Part 20 claims: what needs to be proved
Part 20 offers a convenient mechanism for defendants to seek contribution from third parties under the Civil Liability (Contribution) Act 1978. A common practical issue relates to the position of a contribution defendant when there is a settlement between the claimant and the liability defendant. Reversing a much-discussed first instance decision, the Court of Appeal … Continue reading Part 20 claims: what needs to be proved
The costs of freezing order applications
The question of what costs order should follow the grant of interim injunctive relief is of obvious practical significance to parties. While costs will generally be awarded against the applicant if interim relief is refused, the costs position after a grant of relief is far less predictable. Cases can be found where judges have made costs … Continue reading The costs of freezing order applications
Privilege, confidentiality and settlement agreements
Three recent cases underline the challenges of maintaining confidentiality in settlement agreements and remind practitioners that this remains an area where neither the intentions of the parties settling, nor the language they use to do so, will be afforded the primacy one might usually expect.
Disapplying deemed service rules: Kennedy v National Trust for Scotland
The CPR contain a number of provisions concerning when a document is deemed to have been served. One of these, introduced by amendment in 2011, is CPR 6.14. This provides that:
The beginning of the end for blanket non-admissions?
When the CPR were introduced they changed the rules about the content of a defence. Under the former Rules of the Supreme Court it had been possible to put a claimant to proof of everything in the particulars of claim by means of a general “traverse”. Some readers may feel that they have never seen … Continue reading The beginning of the end for blanket non-admissions?
Penalty clauses: primariness, secondariness and the categorisation of obligations in a penalties case
For lawyers, as for football referees, it can be tricky to work out what is and is not a penalty. The Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis litigation was welcomed widely as providing clarity in determining what will amount to an unenforceable penalty clause and what will not (for … Continue reading Penalty clauses: primariness, secondariness and the categorisation of obligations in a penalties case
Remarkably unremarkable: the appeal in Workman v Forrester
The appeal in Workman v Forrester and others is both remarkable and unremarkable.
Wise Indians, unwise advice and the perils of lengthy litigation: Court of Appeal considers remoteness of damage following failure to advise on jurisdiction clause
Time and tide wait for no man; they certainly don’t wait for litigants. The Court of Appeal’s judgment in Wright v Lewis Silkin LLP reminds us of the truth in that aphorism: Mr Wright learned the inherent value in litigation proceeding timeously, a lesson quite literally knocked home for him by “the wise Indian” who … Continue reading Wise Indians, unwise advice and the perils of lengthy litigation: Court of Appeal considers remoteness of damage following failure to advise on jurisdiction clause
The taxonomy of evidence: experts, facts, opinions and the courts
In Darby Properties Limited and another v Lloyds Bank plc, Master Matthews has given judgment in a case concerning the admissibility of expert evidence in an interest rates hedging products case.
Truth, the whole truth and a little sweetener for telling it: contingent payments to witnesses and other litigation impropriety
A statement of case can be struck out where it is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings (CPR 3.4(2)(b)). The TCC (Mr Justice Fraser) has, in the recent decision EnergySolutions EU Limited v Nuclear Decommissioning Authority, underlined just how bad a party’s behaviour … Continue reading Truth, the whole truth and a little sweetener for telling it: contingent payments to witnesses and other litigation impropriety
Bringing the Bar to the pub: “pop-up justice” for the 21st century?
On 30 June 2016, The Times reported on a speech given by Sir James Munby, President of the Family Division of the High Court, to a conference organised by Solicitors for the Elderly. It touched on the possibility of holding court hearings in public places other than court buildings. On the same day, The Daily … Continue reading Bringing the Bar to the pub: “pop-up justice” for the 21st century?
