The Practical Lawyer

Home
About
CPD
Subscribe
Contact
Procedure

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).

Subscribers only...
 

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.

Subscribers only...
 

Pointless litigation – remedy?

There are three potential ways of tackling meritless litigation:

Subscribers only...
 

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.

Subscribers only...
 

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.
Subscribers only...
 

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.
Subscribers only...
 

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.

Subscribers only...
 

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.

Subscribers only...
 

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.
Subscribers only...
 

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?

Subscribers only...
 


Page 10 of 46

Most-read articles

Constructive trusts – property
Wednesday, 12 September 2018
The author gives a helpful analysis of a ruling following a claim to establish a constructive trust or proprietary estoppel in respect of a domestic property. The deceased died intestate while living... Read more...
Professional negligence – adjudication
Wednesday, 12 September 2018
The Professional Negligence Adjudication Scheme is run by the Professional Negligence Bar Association. It offers a voluntary ADR procedure, modelled on the adjudication system in construction... Read more...
Waste – L’s liability
Wednesday, 12 September 2018
Ls should be aware of the environmental enforcement obligations that may be incurred as a result of T’s activities. Read more...
Part 36 – late acceptance
Wednesday, 12 September 2018
If a Part 36 offer is accepted out of time (ie outside the 21 day period) in a low value protocol case, then what are the costs consequences? In particular, does late acceptance mean a liability to... Read more...
HMOs – new rules
Wednesday, 12 September 2018
The definition of house in multiple occupation (HMO) changes on 1 October 2018. The new definition covers properties occupied by five or more people, comprising two or more separate households. Read more...
Energy efficiency – reassessment by T?
Wednesday, 12 September 2018
The Energy Efficiency (MEES) Regs mean it is no longer possible to grant new leases to properties with an EPC of F or G. Moreover, existing lettings of F and G properties will become unlawful from... Read more...
Knotweed – nuisance
Wednesday, 12 September 2018
Last year, we had county court claims in Cardiff and Truro in which it was held that the encroachment of Japanese knotweed would be actionable as a ‘private nuisance’. The Cardiff cases have now... Read more...
Procedure – expert witnesses
Wednesday, 12 September 2018
Expert witnesses must comply with court rules and related guidance appropriate to their area of expertise. New guidance for paediatric expert witnesses in family proceedings has now been issued. Read more...
Self-employed – or worker?
Wednesday, 12 September 2018
The Pimlico Plumbers case was seen as a victory for workers in the gig economy, with the Supreme Court looking at the reality of the relationship (rather than the legal labels attached). So, what... Read more...
Offences – mens rea
Wednesday, 12 September 2018
This was a pre-trial appeal of a ruling at a preparatory hearing. The two appellants (A) faced charges under s17 Terrorism Act 2000 of sending money overseas, or arranging to do so, knowing or having... Read more...

Resources

IAG International
MSI Global Alliance
www.totallylegal.com
Join the IBA now!
In House Lawyer