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

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We've brought together a round-up of some recent litigation cases that may be of interest.

Fundamental dishonesty and QOCS

A judge was entitled to find that a road traffic accident claim was fundamentally dishonest and to apply qualified one-way costs shifting (QOCS) under CPR 44.16. Although the insurer’s defence did not allege fundamental dishonesty, the relevant points were adequately foreshadowed in the defence and sufficiently explored during oral evidence (Howlett v Davies and Ageas Insurance Ltd).

Late acceptance of claimants’ Part 36 offers

Where an action exits the pre-action protocol for low value personal injury claims in road traffic actions, and the defendant accepts a claimant’s Part 36 offer out of time, the claimant can only recover fixed costs throughout. DJ Besford concluded that his previous decision in Sunderland v Khan awarding the claimant indemnity costs for the period of delay was wrong. The Court of Appeal is to consider this question in Hislop v Perde where the claimant recovered costs on the standard basis, and not fixed costs, for the period of delay (Whalley v Advantage Insurance Co Ltd County Court (Kingston upon Hull) 5 October 2017).

Calculating claim form service dates

Where the court makes an order extending the date for service of the claim form, the deadline is not affected by the deemed service date in CPR 6.14. CPR 7.5 applies in that situation as well as where the claim form is served within the four month period. If there was a conflict between this decision and Brightside Group Ltd v RSM UK Audit LLP, Master McCloud disagreed with the earlier decision (Jones v Chichester Harbour Conservancy).

Non-party costs orders

Where a funder in the same group of companies as the claimant was the real party to the litigation and would directly benefit if it succeeded, it was appropriate to make a non-party costs order against the funder. In contrast, it will not be appropriate to make such an order simply because the funder is in the same group and may therefore benefit from the litigation (Montpelier Business Reorganisation Ltd v Jones).

Solicitors’ duties in low value cases

Where solicitors were unable to make a claim for special damages in respect of services in a personal injury claim because the claimant said that there was no evidence to support such a claim and he did not wish to pursue it, they had not acted negligently. The solicitors were not under a duty to try to change the client’s mind where the client was of full capacity; there came a point where his autonomy should be respected. There must be a sensible limit upon what we can expect solicitors to do in high volume, fixed costs cases (Thomas v Hugh James Ford Simey Solicitors).
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