The Practical Lawyer


Success fee – for insurer?

A property owner sued for subsidence caused by the defendant’s trees. The claim was settled with costs to be assessed. As one would expect, the claim had really been brought by the claimant’s insurers under their right of subrogation, and those insurers instructed solicitors under a collective CFA with a success fee. But, was it right for an insurance company to benefit from a success fee?

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Scottish assets – use Scotland

If you are taking action against a defendant who you think might default with assets, or even become insolvent, then your first thought should be whether you can get a court order securing the assets, so as to give your client security.

One point that is not often appreciated is that if a defendant has assets in Scotland then you can start proceedings in Scotland (even if the underlying cause of action has no link with Scotland). Many businesses have ‘arrestable’ or ‘attachable’ assets in Scotland (even if it only a bundle of trade debts, that can be seized as security).

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Journalist – protecting source

In 2001 the FT published a leaked document about a possible takeover bid. The end result was that the CA ordered the journalist who had received the document to disclose a copy of it (since that would probably indicate the source of the leak).

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Agreement – subject to contract

The High Court has recently held that settlement negotiations which were ‘subject to contract’ and ‘without prejudice’ could be binding.

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Upper Tribunal – no judicial review

The Upper Tribunal (which hears appeals from First-tier Tribunals) is not subject to judicial review by the High Court.

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Protocol – non-compliance

We are all told that failing to comply with a Protocol can be expensive. After all, sanctions include staying the proceedings, costs orders, indemnity costs orders, and the power to award interest of up to 10% over base. However, in practice such sanctions are unlikely.

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Part 36 offer – late acceptance

A Part 36 offer remains open until it is expressly withdrawn.

But, what happens if the Part 36 offer is expressly rejected? As a matter of contract law, if an offer is made and then rejected, then the original offer lapses. Can the same principle be applied to a Part 36 offer (which would mean that it lapsed if it was rejected)? The answer is ‘no’ and the Part 36 offer will remain on the table even it has been unequivocally rejected at an earlier date.

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Payment in – cheque

What is the date of receipt when a cheque is paid into court (ie is it the date the cheque is received by the Court Funds Office, or is it the date the cheque is cleared)?

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Legal advice – not accountant

The High Court has recently confirmed that tax advice given by an accountant is not protected by legal advice privilege. This is because legal advice privilege only applies to ‘legal professionals’, and not to other professionals doing work of a legal nature (eg an accountant doing tax law work).

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Arbitration – exclude right of appeal

The Commercial Court recently held that the words ‘final, conclusive and binding on the parties’ were not sufficient to prevent an arbitration being appealed to the court.

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