Sir Peter Gross on Judicial Leadership: a practitioner’s view
In the aftermath of the EU referendum, observers of British politics have been treated to a Shakespearean orgy of bloodletting, mud-slinging, defenestrating, and back-stabbing. Lawmakers of all parties are settling scores and jostling for position. In the absence of political leadership, it seems prescient that on 23 June 2016, the day of the referendum itself, … Continue reading Sir Peter Gross on Judicial Leadership: a practitioner’s view
Open justice and disclosure: lessons from Chodiev and others v Stein
The principle of open justice is fundamental to the common law. It means that the legal process should be conducted in public and accessible to the public. This includes access not only to what is said and read out in open court, but also to evidence referred to or read by the judge as part … Continue reading Open justice and disclosure: lessons from Chodiev and others v Stein
When is a penalty not a penalty? The decision in Hayfin Opal Luxco 3 S.A.R.L. v Windermere VII CMBS plc [2016] EWHC 782
In Finland, driving fines are proportionate to the wealth of the offender. Thus a rich boy-racer caught speeding in his father’s Ferrari will pay a higher fine than a down-at-heel driver who committed the same offence. Better-off speeders will sometimes pay fines of tens, even hundreds, of thousands of euros. The principle underpinning this policy, … Continue reading When is a penalty not a penalty? The decision in Hayfin Opal Luxco 3 S.A.R.L. v Windermere VII CMBS plc [2016] EWHC 782
One Step too far? Wrotham Park damages after One Step (Support) Ltd v Morris-Garner
Wrotham Park damages (named after Wrotham Park Estate Co v Parkside Homes) are often known as “hypothetical bargain” or “negotiating” damages. Instead of quantifying how much the aggrieved party has lost, or how much the wrongdoer has gained, Wrotham Park damages try to quantify the sum which might reasonably have been negotiated between the parties … Continue reading One Step too far? Wrotham Park damages after One Step (Support) Ltd v Morris-Garner
Who will the court believe? Lessons on witness credibility from recent cases
It’s the ultimate get-out for the lazy legal advisor: “I can’t tell you how it’s going to go, it will all come down to the evidence on the day and who the court believes.” The trouble is that it is so often true. Strong cases unravel after mere minutes of cross-examination, especially where it is … Continue reading Who will the court believe? Lessons on witness credibility from recent cases
Tomlin or not Tomlin: Vanden Recycling Limited v Tumulty and others
A satisfied judgment against one of several joint or concurrent tortfeasors discharges the tort as against all the tortfeasors. The point has been emphasised twice by the House of Lords: in United Australia Limited v Barclays Bank and more recently in Jameson v CEGB.
Denton and adverse costs orders: a balancing exercise
In R (Idira) v Secretary of State for the Home Department, the Court of Appeal was primarily concerned with the lawfulness of the Home Secretary’s policy of using prisons, and not Immigration Removal Centres, to detain time-served convicted foreign national offenders. In the same appeal, however, it was required to consider the procedural issue of … Continue reading Denton and adverse costs orders: a balancing exercise
Indirect instruction: a flight of fancy?
What happened? In Bao Xiang International Garment Centre and others v British Airways Plc, the claimants’/respondents’ solicitors (the firm) had issued a claim form in the name of 64,697 claimants. The allegation was that BA and five other airlines had fixed prices as part of a cartel in 1999 and 2007 and were liable for … Continue reading Indirect instruction: a flight of fancy?
Offer or admission? The decision in Dorchester Group Ltd t/a Dorchester Collection v Kier Construction Ltd
The decision In Dorchester Group Ltd t/a Dorchester Collection v Kier Construction Ltd, the defendant’s solicitors made an “open offer” to the claimant in the form of a letter (the letter), which stated (inter alia): “In full and final settlement of the Proceedings we set out herein [the Defendant’s] open offer and the terms that … Continue reading Offer or admission? The decision in Dorchester Group Ltd t/a Dorchester Collection v Kier Construction Ltd
The Aldi requirement: not a soft touch
The modern law of abuse of process was set out by the House of Lords in Johnson v Gore Wood & Co. For present purposes, the “underlying public interest” that “there should be finality in litigation and that a party should not be twice vexed in the same matter” (per Lord Bingham at 31) gives … Continue reading The Aldi requirement: not a soft touch
Adducing expert evidence: appeal in British Airways v Spencer
In British Airways v Spencer and others (present trustees of the BA pension scheme), Warren J has allowed, in part, an appeal against a deputy master’s refusal to grant permission to adduce expert evidence because it was unnecessary.
Samara sixteen months on: applications for relief from sanction and to set aside default judgment
Up until March last year, the case law applying the new relief from sanctions regime in the context of applications to set aside default judgment was not always consistent or predictable. Samara v MBI & Partners UK Ltd brought welcome clarity to the question of whether CPR 3.9 applies to applications under CPR 13.3. Silber … Continue reading Samara sixteen months on: applications for relief from sanction and to set aside default judgment
Prince Aziz v Harb: the limits of state immunity
In HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz v Harb, the Court of Appeal held that there is no immunity from suit when the estate of a head of state who died in office is sued in respect of a private (as opposed to official) act.
Access to Justice Reform: the Master of the Rolls
Introduction On 15 May 2015, Lord Dyson, Master of the Rolls, gave a speech in Jersey entitled “The English Experience of Access to Justice Reform”. The focus of the speech was the Jackson reforms, set in the context of the Woolf reforms of the late 1990s, Sir Richard Aikens’ 2007 Long-Trials Review, and the more … Continue reading Access to Justice Reform: the Master of the Rolls
