REUTERS | GCS

While the general rule under CPR 44.2 is that the unsuccessful party should pay the successful party’s costs, the court may make a different order. Further, the consequences of CPR 38.6 may lead to a departure from this general rule. Sometimes it is difficult to establish whether there has been a successful or unsuccessful party, especially in cases where there are multiple parties, and the possibility of a ‘Sanderson’ order or ‘Bullock’ order (see later) may arise. This was recently illustrated in the case of Oberholster v Little and another.

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REUTERS | GCS

What can be done with documents obtained by a search order? Search orders are intrusive orders, but they are often obtained under pressure and at short notice, which means that the procedural safeguards are paramount. Having developed from 1974 in the “analogue era”, to borrow Arnold LJ’s phrase, the fact that they are now being deployed in a digital environment raises the question whether the safeguards are out of date.

The judgment of the Court of Appeal in TBD (Owen Holland) Ltd v Simons and others draws attention to the implications of digitisation for search orders, and, in doing so, clarifies the true nature and function of a search orders as distinct from disclosure orders. It also discusses and sets out important guidance in respect of the increasingly common “imaging orders” to be followed until a standard form of imaging order is promulgated.

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REUTERS | Jon Nazca

The Civil Procedure Rule Committee (CPRC) has, in principle, agreed an amendment to the rules governing service out of the jurisdiction after the end of the Brexit transition period.

The amendment will remove the need for the court’s permission to serve out where the claim falls within a choice of court agreement in favour of the English courts. This will significantly streamline the procedure for serving out of the jurisdiction in circumstances where the defendant has agreed that the English court should have jurisdiction to determine disputes that arise under a contract. It is therefore welcome, particularly in circumstances where the English courts are facing increased competition for international business in a post-Brexit world.

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REUTERS | Kai Pfaffenbach

This might seem like a very narrow and remote question to pose but it is very topical one. With a High Court ruling on the Financial Conduct Authority’s (FCA) business interruption insurance test case being decided in favour of the insured policyholders, who have hitherto been denied coverage for COVID-19 related interruptions, it is highly likely that the after the event (ATE) insurance and litigation funding market will see a flood of claims against affected liability insurers. That is, provided the decision is not overturned on appeal (the High Court subsequently granted a “leapfrog certificate“, allowing the FCA and seven of the eight defendant insurers to “leapfrog” the Court of Appeal and apply directly to the UK Supreme Court for permission to appeal).

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REUTERS | Benjamin Mallet

In Hinson v Hare Realizations Ltd (2), Spencer J dismissed an appeal against the County Court’s refusal to allow the claimant’s application to adjourn a trial and to rely on an acoustic engineering expert’s report, instead of the original single joint expert (SJE) report. Spencer J confirmed that the County Court had correctly applied the approach clearly set out in the decided case law.

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REUTERS | GCS

There is an art in writing judgments. Some judges have it. Others do not. In the latter category, judges have not necessarily been assisted by today’s simple electronic access to the law reports, which permits lengthy chunks of marginally relevant earlier authorities to be incorporated easily into them. The consequence is that it is now commonplace for wordy judgments to run into hundreds of paragraphs.

How times have changed. Without the luxury of being able to draw on cases online, nor to be able to pre-read counsel’s perfectly manicured skeleton arguments, the judgments of the Victorian judges are a model of precision, combining brevity with an ability to get straight to the point. Little wonder, then, that many of the Victorian costs judgments such as London Scottish Benefits Society v Chorley have stood the test of time.

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REUTERS | Lincoln Feast

On 16 September 2020, Practical Law Dispute Resolution reported that the Civil Justice Council (CJC) established a Working Group, chaired by Stewart J, to conduct an evidence-based review of the basis and amount of the guideline hourly rates (GHRs).

The establishment of the Working Group was swiftly followed by a “request for evidence”, with the initial tranche of historic evidence to be provided to the Working Group by the end of October 2020, to be populated with data from assessments in the period between 1 April 2019 and 31 August 2020. The Working Group will then consider and collate responses, with a view to preparing a draft report for full consultation by the end of the year.

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REUTERS | Phil Noble

The recent judgment of the High Court (Miles J) in Terracorp v Mistry and others offers comprehensive and useful guidance on the operation of discretion concerning costs and, in particular issue-based costs orders. Although a dispute concerning land, the costs decision is of much broader and general application.

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REUTERS | Leonhard Foeger

Search orders are one of, if not the most, draconian orders the courts can make. The recent decision in Calor Gas Ltd v Chorley Bottle Gas Ltd and others (Calor Gas) contains two points of particular significance:

  • The extent to which questions of public interest, and in particular public safety, may be factored into the court’s decision.
  • How giving careful consideration to making execution of a search order “COVID-secure” will assist the applicant’s cause when the court is weighing up the proportionality of the order.

The safeguarding measures taken by the applicant also stand in stark contrast to the failings observed in this respect by the Court of Appeal in another recent judgment, TBD (Owen Holland) Ltd v Simons and others (TBD).

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