Corporate dishonesty: getting your pleadings right
What must be pleaded when dishonest assistance is alleged against a company? Is there a special rule for large companies that differs from the rules applicable to individual natural persons? This issue arose recently in Stanford International Bank Ltd v HSBC Bank Plc, when the Court of Appeal considered two claims by the liquidators of … Continue reading Corporate dishonesty: getting your pleadings right
Do solicitors ever owe a duty to the opposing party? NDH Properties v Lupton Fawcett
The decision of Snowden J in NDH Properties Ltd v Lupton Fawcett LLP provides a welcome refresher in the law relating to the question of whether a solicitor can owe a duty of care to the opposing party.
A new approach to witness statements in the Business and Property Courts: the new Practice Direction 57AC
The new Practice Direction 57AC (Witness evidence at trial) is set to significantly alter the approach taken to witness statements in the Business and Property Courts (B&PCs) by introducing new rules to deal with “the phenomenon over-long, over-lawyered trial witness statements” (paragraph 10 of the Factual Witness Evidence in Trials before the Business & Property … Continue reading A new approach to witness statements in the Business and Property Courts: the new Practice Direction 57AC
Abuse of process? Res judicata and collateral attacks on prior decisions after Allsop v Banner Jones Ltd and another
In Allsop v Banner Jones Ltd and another, the Court of Appeal considered the application of Phosphate Sewage v Molleson to applications to strike out a claim on the basis of abuse of process. The decision is a detailed exploration of the scope of the doctrines of res judicata, collateral attacks on previous decisions and … Continue reading Abuse of process? Res judicata and collateral attacks on prior decisions after Allsop v Banner Jones Ltd and another
Pallett v MGN: the unintended consequences of Part 36?
The very recent decision in Pallett v MGN Limited is probably one the most significant decisions as regards the operation of Part 36 for many years, albeit that it is based upon established Part 36 principles. It has consequences for any claimant making a Part 36 offer and any defendant accepting an offer.
Leaving the claim form “hanging by a thread”: struck out pleadings and out of time amendments
Under CPR 17.4(2), the court may allow an amendment to add or substitute an otherwise time-barred new claim but only if the new claim arises out of the same or substantially the same facts as an existing claim in proceedings. In Libyan Investment Authority and others v King and others, the Court of Appeal held … Continue reading Leaving the claim form “hanging by a thread”: struck out pleadings and out of time amendments
The illegality defence clarified: Stoffel and Co. v Grondona
This blog post examines the defence of illegality following the recent judgment of the Supreme Court in Stoffel & Co. v Grondona, identifying two particularly persuasive arguments since Patel v Mirza. Stoffel will be of particular interest to claimants and defendants alike, especially in the context of professional negligence claims. The decision further clarifies the … Continue reading The illegality defence clarified: Stoffel and Co. v Grondona
Judicial discretion and issue-based costs orders: Terracorp v Mistry and others
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.
Reining in the rule against reflective loss: Sevilleja v Marex Financial Ltd
In a much-anticipated judgment, the Supreme Court in Sevilleja v Marex Financial Ltd unanimously allowed an appeal against a decision which, if it had been allowed to stand, would have denuded the intentional economic torts of much of their practical utility. The majority’s decision established a bright-line rule, cutting down the scope of the so-called rule against … Continue reading Reining in the rule against reflective loss: Sevilleja v Marex Financial Ltd
The death of “forensic prestidigitation” in construing commercial contracts? Towergate Financial (Group) Ltd and others v Clark and others
Judgment in Towergate Financial (Group) Ltd and others v Clark and others was handed down on 24 April 2020 in this interesting case that turned upon the correct construction of a notice clause in a share purchase agreement (SPA). This was one of the first remote trials in the High Court, taking place over three days in … Continue reading The death of “forensic prestidigitation” in construing commercial contracts? Towergate Financial (Group) Ltd and others v Clark and others
Remote mediations: making them work
I confess I was initially sceptical about the possibility of a remote mediation. It had always seemed to me essential to a successful mediation to get all the parties into one place and go through the hard yards of working through the issues, the rounds of negotiation, the impasse and then the breakthrough that characterises … Continue reading Remote mediations: making them work
Derivative actions involving LLPs: common law test for permission trumps section 263 of the Companies Act 2006
On 21 April 2020, Zacaroli J allowed an appeal brought against the decision of HHJ Saunders in Homes of England v Nick Sellman (Holdings) Limited.
