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Jackson in action

In our regular monthly round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms:

Costs budgeting/revising budget: In Sharp & Ors v Blank & Ors (2017) the High Court was asked to approve a revised budget in accordance with Practice Direction 3E.7.6. on the basis that there had been "significant developments" since the defendant had filed their last budget, in that, amongst other factors, the time estimate for the trial had almost doubled, the claimant had given further disclosure and served a further expert's report. Agreeing to the application to revise the budget in part, Chief Master Marsh held that there would be occasions where a court would be asked to revise a budget, where costs that had been estimated, were incurred costs by the time that the court came to look at the revised budget. 21.12.17

Test for proportionality/detailed assessment: In May & Anor v Wavell Group & Anor (2017) HHJ Dight CBE, sitting with Master Whelan reviewed on appeal the way in which Master Rowley had applied the new proportionality test under CPR r.44.3 at a detailed assessment. Master Rowley had originally reduced the Claimants' costs from over £200,000 to £35,000 plus VAT. Held, the Master had misinterpreted and misapplied the new test. He undervalued the sums in dispute between the parties, had too little regard to the complexities of the litigation and reduced the costs disproportionally because the parties reached an early settlement. Carrying out a fresh assessment, the Claimants' costs were assessed at £75,000 plus VAT. 22/12/17

Provisional assessment/costs cap: In W Portsmouth & Co v Lowin (2017), the Court of Appeal were asked to consider whether the costs cap that applied to the provisional assessment process under CPR r.47.15, applied in those cases where the costs were being assessed on an indemnity basis. The Court of Appeal concluded that the cap was just that and it did not prevent an assessment of the costs taking place on an indemnity basis. The cap did not represent fixed recoverable costs, as an assessment of the claimed costs could take place and on the indemnity basis. There was no tension between the cap and assessing costs on an indemnity basis. 19/12/17

Relief from sanctions/admitting authenticity of documents: In McGann v Bisping (2017), the Defendant had failed under CPR r.32.19 to give notice to the claimant that he did not admit the authenticity of certain documents served in support of the claimant's claim. Notwithstanding that fact, the defendant had served a defence and witness statements which made it clear that the claimant would be required to prove the authenticity of the documents in question and the parties had prepared for trial on the basis that that was the case. However, shortly before trial the claimant argued that the defendant had waived his right to challenge the authenticity of the documents as he had failed to give notice under CPR r.32.19. Allowing relief from sanctions, Richard Salter QC held that the defendant's failure to give notice was neither serious nor significant and arose out of ignorance of the rule. To allow the point would not be in the spirit of the overriding objective. 15.12.17

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