Michael Hayes, Author at Fenchurch Law

ECJ ruling on legal expenses; Austrian law

The recent ruling in Stark v DAS Osterreichische Allgemeine Rechtsschutversicerung AG by the ECJ, whilst addressing a question of Austrian law, is relevant to all involved in legal expenses insurance.

by Michael Hayes

Court of Appeal decision on CFA success fees

Sousa v London Borough of Waltham Forest [2010] EWCA Civ 194

The Claimant suffered subsidence damage to his property caused by the roots of a tree which was owned by the Defendant. The Claimant claimed on his house insurance policy for the damage, and his insurer provided him with a full indemnity. The insurer then proceeded to exercise its right of subrogation and instructed a firm of solicitors who were to work under a collective conditional fee agreement.

by Michael Hayes

High Court decision on solicitors' undertakings

Halliwells LLP v NES Solicitors and Quinn Insurance [2011] EWHC 947

NES was approached by a new, apparently wealthy, client and asked to provide an undertaking to pay Halliwells £1.5 million as part of a share purchase agreement. The client provided a “gold delivery certificate” purported to be worth £10 million. The partners of NES, in reliance on the certificate, but knowing the funds had not cleared, provided the undertaking. The certificate was later found to be worthless.

by Michael Hayes

Immunity of expert witnesses

In Stanton v Callaghan [1998] EWCA Civ 1176, it was held that the immunity of an expert witness extended to protect him from liability for negligence in preparing a joint statement for use in legal proceedings. This rule was designed to ensure that witnesses were not deterred from giving evidence in court due the risk of later allegations of negligence.

by Michael Hayes

ECHR decision on Conditional Fee Agreements

In February 2001, the publisher of the Daily Mirror newspaper (‘MGN’) was sued by Naomi Campbell for breach of confidence and misuse of private information. At first instance, Ms Campbell was successful. The Court of Appeal overturned the decision in 2004 and subsequently, the House of Lords (as it then was) reinstated the first instance decision and Ms Campbell was awarded £3,500 in damages.

by Michael Hayes

Court of Appeal decision on the “date of knowledge” under s14A Limitation Act 1980

In personal injury cases proceedings must be issued at court within 3 years of the date on which the injury occurred or, if later (for instance, where the injury is latent), within 3 years of the date that the injured person had the knowledge required in order to bring the claim (s.14A Limitation Act 1980).

by Michael Hayes

Concurrent Evidence for Expert Witnesses

This firm has made clear that it supports those parts of Lord Justice Jackson's review of civil litigation costs ("the Jackson Report") that are aimed at reducing the cost of civil litigation as a whole, whilst opposing those parts of the Jackson Report that are aimed at shifting the burden of what costs remain from defendants on to claimants (see our comments at: http://tinyurl.com/2elzb39).

by Michael Hayes

FSA clarifies a policyholder's freedom to choose their own lawyer

Following the European Court of Justice’s decision in Erhard Eschig v UNIQA Sachversicherung AG (C-199/08), the director of the Financial Services Authority’s insurance sector has written to all legal expenses insurers to clarify the scope of s6 of the Insurance Companies (Legal Expenses Insurance) Regulations 1990, which deals with the freedom of a policyholder to choose their own lawyer.

by Michael Hayes

Gibbon v Manchester City Council

Gibbon v Manchester City Council [2010] EWCA Civ 726, has clarified the use of Part 36 of the Civil Procedure Rules (“CPR”) relating to the offer and acceptance of settlements under the CPR. Part 36 was held by the Court of Appeal to be a “self contained code” which did not include any other law unless the CPR expressly included it. According to the Court of Appeal the CPR was specifically designed to be clear and certain so that ordinary people, with no legal training, could follow it without expert advice.
Part 36 allows a party to make multiple offers to settle for different amounts depending on how strong they feel their case is at that any given point in time. If an offer is rejected and the rejecting party fails to win a larger amount than that offer at trial they will have to pay the other side’s costs plus interest from 21 days after the date of that rejected offer. Under Part 36 offers remain on the table unless expressly withdrawn in writing and later offers do not revoke or amend earlier ones. This is in contrast to general contract law where only one offer can be valid at any one time. According to the Court of Appeal, the purpose of this multiple offer approach is to allow a party to leave various settlement offers on the table which, despite being initially rejected, can tempt the other side into acceptance later in the litigation process.

by Michael Hayes