CLIN NEG FUNDING

My good friend , Michael Corner , a man with real litigation funding expertise, has recently launched a new provider.See www.claimfinance.com.
I have assisted and am elated to be on his team!

THE SUPREME COURT ON MITCHELL / DENTON

The Supreme Court , deep breath, in HRH PRINCE ABDULAZIZ BIN MISHAL BIN ABDULAZIZ V APEX GLOBAL MANAGEMENT LTD ( 2014 ) UKSC 64 made it clear that nothing in that decision was meant to impinge upon MITCHELL or DENTON ( see paras 40 and 79) . 

MATT SHEPHERD

Thanks to this bright young man at 9 Gough Square who looked after me when I did a podcast there today .

BLANKLEY

Whilst the Appeal Court decision has not been handed down I understand that the defendant has lost . In other words , loss of capacity by a claimnt does not frustrate a conditional fee agreement . 

INJURY DAMAGES

More than a few claimants lack earnings records and tax returns .
In BROWNE V METROPOLITAN POLICE (2014 ) EWHC ( QB ) 3999 the Judge rejected a substantial claim from the claimant who worked randomly as a minder . The Judge decided that a lump sum of £25,000 was appropriate ( para. 62 ).
The Judge rejected the evidence of the 2 Police officers who had injured the claimant whilst arresting him . At the time Mr Browne was accompanying Noel Fielding who at 10.30 am was  still wearing his stage outfit consisting of dungarees, gold boots and a ladies' checked jacket. At that time his hair was dyed yellow blonde. A case for the fashion police ? 

PETER HURST

After a lengthy 2 month retirement he is back having become a door tenant at 39 Essex Street.
He will be available to arbitrate and mediate on costs issues wherever they might arise.
I am glad he is not going away. 

THE MITCHELL DECISION.

A typically meticulous judgment of Mitting J ( although para. 200 should refer to 24 years not hours ). 

CIVIL PROCEDURE IN THE SUPREME COURT

Surprisingly , the Supreme Court has agreed to hear the RIORDAN case . This was one of the Appeal Court decisions post MITCHELL and pre - DENTON. When should a court vary an existing Order under CPR 3.1 ? 

THE NEW PART 36

We are on schedule for a new set of Rules in April 2015. 

TOP TALENT

Each year I put together a list of barristers and Judges that have impressed me . It is utterly subjective . It is also heartfelt . In no particular order here is my end of year roll of honour .
DAVID PILLING - This Liverpool barrister has a sublime appreciation of the brave new world of portals and fixed costs .
SIMON BUTLER - It is remarkable in these days of specialisation that one man can effortlessly and comprehensively master injury , public law , civil procedure et al. Recommended without reservation. A lovely man too .
ED PEPPERALL QC - This Birmingham silk is red hot on commercial disputes and is also heavily involved in re- writing Part 36 .
ROBERT WEIR QC - Thompsons think very highly of this injury specialist who won COX V MOJ ( which is off to the Supreme Court )
SEAN JONES QC - A stunning employment silk . High Court bench material. His speciality is advising in an area of law where there are just 20 employees  ( Premiership managers hiring and firing ).
DAVID READE QC - Great mix of commonsense and deep legal thought.
ALEX HUTTON QC and NICK BACON QC - A duopoly at the top of costs and funding law .
DR MARK FRISTON - The most senior costs junior who is back in business in January.
ROGER MALLALIEU - A costs junior who is really fast with paperwork and sound in judgment.
WILLIAM FLENLEY QC - A massive , modest talent with an astonishing command of professional negligence .
KATE LIVESEY - Already recognised as a bright young thing at the Professional negligence bar .
STUART McKECHNIE - The King of injury schedules , regularly instructed by pi specialists like Ben Posford .
SHANTANU MAJUMDAR - Chancery and insurance guru . Wine fanatic too.
TURNER J - Not long on the High Court bench but responsible for some searing judgments that have attracted praise from the Appeal Court.
MRS JUSTICE CARR - A certainty for the Court of Appeal.
JACKSON LJ - I admire his courage and integrity in producing dissenting judgments .
HHJ SIMON BROWN QC - So hard working and enthusiastic .

