email service

Part 36 Offer | Service By Email Validated But Not Without Consequence

“I accept that a failure to comply with the rules of service in CPR Part 6 should not be taken lightly … No reason has been put forward by the claimant as to why the rules were not followed. On the other hand, it is clear that the defendants’ solicitors received the Part 36 offer on 15 December 2020. Mr Seitler does not contend otherwise. No complaint was made about the method of service of the Part 36 offer until shortly before the hearing on 3 November. No suggestion has been made that there is any prejudice to the third defendant in the Part 36 offer having been sent by email rather than having been served in some other way, for example by post. In these circumstances, it would in my view be … “a triumph of form over substance” if the court were to make an order invalidating the Part 36 offer…”

Genuine attempt to settle

CPR 36.17 | Part 36 Offer To Accept £1 Was A Genuine Attempt To Settle

The consequences of can be punishing, but it is a separate question whether they are unjust. The justice of Part 36 is that decisions about litigation should be economically utilitarian: it actively discourages litigation on ‘points of principle’ by making litigation not fought on a commercial basis a high stakes activity.

Better late than never

Failure To File And Serve An N260 Statement Of Costs

In this short decision Deputy Master Raeburn considered the effect of the Claimant’s failure to file and serve an N260 Statement of Costs in advance of the hearing before him in accordance with CPR PD 44, paragraph 9.5(4) and 9.6.

Blank cheque

Indemnity Costs | Not A Blank Cheque

A short reminder from The Honourable Mr Justice Calver that an award of indemnity basis costs does not hand the receiving party a blank cheque.

Contract

Recovery Of Costs Pursuant To A Contractual Entitlement

In this short judgment Mr Christopher Hancock QC (sitting as a Judge of the High Court) confirmed the position where a party has a contractual entitlement to costs. 

security for costs

Higher Level Of Security For Costs Based Upon A Potential Award Of Indemnity Costs Declined

The defendants in this anti-competition and breach of contract case sought security for costs against the claimant.

The claimant agreed with D4-D8 to provide security for 65% of their incurred and anticipated costs. However, D4-D8 sought security at a higher level than this based upon a potential award of indemnity costs given the “wide ranging and serious allegations of impropriety, which may include deceit”.

The defendants’ case was based largely on the decisions in Danilina v Chernukhin [2018] EWHC 2503 (Comm) (which we reported on here) and Re Ingenious Litigation [2020] EWHC 235 (Ch). In both cases the court awarded security at 75%.

BXB v (1) WATCH TOWER & BIBLE TRACT SOCIETY OF PENNSYLVANNIA

Failure To Engage In ADR And Indemnity Costs, Again

Another decision on indemnity costs arising from a failure to mediate.

DSN v Blackpool Football Club Ltd (Rev 1) [2020] EWHC 670 (QB)

Another Failure To Mediate And An Award Of Indemnity Costs

Having beaten his own offer at trial the Claimant was awarded indemnity costs under CPR 36.17(4)(b) from 21 days after the date on which it was made.

The Claimant also claimed indemnity costs on a broader basis and for a longer period by reason of the Defendant’s failure to engage in settlement discussions. or contemplate any form of ADR.

Lejonvarn v Burgess & Anor [2020] EWCA Civ 114

Speculative Claims, Indemnity Costs And The Effect Of An Approved Costs Budget

Following the dismissal of all claims by the High Court in this construction dispute, and an award of costs on the standard basis to the appellant (defendant), the Court of Appeal had to determine three issues, namely:

a) Whether it was a case in which the respondents’ pursuit of what were said to be “speculative, weak, opportunistic or thin claims” could properly be described as out of the norm such as to warrant an order for indemnity costs.

b) Whether the respondents’ failures to accept and subsequently to beat the appellant’s Part 36 offer, made at a very early stage in the proceedings, also meant (either separately or taken cumulatively with the pursuit of these particular claims) that an order for indemnity costs was warranted.

c) The relevance, if any, of the fact that the appellant’s approved costs budget was said to be £415,000, but that any assessment on the indemnity basis would start at the appellant’s actual costs figure of not less than £724, 265.

BRILLANTE VIRTUOSO

Indemnity Costs And The High Risk Of Pursuing A Weak Case

Mr Justice Teare determined an application for indemnity costs following the dismissal of the second claimant bank’s US$77 million claim for an indemnity from the defendant underwriter pursuant to a war risks insurance policy for the constructive total loss of the vessel BRILLANTE VIRTUOSO by piracy.