The Practical Lawyer


High Court – business and property

The High Court is creating a Business and Property Courts division by merging the Commercial Court (including the Admiralty Court), the Technology and Construction Court, and Chancery Division.

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Holiday bugs – strict liability

There are those who see holiday bug claims (ie claims for holiday sickness and food poisoning) as the perfect replacement for whiplash. Indeed, the SRA is so concerned that it has asked a dozen of the leading firms to prove that they are not paying referral fees for this work.

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Part 36 – indemnity costs?

Is there an entitlement to indemnity costs when there is late acceptance of a Part 36 offer?

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Part 36 – nominal damages?

Who is the ‘unsuccessful party’ where the defendant admits liability in a £15m claim, rejects the claimant’s Part 36 offer of £1.5m, but then the defendant only recovers nominal damages of £2?

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Costs budgets – detailed assessments?

Even the committee that updates the CPR cannot agree on whether costs budgeting fetters the powers and discretion of the court’s judge at a detailed assessment. As the committee reported recently: ‘on the one hand there is a view that if costs are claimed at or below the figure approved or agreed for that phase of the budget, then they should be assessed as claimed without further consideration… There is a contrary view that the costs judge’s powers and discretion are not fettered by the budgeted figure… and the budget is but one factor to be considered’.

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Motor insurance – ‘use’?

A fitter used the company’s workshop to do some welding on his car (which had failed the MOT). Needless to say, an errant spark caused a fire, which resulted in £2m worth of damage to the buildings. The property and public liability insurers paid out, but then sought to recover from the fitter’s motor insurers.

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Insurance – late payment damages

Since 4 May 2017, insurers have become liable for damages caused by late payment of a valid claim. Previously, there was no legal obligation to pay a valid claim within a reasonable time, but the law has now been changed by Enterprise Act 2016. Thus, there is an implied term in all insurance contracts that the insurer will pay valid claims within a ‘reasonable time’.

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Damages – information or advice?

The Supreme Court has clarified the SAAMCO [1996] decision, which is vitally important in professional negligence cases. In doing so, it has said that many earlier solicitor negligence cases were wrongly decided.

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Proportionality – planning

These are the words of a county court judge in 2001 – they remain equally valid today:

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Protocol – pre-action discovery

Does the fixed costs regime apply to an application for pre-action discovery in a claim which started under the protocol, but is no longer within it? The CA has decided that it does, and that costs will usually be limited to the fixed rates.

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