REUTERS | Ricardo Moraes

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 example, a genuine pre-estimate of damages). Continue reading

REUTERS | Eduardo Munoz

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 from what might be termed a “liberal” approach to contractual interpretation (as espoused by Lord Hoffman) to a more “conservative” approach (as espoused by Lord Neuberger). Continue reading


It is accepted by solicitors and the Bar alike that, as fixed fees are introduced, solicitors become more reluctant to instruct counsel, on the basis that they feel that they are spending their own money, rather than incurring a disbursement, which is then recoverable from the other side in the event of success. Continue reading

REUTERS | Carlo Allegri

From 4 May 2017 insurers have been under a duty to pay valid insurance claims within a reasonable time. If they fail to comply, they may be liable to pay damages to an insured who has suffered additional losses as a result of the delay in payment. This obligation only applies to insurance and reinsurance contracts taken out, varied or renewed from 4 May 2017. Continue reading

REUTERS | Dado Ruvic

This time two years ago, having listened to Lord Neuberger’s speech on the future of mediation at the Civil Mediation Council’s (CMC) annual conference, I wrote about whether we may see some form of compulsory mediation scheme sooner, rather than later. Two years on and I wonder, are we really any closer to that than we were in May 2015? Continue reading

REUTERS | Paulo Whitaker

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 disregarded a defendant’s budget discussion report because it was considered unrealistically low. Continue reading