CAB RANK MEDICAL REPORTING .

This latest MOJ creation is in difficulties and I believe implement ration has been put back to April next year . 

IN - HOUSE TALKS !

To the amazement of many , myself included , I have completed my writing obligations for the next 2 months .
This means that I am available to deliver talks before the new season kicks off on 12th JANUARY 2015 .
Hot topics are , predictably , DENTON and getting out of trouble , new litigation tactics , exaggerated  injury claims and Part 36 / settlement .
Do drop me w line if you might be interested ! It is krug79@gmail.com . Thank you . 

PERSONAL INJURY AWARDS 2014

Thanks to the organisers for inviting me along . It was good to meet Geoff Silva at last and to see the whirlwind that is Emma Waddingham in action albeit at a distance.
Please one year could we have a 'comedian ' who  doesn't lazily picks on a member of the audience for a cheap laugh.

VICARIOUS LIABILITY

Just a day after i mentioned COX V MINISTRY OF JUSTICE  the Supreme Court granted leave to appeal so we have 2 big decisions coming ( the Morrisons case should be heard soon ) .

VICARIOUS LIABILITY

The Supreme Court has been sitting for a prolonged period upon the application to appeal COX V MOJ where it was held that the defendant was vicariously liable for injury caused by someone it did not employ ( a prisoner helping in the canteen ).
And the MORRISONS case is to be heard by the Supreme Court soon. Was D liable when an employee ran amok and injured a customer ? 

BLOGS

The fine Stuart McKechnie rightly complained that my writing here has diminished . I promise to restore normal service from now on .
We await the decision of the Court of Appeal in BLANKLEY ; does a CFA lapse of the client loses capacity ?
Monday sees the Mitchell libel actions start under the control of Mitting J . My first con ever was with him. Thoughtful , measured and decent . Why is he not in the Court of Appeal ? 

PROF NEG BAR ASSOCIATION EVENT

I was honoured to be invited to speak to the Association last night . I was very much the also ran after a ripping turn from HH J Hughes QC .
Mrs Justice Carr , a dead cert for the Court of Appeal , ran the show  like the celebrity she is and it was astonishing that so many turned up on a wet November evening ( but they did ).
Thank you to Victoria Woodbridge who is now back at the Bar and raring to go and also Kate Livesey of 4 Pump Court who beguiled me with a tale of  the kindest pro bono fight I have ever heard . 

9 GOUGH SQUARE CHAMBERS

My thanks to this lovely set for allowing me to do a podcast from there today.
It was gratifying to hear that Andrew Ritchie QC has won pi silk of the year . His roommate , the sublime Simon Butler , told me last week what a good man Andrew is . It is a joy when decent people get recognition .
I was relieved to hear that , despite the impact of recent reform , the injury and clinical negligence departments are awash with work . All is not lost .
I am going to the awards dinner at St Paul's on Wednesday evening . Please do say hello if you see me for I still have a dodgy eye and might not see you . 

WINE ! TESCO DEAL ASTONISHING .

The current Tesco promotion which runs for another fortnight is the best I can ever recall.
The deal is buy 4 or more bottles and get 25% off .
Why this is so good is that a number of their wines are already on promotion so you get a discount upon a discount.
At the top of the pile is the utterly reliable Tesco non - vintage Champagne which is fairly priced at £19-99. Well now it is £15-99 so buy it as one or more of any 4 bottles and it comes down to £12 .
A great Spanish red , Carano 2008, is half the usual price of £10 so apply the offer and it is £3-75 , a price below  what production and duty costs .

WINE !

Sean Jones QC in Orlando (!) informs me that Waitrose is running a buy 6 get 25% off deal until next Tuesday. Their Blanc de Blanc Champagne which is £24-99 a bottle has just come top in a big tasting. The big shops , particularly food hall in basement of John Lewis Oxford St, has gems . 

WINE !

