Welcome to the Commercial Dispute Resolution Update for February 2010.
If you require the full text of any of the cases referred to or further information about any of the items referred to, or if you have been forwarded this update by a colleague and would like to receive it direct, please contact Sian Forbes.
All links are correct at the date of publication. The following topics are covered:
R (on the application of E) v JFS Governing Body & others (2009)
The claimant applied for a protective costs order on the basis that the Legal Services Commission (who were funding the claim) required him to do so as a condition of continuing to fund the proceedings, which were being taken to appeal.
The court held that the real issue was not whether the case was suitable for a protective costs order but whether the withdrawal of funding was Wednesbury unreasonable. Compelling reasons had to be shown for withdrawing public funding from a litigant who had been publicly funded in the court below, particularly where the withdrawal of funding would expose the litigant to substantial risk of future costs, the litigant retained a significant interest in the outcome of the case and the issues raised at appeal were of general public importance. All those circumstances prevailed in this case and the decision to withdraw public funding was therefore so unreasonable as to be unlawful.
R (on the application of OSEI) v Newham London Borough Council Lettings Agency (2010)
The decision of a local authority's lettings agency that an individual who was a victim of domestic violence but had former tenancy arrears should be treated as a lower priority for emergency re-housing than other similar individuals without arrears was a decision it was entitled to reach. The decision had been made with full regard to all the individual's circumstances and the lettings agency had properly exercised its discretion.
Case report available via Lawtel (ref: AC9501746 - password required). Please contact Sian Forbes for further details if you are unable to access this.
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Goldsmith Williams (a firm) v Travelers Insurance Co Ltd (2010)
An insurer who insured a third party firm of solicitors under a professional indemnity insurance policy was not liable to the claimant (to whom a right of claim had been assigned by a mortgage provider which had advanced sums to the directors of the third party solicitors) in proceedings brought under the Third Parties (Rights Against Insurers) Act 1930.
The court held that the directors of the third party solicitors had been engaged in or condoned mortgage fraud and the insurer was entitled to repudiate liability under the policy as a result of an exclusionary clause which provided that the insurer was not liable in the event of the directors' fraud or dishonesty.
R (on the applciation of (1) Anthony McIntyre (2) Elaine McIntyre) v Gentoo Group Ltd (2009)
There was a requirement under an assured tenancy agreement that the registered social landlord could not unreasonably withhold its consent in deciding whether its tenants could exchange homes with each other. The RSL imposed a condition to be fulfilled before it would give consent to the exchange. The claimants sought judicial review of the decision, arguing that it could not have been reasonably taken.
The court held that the decision was taken in relation to the exercise of a public function and, as such, the decision was amenable to judicial review. However, under the terms of the tenancy agreement the tenant also had a private law right to bring a claim for breach of contract if the condition imposed was not reasonable. As a result, the tenant had a private law remedy available to it and judicial review was not the only means of challenging the decision. Judicial review was a remedy of last resort and it was therefore inappropriate to proceed with a judicial review of the decision where an alternative private law remedy was available.
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Practice and procedure
Biddle & Company (a firm) v Tetra Pak Liminted & others (2010)
The court held that is is acceptable to have separate particulars of claim against different defendants in the same proceedings.
Paul Wynne Jones v Sue Kaney (2009)
The claimant issued a claim for negligence as a result of the defendant expert signing a joint experts' statement which varied from her initial report and which she signed without any comment or amendment. The defendant applied for summary judgment striking out the claim on the grounds of witness immunity. The claimant argued that the decision on witness immunity as stated in the decision of Stanton v Calaghan (2000) was no longer binding as it preceded the Human Rights Act 1998.
The court held that the decision in Stanton was binding and that a direct challenge to the principle would be needed before the court could rely on the Human Rights Act to have introduced a sufficient statutory change to enable it to dismiss the law as set out in Stanton. As the policy of blanket immunity for experts might now prove to be too broad and as Stanton would also be binding on the Court of Appeal, it was therefore appropriate to grant a certificate under s.12 Administration of Justice Act 1969 enabling the Supreme Court to decide whether to grant leave to appeal.
Case report available via Lawtel (ref: AC0123374 - password required). Please contact Sian Forbes for further details if you are unable to access this.
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Solicitors Journal 22 December 2009, p.8
Discusses multiple agreements under the Consumer Credit Act.
