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Clare Arthurs and Richard Marshall assess the value of early neutral evaluations ‘The main benefit of early neutral evaluation (ENE) is that it gives the parties a clear idea of how their case (or a specific legal, factual or evidential issue) might be perceived by a judge.’ Litigation, the Pre-Action Practice Direction tells us, should …
Continue reading "Insights By Penningtons Manches: ENE takers?"
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Paul Joukador and Nathan Searle report on a landmark Supreme Court judgment ‘Provided that the relevant contractual provision: (i) serves a legitimate business interest(s); and (ii) is not extravagant, exorbitant or unconscionable, it will not be a penalty and therefore will be enforceable.’ It is common practice to include a clause in a contract which …
Continue reading "Damages: Offside – a new test for penalty clauses"
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Maura McIntosh explores a recent judicial interpretation of Part 36 ‘The judge rejected the argument that… the references in the rules to “the whole of the claim or to part of it” must include references to a claim which had not been brought when the offer was made but which was subsequently brought.’The High Court …
Continue reading "Part 36: Failed overtures"
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Teresa Rosen Peacocke investigates whether recent rule changes make US discovery more limited than UK disclosure ‘The key to discovery under the new rule will be proportionality, a concept that has been an integral part of UK civil procedure since the introduction of the overriding objectives under the CPR.’Civil litigation procedure has in some important …
Continue reading "Disclosure: Differential discovery"
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David Sawtell summarises recent costs judgments ‘The summary nature of costs budgeting means that the court may either overestimate or underestimate the future expenditure of costs that will reasonably and proportionately be required.’ Costs budgeting is now a familiar part of the litigation landscape. Costs management hearings are supposed to be carried out quickly and …
Continue reading "Costs: Budget cuts"
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Adam Dyl takes stock of the implementation of costs reforms ‘Litigators are warned that in assessing costs the court will be more persuaded by arguments that you did all you could to deal with the case proficiently, rather than doing what was in the best interest of your client.’ It has been a few years …
Continue reading "Reform: Keep it in proportion"
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Daniela Vella examines the new Financial List: a ‘beacon’ for litigants? ‘Having a single judge, with the appropriate background, experience and understanding of complex financial structures, products and markets, dealing with a case from start to finish is a simple yet effective idea.’ In the second half of 2014 a group of judges from the …
Continue reading "Banking: Show me the money"
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Rustam Dubash and Clare Arthurs evaluate the new bill of costs and time recording codes ‘Fee-earners will need to think carefully about how they record their time – to which phase(s) and activities and in how much detail – but this is, in reality, nothing new.’ Opinion appears divided about the proposed new form bill …
Continue reading "Insights By Penningtons Manches: Time recording – all change?"
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Gwendoline Davies and Marshal Ahluwalia look at the lessons to be learned from recent history ‘Utilising the underlying principles from the Khiaban case and thinking very carefully pre-issue as to the financial value of a claim in respect of the amount in dispute could well result in early resolution. Inflated claims are rarely conducive to …
Continue reading "Practice: Old dog – new tricks"
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Laura Crawford and Jon Chesman warn against the expedient choice of defendants ‘Even if the claimant considers that the actions are sufficiently different to warrant separate proceedings, the court confirmed that this is a question for the judge to determine when exercising general case management powers.’ On Friday 11 September 2015, in the High Court …
Continue reading "Abuse Of Process: Trial run"
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