COVID-19: Remote trials: A barrister’s perspective
The 2019 novel coronavirus disease (COVID-19) crisis came at an awkward moment for my practice, threatening to derail several hearings in the diary, including a substantial three day High Court trial of a preliminary issue (Towergate v Clark).
Misunderstandings and doctrinal overgrowth: WM Morrisons Supermarkets plc v Various claimants
Where a primary tortfeasor is an individual, a lack of financial means with which to meet a judgment debt will often mean it is not worth pursuing them alone. Even employees in senior management positions are unlikely to be able to meet a substantial money judgment arising out of a tort committed in connection with … Continue reading Misunderstandings and doctrinal overgrowth: WM Morrisons Supermarkets plc v Various claimants
Indemnity costs: Conduct based applications for indemnity costs
Practitioners will be aware that an award of indemnity costs can provide the following advantages to the receiving party: The principle of proportionality is disapplied. Perhaps of greater significance in the era of costs budgeting where prima facie the budget will be disapplied by an award of indemnity costs: see Denton v TH White Ltd; … Continue reading Indemnity costs: Conduct based applications for indemnity costs
Indemnity costs: Costs payable under a contract
Practitioners will be aware that an award of indemnity costs can provide the following advantages to the receiving party: The principle of proportionality is disapplied. Perhaps of greater significance in the era of costs budgeting where prima facie the budget will be disapplied by an award of indemnity costs: see Denton v TH White Ltd; … Continue reading Indemnity costs: Costs payable under a contract
The expansion of a director’s duty to act in the interests of the company
A director’s duty to act in good faith in the interests of the company is the cornerstone of a director’s position. This long standing obligation was revamped in the Companies Act 2006 with the introduction of a new requirement that directors should have regard to a package of concerns reflecting what has been described as … Continue reading The expansion of a director’s duty to act in the interests of the company
To post or not to post: the dangers of electronic communications
Last summer, a ten day trial in which I was involved was adjourned. The judge recused himself after one of the party’s solicitors sent an email to the judge’s clerk enclosing a link to a website containing sensationalist (but true) information about one of the counsel involved in the case. The subsequent successful wasted costs … Continue reading To post or not to post: the dangers of electronic communications
Exclusive jurisdiction: Akçil and others v Koza Ltd and another and the narrow interpretation of the Recast Brussels Regulation
It is axiomatic that the question of jurisdiction is fundamental to all litigation, notwithstanding the fact that in many cases it is never raised or considered by the parties. Where it is in issue, it can dominate the time and resources of the parties before a single other point has been addressed. That was the … Continue reading Exclusive jurisdiction: Akçil and others v Koza Ltd and another and the narrow interpretation of the Recast Brussels Regulation
Nothing to speak of: when silence is golden after Woodward v Phoenix Healthcare Distribution
Background The underlying dispute in Woodward and another v Phoenix Healthcare Distribution Ltd concerned the alleged mis-sale of a drug by the respondent whilst still under patent to a company which claimed that, as a result of the respondent’s breach of contract or misrepresentations, it suffered financial loss in excess of £5 million and which … Continue reading Nothing to speak of: when silence is golden after Woodward v Phoenix Healthcare Distribution
Tax avoidance and limitation: Evans v PricewaterhouseCoopers LLP and more debate over what constitutes a loss
When tax avoidance schemes fail, professional negligence claims against the scheme promoters will surely follow. And, because HMRC’s investigations of such schemes typically proceed at a ponderous rate, it is likely that limitation defences will be raised, fuelled by the long lapse of time between the advice being given and the failure of the scheme.
