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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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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 RULES ABOUT WITNESS STATEMENTS "SHOULD NOT BE USED AS A WEAPON FOR THE PURPOSE OF BATTERING THE OPPOSITION": COMMONSENSE MUST BE USED: APPLICANT ORDERED TO PAY 75% OF THE RESPONDENTS' COSTS ON THE INDEMNITY BASIS

THE RULES ABOUT WITNESS STATEMENTS “SHOULD NOT BE USED AS A WEAPON FOR THE PURPOSE OF BATTERING THE OPPOSITION”: COMMONSENSE MUST BE USED: APPLICANT ORDERED TO PAY 75% OF THE RESPONDENTS’ COSTS ON THE INDEMNITY BASIS

June 17, 2022 · by gexall · in Applications, Civil evidence, Costs, Witness statements

In Curtiss & Ors v Zurich Insurance Plc & Anor (Costs) [2022] EWHC 1514 (TCC) HHJ Keyser QC (sitting as a Judge of the High Court) ordered the applicant to pay 75%  the respondents’ costs on the indemnity basis. The…

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…

LATE WITNESS STATEMENTS AND THE ASSESSMENT OF COSTS: COSTS REDUCED EVEN WHEN THEY WERE ON THE INDEMNITY BASIS

LATE WITNESS STATEMENTS AND THE ASSESSMENT OF COSTS: COSTS REDUCED EVEN WHEN THEY WERE ON THE INDEMNITY BASIS

February 10, 2022 · by gexall · in Case Management, Costs, Extensions of time

There are two distinct issues arising from the judgment of HHJ Pelling QC (sitting as a High Court judge) in Various Airfinance Leasing Companies & Ors v Saudi Arabian Airlines Corporation [2021] EWHC 3509 (Comm). The first relates to the…

THE SOLICITORS DISCIPLINARY TRIBUNAL CAN AWARD COSTS ON THE INDEMNITY BASIS: APPEAL ON THIS ISSUE COMPROMISED

December 14, 2021 · by gexall · in Appeals, Costs

In October 2020 I wrote about the case of  SRA -v- Ahmud where the Solicitors Disciplinary Tribunal were highly critical of the steps taken by the SRA in investigating and bringing a claim alleging dishonesty.  That case has a short coda in…

A SUMMARY ASSESSMENT OF COSTS: HOW IT WORKS IN PRACTICE: THERE IS NO POINT ARGUING ISSUES OF PROPORTIONALITY WHEN INDEMNITY COSTS HAVE BEEN ORDERED

A SUMMARY ASSESSMENT OF COSTS: HOW IT WORKS IN PRACTICE: THERE IS NO POINT ARGUING ISSUES OF PROPORTIONALITY WHEN INDEMNITY COSTS HAVE BEEN ORDERED

October 20, 2021 · by gexall · in Assessment of Costs, Costs

Whenever I report on an assessment of costs, for reasons that can only be guessed at, that post is always widely read.    The judgment of HHJ Davis-White QC in Goodwin v Avison & Ors [2021] EWHC 2754 (Ch) involves…

"THERE IS A WORRYING TREND... IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES"

“THERE IS A WORRYING TREND… IN TERMS OF FAILURE BY EXPERTS GENERALLY IN LITIGATION COMPLYING WITH THEIR DUTIES”

June 10, 2021 · by gexall · in Conduct, Costs, Expert evidence, Experts

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…

INDEMNITY COSTS DO NOT AMOUNT TO A BLANK CHEQUE: EVEN IN LARGE CASES

INDEMNITY COSTS DO NOT AMOUNT TO A BLANK CHEQUE: EVEN IN LARGE CASES

April 27, 2021 · by gexall · in Costs

In Louis Dreyfus Company Suisse S.A. v International Bank of St. Petersburg (Joint-Stock Company) [2021] EWHC 1039 (Comm) Mr Justice Calver reduced a claim for costs substantially, even though costs were being awarded on the indemnity basis.   “it may…

COSTS, CONDUCT AND ASSESSMENT ON THE INDEMNITY BASIS: £2 MILLION SPENT TO RECOVER £40,666.47

COSTS, CONDUCT AND ASSESSMENT ON THE INDEMNITY BASIS: £2 MILLION SPENT TO RECOVER £40,666.47

March 22, 2021 · by gexall · in Conduct, Costs, Part 36

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…

WHAT HAPPENS IF YOU DON'T SETTLE AFTER A MEDIATION: NO ISSUE BASED ORDER, INDEMNITY COSTS AND £127,000 ON ACCOUNT OF COSTS

WHAT HAPPENS IF YOU DON’T SETTLE AFTER A MEDIATION: NO ISSUE BASED ORDER, INDEMNITY COSTS AND £127,000 ON ACCOUNT OF COSTS

January 28, 2021 · by gexall · in Conduct, Costs, Interim Payments

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…

INDEMNITY COSTS AFTER A JUDGMENT DEBTOR WAS EXAMINED: IN ADDITION THERE IS GOING TO BE A SECOND MATCH...

