High Court declines to impose costs sanctions for refusal to mediate

In ADS Aerospace Limited v EMS Global Tracking Limited [2012] EWHC 2904 (TCC), Mr Justice Akenhead sitting in the Technology and Construction Courtheld that a successful party was not unreasonable to refuse mediation and should not be penalised in costs on that basis. The judge’s approach was similar to the Court of Appeal in Swain Mason v Mills … Read more

Part 36 offers in context of counterclaims and negative declarations

A recent High Court judgment highlights the scope for confusion in applying Part 36 in a case where the formal roles of claimant and defendant do not reflect the reality of who is seeking a (greater) remedy in financial terms: The Procter & Gamble Company v Svenska Cellulosa Aktiebolaget SCA and another[2012] EWHC 2839 (Ch). The Civil Procedure Rule Committee is … Read more

50% cap on contingency fees for commercial cases

The government has given further details of its plans to introduce contingency fees, or “damages based agreements” (DBAs), for civil litigation. It has said that in non-personal injury claims (excluding employment tribunal cases) there will be a 50% cap on the amount of damages that can be taken as a contingency fee (see the new webpage launched … Read more

Costs awarded against claimant who failed to beat non-Part 36 offer

A recent High Court decision illustrates that a defendant’s offer to settle made outside the Part 36 regime may lead to a similar result as a Part 36 offer, although it will not carry automatic costs consequences: Brit Inns Limited (in liquidation) v BDW Trading Limited [2012] EWHC 2489 (TCC). Claimants on the receiving end of such … Read more

Part 36: difficulties in split trials

A recent High Court decision has highlighted difficulties arising from the application of Part 36 in the context of split trials, or trials of preliminary issues: Ted Baker Plc v Axa Insurance UK Plc [2012] EWHC 1779 (Comm). Under CPR 36.13 the fact that a Part 36 offer has been made must not be communicated to the trial judge “until the case … Read more

Costs consequences of settlement orders made outside Part 36

The Court of Appeal has held that the court was not entitled to apply the Part 36 costs consequences “by analogy” to award indemnity costs and enhanced interest where a party failed to beat an opponent’s settlement offer which was not made under Part 36: F & C Alternative Investments (Holdings) Limited & Ors v Barthelemy … Read more

Court of Appeal defends successful party’s refusal to mediate

In a rare move, the Court of Appeal has stepped into the shoes of the trial judge and exercised the court’s discretion on costs, holding that a successful party was not unreasonable to refuse mediation and should not be penalised in costs on that basis: Swain Mason v Mills & Reeve (a firm) [2012] EWCA … Read more