The Practical Lawyer


Defamation – ‘serious harm’

The common law tests for defamation are very broad, and that is why England was – until recently – known as the defamation capital of the world.

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Security for costs – ATE insurance?

An insolvent (or impecunious) claimant may well take out an ATE insurance policy to cover the potential costs liability in their claim. The alternative would be to face a security for costs application, and then have to pay cash into court or produce a bank guarantee. It was thought that a valid ATE policy would suffice, and therefore defeat a security for costs claim. However, the CA, in an important decision, has held that that is not the case.

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Litigation funders – cap on costs?

For many years, litigation funders have been able to claim a cap on their costs liability. This dates from Arkin [2005] in which the costs liability was capped at the amount invested by the funder. In that case, the funder had invested £1.3m to cover the costs of expert evidence, but the overall unpaid costs were £6m. It was held that the maximum costs liability was £1.3m.

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CFA – transferrable

A solicitor’s retainer under a CFA can be validly transferred from one law firm to another.

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Malicious prosecution – civil claim?

We always think of malicious prosecution in terms of criminal cases. But, what is the position with civil claims? Is it right to leave a defendant without redress if they have been sued by a claimant who acted maliciously, or on the basis of a legitimate purpose (eg fraud)?

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Pre-action disclosure – insurance policy?

To what extent is a (potential) defendant’s insurance disclosable? In other words, can a potential claimant seek pre-action disclosure of the policy from the insurance company? The answer will generally be, no.

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Part 36 – provisional assessment cap?

When a detailed assessment is commenced, with total costs claimed of £75,000 or less, there will be a provisional assessment done on paper. There is then a cap of £1,500 on costs.

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Partner – departures

Many firms now have a ‘compulsory retirement’ provision in their partnership (or LLP) agreement, allowing partners to be dismissed on notice without involving the whole partnership. Ideally, the agreement will also set out the precise powers that are delegated to the partner (or committee) dealing with dismissals, as well as any possible appeal mechanisms.

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Costs budgets – intro

The key to costs budgeting is 3.18 which says that when assessing costs on the standard basis, the court shall not depart from the last approved or agreed budgeted costs (unless there is good reason to do so). Thus, costs will be awarded on the basis of what is in the approved or agreed budget – that is what should be paid (rather than simply being the maximum that can be paid).

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Litigation funders – privilege?

Are discussions and negotiations with a litigation funder privileged? There is conflicting authority on the point.

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