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Procedure

Litigation funders – privilege?

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

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Security for costs – ATE policy?

Security for costs may be ordered against a claimant company, if there is reason to believe that it would be unable to pay the defendant’s costs if ordered to do so (CPR 25.13). This deterrent is often used when claims are brought by companies in administration or liquidation (and it plainly provides a major barrier to claims in such cases).

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Costs – proportionality

Under CPR 44.3(5) costs are ‘proportionate’ if they bear a ‘reasonable relationship’ to:

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Witness statement – office holder

The Chancery Guide makes it clear that witness statements should be ‘confined to facts of which the witness can give evidence’, and should not ‘provide a commentary on the documents’ or engage in ‘submissions about the issues’.

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Damages – loss of interest

The FTT has held that damages for loss of interest are themselves interest – and therefore taxable as income.

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Damages – wasted expenditure

It may be possible to claim ‘wasted expenditure’ as an alternative to ‘loss of profits’ (which may be prohibited by an exclusion clause). This depends upon there being some non-financial benefit that has been lost (as opposed to a pure ‘loss of profit’).

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Defamation – forum shopping

Parliament’s clear intent in the 2013 Defamation Act was to raise the bar to libel actions in England and Wales; in effect, to stop forum shopping, whereby a publication with limited distribution in this country could result in a meaningful defamation claim. Accordingly, s1 introduced a requirement that publication must have caused, or was likely to cause, ‘serious harm’ to the claimant’s reputation.

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Service – on solicitors

Service may only be effected on a solicitor if;

the defendant has given in writing the business address of a solicitor as an address at which they may be served (even if the solicitor does not know or has not really been instructed); or

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Privilege – accidental disclosure

What happens if a document that has legal professional privilege is accidentally disclosed to the other side? Given that large-scale disclosure can involve millions of documents, it is more or less inevitable that there will be a few privileged documents that are accidentally disclosed. What happens?

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Filing – e-mail or fax

The default position under the CPR remains that correspondence should be via the post. If you want to use e-mail or fax then there are clear pitfalls to avoid (and you need to carefully check the PD to Part 5):  

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