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 … Continue reading How helpful is witness evidence anyway? The impact (or not) of evidence from a third party in loss of chance cases
Is a judgment procured by fraud ever secure?
Sophocles wrote that “things gained by unjust fraud are never secure”. Lord Denning described fraud as “a thing apart” which once proven “unravels all”. Where a judgment is procured by fraud, an action lies for set aside or rescission of that judgment. Where the victim of the fraud could have discovered it before the trial … Continue reading Is a judgment procured by fraud ever secure?
Is it really within your “absolute discretion”? UBS AG v Rose Capital Ventures Ltd and others
Indian business tycoon, Mr Vijay Mallya, was once dubbed “the King of Good Times”. However, over the last two years, £1.14 billion of his assets have been frozen by the High Court in London, he is being pursued for non-payment of alleged substantial debts in India by a group of major banks, and now the … Continue reading Is it really within your “absolute discretion”? UBS AG v Rose Capital Ventures Ltd and others
Wolff v Trinity Logistics USA Inc: the implications for civil appeals
I recently acted as junior counsel in Wolff v Trinity Logistics USA Inc, where the Court of Appeal considered the circumstances in which a respondent to an appeal requires permission to run a defensive case. The issue arose in the following context: Trinity USA’s claim against Mr Wolff in procuring breach of contract succeeded at … Continue reading Wolff v Trinity Logistics USA Inc: the implications for civil appeals
ATE and security for costs: Lewis Thermal Limited v Cleveland Cable Company Ltd
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.
Is this the end of witness statements?
I don’t know if it has come across your desk (or pinged up on your email), but there is an important survey being undertaken right now concerning the future role (if any) for factual witness statements in the Business & Property Courts.
Privilege and internal investigations: what next for practitioners after ENRC?
Writing earlier in 2018, I commented on the inconsistency of approach between two recent cases to consider legal professional privilege: Andrews J’s decision in Director of the Serious Fraud Office v Eurasian Natural Resources Corp Ltd, and that of Sir Geoffrey Vos in Bilta (UK) Ltd (in liquidation) & others v Royal Bank of Scotland … Continue reading Privilege and internal investigations: what next for practitioners after ENRC?
Underpayment of court fees and applications to strike out or reallocate: was Lewis and others v Ward Hadaway a storm in a teacup?
This blog considers the development of the law since the case of Lewis and others v Ward Hadaway (a firm) in 2015, when the defendant tried to strike out a claim on the basis of the underpayment of court fees by the claimants. It will consider whether there is any recent trend of applying the … Continue reading Underpayment of court fees and applications to strike out or reallocate: was Lewis and others v Ward Hadaway a storm in a teacup?
Do Part 36 offers necessarily mean what they say? Bentley Design Consultants v Malcolm Sansom
A recent case, Bentley Design Consultants v Malcolm Sansom, has considered the interaction of the principle of construction of a contract and the procedural code contained in Part 36 of the CPR. The case concerned the proper construction of an offer to settle “the whole of this claim”. At both first instance and on appeal, it was … Continue reading Do Part 36 offers necessarily mean what they say? Bentley Design Consultants v Malcolm Sansom
The limit of knowledge: Su v Clarksons Platou Futures
When litigation is successful, the winning party will rarely struggle to identify advisors and employees happy to take credit for the outcome. When litigation fails spectacularly, a company’s advisors (and their professional indemnity insurers) may well be less eager to shoulder some or all of the responsibility.
Legal professional privilege under attack again (even Donald Trump thinks so!)
On 10 April 2018, President Donald Trump tweeted “Attorney-client privilege is dead!” This was not the President’s deep analysis of the state of legal professional privilege (LPP) but a reaction to the raid on the offices of one of his former lawyers and the seizing of a quantity of documentation.
