A round up of some recent litigation cases - January 2023

Miranda Whiteley rounds up some recent litigation cases that may be of interest.

Expert shopping

The court rejected an allegation of “expert shopping” against the claimant university – where a party seeks to replace a less favourable opinion obtained from one expert with a more favourable opinion from another – since the claimant had already given extensive disclosure of its previous experts’ reports and instructions.The judge refused to impose a condition of disclosing draft reports and attendance notes which is only appropriate where there is strong evidence of shopping (University of Manchester v John McAslan & Partners Ltd & Laing O'Rourke).

Limitation defence

A service provider's right to payment arises as soon as their work is done unless clear words provide that the right to payment arises later. The six year limitation period will run from that date. The parties had agreed that invoices would be paid within 90 days, not that payment would not fall due until the 90th day. Affording time to pay did not postpone the accrual of the cause of action, although it might afford a defence to a claim brought before the credit period expired. The Court of Appeal confirmed the decision below that the claim for unpaid invoices was time-barred (Consulting Concepts International Inc v Consumer Protection Association (Saudi Arabia)).

Settlement agreements

The Court of Appeal upheld a decision that the release settling “all and any claims” between the parties, whether or not known to them at the time, covered fraud, dishonesty and conspiracy. The judge had rightly placed particular weight on the formal and high quality drafting of the text. The circumstances left little scope for a finding that one of the parties was guilty of sharp practice (Maranello Rosso Ltd v Lohomij BV).

Part 36 offers

Where a Part 36 offer is served by email without agreement, this does not invalidate the offer unless the court decides otherwise. The court can remedy the error under CPR 3.10 – see London Trocadero (2015) LLP v Picturehouse Cinemas Ltd. The offer in this case was accordingly valid (Coldunell Ltd v Hotel Management International Ltd).

Expert evidence

An expert witness may give factual evidence as to historical events, past economic circumstances, or social and political conditions where this is likely to assist the efficient determination of the case (for example, to avoid  calling several factual witnesses).  Experts often educate the court in technical or scientific matters and can also collate and present the knowledge of others in their field of expertise. The decision in Darby Properties Ltd v Lloyds Bank plc that evidence of fact falls outside CPR 35 was wrongly decided (Declan Colgan Music Ltd v UMG Recordings Inc).

Service by email

The court distinguished the Administrative Court decision in R (Tax Returned Ltd & Ors) v Commissioners for His Majesty's Revenue and Customs that an agreement to accept email service specifying more than one email address does not comply with PD 6A.4.1. That decision produces an unfortunate and unjust outcome in commercial cases and is being considered by the Civil Procedure Rules Committee. Nor is a failure to inquire about limitations on email service, such as format and size of attachments, fatal. Where a solicitor is on the record and signals acceptance of service by electronic means without providing any limitation, it is reasonable to infer that there are no limitations that are out of the ordinary (Entertainment One UK Ltd v Sconnect Co Ltd).

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