Sean Jones QC in Orlando informs me that Waitrose is running a buy 6 get 25% off deal until next Tuesday. Their Blanc de Blanc Champagne which is £24-99 a bottle has just come top in a big tasting. The big shops , particularly food hall in basement of John Lewis Oxford St, has gems . 

MORE GOOD NEWS !

The High Court in THOMAS PINK V VICTORIA's SECRET awarded 90% of the budgeted costs by way of an interim payment . Spot on . My thanks to Catriona MacLeod at Bristows for the info.

GOOD NEWS !

The High Court in CALIENDO V MISHCON DE RAYA has  refused to entertain an argument that success fees are irrecoverable as was suggested in the COVENTRY decision of the Supreme Court. 

COSTS LAW REPORTS CONFERENCE

This was a sold out event last tuesday and proves that the law of costs is very hot territory. The speech delivered by Sir Rupert was illuminating.
With the retirement of Ramsey J who will take on the responsibility of steering future costs reform? One likely candidate is Mr Justice Stewart who , in his previous incarnation as designated civil Judge in Liverpool and then Manchester , had much exposure to serious issues .

CFAS in the Appeal,Court

What happens to an old CFA if the client loses capacity ?
BLANKLEY is listed for 2 days starting on November 10th . Thank you Alex Hutton QC for the info.

THE SENIOR COSTS JUDGE

Today our greatest Costs Judge stood down. After more than 30 years Peter Hurst retired. He is not going away . The word is that he will be be back as a costs mediator / arbitrator . Form a queue now . A lovely, decent and modest man. 

COVENTRY LISTED !

February 9-11 th!
Thank you Nick Bacon QC.

LAURA WILKIN R.I.P.

I am so sad to report that Laura died on Wednesday . She was for years head of know how at Weightmans and was heavily involved with the Civil Justice Council. She was always upbeat and never had a bad word to say about anyone . 

COVENTRY - ANOTHER TWIST !

Given the enormity of the potential issue here it is conceivable that extra Judges will be drafted in to consider the Article 6 argument . We could see 2 or even 4 taken on board.
This is all the more remarkable given that the substantive appeal has been resolved by the initial panel of 5 .
Do look at the blog of my great friend Kerry Underwood  who , despite being in Berlin , is working and producing peerless prose . 

LORD SUMPTION

Contrary to what I supposed , Lord Sumption has never acted under a conditional fee arrangement and so there is no question of him being ineligible to sit if COVENTRY is pursued . My thanks to Ben Wilson at the Supreme Court for the correction. 

DENTON

Here is a link to a note that the lovely Jan Miller commissioned !
http://www.newlawjournal.co.uk/nlj/content/denton-deconstructed

Relief post Denton.

The  decision last week of Warby J in YEO V NEWS GROUP is a textbook example of how to deal with an application for relief.C was 3 months late in serving a notice of funding (N251 ) in a defamation action. The relevant information had been supplied by letter 3 months before issue. D wisely did not object to the application. Relief was granted having regard to the revised Denton test.See paras 140-148 of the judgment. Dead right.

THE COVENTRY DECISION

Here is a link to an excellent and typically thoughtful piece by Anton Smith.
http://abg-law.com/guidance-notes-precedents/

COVENTRY V LAWRENCE

I have just had a chat with an eminent claimant firm which tells me that overnight defendants have stopped paying additional liabilities. This is due to the remarks made by Lord Neuberger in COVENTRY V LAWRENCE.
It might be worth noting that;
1. Parliament legislated for recoverability and more recently again to terminate it ;
2. The extremely thorough Jackson inquisition criticised the logic but not the legality of recovery ;
3. All that the President said was that the paying party might want to make representations;
4. If the complaint is that it is unlawful because of the expense then why would base costs , court fees or any other expenditure not fall into the same basket?

ARE ADDITIONAL LIABILITIES ILLEGAL ( AND IRRECOVERABLE)?

