Witness evidence in 2023: naming and shaming
HH Judge Pearce’s judgment in Cumbria Zoo Company Ltd v The Zoo Investment Company Ltd is important reading for all those involved in preparing and certifying witness statements. It gives a clear warning about the risks: For a party if it relies on a witness statement that confirms the witness’s understanding that “it is not … Continue reading Witness evidence in 2023: naming and shaming
Witness evidence: what’s new in 2022
Over a year in, there has been guidance emerging from the courts, at first instance, as to the approach to taking witness statements under the new PD 57AC. There are five key points that are worth highlighting.
Shrugging aside reasonable requests to mediate
Change is on the horizon, in the form of compulsion to mediate civil disputes. In the meantime, the ebb and flow of a judicial policy of “encouragement” and “sanction” continues. The court’s efforts at encouragement have fortunately not taken the extreme form contemplated in 2013 in Wright v Michael Wright Supplies: “You may be able … Continue reading Shrugging aside reasonable requests to mediate
Contract interpretation revisited: BlackLion Law LLP v Amira Nature Foods Ltd
In BlackLion Law LLP v Amira Nature Foods Ltd, the High Court considered the meaning of a law firm’s payment clause which referred to payment on completion of a matter by a specified date.
The latest chapter for the Quincecare duty: Philipp v Barclays Bank UK plc
Introduction The Court of Appeal handed down its much-anticipated decision in Philipp v Barclays Bank UK plc on 14 March 2022. The decision is essential reading for anyone with an interest in the “Quincecare” duty of care (derived from Barclays Bank plc v Quincecare Ltd), which requires a bank to exercise reasonable care and skill … Continue reading The latest chapter for the Quincecare duty: Philipp v Barclays Bank UK plc
PD 57AC: further guidance and sanctions
Since PD 57AC came into force, there has been a trickle of cases coming through the courts giving guidance on how parties can comply with the new Practice Direction. Greencastle MM LLP v Payne is the latest in this developing line of cases. The High Court has now issued a judgment in which the judge … Continue reading PD 57AC: further guidance and sanctions
Hold it right there! Technology and Construction Court considers pre-action application for preservation of evidence relevant to claim
In Chubb European Group SE v Hiscox Insurance Co Ltd and Hawkins and Associates Ltd, the Technology and Construction Court (TCC) was called upon to deal with a “without notice” application for an order for the preservation of evidence pre-action. The application was brought under section 33 of the Senior Courts Act 1981 (SCA 1981) … Continue reading Hold it right there! Technology and Construction Court considers pre-action application for preservation of evidence relevant to claim
Garcia v Garcia: weighing in (live) on the truth
In the case of Garcia v Garcia, the claimant (Mr Garcia) and the defendant (Mrs Garcia) were ex-spouses who occupied separate parts of a house (the property), pursuant to an occupation order made by the Bromley Family Court.
Sorry, not sorry… the case for an apology law in UK dispute resolution (Part 2)
Further to my Part 1 blog on this topic, I now ask: what is there to gain from legislation in this area? What broader experience is there of apology legislation where it has been enacted? While time and space do not permit a global trawl to evaluate the effect of such legislation in all the … Continue reading Sorry, not sorry… the case for an apology law in UK dispute resolution (Part 2)
Sorry, not sorry… the case for an apology law in UK dispute resolution (Part 1)
How hard is it to say “sorry”? Elton John was right, it really is the hardest word. Why is this? If we’ve done something wrong, why can’t we just say sorry and mean it without making things worse? Apparently, it’s just not that simple, and therefore, as is the case in some other jurisdictions, it … Continue reading Sorry, not sorry… the case for an apology law in UK dispute resolution (Part 1)
Does legal advice privilege extend to foreign non-regulated or non-registered in-house lawyers?
In 1859, the then Vice Chancellor Sir Richard Kindersley held in Lawrence v Campbell that: “…The general principle is founded upon this, that the exigencies of mankind require that in matters of business, which may lead to litigation, men should be enabled to communicate freely with their professional advisers, and their communications should be held … Continue reading Does legal advice privilege extend to foreign non-regulated or non-registered in-house lawyers?
