Insurance And Reinsurance - 3 March 2015

Author:Mr Nigel Brook
Profession:Clyde & Co

Tchenguiz v Thornton UK

Commercial Court makes an adverse costs order because statement of case was too long

The Commercial Court Long Trials Working Party's recommendation that statements of case in the Commercial Court should be no longer than 25 pages was adopted by the Commercial Court Guide in 2009. Despite that long-standing requirement, the particulars of claim in this case were 94 pages long and were served without first requesting permission from the court to serve a statement of case which was longer than 25 pages. Furthermore, there were other breaches of the Guide, such as the inclusion of background facts and contentious phrasing.

The counsel who had drafted the particulars argued that the length of the document was necessary because of the serious allegations being made. That argument was rejected by Leggatt J: "It must be abundantly clear to anyone who is accused in a statement of case of fraudulent conduct that extremely serious allegations are being made against them. It is unnecessary to repeat the assertion that the person has been fraudulent again and again". He also rejected an argument that the omission of certain details would have led to the defendants seeking full particulars pursuant to CPR r18. Nor did it matter that the defendant himself had not objected.

The judge therefore struck out the particulars of claim (whilst disallowing the costs of drafting the particulars) and ordered fresh particulars, of no more than 45 pages, to be served within 21 days. He added: "I have shown this judgment in draft to the Judge in charge of the Commercial List, who endorses the principle that flagrant disregard of the guidance applicable to statements of case may lead to adverse costs orders". Although there would be some delay to the case because of this order, in the longer term the efficient conduct of the case would be assisted by fresh particulars.

Laporte v Commissioner of Police

Defendant penalised for refusing to mediate

The defendant won on every substantive issue in this case. However, it had refused to engage in ADR, in part because it believed that the claimant was imposing a pre-condition to mediation that the defendant's lawyer have instructions to "make a meaningful offer".

It is well established that there could be adverse costs consequences if a party unreasonably refuses to agree to ADR. A list of factors...

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