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Procedure

Disclosure – third-party review?

If you don’t think the other side has observed the disclosure rules, is it possible to ask for an order that their disclosure be reviewed by a third party (eg independent solicitors or counsel)?

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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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Most-read articles

Trustees – duty to beneficiaries
Wednesday, 11 July 2018
Trustees cannot simply ignore beneficiaries’ request for information about a trust, the High Court has held. In this case, the trust property was a farm outside Cardiff. Read more...
Conveyancing searches – disbursements?
Wednesday, 11 July 2018
Should electronic property searches be treated as disbursements for VAT purposes? Alternatively, are they part of the legal service provided, and so subject to VAT? Read more...
Professional – update
Wednesday, 11 July 2018
From December 2018 there will be new rules requiring firms to publish prices for conveyancing, probate, motoring offences and immigration, as well as the price for bringing ET claims.  Read more...
Service mistake – discretion?
Wednesday, 11 July 2018
To what extent do you have a duty to point out the other side’s procedural errors (as part of your obligation to comply with the ‘overriding objective’)? Read more...
Exiting the Portal – reasonable
Wednesday, 11 July 2018
Insurers should be very careful about making allegations (for instance, at Stage 2 of the EL/PL Protocol), especially if they could be interpreted as allegations of ‘dishonesty’. Read more...
Airbnb – breach of lease
Wednesday, 11 July 2018
It now seems clear that an Airbnb short let will be in breach of a typical long lease. Read more...
GDPR – data rooms
Wednesday, 11 July 2018
If L is planning to sell a property subject to leases, then almost certainly a data room will be set up containing all relevant documents. Read more...
Rights of way – public
Wednesday, 11 July 2018
There are four categories of public rights of way: Read more...
Financial remedies – company assets
Wednesday, 11 July 2018
A recent ruling illustrates when a court can treat a company-owned asset as as a matrimonial asset. Read more...
GDPR – references
Wednesday, 11 July 2018
GDPR impacts on the giving of references: Read more...

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