Round up of recent cases - July 2019

We round up some recent litigation cases.

Collateral waiver of privilege

Where a party voluntarily disclosed an internal email copied to an in-house lawyer, fairness in the circumstances required it also to disclose the entire chain of discussion by email even though it might include documents that were covered by legal advice privilege. This was so even though the email in question did not disclose any legal advice and was not privileged (R ( v Civil Aviation Authority).

Indemnity costs and CPR 36.17

A company shareholder, who had petitioned for relief on the ground that a director had breached his duties, was entitled to costs on the indemnity basis. The director had delayed for more than two years before accepting a Part 36 offer. He accepted the offer only two weeks before trial, after the shareholder had obtained late disclosure of documents that undermined the director's defence in material respects and damaged his credibility (Rees v Oliver).

Defective service

The Court of Appeal confirmed that a solicitor has no duty to warn their opponent that they are about to make an error in respect of service of proceedings. A solicitor’s duty is to their own client and not to the other side. See by contrast OOO Abbott v Econowall UK Ltd where the parties had negotiated an extension of time for service and there was clearly a misunderstanding between them (Phoenix v Woodward and our briefing).

Part 36 offers

A pre-action settlement offer could not be a valid Part 36 offer because it included a term as to costs. This was so even though the term reduced the costs burden on the offeree. A mere failure to accept a reasonable offer is not enough to justify an order of indemnity costs against the offeree (Knight v Knight).

Extensions of time

A properly constituted application has to be made for an extension of time - informal correspondence with the court can never be a substitute for a formal application (Saint Benedict Land Trust Ltd v London Borough of Camden).

The Court of Appeal set aside service of a claim form out of the jurisdiction where the claimants should not have been granted a second extension of time under CPR 7.6. The court below should not have relied on the fact that the claimant's preparations had been hampered by the defendants’ failure to respond to correspondence. Until proceedings are validly served on a foreign defendant, they are not obliged to respond at all (Al-Zahra (PVT) Hospital v DDM).

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