The Practical Lawyer


Part 36 – varying the offer

The rules on Part 36 offers are complex. One particular point to note is that changing (ie increasing or decreasing) a Part 36 offer is likely to be better than withdrawing the existing offer. The key point is that changing the offer preserves the potential costs protection dating back to the date of the original offer. On the other hand, withdrawing an offer means you lose the previous costs protection.

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Superinjunctions – extinct?

In 2011 there was much publicity about the emergence of a new type of injunction (the prevented ‘superinjunction’) which includes not only the publication of the private information, but the publication of the proceedings themselves. The most well-known cases involved John Terry and Ryan Giggs, both of whom were trying to cover up extra-marital affairs.

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Service – reminders

Some basic points to bear in mind when considering whether there has been valid service of proceedings: 

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Damages – concurrent liability

How should the rules on remoteness of damage be applied if there is concurrent liability (ie there is liability both in contract and in tort)?

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Issue fee – undervaluing the claim

A claimant who deliberately undervalues the claim (and so pays a lower court issue fee) may find the claim is struck out. 

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Late amendments – principles

Mr Justice Fraser has set out a useful summary of the right approach to late amendments:

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Costs – proportionality trumps reasonableness

Master O’Hare has confirmed that ‘proportionality’ trumps ‘reasonableness’. The two are different concepts – and proportionality prevails over reasonableness.

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Defamation – corporations

 A corporation wanting to sue for defamation will have to show (like any other claimant) that it has suffered ‘serious financial loss’. But, what does this phrase mean (given that it was inserted as a last-minute amendment, without much prior debate)?

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Costs budgets – pre-budget costs

The costs-budgeting process applies to costs incurred after the budget has been fixed. This has been interpreted by many as meaning that the court cannot directly challenge costs incurred before the budget was fixed (at the CMC). As such, it has the potential to allow parties to ride rough-shod over the budgeting process.

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Costs budgets – Precedent Q

The principle of costs budgeting is that the court, when assessing standard basis costs, will look at the approved or agreed costs budget for each phase of the proceedings – and not allow more than those figures for each individual phase (unless it can be shown that there is a good reason). The ten phases that apply are set out in Precedent H. 

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