly overturned a decision committing a witness to prison and striking out a case. It was found that the trial judge had,…
DEFENDANT ORDERED TO PAY COSTS AFTER REFUSING TO PAY PRE-ACTION COSTS: COURT OF APPEAL REFUSES TO GIVE PERMISSION TO APPEAL
In November last year I wrote about the case of Ayton -v- RSM Bentley Bennison & Ors [2018] EWHC 2851 (QB). This was a case in which the defendant refused to pay cost incurred prior to issue. Proceedings were issued and…
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…
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
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…
CASES MUST BE DECIDED ON EVIDENCE RATHER THAN PREJUDICE: JUDGE TELLING COUNSEL TO “GET A LIFE” MAY INDICATE PREJUDGMENT
In Vassilliou -v- The NFU Mutual Insurance Society Limited (Central London County Court 9th July 2018) Mr Recorder Cohen Q.C. allowed an appeal by a claimant. He held that issues of mitigation of loss can only relate to matters that…
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…
THE DANGERS OF BEING “BULLISH” ON PROCEDURAL ISSUES: APPLICATION DISMISSED (AND IT TOOK TOO LONG)
In Red Bull GmbH v Big Horn UK Ltd & Ors [2018] EWHC 2794 (Ch) Master Clark completed the judgment”I conclude by noting the regrettable extent to which this judgment has been lengthened by the determination of the procedural points of…
PROVING THINGS 131: IN THE ABSENCE OF EVIDENCE THE COURT SHOULD NOT DRAW INFERENCES IN SOLICITOR’S COSTS CASE
The judgment in Gill v Heer Manak Solicitors [2018] EWHC 2881 (QB) is one of those cases that will get costs lawyers excited. However it is not so much a case about costs as a case about evidence, or the absence…
“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…
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…
PROPORTIONALITY: A LITIGATOR’S SURVIVAL GUIDE VIII: PROPORTIONALITY LEADS TO BASE COSTS BEING REDUCED FROM £115,906.00 TO £75,000
I am grateful to my colleague Robin Dunne for sending me a copy of the decision of HHJ Auerbach in Reynolds -v- One Stop Limited (21st September 2018). A copy of the judgment is available A79YM916 Reynolds v One Stop…
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,…
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: 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…
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…
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…
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,…
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