Posts from 39 Essex Chambers

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.