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Qualified one-way costs shifting: defendant can set off against costs awarded to claimant

In Faulkner v Secretary of State for Business, Energy And Industrial Strategy, the Queen’s Bench Division of the High Court considered the Kafkaesque issue of whether a defendant failing to set aside a notice of discontinuance could then rely on that discontinuance to set off its costs (automatic on discontinuance) against the costs order made against it on its failed application. Continue reading

REUTERS | Jorge Silva

Wasted costs against expert

In Thimmaya v Lancashire NHS Foundation Trust and another, a circuit judge made a third party costs order against an expert in the sum of £88,801.68 under section 51 of the Senior Courts Act 1981. The expert, who appeared for the claimant at trial, “was wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case”. As a result, the claimant had to discontinue the case, and the defendant successfully obtained a third party costs order against him. The parties agreed, and the court accepted, that the court’s jurisdiction in such a matter is to be exercised on the same basis as a wasted costs order. Continue reading

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Cuadrilla Bowland Ltd and others v Persons unknown and others has useful practical implications for those considering the terms of prospective injunction proceedings, particularly where the injunction is to prevent behaviour by persons unknown. In that case, the proposed injunction was challenged because its terms were unclear. Continue reading

REUTERS | Amir Cohen

Litigation funders and after the event (ATE) insurers will be carefully reviewing a judgment delivered by Nugee J in the Rowe and others v Ingenious Media litigation because it will affect a number of group claims which, by their nature, rely on funders and ATE to proceed. Continue reading

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Practitioners will be aware that an award of indemnity costs can provide the following advantages to the receiving party:

  • The principle of proportionality is disapplied. Perhaps of greater significance in the era of costs budgeting where prima facie the budget will be disapplied by an award of indemnity costs: see Denton v TH White Ltd; Kellie v Wheatley & Lloyd Architects Ltd and the recent application of the principle by the Court of Appeal in Lejonvarn v Burgess.
  • The paying party must establish that the costs were not reasonably incurred; in other words, the receiving party benefits from a presumption of reasonableness.
  • The award of indemnity basis costs routinely serves to mark the court’s disapproval. Thus, it may have the practical effect of strengthening the receiving party’s hand in negotiations to agree costs prior to assessment.

This blog will consider conduct based applications for indemnity costs. A previous blog considered the position in relation to indemnity awards where the costs are payable under a contract. Continue reading

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Practitioners will be aware that an award of indemnity costs can provide the following advantages to the receiving party:

  • The principle of proportionality is disapplied. Perhaps of greater significance in the era of costs budgeting where prima facie the budget will be disapplied by an award of indemnity costs: see Denton v TH White Ltd; Kellie v Wheatley & Lloyd Architects Ltd and the recent application of the principle by the Court of Appeal in Lejonvarn v Burgess.
  • The paying party must establish that the costs were not reasonably incurred; in other words, the receiving party benefits from a presumption of reasonableness.
  • The award of indemnity basis costs routinely serves to mark the court’s disapproval. Thus, it may have the practical effect of strengthening the receiving party’s hand in negotiations to agree costs prior to assessment.

This blog will consider the position in relation to indemnity awards where the costs are payable under a contract. A second blog will consider conduct based applications for indemnity costs. Continue reading

REUTERS | Regis Duvignau

“I take it that, as a general rule, one may say once privileged always privileged.” This principle, articulated by Sir Nathaniel Lindley MR in the 1898 decision in the case of Calcraft v Guest, is a fundamental aspect of privilege. It is based upon the principle that a client must be free to consult their lawyer in confidence without fear of disclosure. Its importance was explained by Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court ex p B: Continue reading

REUTERS | Kevin Lamarque

In Ramilos Ltd v Buyanovsky, it was held that the statutory regime of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act) limits the courts’ otherwise inherent jurisdiction to make a Norwich Pharmacal order when it comes to obtaining evidence in aid of foreign proceedings. This restriction, however, is one that in our recent experience may have gone unnoticed by some in the legal profession, even though it has important implications for third parties, commonly banks, who are the recipients of such orders. Continue reading