Lifting the interim moratorium: a new insight
Background In TST Millbank LLC and another v Resolution Real Estate Ltd (8 February 2018) (unreported), the legal and beneficial owners of the head-lease of commercial property (C) brought a claim against their tenant (D) for unpaid service, to which D counterclaimed. D failed to provide security for costs and so, in autumn 2017, judgment was entered … Continue reading Lifting the interim moratorium: a new insight
Costs in the Court of Appeal: Knight v Goulandris
Dealing with costs before the Court of Appeal can take practitioners outside their comfort zone. The court sometimes has to decide complicated issues, in terms of both appellate costs and costs below. In light of the recent case of Knight v Goulandris (in which I was led by Michael Wheater, and instructed by Fox Williams) and … Continue reading Costs in the Court of Appeal: Knight v Goulandris
When is a second bite of the cherry an abuse of process?
In Davies v HIS Energy, Morris J considered whether in a case where the first action had been struck out, a second action would be an abuse of process. The comprehensive guidance provided is welcome as this question had gone unanswered by the higher courts since the Jackson reforms introduced the more stringent relief from sanctions … Continue reading When is a second bite of the cherry an abuse of process?
A reminder on the importance of form in a Part 36 offer, and the principles applying to costs in contentious probate claims
Last week saw publication of the judgment of HHJ Matthews, sitting in the High Court at Bristol, in the case of James v James and others.
What determines the validity and date of service of a claim form: CPR 7.5 or 6.14?
It is nearly ten years since the rules on service of claim forms were substantially changed. CPR 7.5(1) now provides that where the claim form is served within the jurisdiction, the claimant must complete the step required by the table set out in that provision before midnight on the calendar day four months after the … Continue reading What determines the validity and date of service of a claim form: CPR 7.5 or 6.14?
Sorry, what was the question again?
For any motor insurance company looking for suitable New Year’s resolutions, it may be worth considering the cautionary tale of Southern Rock Insurance Company Limited v Hadar Hafeez. This Scottish case illustrates an important practical difficulty that arises from doing business online, particularly via price comparison websites. It also shows the importance of making sure … Continue reading Sorry, what was the question again?
ATE insurance and security for costs applications: the curse of the pendulum
In an earlier post in this blog, CMS Cameron McKenna Nabarro Olswang LPP, solicitors for the successful appellants in Premier Motorauctions Ltd (in liquidation) and another v PricewaterhouseCoopers LLP and Lloyds Bank Plc championed the decision of the Court of Appeal for bringing the pendulum of authorities on the interplay between security for costs and … Continue reading ATE insurance and security for costs applications: the curse of the pendulum
Security for costs: ATE policies
In a commendable judgment dated 24 October 2016 in Premier Motorauctions v Pricewaterhouse Coopers, Snowden J injected a much needed dose of realism into an issue which had, for too long, suffered from a regrettable degree of uncertainty, namely security for costs applications against parties with after the event (ATE) insurance cover. Cases this year … Continue reading Security for costs: ATE policies
When is an affidavit not an affidavit? Why strict compliance with CPR 32 and its Practice Direction may not be absolutely essential
Late in 2016, Nugee J delivered an important, though largely unnoticed, judgment on the precise meaning of the term “affidavit” in the context of civil litigation in England and Wales. The decision, Haederle v Thomas, resulted from one of a series of interlocutory skirmishes in a long-running committal application.
Chudley v Clydesdale: identifying the body
A recent Commercial Court case, Chudley v Clydesdale Bank plc has provided a rare comment on the application of the Contract (Rights of Third Parties) Act 1999 (the 1999 Act) and, in particular, on how you decide whether the contract adequately identifies the third party so as to allow them to enforce the contract.
Perjury on an industrial scale: contempt of court update
“This is perjury on an industrial scale”, held Supperstone LJ in July 2017, when he sentenced seven defendant expert witnesses to prison for contempt of court for fabricating evidence, in Accident Exchange Limited v Broom. The case is one of the most complex and longest running contempt trials in history. So, what was the case … Continue reading Perjury on an industrial scale: contempt of court update
Swynson Ltd v Lowick Rose LLP: bending the law on damages to the point of breaking?
