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Procedure

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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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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