“Dieselgate” before the European Court of Justice
In Verein für Konsumenteninformation (VKI) v Volkswagen AG, the European Court of Justice determined whether the special jurisdiction provisions of article 7(2) of the Brussels I (Recast) Regulation (1215/2012) should be interpreted in a way which permitted Austrian courts to exercise jurisdiction over Volkswagen, the German-domiciled car manufacturer, in respect of claims for compensation arising … Continue reading “Dieselgate” before the European Court of Justice
Re TPS Investments (UK) Ltd: electronic bundles guidance
In Re TPS Investments (UK) Ltd, HHJ Hodge QC, sitting as a High Court judge and considering a short and uncontested insolvency application in the Manchester Business and Property Courts Insolvency and Companies List, noted that “… there is nothing usual about the present times”. In his judgment, he offered valuable guidance of how courts … Continue reading Re TPS Investments (UK) Ltd: electronic bundles guidance
… e-filed it, Master!
I am grateful to Master Rowley for highlighting the issues herein to me. Further to an amendment to PD 51O of the CPR (the Electronic Working Pilot Scheme), the Senior Courts Costs Office (SCCO) is now using the CE-File electronic court file. For legal representatives, this has become mandatory with effect from 20 January 2020.
Third party costs application failed against losing claimant’s legal team
In the recent case of Willers v Joyce and others an application was brought by the winning party against the losing party’s counsel and solicitor following an unsuccessful claim for malicious prosecution.
A short judgment must be a careful judgment… or risk a retrial
It is sometimes said that a judgment is written for the losing party; all that the winning party cares about is that it has won. However, a recent Court of Appeal decision is a salutary reminder that when a judgment is not carefully written, the failure to give adequate reasons for the conclusions may lead … Continue reading A short judgment must be a careful judgment… or risk a retrial
Post-it from Singapore: The Singapore Convention
On 7 August 2019, in Singapore, I had the pleasure of watching the signing ceremony of the UNCITRAL Convention on the Settlement of Disputes Resulting from Mediation, otherwise to be known as “the Singapore Convention”. The Convention, approved by UNCITRAL in June 2018, has been signed by 46 countries, the highest number of “first day” … Continue reading Post-it from Singapore: The Singapore Convention
Costs budgeting is not inevitable
Assuming that from now on you will always have to budget your costs? Maybe, but not necessarily… Introduction Generally speaking, we lawyers dislike procedural change. While we may well understand that a particular change is necessary and we will certainly recognise that we need to adapt to it when it comes, such changes nonetheless tend … Continue reading Costs budgeting is not inevitable
A step into the unknown? Rescuing service out of the jurisdiction
Service out of the jurisdiction is a step many parties have to take. Has getting it right (or getting out of getting service wrong) become easier? A decision earlier this year, Absolute Living Developments Ltd v DS7 Ltd and others, suggests some hope exists, but only for those who have done their best to get … Continue reading A step into the unknown? Rescuing service out of the jurisdiction
Misconduct in detailed assessment proceedings: Murray v Oxford University Hospitals NHS Trust
This post considers the decision of Murray v Oxford University Hospitals NHS Trust an appeal to Stewart J from a decision of Master Campbell. It is a case concerned with the mis-certification of a bill of costs in detailed assessment proceedings and is one of only two reported cases post the landmark Court of Appeal case … Continue reading Misconduct in detailed assessment proceedings: Murray v Oxford University Hospitals NHS Trust
Canary Wharf (BP4) T1 Ltd v European Medicines Agency: not frustrated by Brexit…
In Canary Wharf (BP4) T1 Ltd v European Medicines Agency, Marcus Smith J issued a declaration that a commercial lease between the European Medicines Agency (EMA) and its landlords would not be frustrated by the UK’s withdrawal from the EU.
What happens when a solicitor provides the client with no guidance as to costs?
You would hope that, these days, situations where a solicitor has provided his client no guidance as to costs would be rare. One came before Master Leonard in a Solicitors Act 1974 assessment of a bill for work representing the client’s son, who had been arrested and charged with murder following a fight in Crete. … Continue reading What happens when a solicitor provides the client with no guidance as to costs?
Costs budgeting: when is a development a “significant” one for the purpose of revising a costs budget?
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 … Continue reading Costs budgeting: when is a development a “significant” one for the purpose of revising a costs budget?
Avoiding detailed assessment: a cultural shift in approach to counsel’s fees?
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 … Continue reading Avoiding detailed assessment: a cultural shift in approach to counsel’s fees?