The facts In 2006, Swynson Ltd proposed to lend £15m to finance a management buy-out. It instructed Lowick Rose LLP (then called Hurst, Morrison Thomson (HMT)) to carry out due diligence on the target company. HMT did so negligently. But for its negligence, the loan would not have been made.
So vast a throng the stage can ne’er contain: litigation involving groups
Often, a litigator’s single greatest desire is for clarity: of instructions, tactics, or argument. Few circumstances can disrupt this as effectively as a large group of clients or opponents, each clamouring for different (often mutually exclusive) approaches. Once such a case reaches a certain size, it is simply not feasible to proceed in the usual … Continue reading So vast a throng the stage can ne’er contain: litigation involving groups
Damages-based agreements: another pitfall to note
Damages-based agreements (DBAs) were first introduced in 2013 but the take up has been very limited. As a result, it is very rare to find mention of a DBA in a law report but, as a recent decision has considered one, it is time to highlight another possible problem with DBAs.
Final whistle blown on cost budgeting games
The introduction of cost budget discussion reports appears to have given rise to a new area of tactical game playing by litigators. Coulson J has issued a stern warning to parties who seek to engage in such games by putting forward unrealistically low figures for the opposing party’s costs and, in a recent case, wholly … Continue reading Final whistle blown on cost budgeting games
Technology Assisted Review, also known as predictive coding, is here to stay
The time has truly arrived for parties and their legal teams, courts and tribunals, to engage with (or perhaps discover) Technology Assisted Review (‘TAR’). Often referred to as ‘predictive coding’, TAR looks set to become a core tool in the data review and disclosure and document production processes, in medium to large scale litigation and … Continue reading Technology Assisted Review, also known as predictive coding, is here to stay
A litigation solicitor’s worst nightmare: the client finds relevant documents after the time given for disclosure
You’ve had a case management conference (CMC) and directions for trial have been given. You have a deadline by which to complete disclosure. A few months after this deadline, your client tells you that they have found further relevant documents which are helpful to their case. You want to rely on them and you have … Continue reading A litigation solicitor’s worst nightmare: the client finds relevant documents after the time given for disclosure
Wasted costs applications: a Kafkaesque conundrum
To start, let me introduce some familiar characters. First, an impecunious claimant who has the benefit of after the event (ATE) insurance, but the disadvantage of an incompetent solicitor. Second, a successful defendant with the benefit of a costs order and a final costs certificate, but the disadvantage of a slippery ATE insurer who has … Continue reading Wasted costs applications: a Kafkaesque conundrum
Welcoming frustration: Armchair Answercall Limited v People in Mind Limited
A recent Court of Appeal decision, Armchair Answercall Limited v People in Mind Limited, confirms that there is a high hurdle for establishing that a contract has been frustrated. The court’s consideration of the doctrine of frustration is welcome, because it is rarely dealt with in case authorities.
Is there a more relaxed approach to Henderson v Henderson abuse of process in interim or interlocutory proceedings?
The on-going litigation between Mr Holyoake and the Candy brothers has recently produced further interesting debate. The most recent decision of Nugee J, on 29 November, which determined the defendants’ application for security for costs, considered the construction of a settlement and the adequacy of after-the-event (ATE) insurance. However, the issue on which this blog … Continue reading Is there a more relaxed approach to Henderson v Henderson abuse of process in interim or interlocutory proceedings?
Equitable remedies and the Limitation Act 1980: is a claim for “equitable compensation” a debt “or other liquidated pecuniary claim”?
When is it too late for a claimant to bring a claim in equity? This is a question which many practitioners understandably find difficult to answer. The question may depend on whether a statutory limitation period applies (directly or by analogy), or on the equitable principle of laches, which prevents a claim from being brought … Continue reading Equitable remedies and the Limitation Act 1980: is a claim for “equitable compensation” a debt “or other liquidated pecuniary claim”?
