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Procedure

Discovery – data protection request

Litigators are increasingly seeing subject access requests made under Data Protection Act 1998. This use of SARs is a tactical ploy – using the 1998 Act as a way of putting pressure on the other side to disclose documents that would not otherwise be disclosable in the litigation.

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Damages – Wrotham Park

Wrotham Park damages are traditionally awarded for breaches of property restrictive covenants. They deal with the situation in which the innocent claimant has been prejudiced by the defendant’s breach of contract, but where it is difficult to assess loss (eg a single dwelling has been converted into two dwellings, in breach of a restrictive covenant). In that situation damages will be based on the amount that the parties would have hypothetically agreed, on an objective basis, as the sum to be paid for the defendant to be released from the covenant.

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Part 36 – currency movements

To what extent should currency movements be taken into account when deciding whether a Part 36 offer has been beaten? In the same way that there is currently debate about whether currency movements should be taken into account on costs orders, so there is confusion about whether currency movements should be taken into account when deciding whether a Part 36 offer has been beaten.

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Costs – currency movements?

Suppose a case involves foreign claimants who pay their solicitors’ costs, and subsequently get an order for costs from the other side – by which time the value of sterling has altered significantly. The end result is that the foreign company may not get a full indemnity for the costs it has already paid to its own solicitors. Should that currency differential form part of the costs claim (to be paid by the other side)?

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Want of prosecution – re-born?

Most commentators thought that the court’s power to strike out a claim for want of prosecution disappeared in 1999, when the CPR replaced the old RSC. But, judicial intervention (and re-interpretation) means that strike out for want of prosecution is now back in no uncertain terms:

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Defamation – UK damages

Not so long ago, a foreign claimant was able to sue in the UK if there had been a single example of ‘publication’ in the UK, and then recover damages based on the worldwide defamation.

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Witness – out of jurisdiction

  A reminder of the basic procedures available for securing witness evidence from a witness abroad:

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Costs – non-compliance

One of the trends of 2016 was to move the pendulum back towards judicial intolerance for failure to comply with orders. For instance:

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Affidavit – not signed

The defendant filed an affidavit which he had sworn – but not signed.

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Costs – J Codes

  J Codes form an essential part of the pilot scheme that has been voluntarily in place since October 2016. In essence, the J Codes are simply lists of codes under which to record work that is done within the Precedent H hierarchy (with the codes being divided into phases, tasks and activities). The fee-earner simply selects the right item from a drop-down menu, and that data can then be exported straight into a costs budget.

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