It ain’t necessarily so: identifying reliable evidence in the light of Burgess v Lejonvarn
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 … Continue reading It ain’t necessarily so: identifying reliable evidence in the light of Burgess v Lejonvarn
Fraudulent claims: Terry v BCS Corporate Acceptances Limited
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 … Continue reading Fraudulent claims: Terry v BCS Corporate Acceptances Limited
Recoverability and proportionality of inquest costs
The recoverability of costs of an inquest as costs of and incidental to subsequent civil litigation (section 51 of the Senior Courts Act 1981) continues to be an area of uncertainty for those representing claimants and defendants.
Get back: disallowing non-party costs order in Sony/ATV v WPMC
The Court of Appeal’s decision in Sony/ATV Music Publishing LLC v WPMC Ltd and another highlights the importance of warning a non-party at the earliest opportunity of the possibility that a costs application may be made against it. The sound of silence was fatal to such an application in Sony.
Conditional expertise: Gardiner & Theobald LLP v Jackson
The decision in Gardiner & Theobald LLP v Jackson is useful for anyone considering retaining an expert on a “no win, no fee basis” in civil litigation, as it sheds further light on the concerns the courts will have when asked to allow such an arrangement.
How to avoid QOCS: Cartwright v Venduct Engineering Ltd
The Court of Appeal in Cartwright v Venduct Engineering Ltd has ruled that, where sums have been paid to a claimant under the schedule to a Tomlin order, CPR 44.14(1) could not apply, as the schedule was not part of the court’s order but merely reflected the parties’ agreement.
Praxis Capital Ltd v Burgess: be practical
In an application made pursuant to CPR 3.1(7) to vary or revoke an order in Praxis Capital Ltd v Burgess, the claimant sought an order for delivery up of confidential material that it alleged was in the defendant’s possession. The defendant had been employed by the claimant company, and these materials had been obtained in … Continue reading Praxis Capital Ltd v Burgess: be practical
Know your costs lawyers from your costs draftsmen
The Court of Appeal delivered judgment in the case of Gempride v Bamrah recently, a case on misconduct in detailed assessment proceedings. The case is the first time the Court of Appeal has considered CPR 44.11 and is essential reading for any solicitor who sub-contracts out costs work to a cost specialist.
Allowing music to be played on your premises and the risk of copyright infringement
In Phonographic Performance v Abimbola Balogun t/a Mama Africa, Miss Penelope Reed QC (sitting in the High Court) determined the defendant’s appeal of Master Price’s refusal to set aside a summary judgment against him. The claim was brought by Phonographic Performance for infringement of copyright – Mr Balogun having allowed DJs to play music at private parties … Continue reading Allowing music to be played on your premises and the risk of copyright infringement
I (or is it you?) don’t like Mondays: Moylett v Geldof
In Moylett v Geldof and another, Carr J has given a very short judgment on the first defendant’s application to strike out parts of the claimant’s expert report.
Vanishing Part 36 offers?
The Court of Appeal has looked again the interaction of Part 36 offers and interim payments in Gamal v Synergy Lifestyle Ltd, in which Arden LJ agreed with the judgment of Flaux LJ. The decision is important.
Aircraft leasing and contractual estoppel: signing an acceptance certificate will likely preclude future disputes as to delivery condition
In Aquila WSA Aviation v Onur Air, Cockerill J gave summary judgment for the claimant on its claim for unpaid sums and damages arising from a lease of an aircraft engine. The lease was comprised of standard IATA Master Short Term Engine Lease Agreement terms (the Master Agreement) and various additional bespoke terms (the Lease … Continue reading Aircraft leasing and contractual estoppel: signing an acceptance certificate will likely preclude future disputes as to delivery condition
Interest and Part 36 offers: is Potter right?
CPR 36.2(3) provides that a Part 36 offer may be made in respect of the whole, or part of, or any issue that arises in, a claim. This is reflected in CPR 36.5(1)(d) which, in relation to the form and content of a Part 36 offer, requires the offeror to state whether it relates to … Continue reading Interest and Part 36 offers: is Potter right?
