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) .
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.
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 ?
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 .
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 firstname.lastname@example.org . Thank you .
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.
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 ?
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 ?
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 .
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 .
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 .
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 .
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 .
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 .
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.
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 .
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 .
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.
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.
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?
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.
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).
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.
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.
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.
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.
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.
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 .
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 .
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 ?
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 ?
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.
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 .
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.
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 .
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 .
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 .
“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.”
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.
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 .
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.
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.
" Legal heavyweight " Independent ."So so popular.Staff queue to hear him"-City Firm,May 2014."The greatest legal speaker there is "- Mike Napier QC.. "The God of the lectern"-Modern Claims.Special adviser to Lord Justice Jackson. ". "Captivating.You could hear a pin drop".The best speaker on the planet"-Lawnet."Absolutely amazing " PWC."The leading expert in the field of civil procedure and adviser to the top judiciary on law
reform'-His Honour Judge Simon Brown QC." "Awesome intellect coupled with tremendous wit". " ."Achingly funny. Brilliant ". "He is not streets but cities ahead of any other commentator ".
"The greatest living authority on Part 36,awesome". HH Judge Michael Cook.
"An excellent orator"-Lord Grabiner QC.
...Presenter of award winning Lexis seminars.
" His in -house talks are so popular that those off ill come in and we have staff sitting on the floor"-head of training,a national law firm.
Wine critic,Counsel Magazine.Columnist 'New Law Journal'.Special Adviser, A.C.L. Adviser - 'Tolleys ' Employment Law +Binghams Motor Claims.'.Professor .PLC advisory board.
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