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Procedure

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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Litigation funders – update

  A funding arrangement (ie third-party litigation funding) basically offers a risk-free source of finance. If the party is unsuccessful with its claim then it will generally not have to pay anything to the funder.

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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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