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.