The Practical Lawyer


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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Illegality – no blanket ban

Traditionally, our courts have taken a very strict approach to illegality: ‘no court will lend its aid to a man who founds his cause of action upon an illegal or immoral act’ (1775). So, as a matter of public policy, we have long taken the view that illegality will always be a defence to a civil claim.
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Evidence – covert recordings

Covert recordings of conversations between business parties will usually be admissible as evidence at trial.

There is no rule specifically prohibiting covert recording, but it will be treated as ‘hearsay evidence’ (ie a statement made otherwise than when giving oral evidence in the course of the proceedings). This means that notice must be served on the other side of the intention to adduce this hearsay evidence. Note that while there is no specific power for the court to exclude evidence on the basis that it was improperly or unlawfully obtained, the court does have a discretion to exclude evidence in order to achieve the overriding objective of cases being dealt with justly and at proportionate cost. Dealing with cases justly includes ensuring that the parties are on an equal footing and that the case is dealt with fairly and expeditiously.

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Part 36 – update

Two points to note about Part 36 offers:

Exclude the interest: in working out whether a judgment is at least as advantageous as a Part 36 offer, you have to adjust the judgment sum to eliminate interest accruing after the date for acceptance of the offer. For instance, a Part 36 offer was for £516,000 inclusive of interest. The court awarded £470,000 plus interest, being a total of £519,000. But had the Part 36 offer been beaten? The answer lies in the fact that a Part 36 offer is deemed to include all interest up to the ‘relevant’ date (ie expiry of the time for accepting the offer). If the judgment sum covers interest after that date then you have to deduct the extra interest when making the comparison. Thus, in this case the offer had not been beaten.

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Procedure – LIPs

The problems that can arise where there is a litigant in person (LIP) have often attracted judicial comment and warnings. In this recent CoP case, a litigant in person (Mr Fitzgerald) caused major problems, including making a misconceived and meritless application for committal of a private client lawyer for alleged contempt of court. An extended civil restraint order against Mr Fitzgerald for two years had previously been sought by that lawyer, and the statutory requirements for the making of such an order had been satisfied.
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Costs security – secretive defendant


It is possible to get a security for costs order against a claimant company if ‘there is reason to believe that it will be unable to pay the defendant’s costs’ (CPR r25.13.(2)(c)). But, what if the defendant simply cannot get information about a claimant’s finances – in that situation, how can the defendant go to the court and say it has ‘reason to believe’ that the company will be unable to pay the costs?

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