Counting the cost of rejection
In the case of DB UK Bank Ltd (T/A DB Mortgages) v Jacobs Solicitors [2016] EWHC 1614 (Ch) it was held that a party who made a Part 36 offer in response to a “without prejudice save as to costs” offer had in law rejected the common law offer to settle and so a subsequent acceptance … Continue reading Counting the cost of rejection
Out of time but not out of options: Court of Appeal clarifies how to deal with limitation defences in contribution claims in WH Newson v IMI
I don’t know if this has also been your experience, but for some reason the workings of the Civil Liability (Contribution) Act 1978 (the Act) always seems to cause consternation.
Predictive coding: the current landscape
Disclosure of documents is a significant driver of costs. Where the relevant documents are electronic, the problem is usually exacerbated. This is simply because the vast majority of documents are now created electronically and the proliferation and storage capacity of day-to-day IT equipment is such that the amount of information available may be enormous.
Re-launched Adjudication Scheme for Professional Negligence Claims: a good idea whose time has come?
What can the recently re-launched Adjudication Scheme for Professional Negligence Claims offer parties and practitioners in this area? Those, and don’t worry you’re not alone, oblivious to its original launch as a pilot scheme in February 2015 may be part of the reason for its re-launch 15 months later. The original scheme apparently saw only … Continue reading Re-launched Adjudication Scheme for Professional Negligence Claims: a good idea whose time has come?
Out of time and out of luck: extending time for service out of the jurisdiction
The recent decision of Cox J in Foran v Secret Surgery Ltd and others is a salutary tale emphasising the strict approach of the courts to applications to extend time for service of the claim form. Here, the fact that service had to be effected out of the jurisdiction did not avail the claimant, with the … Continue reading Out of time and out of luck: extending time for service out of the jurisdiction
To notify or not to notify: the impact of contact terms on common law rights to terminate
In Vinergy International (PVT) Ltd v Richmond Mercantile Ltd FZC, Teare J held that the notice requirements contained in the termination provisions of a master supply agreement (MSA) did not apply to an innocent party’s exercise of its common law right to terminate the agreement by accepting the other party’s repudiatory breach.
Stevensdrake v Hunt and the indemnity principle
Having successfully obtained judgment for your client in a case where your firm of solicitors is acting under a conditional fee agreement (CFA), it is only natural that thoughts will turn to the firm’s own impending financial reward. But the terms of a CFA, negotiated at the outset of the case, can prove to be … Continue reading Stevensdrake v Hunt and the indemnity principle
Adjudication for commercial dispute resolution
Coulson J recently spoke to the London Common Law and Commercial Bar Association about adjudication and posed the question, is adjudication a model for all commercial dispute resolution? While adjudication is the norm in construction disputes, attempts to expand it beyond the construction sphere have met with little success. Should parties be so reluctant to … Continue reading Adjudication for commercial dispute resolution
Lewis v Ward Hadaway: paying the wrong issue fee spells disaster
The High Court decision in Lewis v Ward Hadaway makes for worrying reading for claimant litigators.
Do general contractual principles apply to the making and acceptance of Part 36 offers?
It is a truth universally acknowledged that litigation in which costs are significant must be in need of a carefully considered Part 36 offer. Nothing more need be said about the general importance of Part 36. However, together with all of its strategic utility, Part 36 comes bundled with a host of technicalities which are … Continue reading Do general contractual principles apply to the making and acceptance of Part 36 offers?
Cavendish Square v El Makdessi and ParkingEye v Beavis: a reinterpretation of consumer protection law
In this blog post, we consider the impact of the recent Supreme Court decision in Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis (Beavis). The Supreme Court welcomed the opportunity to consider the “penalty rule” in two cases at the opposite end of the financial spectrum. As well as further clarifying … Continue reading Cavendish Square v El Makdessi and ParkingEye v Beavis: a reinterpretation of consumer protection law
