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Procedure

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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Pointless litigation – remedy?

There are three potential ways of tackling meritless litigation:

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Foreign judgment – ‘exceptional’

Under the Brussels Regs (both the old version and the current version) a UK court would normally have to enforce a foreign judgment, without being able to review the substance of that judgment. There are a limited number of exceptions, but the basic thrust of the Regs is mutual enforceability of judgments.

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Costs – group litigation

It can be very difficult to establish who is the ‘winner’ in group litigation. For instance, some of the group claimants who succeed in their claim will feel that they have ‘won’, but the number of those winning parties may be a minority of the larger claimant group (in which case, has the defendant ‘won’?). The answer is that the litigation ‘winner’ will effectively be the side which gets to deposit the other side’s cheque.
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