The Practical Lawyer


Contingency fee – DBA upheld

We have the first case in which the court has approved, and enforced, a pure contingency fee agreement (often referred to these days as a DBA – a damages-based agreement).

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Statement of truth – SDT implications

An experienced solicitor used old client signatures on a revised particulars of claim. He had originally acted on behalf of three claimants and they had all signed a statement of truth in 2012. Subsequently, one withdrew but the solicitor issued new proceedings using the old documents (Tipp-Exing out the reference to the ‘first claimant’). Thus, he submitted the new particulars of claim on the basis that they had been signed by the other two claimants and it was therefore argued that his statement of truth was false. He argued that it was common for signatures to be taken at an early stage and then used at a later stage, and that was all he had done. The court disagreed and the case was struck out.

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Admission – costs?

If an admission has been made that takes a fast-track case into the small-claims track, should the defendant pay fast-track costs up to the date of the admission, or up to the date of the judgment?

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QOCS – Part 36 offer?

Since the introduction of qualified one-way costs shifting (QOCS) defendants have begun seeking ways to try to recover their costs when they would not otherwise be recoverable. One of the methods currently being tried is to make a Part 36 offer on the basis that beating a Part 36 offer will entitle the defendant to all of its costs, assessed on the standard basis.

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PI insurance – third-party loans

The Supreme Court has held that a solicitor’s PI insurance policy does not cover liability to a third-party funder who has made loans to the solicitor’s clients, so those clients could then pay their litigation disbursement. The Supreme Court held that this liability fell within the exclusion for ‘debts and trading liabilities’, disagreeing with the CA, which had taken the view that disbursement loans were inherently part of a solicitor’s professional practice. Impact Funding v AIG [2016] UKSC 57.


Costs budgets – two procedures

Practitioners are currently having to cope with two different costs budget regimes – one for proceedings commenced between 22 April 2014 and 5 April 2016, and the regime for proceedings commenced on or after 6 April 2016.

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Security for costs – update

Two unrelated points on security for costs against a defendant:

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Norwich Pharmacal – no foreign jurisdiction

A Norwich Pharmacal order is made against a third party (ie someone who is not party to the main litigation, but who has been innocently caught up in the wrongdoing). The Norwich Pharmacal order will require the disclosure of documents or information that may be evidence of that wrongdoing.

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Failure to mitigate – plead

Defendants will often overlook the need to plead a claimant’s alleged failure to mitigate loss, and then seek to raise the issue at trial. A quick-thinking claimant should object to the issue of failure to mitigate being put to the claimant in cross-examination, or referred to in closing submissions, if the issue has not be pleaded (or if there has been no express notice prior to trial that the argument would be raised).

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Changing experts – risks

If you decide to engage in a bit of ‘expert shopping’ then there is a strong likelihood that you will be ordered to disclose your previous expert’s report. Moreover, a recent case shows that even if it is not expert shopping, the court may exercise its general discretion and still order you to disclose the earlier report.

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