INDEMNITY COSTS AFTER A JUDGMENT DEBTOR WAS EXAMINED: IN ADDITION THERE IS GOING TO BE A SECOND MATCH…

November 26, 2020 · by gexall · in Applications, Costs

In Shearer v Neal [2020] EWHC 3148 (QB) Deputy Master Hill QC ordered that a debtor pay costs on the indemnity basis after she heard a Part 71 hearing. The case was also remitted to the High Court Judge on…

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

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

September 11, 2020 · by gexall · in Conduct, Costs, Experts

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…

"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

“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

July 3, 2020 · by gexall · in Conduct, Costs

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…

CLAIMANT BEATS OWN PART 36 OFFER: DEFENDANT ORDERED TO PAY INDEMNITY COSTS FOR AN EXTENDED PERIOD BECAUSE OF ITS CONDUCT

CLAIMANT BEATS OWN PART 36 OFFER: DEFENDANT ORDERED TO PAY INDEMNITY COSTS FOR AN EXTENDED PERIOD BECAUSE OF ITS CONDUCT

March 20, 2020 · by gexall · in Applications, Conduct, Costs, Part 36

I am grateful to Sam Hayman from Bolt Burdon Kemp   for drawing my attention to the decision today of Mr Justice Griffiths in DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB).  The defendant was ordered to pay indemnity…

INDEMNITY COSTS ON THE GROUNDS OF CONDUCT: FAILURE TO BEAT A DEFENDANT'S PART 36 OFFER: A GARDEN THAT GETS MORE AND MORE EXPENSIVE...

INDEMNITY COSTS ON THE GROUNDS OF CONDUCT: FAILURE TO BEAT A DEFENDANT’S PART 36 OFFER: A GARDEN THAT GETS MORE AND MORE EXPENSIVE…

February 6, 2020 · by gexall · in Appeals, Conduct, Costs, Costs budgeting, Part 36

The Court of Appeal decision in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114 is the second time this case, about a garden, has been on appeal.   On this occasion the Court of Appeal held that the claimants’ conduct…

ARGUE A WEAK CASE ON EACH AND EVERY POINT, GET INDEMNITY COSTS AWARDED AGAINST YOU

ARGUE A WEAK CASE ON EACH AND EVERY POINT, GET INDEMNITY COSTS AWARDED AGAINST YOU

December 4, 2019 · by gexall · in Conduct, Costs

In Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors [2019] EWHC 3300 (Comm) Mr Justice Teare held that a claimant, who had pursued a weak case in a robust manner, should pay indemnity costs.   There is…

UNWARRANTED FRAUD ALLEGATION LEADS TO INDEMNITY COSTS BEING AWARDED

UNWARRANTED FRAUD ALLEGATION LEADS TO INDEMNITY COSTS BEING AWARDED

November 21, 2019 · by gexall · in Applications, Conduct, Costs

In  Natixis SA v Marex Financial & Ors [2019] EWHC 2549 (Comm) an award of indemnity costs was made against a party who had alleged fraud all the way up to closing submissions.   It highlights the dangers of pleading fraud…

COURT OF APPEAL REFUSES APPEAL AGAINST ORDER FOR INDEMNITY COSTS: PARTIES WHO ARE JOINED TO A SPECULATIVE ENTERPRISE IN LITIGATION SHOULD EVALUATE THEIR POSITION WITH CARE

COURT OF APPEAL REFUSES APPEAL AGAINST ORDER FOR INDEMNITY COSTS: PARTIES WHO ARE JOINED TO A SPECULATIVE ENTERPRISE IN LITIGATION SHOULD EVALUATE THEIR POSITION WITH CARE

October 3, 2019 · by gexall · in Appeals, Applications, Costs

 In  Ford & Anor v Bennett & Anor [2019] EWCA Civ 1604 the Court of Appeal dismissed an appeal against a trial judge’s decision to award indemnity costs.  The judgment contains a lesson to “additional parties” to litigation. “Parties who…

AN OFFER THAT IMPOSES A CONDITION AS TO COSTS IS NOT A VALID PART 36 OFFER: MERE FAILURE TO ACCEPT REASONABLE OFFER DOES NOT LEAD TO INDEMNITY COSTS

AN OFFER THAT IMPOSES A CONDITION AS TO COSTS IS NOT A VALID PART 36 OFFER: MERE FAILURE TO ACCEPT REASONABLE OFFER DOES NOT LEAD TO INDEMNITY COSTS

June 17, 2019 · by gexall · in Applications, Civil Procedure, Costs, Part 36

In Knight & Anor v Knight & Ors (Costs) [2019] EWHC 1545 (Ch)  HHJ Paul Matthews (sitting as a High Court Judge) held that an offer that attempted to limit costs was not a valid Part 36 offer.   The judge…

"THE CLAIMANTS MUST RUE THE DAY THEY REJECTED THE DEFENDANT'S OFFER": CLAIMANT TO PAY STANDARD COSTS AFTER REJECTING VERY EARLY PART 36 OFFER

“THE CLAIMANTS MUST RUE THE DAY THEY REJECTED THE DEFENDANT’S OFFER”: CLAIMANT TO PAY STANDARD COSTS AFTER REJECTING VERY EARLY PART 36 OFFER

March 13, 2019 · by gexall · in Applications, Conduct, Costs, Costs budgeting

The costs judgment in  Burgess & Anor v Lejonvarn [2019] EWHC 369 (TCC) is probably a judgment that should be shown to all litigants.  The claimant rejected an offer of £25,000 and failed to beat that offer at trial.   The defendant’s…

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