All articles by Masood Ahmed – Page 6
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News
The scope of legal professional privilege
The question before Mr Justice Akenhead in Walter Lilly & Company Ltd v Mackay and another [2012] EWHC 649 (TCC) was this: does legal professional privilege (LPP) attract to documents produced by a claims consultant, even one which retains legally qualified personnel?
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Recovering costs where both parties have succeeded in some of their arguments
Even though a party may succeed in obtaining a judgment in its favour, the unsuccessful party may have succeeded in defeating some of the successful party’s arguments. The questions which arise in such a scenario are: which party should be awarded its costs? If the successful party is awarded its ...
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‘Control’ of documents
In the recent case of North Shore Ventures Limited v Anstead Holdings Inc [2012] EWCA Civ 11 the Court of Appeal considered the concept of 'control' of documents under Civil Procedure Rules 71.2 and 31. The rules ...
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Mediation, unreasonable behaviour and costs
Mediation as an effective dispute resolution method for civil disputes is well established. Therefore it was not surprising that Lord Justice Jackson reinforced the important role of mediation in chapter 36 of his Review of Civil Litigation Costs Final Report: ‘The most important form of ADR… is mediation. The reason ...
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Pre-litigation offers and part 36
How should pre-litigation offers to settle be treated in the light of part 36 of the Civil Procedure Rules (CPR) and Trustees of Stokes Pension Fund v Western Power Distribution Power Distribution (South West) plc [2005] EWCA Civ 854, [2005] 1 WLR 3595 (Stokes)? This was the question before Lord ...
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Service by email outside the jurisdiction
Can a defendant domiciled out of the jurisdiction be served by email with a claim form issued in England? That was the question before the High Court in the case of Louise Bacon v Automatic Inc and others [2011] EWHC 1072 (QB).
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Removing an arbitrator on grounds of bias
One of the fundamental principles upon which arbitration rests is the entitlement of each party to have a fair hearing by an impartial arbitral tribunal. Indeed, this is a principle upheld by article 6 (right to a fair trial) of the European Convention on Human Rights. And this is also ...
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Pre-action admissions
It is now well established that part 14 of the Civil Procedure Rules, which deals with admissions, does not apply to pre-action admissions (see Sowerby v Charlton [2005] EWCA Civ 1610, which was later confirmed in Stoke on Trent CC v Whalley [2006] EWCA Civ 1137). ...
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Valuable guidance on indemnity costs
In a previous update I commented on the case of Noorani v Calver [2009] EWHC 592 (QB). This case illustrated some of the factors which the courts are likely to take into account in assessing whether to award indemnity costs. In Noorani, Mr Justice Coulson considered ...
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Defining the scope of witness immunity
The rule of witness immunity was set out by Lord Hutton in Darker v Chief Constable of the West Midlands [2001] 1 AC 435, a case which concerned police malpractice. Lord Hutton held: ‘The rule that a party has immunity in respect of what he ...
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Costs liability on discontinuing a claim
It is not uncommon for a claimant to decide to discontinue his claim after he has issued proceedings. If this is done then clearly the costs consequences set out in Civil Procedure Rule 38.6 (1) will apply. CPR 38.6(1) provides: ‘Unless the court orders otherwise, ...
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News
Terminating agency agreements – watch your language
The court in Stephen Gledhill v Bentley Designs (UK) Limited [2010] EWHC B8 (Mercantile) considered whether the principal (the defendant) had lawfully terminated the agency agreement on grounds that the agent’s (the claimant) purported abusive conduct had amounted to a fundamental breach of contract and thereby justified the termination.
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Challenging arbitration awards
One of the fundamental policy reasons behind the enactment of the Arbitration Act 1996 was the need to allow parties to resolve their disputes through arbitration and without judicial intervention.
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The jurisdictional scope of freezing orders
The jurisdiction of a freezing order was set out in the leading case of TSB Private Bank International S.A. v Chabra [1992] 1 WLR 231 (also known as the court’s Chabra-type of jurisdiction). It was held that, so long as the claimant had a good arguable cause of action against ...
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Dispute resolution: reasonable settlement and third parties
Where a defendant settles a claim with the claimant and then seeks to recover his losses from a third party, the third party may attempt to challenge the settlement on the basis that it was unreasonable. What approach, therefore, would the courts take in assessing whether a settlement was reasonable?
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Dispute resolution: recovering costs before allocation
Is a costs judge entitled to take the view that a matter would have been allocated to the small claims track (and therefore requiring the paying party to pay costs on the small claims track basis) where a case is settled before allocation and the consent order provides for costs ...
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Payment into court by cheque – when is payment ‘received’?
Where a party to proceedings has been ordered by the court to make a payment into court, whether for security for costs or otherwise, it is common practice for such a payment to be made from a firm’s client account by cheque.
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Dispute resolution: enforcing against a judgment debtor
All prudent dispute resolution lawyers are well aware that, despite having obtained a judgment in favour of a client, enforcing that judgment against a judgment debtor could potentially cause great problems.
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Strike out for abuse of process: guidance for making and resisting applications
The courts’ wide powers under CPR 3.4(2) and the factors a court will take into account when considering an application to strike out a statement of case for abuse of process were considered by the Court of Appeal in Walbrook Trustees (Jersey) Ltd & Others v Fattal & Others [2009] ...
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Interpreting part 6 of the CPR: service by fax
The Civil Procedure (Amendment) Rules 2008, which came into force on 1 October 2008, brought about a number of significant amendments to the CPR, including changes to the rules governing the service of the claim form on defendants. The interpretation of some of these rules, in particular in relation to ...