Lord Neuberger has put the ravenous tiger amongst the pigeons in the very recent COVENTRY V LAWRENCE judgmenthttp://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0076_Judgment.pdf
At paras 32-48 inclusive he raises but does not answer a multi- billion pound question.Is it unlawful to require a paying party to stump up  a success fee and ate premium ? Might not these act as a burden such as would meddle with the right to a fair trial and also offend Article 1 to the first protocol (the right to respect for property , here one's  loot )?
The paying party has been given the opportunity to make submissions.
Is is odd that the point was not grasped by the same Judge in TRAFIGURA where the numbers were colossal , a bill just over £100m.
It may well all blow over .Only time will tell.

DENTON PODCAST

I spend an hour at 1pm Friday discussing the detail, a Lips Legal production. Book now ( please). 

DENTON - the key references.

A GUIDED TOUR OF  DENTON V WHITE .
Mitchell was an unimpeachable decision ( paragraphs 9 and 98 ).
Litigants need finality , not procrastination ( para89). The new thinking is that one abides by Orders and then there is a relentless push to trial.
Unless orders should not be flung around but rather confined to circumstances here they are truly necessary ( para 44).
Parties must return to the era of co-operation. The failure to agree sensible extensions and/ or the taking of bad points could result in " heavy costs sanctions " that could impact upon the entire action and not be confined to the specific application itself ( para43).
" Trivial  " is no longer part of the legal lexicon ( para26 ). Rather , the test is whether the breach is serious or significant . If so , one must , as before , look for a good excuse to explain the default ( para30).
The Mitchell examples  of a good reason remain of assistance but are neither exhaustive nor definitive ( para30).
The previous history of the defaulter is irrelevant at the outset. It only enters the equation at stage 3 when one has regard to all the circumstances of the case .
Delay in seeking relief ( see DURRANT ) also comes into play at stage 3 ( para36).
A gulf emerges upon interpreting all of the circumstances at stage 3 . The 2 explicit factors in the Rule must be given " particular weight " say the majority at para 38 whereas Jackson LJ considers that they are part off the general matrix and do not command additional weight .
" The new test is not intended to introduce a harsh regime of almost zero tolerance " concluded Sir Rupert ( para 96).  

http://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html

EXAGGERATED CLAIMS

The House of Commons Transport committee is considering  legislation which would mean a claimant who grossly exaggerated would automatically lose all right to recover. 

Negligence claims against solicitors

I am retained by a major law firm to give their litigators regular updates. The practice specialises in defending solicitors .
This time last year they had been notified of perhaps a dozen potential claims.
This year they have 300 . What is worse is that most have been triggered by events after the Mitchell decision.
It is so important to be abreast of developments. Or else .
The great Frank Maher makes the point that if you get a payout on your indemnity insurance you are really getting a loan . What they pay will be recouped via a higher renewal premium. 

RIGHT TO DIE ?

At long last the Supreme Court judgment will be published on wednesday morning.

APPLICATIONS FOR RELIEF

I will be writing and talking at length about the new Mitchell guidelines as soon as they appear .
Meanwhile, on any application please, please make it as quickly as ever you can ( remember DURRANT ) and give a thorough explanation at the outset for the default ( see BAHO ).
I think it deeply impressive if you are able to  point out that your compliance record has otherwise been impeccable .
It does no harm to confirm that , were relief to be secured , the timetable would not be disrupted. 

CONTRIBUTORY NEGLIGENCE

In GROAKE V FONTAINE (2014) EWHC 1676 (QB) Eady J allowed a last minute amendment enabling D to allege contrib. No mention of DZIENNIK V CTO in 2006 where a powerful Court of Appeal gave C a windfall of 100% damages despite finding of 60% contrib. True that in CTO contrib was not pleaded but interesting that the court did not see it wrong to make D pay more than it ought.

THRIVING FIRMS.