In-House Lawyer December 2009/January 2010, p.13-14
Discusses the binding nature of certain pre-contractual negotiations.
In-House Lawyer December 2009/January 2010, p. 40-41
Considers dispute resolution clauses in IT contracts.
Solicitors Journal 12 January 2010, p.8
Discusses the approach to contract formation.
Solicitors Journal 22 December 2009, p.23
Considers the costs consequences of non-compliance with the pre-action protocol.
Solicitors Journal 22 December 2009, p.25-26
Reviews the latest costs related amendments to the Civil Procedure Rules, including the recoverability of ATE insurance premiums, service of statements of reasons for CFA success fees and breaches of the procedural rules.
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In-House Lawyer December 2009/January 2010, p. 58-59
Considers defamation and the Reynolds defence for publishers.
Health and safety
In-House Lawyer December 2009/January 2010, p. 55-57
Discusses fire safety legislation.
Legal Action January 2010, p.27-37
Considers recent developments in housing law.
In-House Lawyer December 2009/January 2010, p. 50-52
Discusses the use of arbitration in IP disputes.
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Judicial Review 2009, p.311-326
Disclosure in judicial review
Judicial Review 2009, p.327-332
Approaches to Section 6 HRA following the decision in Weaver.
Judicial Review 2009, p.380-387
Reviews two papers from the Public Law Project which discuss the resolution of judicial veview claims without a hearing.
Judicial Review 2009, p.388-392
Discusses Lors Jackson's proposal for one-way costs shifting in judicial review claims.
Practice and procedure
Law Society Gazette 28 January 2010, p.16
Considers how to get trial bundles right and explains their importance to a case.
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Jackson Review of Civil Litigation Costs
Jackson LJ produced his final report on the costs of civil litigation on 14 January 2010.
In summary, the key recommendations in the field of commercial dispute resolution are that:
- CFA success fees and ATE insurance premiums should cease to be recoverable.
- Qualified one way costs shifting (ie. a claimant will not be required to pay a defendant's costs if the claim is unsuccessful but a defendant will be required to pay the claimant's costs if it is successful) should be introduced for some categories of litigation - such as personal injury, clinical negligence, judicial review and defamation claims.
- Fixed costs in fast track litigation should be introduced. He suggests fixed costs for some types of cases and in other cases there be a financial limit on costs recoverable (at a level of £12,000 for pre-trial costs).
- Contingency fees (where the lawyer is only paid if the claim is successful and is paid out of the settlement sum or damages awarded) be allowed for contentious matters, provided that the unsuccessful party is only required to pay an amount for costs reflecting what would be a conventional amount (with the balance to be borne by the successful party) and the terms of contingency agreements are regulated.
- A High Court Judge be appointed as judge in charge of the Mercantile Courts, whose role would be to streamline procedures and guides and produce a guide for small business disputes.
- There be a simplification of the law on housing claims (as recommended by the Law Commission in its 2003, 2006 and 2008 reports).
- CPR Part 8 be amended to enable actions in the Chancery division to be assigned to the fast track at any time.
- Costs shifting be introduced in defamation claims (as referred to above) and the level of damages in defamation and breach of privacy claims be increased by 10% to help claimants of slender means.
- Substantial parts of the 'Practice Direction - Pre-Action Conduct' be repealed.
- There be a serious campaign to ensure lawyers and the public and small businesses are fully aware of how ADR works.
- There be appropriate training for lawyers and judges on e-disclosure and there be a 'menu' of disclosure options for large commercial and similar claims where standard disclosure is likely to be disproportionate (clinical negligence claims should be excluded from this menu option).
- There be a tighter regime for case management (including limits on content and length of witness statements, allocating cases to judges with relevant expertise, ensuring cases remain with the same judge wherever possible, standardising case management directions, ensuring CMCs and other interim hearings are used cost effectively).
- Lawyers and judges receive training on costs budgeting and management and rules be drawn up to set out standard costs management procedures which judges would have a discretion to adopt if the use of costs management would appear to be beneficial in any case.
- For Part 36 offers, the claimant's recovery should be enhanced by 10% where a defendant fails to beat a claimant's offer.
- E-working/filing (as currently being used in the TCC and Commercial Court - details of which we are receiving training on in a couple of weeks) be rolled out across the High Court in London and all County Courts and District Registries.
Click here for a link to the full report.
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