A round-up of some recent litigation cases – August 2017

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A round-up of recent cases on topics including late acceptance of Part 36 offers, changing experts, breach of standstill agreements and third party claims against insurers.

Late acceptance of Part 36 offers

The general rule under Part 36 is that if an offer is not accepted in time, the offeree bears the costs of the offeror until the offer is accepted. The Court of Appeal said that it was important not to undermine that purpose even where there was uncertainty regarding the claimant’s prognosis in an injury claim. The position is different if the offeree can demonstrate that the general rule would cause injustice but it is not enough to show that it was difficult to form a view on the likely outcome (Briggs v CEF Holdings Ltd).

Changing experts

It is not compulsory to impose the condition of disclosure of previous reports although that will usually be the order where a party needs the permission of the court to rely on a new Part 35 expert Vilca v Xstrata Ltd – see our briefing. For your eyes only – expert advice and the risk of disclosure.

Litigants in person and LLPs

A limited liability partnership of solicitors that acted for itself in proceedings was not a litigant in person under CPR 46.5 and was not therefore limited in its recovery of costs (Halborg v EMW Law LLP).

Access to justice

A claim by a small and medium sized enterprise against a government-owned company would not be transferred from the Intellectual Property Enterprise Court (IPEC) with its capped costs regime to the general Chancery Division. The case could be determined within the IPEC’s streamlined procedure and transfer would be likely to block the claimant's access to justice (77m Ltd v Ordnance Survey Ltd).

Breach of standstill agreement

The claimant issued proceedings without giving notice as required by the parties’ standstill agreement. The court rejected the defendant’s case that this was a repudiatory breach of the agreement so that the claimant couldn’t rely upon the agreement to suspend time for limitation purposes. The notice provision was not a condition precedent and any breach of it did not therefore disentitle the claimant from benefiting from the limitation suspension (Muduroglu v Stephenson Harwood – see our briefing on The pros and cons of standstill agreements).

Third party claims against insurers

The Third Parties (Rights against Insurers) Act 1930 continues to apply where both the insolvency event and the damage giving rise to the liability occurred before 1 August 2016. The new Third Parties (Rights against Insurers) Act 2010 does not apply retrospectively nor does it run in parallel with the 1930 Act. Liability is incurred for the purpose of the 2010 Act when damage is caused thereby completing the cause of action, and not when liability is established by judgment or otherwise (Redman v Zurich Insurance Plc).

Section 2 of the 2010 Act provides a mechanism for establishing the existence of the claimant’s rights under section 1. The claimant does not have to establish that there was valid coverage under the insurance policy to activate section 2. Where relevant, it is up to the insurer joined as a defendant to decide whether it wishes to seek a declaration or to have coverage determined as a preliminary issue (BAE Systems Pension Funds Trustees Ltd v Royal & Sun Alliance Insurance Plc).

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