Pie in the sky? Another claim for swaps misselling is rejected
The latest judgment handed down in a swaps misselling case (London Executive Aviation v RBS) represents another victory for the banks. In part, this is an inevitable reflection of the fact that the most egregious examples of misselling will have been settled or, in the case of smaller customers, dealt with under the Financial Conduct … Continue reading Pie in the sky? Another claim for swaps misselling is rejected
A shift in case law? Set-off and qualified one-way costs shifting
Case law on qualified one-way costs shifting (QOCS) is beginning to appear. However, it is safe to say that we do not have the final word on some of its more difficult provisions.
Some recent decisions on costs budgeting
The debate as to when and in what circumstances a party can depart from a costs budget rumbles on. As readers will know, the test is whether there is a “good reason” for such a departure.
Practical tips for applicants for freezing injunctions from Ras Al Khaimah Investment Authority and others v Bestfort Development LLP and others
The test for showing that a respondent to an application for a freezing injunction has assets caught by the order has been “somewhat less than certain”. It has now been clarified by the Court of Appeal, in Ras Al Khaimah Investment Authority v Bestfort Development LLP. I want to look at three practical tips on … Continue reading Practical tips for applicants for freezing injunctions from Ras Al Khaimah Investment Authority and others v Bestfort Development LLP and others
An attack on the past and a guide to the future? Lord Sumption’s latest lecture
In a common law jurisdiction, the law proceeds by principle intertwined with precedent. When judges give talks about the law, they often focus exclusively on precedent. Lord Sumption has taken a different approach. His talks focus on points of principle: witness his speech to the Chancery Bar Association on Reflexions on the Law of Illegality … Continue reading An attack on the past and a guide to the future? Lord Sumption’s latest lecture
Harrison v University Hospitals Coventry and Warwickshire NHS Trust: costs budgeting and detailed assessment
In Harrison v University Hospitals Coventry and Warwickshire NHS Trust practitioners finally have some guidance from the Court of Appeal about costs budgeting and detailed assessment. What practical lessons can we distil from it?
Guidance, is it always useful?
Costs disputes frequently involve having to look at a solicitor’s retainer and deciding what it means so as to determine whether or not a costs claim offends the much maligned but still alive indemnity principle. Many practitioners and judges thought that Arnold v Britton was the last word and that it reflected a move away … Continue reading Guidance, is it always useful?
We are not enemies of the people
2016/17 will be forever associated with elections across the globe and all that has come with them: “fake news”; hacks; leaks; U-turns; polarisation; and polls that have been, time after time, proven to be incorrect. But for those who are not yet suffering from election apathy, The Value of Justice: The Bar Council’s Manifesto for … Continue reading We are not enemies of the people
Recent decisions on the costs consequences of refusing to enter into ADR
In February this year, the High Court overturned the decision of Master James in Briggs v First Choice Holidays and Flights. The case had been seen by many as a high point for paying parties in achieving significant costs reductions as a result of a failure to engage in alternative dispute resolution.
Estimating the special circumstances of Eurasian Natural Resources Corporation v Dechert
In Eurasian Natural Resources Corporation Limited v Dechert LLP, the Senior Courts Costs Office (SCCO) stressed the need for solicitors to engage in careful prospective consideration of costs, and to provide regular and realistic costs estimates to clients. It is the latest round of Dechert’s long-running fee dispute with its former client, concerning work carried out by … Continue reading Estimating the special circumstances of Eurasian Natural Resources Corporation v Dechert
À la carte or set menu? Disclosure options
Background The courts have long expressed concerns about costs of disclosure as amongst the most significant costs of substantial commercial litigation. It was against this background that the old test of discovery (any document that was broadly relevant) was redefined by the Woolf reforms of 1999 to standard disclosure, limited, if it could be said, … Continue reading À la carte or set menu? Disclosure options
Would you side step costs budgeting if given the chance? A look at the pilot running in the Leeds Chancery Division
The Chancery Division in Leeds is running a pilot for the next six months to enable parties to limit the extent of costs budgeting in any particular case.
Practical points on forum non conveniens in Deutsche Bank AG v CIMB Bank Berhad
The judgment in Deutsche Bank AG v CIMB Bank Berhad is admirably short. In my view, it is worth reading for the three main practical points it conveys in relation to forum non conveniens:
Negligence, deliberate concealment and unlawful means conspiracy: three lessons from Adams v Atlas International Property Services
In the current economic climate, the unfortunate facts of Adams v Atlas International Property Services will no doubt sound all too familiar. The claimants were all purchasers of properties in Spain. Despite paying the full purchase price, they did not receive the title to their properties. The seller, Desarrollo, had already become insolvent. The claimants … Continue reading Negligence, deliberate concealment and unlawful means conspiracy: three lessons from Adams v Atlas International Property Services
Part 36 battles galore
Part 36 never ceases to throw up disputes. Recently, “issue of the month” has been what happens when a defendant accepts a Part 36 offer late.
