Litigation round-up August 2020

Effect of withdrawn Part 36 offers

The defendant was entitled to a favourable costs order where the claimant failed to beat the defendant’s Part 36 offer, even though the defendant had withdrawn the offer before trial.  The automatic costs consequences under CPR 36 do not apply to a withdrawn offer but the court can take it into account when awarding costs.  Assessing the position without the benefit of hindsight, the claimant had acted unreasonably in rejecting the offer before its withdrawal (Blackpool Borough Council v Volkerfitzpatrick Ltd).

Contribution claims

The Civil Liability (Contribution) Act 1978 has extraterritorial effect. The Court of Appeal’s decision enabled an English charity which employed the allegedly negligent midwife attending the claimant’s birth in a German hospital to claim contribution from the hospital. If German law had applied, the claim for contribution would have been out of time. UK legislation is not extraterritorial in effect unless, as here, the contrary is expressly enacted or plainly implied. Section 7(3) of the Act provides that the right to contribution under the Act supersedes any right, other than an express contractual right, to recover contribution (Roberts v The Soldiers, Sailors, Airmen And Families Association).

Remote witness evidence

If a witness is going to give evidence remotely, the parties should discuss in advance where they will be and who will be with them, and why. This is particularly the case where there could be interaction with the witness during their evidence that would not be visible to the court. Any arrangement other than a witness being on their own during their evidence should be approved by the court, in advance if possible. Parties should not assume that an arrangement will be approved just because it has been agreed between them (Chernukhin v Deripaska).

Limitation

The claimant alleged that she had suffered loss because of her solicitors’ negligent conduct of financial remedies proceedings on her divorce.  The Court of Appeal held that her cause of action in tort accrued when she became financially worse off at the point in the litigation when it was no longer possible to fix the solicitors' alleged mistake.  That point occurred before the conclusion of the final hearing and well before judgment was handed down.  Her claim was therefore time-barred (Holt v Holley & Steer Solicitors).

Service during lockdown

It was not fair or reasonable for the claimant’s solicitor  simply to place papers in the post to the defendant council’s office when he knew or should have known that it had just been closed down because of lockdown. A skeleton staff were working at the office and the defendant’s legal services department had not received the papers.  It was incumbent on the claimant’s solicitor as an officer of the court to contact the defendant to acknowledge that the situation had changed, and to discuss how proceedings could best be served.  The judge allowed the defendant’s application to set aside judgment in default (Stanley v London Borough of Tower Hamlets).