A round-up of recent cases for May 2019

Published on
2 min read

We look at the latest cases for May 2019 including disclosure under the new pilot, Part 36 offers, a claim against Mastercard and funders' liability.

Costs and witness evidence

The court has held for the first time that costs can be awarded in a foreign currency. It also ordered the parties to identify in their statements of case the facts which they intend to prove by witness evidence, in line with one of the proposals made in the ongoing review of witness evidence under Popplewell J (Cathay Pacific Airlines Ltd v Lufthansa Technik AG).

Disclosure under the new pilot scheme

Where an order for disclosure was made before 1 January 2019 in proceedings in the Business & Property Courts, the new disclosure pilot scheme rules in Practice Direction 51U apply.  The court will interpret the rules in a way that makes them work effectively in such cases.  PD 51U introduces a change of culture and places importance on reasonableness and proportionality.  Disclosure should not be used as a tactical weapon (UTB LLC v Sheffield United Ltd).

Part 36 offers

The Court of Appeal confirmed the validity of a Part 36 offer made by a defendant which covered the claim and a counterclaim that had not yet been pleaded, and provided for interest to accrue at 8 per cent per annum after expiry of the relevant period (Calonne Construction Ltd v Dawnus Southern Ltd).

Class actions

The Court of Appeal set aside the Competition Appeal Tribunal’s decision refusing to certify a £14 billion opt out consumer claim by 46 million claimants against Mastercard as “collective proceedings” under the Competition Act 1998.  The claim is the largest in English legal history and one of the first cases brought under the Consumer Rights Act 2015, which provides for opt-out collective proceedings on behalf of a class of individuals. The application for certification was remitted to the CAT for a re-hearing (Merricks v Mastercard Incorporated).

Funders' liability for costs

The Court of Appeal’s decision in Arkin v Borchard to cap a funder’s liability to the extent of the money it was providing is a means of achieving a just result but there is no subsequent authority to indicate it is a cast-iron rule. Having held that the claimant was liable to pay the two defendants’ costs on the indemnity basis, the judge made a non-party costs order against her funder for the full amount of the defendants’ costs, claimed at £7.5 million for each defendant (Davey v Money). 

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