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NOTABLE CASES 2018-09-12T17:23:46+00:00

DEF v SOUTHEND UNIVERSITY NHS HOSPITAL

HIGH COURT  •   SEPT 2018

Simon Browne QC, instructed by Alan Mendham of Gadsby Wicks, represented the Claimant (now aged 10 years) who was injured as a result of negligent procedures during his birth in the Defendant’s hospital. The Claimant is severely disabled by quadriplegic dyskinetic cerebral palsy level 4/5, having suffered damage in the deep grey matter of his brain. He will require assistance from multiple carers at all times for the rest of his life. Settlement reached on behalf of the Claimant amounting to approximately £9.5 million. This comprised a lump sum of £3,350,000, and annual periodical payments of £97,000 for the first year, £140,000 for the seven following years and £175,000 thereafter for the rest of his life. A high PPO linking the annual sum for care provision to the published ASHE rates was critical given the extensive care needs of the Claimant.

VARIOUS CLAIMANTS IN WAVE 2 OF THE MIRROR NEWSPAPER HACKING LITIGATION VS. MGN LIMITED

HIGH COURT  •   AUGUST 2018

The reader is referred to the preceding paper on MGN Wave 1 proportionality. The parties were able to agree the reasonable individual base costs of 64 out of the 65 Wave 2 Claimants, the exception being Mr Jackson Scott, whose costs had previously been sent for detailed assessment before the Senior Costs Judge. They were also able to agree the reasonable and proportionate common costs in respect of each claim, being £7,716 (excluding VAT). The proportionate costs of all but ten Claimants in the Wave 2 litigation were agreed shortly prior to the hearing in question. The Senior Costs Judge was asked to determine the proportionate costs of the remaining ten claims. Simon Browne QC and David Sherborne appeared for the Claimants and George McDonald for the Defendant.

VARIOUS CLAIMANTS IN WAVE 1 OF THE MIRROR NEWSPAPER HACKING LITIGATION VS. MGN LIMITED

HIGH COURT  •   JUNE 2018

The parties were able to agree the reasonable base costs, and reasonable and proportionate common costs of every Claimant in the Wave 1 litigation. They were also able to agree the proportionate costs of all but 10 Claimants in the Wave 1 litigation. In his judgment dated 1 June 2018 the Senior Costs Judge held that the agreed reasonable costs of the remaining 10 Claimants were also proportionate. These were claims brought against the Defendant newspaper for damages and other relief in respect of breach of privacy through phone hacking and blagging over a period of many years. Of the 10 claims, two has been Representative Claimants whose claims went to trial. The remaining eight Claimants has settled prior to trial, between service of Particulars of Claim and service of the Defence. The court was asked to consider whether the reasonable individual agreed costs were also proportionate. Simon Browne QC represented the Claimants and Jamie Carpenter for the Defendant

BNM -V- MGN JUDGMENT, COURT OF APPEAL SUCCESS FOR CLAIMANT ON THE NEW TEST OF PROPORTIONALITY

COURT OF APPEAL  •   NOVEMBER 2017

Simon Browne QC instructed by Atkins Thomson, succeeded in persuading the Court of Appeal (the Master of the Rolls, with Longmore LJ and Irwin LJ) that the Senior Costs Judge was wrong to hold that the new test of proportionality applies to still recoverable additional liabilities. The Court of Appeal has unanimously held that the saving and transitional provisions in CPR 48, combined with the more limited definition of “costs” applicable since 1 April 2013 (that now omits any reference to “additional liabilities”), together operated to preserve the former Costs Rules, with their attendant Practice Directions, to the assessment of costs that include additional liabilities.

DEBORAH BOWMAN V NORFRAN ALUMINIUM LIMITED, R M EASEDALE & CO LIMITED, AND NORFRAN LIMITED  B54YJ494

HIGH COURT  •   AUGUST 2017

Simon Browne QC successfully represented a QOCS-protected Claimant against an application to enforce an adverse costs order made by a Defendant against whom she had discontinued her claim, having been successful and received damages from the other Defendants.

TIMES NEWSPAPERS LTD. V FLOOD; MILLER V ASSOCIATED NEWSPAPERS LTD ; FROST & OTHER V MGN LTD

SUPREME COURT  •   APRIL 2017

Simon Browne QC appeared for successful Respondents in the Supreme Court. Three national newspapers (The Times, Daily Mail, and The Mirror) were attempting to avoid paying any additional liabilities (success fees and ATE premiums) to privacy and defamation claimants funded by conditional fee agreements. The challenge was based upon the newspapers’ freedom of expression under Article 10 of the European Convention of Human Rights.

FROST AND ORS V MGN LIMITED

SUPREME COURT.   •   JANUARY 2017

Newspaper Article 10 challenge to the payment of Additional Liabilities. Simon Browne QC appeared for 23 separate Respondents in a three day challenge in the Supreme Court by the Appellant Newspaper (The Mirror) to pay success fees and after the event insurance premiums to successful litigants in publication cases, namely the phone hacking litigation. The newspaper argued that the payment of such additional liabilities amounts to a breach of their Article 10 right to freedom of expression under the Human Rights Act.

