The Practical Lawyer


Denton – relief from sanctions

Mitchell [2013] was solved by the CA intervention in Denton [2014] for deciding when to grant relief from court-imposed sanctions (eg being struck out). In that case, the CA laid out a three-stage test: (i) the seriousness of the breach, (ii) whether there was a good reason for the breach, and (iii) the overall circumstances of the case.

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Negligence – mitigation

Solicitors acted on the purchase of a residential property. They forgot to tell the client there was a planning restriction. The client subsequently found the land was therefore worth £100,000 less. In response, the solicitors pointed out that the client immediately applied for planning permission and got the restriction lifted (the only cost being a planning fee of £250). Are the solicitors liable for £250 or £100,000?

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Fixed costs – Part 36 prevails

In an important decision, the CA has decided that Part 36 trumps the fixed costs regime (in Part 45). Previously, defendants had argued that claims begun in the portal should only get fixed costs, whatever the outcome. That approach is wrong.
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Part 36 – derisory offer?

A Part 36 offer is only valid if it is a ‘genuine attempt to settle the proceedings’. Is an offer to accept 95% of assessed damages (ie forego 5%) a ‘genuine’ offer or is it merely ‘derisory’? In AB [2011] Henderson J drew a distinction between a genuine offer, as opposed to a ‘likely disguised request for total capitulation’. Thus, a request for a defendant to agree to 100% of the damages sought was not an ‘offer to settle’ – since an offer has to contain some genuine element of concession. Thus, in the context of an RTA claim, a 95% offer was ‘derisory’.
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Tender before action – liquidated claims

The defence of tender before claim is common law based. In essence, the defendant has unconditionally offered the amount due to the claimant. For this defence to apply, the defendant must comply with CPR 37.2, which requires the defendant to pay into court the amount originally tendered (otherwise the defence cannot be relied on).

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Exclusive jurisdiction – drafting

 It is usually advisable to have an exclusive jurisdiction clause since this brings certainty and avoids potential disputes. If it is agreed that the courts of England and Wales are to have exclusive jurisdiction then consider:

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Costs – failure to mediate

We are all familiar with the concept of a successful party being penalised for costs because of a refusal to mediate. But, we now have a costs penalty being imposed on a losing party who failed to mediate.

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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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