REUTERS | Sharif Karim

In Mustard v Flower [2021] EWHC 846 (QB), Master Davison considered whether a defendant in a personal injury claim could amend a defence to include a contingent and provisional argument that, if the court found at trial that the claimant had knowingly exaggerated symptoms, the defendant could reserve its position to later apply for a ruling of fundamental dishonesty and seek dismissal of the claim, plus costs sanctions provided for at section 57 of the Criminal Justice and Courts Act 2015.

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REUTERS | GCS

The Court of Appeal’s decision in Ahuja Investments Limited v Victorygame Limited raises interesting issues around the availability of litigation privilege:

  • How to assess the evidence supporting the purpose for which a potentially privileged communication was sent.
  • Whether there exists an inducement principle which prevents a claim to privilege where the other party to litigation is induced to provide information which they would not have provided had they known the true purpose of the request, and where the true purpose was deliberately concealed or suppressed.

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REUTERS | Carlos Jasso

All civil litigation lawyers tell their clients at the outset of litigation that (a) it is an expensive business and (b) the loser generally pays for it all. This is, after all, enshrined in CPR 44.2(2):

“(a) The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) The court may make a different order.”

That “but” between the two sub-rules gained an added emphasis and some clarification by Fraser J in Beattie Passive Norse Ltd and another v Canham Consultant Ltd (No.2) (Costs).

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REUTERS | Yusuf Ahmad

When it comes to pushing the envelope on the application of litigation funding, lawyers are sometimes known to try and persuade a funder to provide so-called “seed funding”. This is a relatively small commitment of funds to pay for disbursements or fees that are needed before it is possible to establish whether or not there is a viable cause of action worth pursuing.

The seed costs can be for anything from a counsel’s opinion; an asset scoping report; an expert report, or even a court issue fee to keep a potentially viable claim from being time-barred.

The challenge with seed funding is that it is inherently speculative and therefore not how most mainstream professional litigation funders want to deploy their capital. Some funders will rule out any form of seed funding while others may entertain a relatively small amount (dependent, of course upon the potential value of the overall claim).

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REUTERS | GCS

The UK Supreme Court (UKSC) has provided welcome clarification on the scope of the duty assumed by a professional adviser. The distinction between information and advice drawn by Lord Hoffmann in South Australia Asset Management Corporation v York Montague Ltd (SAAMCO) has been dispensed with in favour of a more practical examination of the purpose for which the advice was given. The UKSC also provided helpful guidance on the correct application of the SAAMCO counterfactual analysis.

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REUTERS | Denis Balibouse

Part 36 strictly applied

Two recent High Court decisions have emphasised that the Part 36 costs consequences will rarely be avoided.

Nominal damages of £10 beat claimant’s offer of £1: full Part 36 consequences apply

In Shah and another v Shah and another, the High Court upheld the decision of the County Court that the defendants should bear the normal Part 36 consequences when the claimant had made a Part 36 offer of £1, which he beat as the trial judge awarded nominal damages of £10.

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REUTERS | GCS

The Court of Appeal has recently clarified the circumstances in which the parties in court proceedings will be bound by the findings made in earlier UK Intellectual Property Office (UKIPO) proceedings as a result of issue estoppel. The judgment in Thomas v Luv One Luv All Promotions Ltd and another considers the scope of issue estoppel and when the courts can disapply it on the basis of there being special circumstances.

The judgment also helpfully explores the ownership of goodwill by a partnership and what happens to the goodwill when the partnership is dissolved.

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REUTERS | Issei Kato

“I know my rights” is an oft-used expression when someone is being pushed around, whether that be in a public place, or at home, when  a perceived victim is espousing such a view during a television drama. When it comes to rights under the Solicitors Act 1974 (the Act), however, do clients have any idea what rights, if any, they have against the firms of solicitors they instruct when it comes to the hefty fees they are often charged for conducting litigation?

The answer to that is likely to be “only if you tell them”, since the Act is such an arcane and outdated piece of legislation that the man on the Clapham Omnibus (see judgment of Greer LJ in Hall v Brooklands Auto Racing Club) or indeed his opposite gender counterpart and, most likely, any director of the company which retained the firm, will have little or no idea unless they have encountered the Act in a previous incarnation.

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REUTERS | Toby Melville

The case of Lifestyle Equities CV and another v Ahmed and another was heard by the Court of Appeal (Civil Division), and judgment was given  by Birss LJ on 7 May 2021.

The matter arose from a trademark dispute. The claimant brought proceedings for infringement of registered trademarks and passing off against several defendants. Several of the defendants were companies but Mr and Ms Ahmed were also named as defendants. They were directors of two of the defendant companies.

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