They certainly exist .
I have recently visited 2 practices which are clearly doing well. Keystone Law regularly host client and staff get togethers and William Robins nobly asked me along. The atmosphere was buzzing and it was evident that this ABS has a happy team , no easy call with about 150 partner level lawyers.It did not take long to crack the secret.
The firm operates a consultancy model with , crucially , direct performance related pay. Anyone who shops at Waitrose will see the effect this has with staff desperate to get it right.In a law firm the direct correlation between results and income  has a phenomenal effect.
I also met the eponymous  founders of Hampson Hughes , an injury firm in Liverpool. This area of work has been mugged by a variety of recent reforms and yet here was another booming practice. i noted a massive appetite for know how and the use of IT. Best of all , the firm remains committed to training through apprenticeships and conventional training contracts. This engenders loyalty and people can see a way to develop.

MY ALL NEW IN - HOUSE TALK.

After weeks of scribbling I have now finished my new talk which I fondly like to think is both practical and essential. Ingredients include
- the 3 big misunderstandings about Mitchell
- why DURRANT is deadlier
- what not to argue on a relief application
- the subtle , revised Mitchell guidance
- abuse of process
- how to evade budgeting
- top budgeting tactics
- what is " trivial"?
- the new costs protection for every litigator. 

IN HOUSE TALKS

Strange but true ! Demand for talks about Mitchell and budgeting topics greater than for the whole of the Jackson reforms . There are some oddities about the latest Court of Appeal decision too on relief . It is still a period of profound uncertainty . 

READ THIS CASE !

http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.html

Any lingering doubts about the Court of Appeal and Mitchell dispelled . Now 4 decisions involving 10 Judges . 

COMMERCIAL COURT BUDGETING

I predict much ado about nothing . The big boys and girls will agree their budgets . The court SHALL record this and cannot interfere. Simple eh ? 

MITCHELL

There , I knew that would get your attention !
Anyone with a faint interest in civil proceedings must sign up , as I have done , to the superb Gordon Exall blog . There was even an ad for a neat sat nav there today as well.
Sorry for my silence but I had a detached retina which is now mending but threw me considerably .

THE NEW CPR RULES

On Wednesday morning Birmingham Law Society host an update with Ed Pepperall QC and me looking at the latest . 

LOSS OF CAPACITY AFTER SIGNING A CFA .

The recent High Court decision in BLANKLEY is definitely being appealed. 

SAINSBURYS WINE

Right now there are 2 stupendous deals .
Bollinger at £25 is cheaper than in France.
The gem is the 2001 Faustini Rioja at £13-99 ( £4 off ) . Decanter rated it top top buy at Christmas . 

CLASSICAL REFERENCES

Please can we have an end to this ? Last friday Lord Justice Jackson referred to an "Eleusinian mystery". This friday in his introduction to the new White Book it is the Diocletian Edict on Maximum Prices. I and Dr Andrew Twambley  know what all this stuff means , obviously , but what about normal , dim people ? 

A MITCHELL APPEAL ?

I am intrigued to hear that an appeal to the Supreme Court is being mooted in THEVARAJAH V RIORDAN , another Appeal Court decision backing Mitchell to the hilt.
Do not get excited.
1. As the brilliant Simon Browne QC pointed out to me yesterday those scribblers who say he should have appealed Mitchell fail to appreciate that the Court of Appeal is the HQ of matters procedural.
2. My reading of THEVARAJAH is that relief would not have been justified even on the old soft touch approach let alone the new one.
3.Were it to go to the Supreme Court waiting with open arms and open minds would be Lord Neuberger , the biggest fan of Sir Rupert, and Lord Clarke who , err , appointed Jackson and handed him a flame thrower to sort out the bloody mess.Looks promising , eh ? 

THE REVERSE MITCHELL.

In WEBB RESOLUTIONS V E-SURV (2014) the defendant sought to Mitchell the claimant for having failed to serve notice of additional liabilities. The Judge was unimpressed and allowed recovery.
D then sought permission for a renewed oral application , out of time , to go to the Appeal Court. C promptly executed a reverse Mitchell and won. Marvellous Justice.
The excuse for delay was that permission had to be sought from the client and then be forwarded down a chain of command. A thoroughly bad reason said Turner J. , a man who does not exactly demonstrate his feminine touch when dealing with applications.

