REUTERS | Kevin Lamarque
June 21, 2019

How helpful is witness evidence anyway? The impact (or not) of evidence from a third party in loss of chance cases

REUTERS | Kevin Lamarque
June 21, 2019

How helpful is witness evidence anyway? The impact (or not) of evidence from a third party in loss of chance cases

A solicitor makes a negligent error in a negotiation between a client and third party. The error leads the client to agree something different to the agreement the client had envisaged. What difference does the error make to the outcome and how should this translate into damages? Does the analysis change where the third party gives evidence and is adamant that the error made no difference to the outcome? These questions arose in Moda International Brands Ltd v Gateley LLP (1) & Gateley Plc (2). Against the background of the Commercial Court’s consultation on witness statements, this case offers an illustration of witnesses’ diminished role. Continue reading →

REUTERS | Clodagh Kilcoyne
June 14, 2019

Part 36 offers in Part 47 assessments: all clear now or still confused?

A party who wins with costs is in a strong position when it comes to provisional or detailed assessment under CPR 47.14-15. First, the costs of the assessment are theirs as of right without having to do anything: see CPR 47.20(1). Second, such a party can profit from the benefits available under CPR 36.17(4). Make your opponent an offer under Part 36 to settle the costs of the action which is refused, if the learned costs judge allows more at detailed assessment, the receiving party will benefit by an additional amount of 10% of the assessed costs (up to £75,000 without interest). Not only that, enhanced interest is payable at up to 10% over base rate both on the assessed costs and on the costs of assessment, with the latter being payable on the indemnity basis. Continue reading →

REUTERS | Ezra Acayan
June 7, 2019

Unintended consequences: protected parties and approval of costs

Since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) reforms in 2013, the end (for the most part) of additional liabilities being recoverable between the parties has required practitioners to adapt to seeking these costs from their client. Whilst in the majority of cases this has not proved to be problematic, significant care still needs to be taken, particularly in cases involving a protected party. The law has a duty to protect those who are in no position to protect themselves, and the court takes this duty very seriously. CPR 21 sets out the measures to be taken when a party who lacks capacity to litigate is involved in litigation. Continue reading →

REUTERS | Regis Duvignau
June 6, 2019

Davey v Money and others: Beware of leaving the litigation funder to arrange the client’s ATE insurance

The judgment in Davey v Money and others will have come as a disappointment to the litigation funding community. After all, the “Arkin option” doesn’t have the same ring of certainty as the “Arkin cap”. But should a party providing the means for a claim to be brought in return for commercial gain really be surprised that they should be exposed to the full costs incurred by the opponent if the claimant doesn’t meet those costs? Continue reading →

REUTERS | Ina Fassbender
May 31, 2019

Access all areas? When the “interests of justice” may permit a non-party access to arbitration documents

The extent to which a non-party may obtain access to documents on the court file, and what those documents comprise, has been the subject of recent judicial scrutiny, notably the Court of Appeal’s ruling in Cape Intermediate Holdings Limited v Dring.

In The Chartered Institute of Arbitrators v B and others, the High Court was required to consider this question in the context of documents connected with arbitral proceedings and the extent to which it may encroach on the inherent confidentiality attached to such proceedings. Continue reading →

REUTERS | Michael Dalder
May 31, 2019

Insolvency round-up May 2019

Insolvency and Companies Court (ICC): new ICC Interim Applications Court

On 25 April 2019, the Chancery Guide was updated to include a new chapter on the Insolvency and Companies List, including information, at paragraphs 25.28 to 25.30, on the operation of the new Insolvency and Companies Court (ICC) Interim Applications Court at the Rolls Building, which came in to being in January 2019. Continue reading →

REUTERS | Ammar Awad
May 30, 2019

The Arkin cap: not quite the demise being (pro-)claimed

Big-hitting defendant solicitors were rather quick to proclaim the demise of the Arkin cap, following Snowden J’s judgment in Davey vs Money last month. They’re in good company. In his 2010 Review of Civil Litigation Costs, Jackson LJ said that funders should be fully liable for adverse costs. Others argue that the Arkin cap’s generosity to funders drove the exponential growth of the funding market and in particular the phenomenal performance of Burford. Continue reading →