A round-up of some recent litigation cases

As usual, we've brought together a round-up of some recent litigation cases that may be of interest to you.

Deliberate non-compliance with court orders

Where insurers had failed to serve expert medical evidence in compliance with an order, it was appropriate to debar them from relying on such evidence. There had been an element of tactics in the refusal to serve the evidence, since the insurers had taken advantage of the delay by carrying out surveillance of the claimant. Parties who deliberately fail to comply with court orders for tactical reasons do so at their own peril. They cannot rely on the fact that the other side has not pressed for any particular sanction (Dass v Dass).

Late acceptance of defendant’s Part 36 offer

CPR 36.11(6) entitles a claimant to be paid a sum offered under Part 36 within 14 days of its acceptance whether or not an agreement has been reached as to the costs payable by or to him in consequence of late acceptance. The sum offered cannot be set-off against any cost liability the claimant might subsequently be assessed to have to the defendant, although the mutual costs liabilities can be set-off (Cave v Bulley Davey).

Judicial encouragement of settlement

Where the parties, one of whom was a litigant in person, were encouraged by the judge to compromise the action, this was not in breach of Article 6 of the European Convention on Human Rights nor was the resulting consent order vitiated by duress or improper pressure by the judge to settle the case. In any event, the applicant litigant in person affirmed the agreement by his subsequent insistence on the performance of its terms by the other party and thereby waived any deficiency in the proceedings (Watson v Sadiq).

Pre-action disclosure and arbitration

The court does not have jurisdiction to make an order under CPR 31.16 for pre-action disclosure where the dispute between the parties will be decided in arbitration. In the present case, the court found that there was an arbitration agreement between the parties despite the fact that the agreement depended upon the exercise of an option. The fact that a dispute resolution clause requires the parties to go through the various other dispute resolution approaches before arbitration does not prevent it from being an arbitration agreement under the Arbitration Act 1996 (Mi-Space (UK) Ltd v Lend Lease Construction (EMEA) Ltd).

Payments on account

The new wording in CPR 44.2(8) creates a presumption in favour of making an order for payment on account of costs when they will be subject to detailed assessment. Absent good reasons, an order should now be made in all cases (Grupo Hotelero Urvasco SA v Carey Value Added SI).

Acceptance of Part 36 offers after trial

Where the claimant withdrew his Part 36 offer after the trial but before judgment was handed down, he was still entitled to CPR 36.14 costs consequences. It had been unnecessary to withdraw the offer since CPR 36.9(5) requires the parties’ agreement to acceptance of a Part 36 offer in these circumstances. The fact that the claimant had not provided the defendant with requested details of his costs was not a ground for depriving him of the CPR 36.14 costs consequences. Nothing in CPR 36.2 requires details of the costs of the party making the offer to be included in the offer or to be supplied (Mehjoo v Harben Barker).

Costs budgets under Practice Direction 51G Pilot

A party seeking to increase their budget must apply for approval – filing a revised budget is not enough. A formal application should be made immediately it becomes apparent that original budget costs have been “significantly exceeded” or “exceeded by more than minimal amount”. The costs management order should be the starting point for assessment even where an order for indemnity costs is made (Elvanite Full Circle Ltd v AMEC Earth & Environmental (UK) Ltd).

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