Test for bias: Re Maximum Securities Ltd
The Court of Appeal in Re Maximus Securities Ltd has given guidance on the test for bias, in a case concerning a challenge to the appointment of a joint expert. In this blog post, I draw out some practical tips for assessing the potential for bias.
Costs budgeting: Love it? Hate it? Or is it time you changed your mind?
At the Costs Law Report Conference 2016 in London last week, Stuart-Smith J gave the key note speech, in which he revealed that when listing a case management and costs management hearing, he allows 10 minutes to accommodate the costs budgeting part of a costs and case management conference (CCMC).
Brexit and costs
You may think that the law of costs will sail on majestically, despite the political turmoil of the last few weeks. Who could have predicted, however, that instead of Michael Gove as Secretary of State for Justice and Lord Chancellor, we would have Liz Truss? Her appointment has brought forth trenchant criticism from, amongst others, … Continue reading Brexit and costs
Fixed costs: a trip down memory lane
Jackson LJ’s proposals to introduce fixed costs in multi-track cases worth up to £250,000 make me think back to the days of County Court scale fees, and a quick dig around some dusty books turned up the County Court Practice for 1995. There I was reminded that, until 30 June 1991, there were four scales … Continue reading Fixed costs: a trip down memory lane
Costs budgeting: three years on
Costs budgeting has just had its third birthday. That birthday has been celebrated not with candles, but with the 83rd CPR update.
Sugar Hut and discretion as to costs
The Court of Appeal in Sugar Hut v A J Insurance Service has overturned the trial judge’s decision to impose costs consequences akin to the automatic CPR 36 costs consequences on a party who only narrowly beats a CPR 36 offer.
Deutsche Bank v Sebastian Holdings: will we see an increase in non-party costs orders?
The Court of Appeal’s recent decision in Deutsche Bank v Sebastian Holdings gives pause for thought for individuals embarking on litigation under the cover of a company.
Defendants masquerading as claimants for Part 36
Albeit a decision on its own facts, Mr Justice Coulson’s decision in Van Oord UK Ltd (OSR) v Allseas UK Ltd (AUK) offers food for thought for a defendant with a counterclaim or potential counterclaim.
Context is everything when advising your client on funding
The decision in Surrey v Barnet & Chase Farm Hospitals NHS Trust throws into sharp focus the need to give thorough advice as to funding options, tailored to the particular context of the case and the client. For that reason, it has repercussions beyond its clinical negligence sphere and beyond the switch to the new … Continue reading Context is everything when advising your client on funding
The principle in Re Eastwood lives to fight another day
In May 2015, the Upper Tribunal heard the case of Bakhtiyer v Secretary of State for the Home Department. Judgment was handed down earlier this month. The Upper Tribunal confirmed the principle in Re Eastwood that the costs of the Government Legal Service would be assessed on the same basis as that of a solicitor … Continue reading The principle in Re Eastwood lives to fight another day
Flight from the courts due to fee increases
Court fees in personal injury and clinical negligence litigation have increased dramatically in recent times. Section 180 of the Anti-Social Behaviour, Crime and Policing Act 2014 empowered the Lord Chancellor to set “enhanced” court fees. It states that “A fee prescribed…must be used to finance an efficient and effective system of courts and tribunals”. However, … Continue reading Flight from the courts due to fee increases
Third party funding: not such a bright idea?
When returns on investment in traditional markets are at an all time low, capital (especially private capital) seeks better returns elsewhere. Pensioners cash in their pensions and dive into the buy-to-let market (their children need to worry about their inheritances if/when that bubble bursts), while more adventurous investors see litigation as a money spinner.
Costs management is here to stay
In the first of our guest posts by members of 39 Essex Chambers, Simon Edwards discusses Lord Justice Jackson’s Harbour Lecture entitled “Confronting Costs Management”, which was delivered on 13 May 2015.