BRIGGS AND 598 OTHERS V FIRST CHOICE HOLIDAYS & FLIGHTS LIMITED

HIGH COURT   •   NOVEMBER 2016

Simon Browne QC, representing 599 holidaymakers who fell ill at a resort, successfully appealed against a decision certain claimants should have engaged in ADR prior to progressing their claims through the courts. Mr Justice Singh in delivering his judgement enunciated two important points of principle concerning the use of ADR.

YENTOB v MGN LTD

COURT OF APPEAL   •   JANUARY 2016

Simon Browne QC successfully upheld the Part 36 costs order in favour of Alan Yentob in the Court of Appeal. Mr Justice Mann had made no order for costs after Mr Yentob was awarded £85,000 but failed to beat Mirror Group’s Part 36 offer. The justice of the case demanded that Mr Yentob was not to be penalised in costs.

BNM v MGN

HIGH COURT   •   APRIL 2016

Represented the Claimant in a privacy case where the new post LASPO test of proportionality was applied by the Senior Cost Judge. The decision is subject to appeal in the Court of Appeal in October 2017

EURASIAN NATURAL RESOURCES CORPORATION PLC V DECHERT LP

COURT OF APPEAL   •   2015

Instructed by Dechert on a £15 million dispute and the determination of the appropriate forum for litigation in the Court of Appeal and whether proceedings should be in public.

CONSTRUCTION INDUSTRY VETTING LITIGATION

HIGH COURT   •   2015

Instructed by MacFarlanes London on group litigation for restraint of trade and defamation and costs budgeting of multi million pound projections

VARIOUS CLAIMANTS V. MGN LTD

COURT OF APPEAL   •   2014

Instructed as common costs counsel for the group litigation claimants arising out of mobile telephone voicemail interception against the Mirror Newspaper Group.

MITCHELL V. NEWS GROUP NEWSPAPERS

COURT OF APPEAL   •   2013

Appeal concerning the filing of costs budgets and the effect of the late filing and relief from sanctions of the Cost Budget of for MP Andrew Mitchell in his defamation claim against News Group Newspapers.

SYLVIA HENRY AND NEWS GROUP NEWSPAPERS LIMITED

COURT OF APPEAL   •   2013

Appeared for the successful Claimant in the Court of Appeal when the test was laid down for demonstrating good reason to depart from costs budgets which are to be introduced in the majority of all litigation from April 2013.

LINDBERG V FLYING ACES LIMITED

HIGH COURT   •   2012

Involving both liability and quantum in fatal air crash accident during competitive air race in Malta.

VARIOUS CLAIMANTS V. NEWS GROUP NEWSPAPERS LTD & GLENN MULCAIRE

HIGH COURT   •   2012

Instructed as common costs counsel for the group litigation claimants arising out of mobile telephone voicemail interception.

SALE VS. SALE

HIGH COURT   •   2013

Nicola Davies J.  Award equating to £14 million for teenager with complete tetraplegia. The Court approved settlement provided for a lump sum of £3.2m plus annual periodic payments for aids, therapies, 24-hour care and loss of earnings.

LAWRENCE V. KENT CC

COURT OF APPEAL   •   2012

EWCA Civ 493. Guidance given by Court of Appeal upon the approach appellate court should take to appeals on questions of contested fact determined by the Trial Judge as opposed to matters of discretion.

F & C ALTERNATIVE INVESTMENTS (HOLDINGS) LIMITED & ORS. V. BARTHELEMY & ANOR.

COURT OF APPEAL   •   2012

Court of Appeal landmark decision upon analogies with Part 36, apportionment of costs, indemnity costs for failure to negotiate, and the rates and periods of interest upon damages and costs.

PICKERING V EATON AEROSPACE

HIGH COURT   •   2012

Successful industrial disease claim on behalf of employee exposed to working mineral oils over twenty years where breach of duty of care and causation were denied.

BENNETT V STEPHENS 2010 (QB)

HIGH COURT   •   2010

Assessment of reasonable security of periodical payments for an insurance company not deemed to be secure under the Damages Act 1996.

J N DAIRIES LTD. V JOHAL DAIRIES LTD. & ANR.

HIGH COURT   •   2011

Disallowance of solicitor’s and counsels’ retrospective success fees amounting to £180,000 under retrospective conditional fee agreements.

CARTER & CARTER V ATLAS HELICOPTERS LIMITED

HIGH COURT   •   2012

Fatal Accident claim pleaded up to £20 million arising from deaths of passengers in helicopter crash.

SUTHERLAND V TURNBULL 2010 (QB)

HIGH COURT   •   2010

Acceptance of Part 36 offers in relation to part only of the claim.

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