REUTERS | GCS

Despite the prolific number of published articles providing help and guidance in relation to costs budgeting, cases still arise where it is necessary to be reminded about some of the practical measures that can be considered to avoid loss. Reasons for failure to file budgets on time, ensure they cover the work and cost that could reasonably be anticipated or making timely applications for revision can be due to lack of knowledge, lack of experience, failure to utilise available resources or panic when up against a deadline. However, with proper planning and forethought the difficulties can be overcome.

Master McCloud found it necessary to consider a number of issues when deciding upon an application to revise parts of a budget in the case of Thompson v NSL Ltd.

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Every growth industry has its critics, usually those with most to lose. Litigation funding is no different and they will be rubbing their hands with glee at the ongoing Australian review considering capping funders’ returns at 30% of the award. This would have far reaching consequences for the whole industry.

However, a closer look at this particular battle highlights one characterised by rhetoric, ego and self-interest, rather than the main issue at hand: the real value of litigation risks.

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REUTERS | GCS

Part 36 rules can be a minefield for practitioners at the best of times, but a recent case has served to demonstrate the need for parties to keep their offers under review throughout proceedings.

The Queen’s Bench Division recently handed down judgment in Reader v SPIE Ltd and another, a case concerning fiduciary duties on a seller during the sale of a business, Garside & Laycock Limited (G&L), by way of a share purchase agreement to SPIE Limited (SPIE).

Of interest to litigators more generally, on appeal Andrew Baker J considered the application of the costs consequences of a Part 36 offer (under CPR 36.17) where that offer is made within 21 days of trial, but the trial does not in fact commence within that period.

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Non-party disclosure, and specifically the confidentiality concerns faced by non-party respondents, has been considered recently in the case of Bugsby Property LLC v LGIM Commercial Leasing Ltd and another. In that case, the parties to proceedings made applications for disclosure against five non-party respondents. The applications were made under CPR 31.17 and section 34 of the Senior Courts Act 1981. In partially granting the non-party disclosure application, Henshaw J ordered the disclosure to be subject to a tiered confidentiality club arrangement, limiting the classes of individuals who had access to different categories of disclosed documents.

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REUTERS | Ints Kalnins

Historically courts took a relaxed attitude to deadlines, and it may seem strange to younger members of the profession, but in my working life parties could, and did, simply decide that they were not ready for trial and would tell the court to adjourn matters.

That all changed with the introduction of the Civil Procedure Rules and the very tough approach to relief from sanctions in Mitchell v News Group Newspapers Limited, considerably softened by the subsequent decision in Denton and others v TH White Limited.

However, in relation to costs deadlines, with the marked exception of costs budgets, which the courts have an unhealthy obsession with, life has gone on as before with deadlines missed with no penalty.

There is evidence that the courts are now beginning to adopt a tougher line in relation to time limits and in relation to costs’ proceedings.

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REUTERS | Hannah McKay

London International Disputes Week 2021 (LIDW21), held earlier in May, came at arguably one of the most critical times for dispute resolution in the UK. This year has not only seen the UK officially leave the EU (creating the potential for great divergences in legislation and regulation), but has also seen court hearings shift online due to COVID-19 lockdown restrictions. Continue reading

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New requirements for the preparation of witness evidence in the Business and Property Courts (B&PCs) have been introduced in the form of Practice Direction (PD) 57AC and Appendix, and apply to all trial witness statements signed on or after 6 April 2021.

A key feature of the new regime is the requirement, at paragraph 3.2 of PD 57AC, for the witness statement to list all documents the witness has referred to, or been referred to, for the purpose of providing the evidence set out in the statement. It’s fair to say that this is also the most controversial feature of the new regime, being the one point to split the Witness Evidence Working Group (and its implementation sub-committee, of which I was a member).

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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 the claimant (SIB), a vehicle used for one of the “largest and most prolonged Ponzi schemes in history”, against HSBC, the defendant bank with which it held various accounts. One of those claims was for an account or equitable compensation in respect of HSBC’s alleged dishonest and/or reckless assistance in breaches of trust and fiduciary duty undertaken by SIB’s owner.

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REUTERS | Hannah McKay

In Original Beauty Technology Company Ltd and others v G4k Fashion Ltd and others, David Stone, sitting as a Deputy Judge in the High Court, considered the issue as to whether the existence of a genuine Part 36 offer prevented the court from dealing with the costs of a liability trial prior to quantum being determined, even when the “losing” party’s conduct had been egregious. Continue reading