The High Court’s decision in Raja v Hoogstraten and others, and in particular the claimant’s application to set aside a previous costs order made in favour of the defendants pursuant to CPR 40.8A, highlights the circumstances and grounds required to set aside an order under CPR 40.8A, yet fails to provide real clarity for the profession. Continue reading
Paragraph 7.6 of Practice Direction 3E provides that a party “shall revise its budget in respect of future costs upwards or downwards, if significant developments in the litigation warrant such revisions… The court may approve, vary or disapprove the revisions, having regard to any significant developments which have occurred since the date when the previous budget was approved or agreed.” Continue reading
In WH Holding Ltd v E20 Stadium LLP, the Court of Appeal rejected a claim to litigation privilege in respect of emails between a company’s board members discussing a commercial proposal for the settlement of a dispute. Continue reading
Brief facts
The case of Dubad v Gans & Co Solicitors LLP and another involves an initial claim made against a bus driver’s employers. The claimant, Mr Dubad, had suffered serious injuries after a collision with a bus. Continue reading
I am a barrister, specialising mainly in personal injury and clinical negligence work. This is split between claimants and defendants, in roughly equal proportions. This piece is about my perception of a changing culture in the approach to agreement or assessment of the receiving parties’ costs in such cases, normally now only in relation to claimants’ costs, because of qualified one-way costs shifting (QOCS). To me, this change is most obviously marked (whatever its causes may be) by the fact that counsel are now regularly being asked by their solicitors, or the latter’s costs lawyers / draftsmen, to forego significant parts of the fees, even before any challenge has been raised to them by the paying party (and often without any suggestion as to why this may be justified), simply in order to facilitate agreement of an overall discount, and therefore to avoid those costs being sent for detailed assessment. Continue reading
It is almost six years since section 44 of the Legal Aid (Sentencing and Punishment of Offenders) Act 2012 (LASPO) was enacted on 1 April 2013, under which success fees in conditional fee agreements (CFAs) and after-the-event (ATE) insurance premiums ceased to be recoverable from opponents in most types of litigation. Exceptions were carved out which applied to mesothelioma claims (and still do), insolvency cases (until April 2016) and privacy (under sentence of death from 6 April 2019). Transitional provisions, however, left untouched CFAs made and ATE premiums taken out on or before 31 March 2013 (see CPR 48.1-2), and by now, it might be expected that all issues with funding arrangements of this type would long since have been resolved. Continue reading
All lawyers know that a thing is not necessarily true because a client or a witness says it. To advise a client, involved in a dispute where there is a conflict of evidence on important issues, we need to know how judges will resolve this conflict. How do they decide which witness is honest and which dishonest, which is reliable and which unreliable? The guidance from the courts has been consistent. The contemporary documentation, such as letters, minutes or notes, written well before there was any breath of dispute between the parties, is of crucial importance. The trial judge will also consider the admitted facts and the overall probabilities. The recent decision in Burgess v Lejonvarn illustrates the application of these rules. Continue reading
This is the third occasion on which I have posted on this blog on the issue of after the event insurance (ATE) policies and the impact which they have on applications for security for costs. Continue reading
There has been a number of recent cases in relation to pre-action and non-party disclosures. Continue reading
In 2012, the Supreme Court gave judgment in Fairclough Homes Limited v Summers about the wide-ranging power of the court to strike out fraudulent claims, even after a trial. Summers was a personal injury case but its tentacles reach into almost all areas of civil law. The recent Court of Appeal decision in Terry v BCS Corporate Acceptances Limited in 2018 has clarified that the judgment in Summers does not provide a new route for striking out a claim after a final judgment has been given. Continue reading