MASTER WHITAKER

It is nothing short of tragic that such a diligent and hard -working man has had to leave his job for having entered misleading information on his Outlook diary.

POLICE LIABLE FOR RAPES

Published today and already on BAILLI is a superbly crafted judgment from Green J . In DSD V METROPOLITAN POLICE he decided that the failure of the Police to link up evidence was culpable and he claimants won their claims based upon the European Convention. Fascinating stuff . 

LEGAL TECHNOLOGY

Trust me . This is going to get more mainstream as the hourly rate is annihilated. Andrew Haslam who is decency on legs has just written a 10 page overview of the leading event in New York. It is so illuminating. He by the way is an independent agent who holds the hands of law firms making the leap into technology. His article is at the Allvision website. As ever , i declare i have no financial involvement here whatsoever. He is just plain sound.  

SUSAN BELGRAVE -EMPLOYMENT BOOK.

'Remedies in employment law'  has just been published by the Law Society and what i have read so far is just plain excellent. A nifty up to date tome from a bright and lovely author.

NEW SILKS

Congratulations to Jacob Levy and Michael Duggan , both noble men . 

COX V MOJ

The Court of Appeal decision published this morning continues the extension of vicarious liability. A prisoner working in a canteen was ' employed ' by the prison which was answerable for him  negligently injuring a member of staff . Amazing outcome ; well done Robert Weir QC . 

BUDGETING - SENSE PREVAILS

Just published on Bailli is the TCC decision in BANK OF IRELAND V PANK , an exemplary decision about rejecting quaint technical arguments where a budget was served albeit with a mix up on the statement if truth . Superb . 

ZEBRA CONSULTING

It was a joy yesterday to interview the sound and sane Zoe Holland who is the go to for advice on buying or selling wip as well as advanced technical advice on developing a clinical negligence practice .
She did buy me a chocolate eclair in Paris on Saturday to celebrate her birthday ; that did not affect my judgment, honestly . 

OFFICIAL NOTICE ! BEWARE .

“A draft amendment to the clinical negligence model direction used by the Queen’s Bench Masters, allowing for times set by the directions to be extended by up to 28 days by agreement, has been approved by the PQBD and Deputy Head of Civil Justice but no decision has been taken on whether there should be any general change to model directions or to standard directions under the Civil Procedure Rules.  This is the subject of discussion within the Civil Procedure Rule Committee and any decision will require the approval of the Master of the Rolls.”

Collette Carroll OBE

Congratulations to the talented sister of the talented Paul of Brodie & Co.

BUDGETING

On 19th february at 1 pm i am giving a one hour podcast for LIPPS LEGAL on this tricky topic .
Amongst other things I will explain why a successful Mr Mitchell WOULD recover a six figure sum in costs , how to stop the court budgeting your case and what happens if the court refuses  to budget. Also , can an old case be budgeted ? These are the questions I have been asked most often. 

BUDGETING

The Rules Committee today agrees to extend budgeting in April. Anticipate some continued exemptions but only for higher value claims - £5m ? We shall see .
The ACL Conference today magnificent . Good to see the superb Ben Williams in attendance . 

MITCHELL

Those who think the decision correct and binding include Lord Justices Dyson , Elias, Richards,Aikens, Davis and , though he has said nothing at all on the point , Jackson.

NERD ALERT

The 3rd edition of Zuckerman on Civil Procedure has just been published. Required reading for the sad and the Court of Appeal.

JEF MITCHELL CBE

Congratulations to the recently retired head of the MOD claims department.He is an available and astute mediator. 

PUBLIC TALKS

As many of you will know 99% of my talks are delivered in -house to clients.
I am doing a half day public talk on budgeting in Manchester on January 23rd and on the morning of 24th in London. The latter already has over 100 bookings. Details can be found on the website of MBL which has organised these talks.

CREDIT HIRE

The days are numbered for this 'industry'. The provisional Monopolies report will , i believe , be acted upon .This will mean that in the event of a bump the first party insurer will offer a replacement vehicle unless a third party provider can do so at less cost.Unlikely.Expect change next year.