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Procedure

Settlement agreement – how wide?

When drafting any settlement agreement, consider whether it is wider than it needs to be. For instance, does it cover unknown claims (as well as known claims), and does it cover future claims that have not yet arisen (as opposed to present claims that already exist)?

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Ceasing to act – permission?

Suppose you validly terminate the retainer with the client. Do you still owe duties to the court (eg to incur costs and represent the client) until such time as the court gives you permission to withdraw?

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Debt claims – Protocol 13

Protocol 13 (in force since October 2017) provides extra administrative hoops for creditors to jump through before starting court proceedings.

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Business – Shorter Trials Scheme

The Shorter Trials Scheme has been described as ‘litigation for adults’. It has been used in the Rolls Building since October 2015 (Practice Direction 51N applies).

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Part 36 offer – vary or withdraw?

Be wary of withdrawing a Part 36 offer. It will usually be better to vary or change the offer.

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FTT – appeals

The time limit for appealing an FTT decision is 28 days from when ‘the tribunal’ sends notification of its decision, or the written reasons.

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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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