A round-up of some recent litigation cases - November 2018

A round-up of some recent litigation cases that may be of interest to you.

Costs budgets and sanctions

Where the claimant’s lawyers genuinely but negligently thought it was acceptable to file a budget in an injury claim without completing the trial preparation and trial phases, sanctions were appropriate. They anticipated that a second case management conference would have to take place to give directions for further experts and trial, and that the rest of the budget could then be approved. The appropriate sanction was to apply CPR 3.14, which limits costs recovery to court fees, to the missing phases and not to the earlier phases of the budget (Page v RGC Restaurants Ltd). 

Witness statements

The claimants’ application for a preliminary issue failed and the judge assessed the costs of the application. He disallowed half of the cost of the defendant’s solicitor’s witness statement on the ground that it did not comply with the Chancery Guide: witness statements should only include issues of fact that are within the knowledge of the deponent, should not recite documents which are otherwise in evidence and should not include legal argument. The statement failed on all three grounds (Binstead v Zytronic Displays Ltd). 

Failure to pay correct issue fee

The judge refused to follow Lewis v Ward Hadaway and Bhatti v Ashgar and commented that the Court of Appeal needs to resolve the conflicting first instance decisions concerning court issue fees. In his words, where the abuse of process in paying too low an issue fee is not egregious and has no impact on the timing of the issue of the claim then it would be wrong in principle to permit the provisions of the Limitation Act 1980 to be deployed as a tool of retrospective and disproportionately draconian discipline (Atha & Co Solicitors v Liddle). 

Withdrawal of admission

The court allowed the defendants to amend their defence to withdraw an admission made six months earlier that a replacement rather than a repair scheme was appropriate to remedy defective buildings works under a building contract. The admission had been made at a time when both schemes had been costed at around £3 million but, given that the costs for the replacement scheme had risen to £9 million, the defendants would suffer substantial prejudice if they were unable to withdraw the admission (Wharfside Regeneration (Ipswich) Ltd v Laing O'Rourke Construction South Ltd). 

Discontinuance and indemnity costs

Where claimants discontinued their case without explanation four days into a six-week trial, it was appropriate to order them to pay indemnity costs, because their conduct took the case "outside the norm". The claimant liquidators had aggressively pursued high-risk litigation in the UK after failed attempts in other jurisdictions. The judge commented that they had intentionally used the court as an anvil for settlement, not for adjudication. Such conduct was characterised as being close to an abuse (Hosking & Anor v Apax Partners LLP). 

Vicarious liability

The Court of Appeal has made findings of vicarious liability in two recent cases concerning an employee's wrongful conduct outside the workplace and outside office hours. The relevant question here is whether the wrongful conduct was within the field of activities assigned by the employer to the employee (Bellman v Northampton Recruitment Ltd and WM Morrison Supermarkets Plc v Various Claimants).

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