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.
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.
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
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
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?
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.
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?
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?
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
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
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.
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.
“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
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.
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 (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.
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
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
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
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
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.
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?
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”?
In the case of DB UK Bank Ltd (T/A DB Mortgages) v Jacobs Solicitors  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
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.
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.
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?
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
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.
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
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
The High Court decision in Lewis v Ward Hadaway makes for worrying reading for claimant litigators.
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?
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