Kerry Underwood

Archive for April 2020


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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.



XDE v North Middlesex University Hospital NHS Trust [2020] EWCA Civ 543

the Court of Appeal upheld the original decision of the Costs Judge, itself upheld by the High Court, that on the particular facts of this case it was unreasonable to switch from legal aid to a Conditional Fee Agreement.

Consequently, the success fee and the After-the-Event insurance premium were not recoverable in this case, which predated the abolition of recoverability, except in very limited circumstances.

This was a clinical negligence case and I reported the decision of the Queen’s Bench Division of the High Court in my blog –


which was posted on 28 June 2019.

There is no new law in the Court of Appeal’s decision, but it is a detailed and useful analysis of the law in this area, which is essentially fact sensitive to each case, but lawyers will find this judgment useful in applying the law to the particular facts of any given case.

It also has a very detailed analysis – at paragraphs 62 to 88 of the issue of whether CFA-Lite, whereby the lawyer agrees never to charge the client more than is recovered from the other side, is inherently superior to legal aid.

The court found that that argument “fails at every level.”

As the Court of Appeal pointed out, there is always an inherent problem with this argument in the context of switching from legal aid to CFA-Lite, and that is that if CFA-Lite is inherently superior to legal aid, then why did the law firm advise and obtain legal aid in the first place, rather than going straight to CFA-Lite?

At Paragraph 82 of the judgment, the Court of Appeal referred to the irony of the court system now introducing, through the mechanism of costs budgeting, the sort of control of costs that used to be exercised by the legal aid authorities in legal aid work.

It saw that cost control as a valuable aspect of legal aid for a lay client “without what some see as the additional paraphernalia that goes with costs budgeting.”

It is very clear that the Court of Appeal has not got the slightest clue as to what the legal aid rates are – any idea that they are comparable to costs budgeted costs is laughable.

The statement at Paragraph 83 that:

“Control of the costs being incurred was in everyone’s interests, including those of the appellant.”

also shows a degree of ignorance by the Court of Appeal of legal aid rates.

They are so low that very few law firms indeed now do legal aid.

The logic of the Court of Appeal’s statement is to say that rates of, say, £5 per hour are in everyone’s interests.

Of course they are not, as no lawyer would work for those rates, just as very few good lawyers are now prepared to do legal aid work.

The significance of the Court of Appeal decision is its entirely valid point, that if CFA-Lite is so good, then why did the law firm go for legal aid for their client to start with?

The lesson here is that firms doing legal aid work will be subject to great scrutiny if they change the funding from legal aid to a Conditional Fee Agreement, even a CFA-Lite which involves the client in no expenditure at all.

Firms are perfectly free not to do legal aid, and the vast majority of firms now do not in fact carry out any legal aid work.

That avoids the problem as if the client wishes to instruct that firm, then it will not be on the basis of legal aid. Of course each client must be informed of the availability of legal aid at other firms and given the choice, just as a firm doing legal aid work must explain to a client that they can have it dealt with under a Conditional Fee Agreement.

These cases may become rarer as the driver here was the fact that under the Conditional Fee Agreement regime at the time the success fee and the full After-the-Event insurance premium were recoverable, if the switch was reasonable.

Now that recoverability has been abolished, with the exception of a limited element of the After-the-Event insurance premium in clinical negligence cases, defendants will have no incentive to challenge the switch.

Clients may still do so, but if they are not paying anything, because it is a CFA-Lite, then they will have no incentive to challenge anyway, especially as they have to achieve a 20% costs reduction to win, failing which they pay the solicitor’s costs of the Solicitors Act 1974 assessment. It is rather difficult to achieve a 20% reduction when the original bill is £0.

Although the Court of Appeal rejects the argument the CFA-Lite is inherently superior to legal aid, the effect of this decision is inevitably to drive even more firms away from legal aid.

The Court of Appeal was clearly swayed by the costs of the NHS, as the final sentence of the judgment reads:

It is a feature of cases like these which, if ignored, is likely to result in vastly increased financial liabilities falling on the NHS.”

That may be the case, but that is not actually the law. Any client, properly advised, is entitled to choose whatever funding method that client wants, and this was reflected in the case of

Campbell v. MGN Ltd [2005] UKHL 61

where Naomi Campbell, a very wealthy model, was allowed to recover the additional liabilities under a Conditional Fee Agreement, with the court rejecting the argument that she could have afforded to pay by the hour as having any relevance at all.

That must be the case here as well.

Lawyers need to be very careful of these matters. The reality is that in the current climate, the courts are likely to work very hard to achieve any costs savings for the NHS, even if the funding decision was reached 10 years ago.

This judgment was given on 23 April 2020.

Written by kerryunderwood

April 30, 2020 at 7:50 am

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I realise that Football is not the most important thing in people’s lives at the moment, but it is generally a very important part of life and culture in the United Kingdom and, unfortunately, the current problems are showing just how badly football is run in this country at virtually all levels.

There is a pyramid system of football in England and Wales and this runs from the Premier League down through the Championship, League 1, League 2 and then steps 1 to 7 outside of the Football League.

Sitting at the top of the Non-League structure is the National League, which is step 1 and under the National League is National League South and North which is step 2 and so on.

From the top to the bottom we now have three different situations:

  1. the Premier League and Football League have not made a decision as to whether or not the season is over, and so it is possible that the remaining matches will be played, but almost certainly behind closed doors if that happens;
  1. the National League, that is steps 1 and 2, has made a decision to end the season, so that the original league fixtures will not be completed, but have made no decision as to whether there will be promotion and/or relegation, and if so, on what basis promotion and relegation will be determined, or whether the season should be null and void;
  1. steps 3 to 7 have been declared null and void.

In Women’s Football the position is much the same, with the 71 clubs in the National League structure having had their seasons declared null and void, but the Super League and Championship still undecided.

We all realize that these are difficult times, but the message I am getting right across the country is that if the Premier League and Football Association had made a decision, whatever that decision, that applied to all clubs in the country then it would be accepted.

The suspicion is of course that the Football Association and Premier League are more interested in the money from the TV companies than in Football itself, and its supporters.

I have been a Queens Park Rangers supporter since I was born and have had a season ticket for decades. If the last few matches cannot be played, then so be it. I certainly do not expect, nor do I want, any form of refund for those missed matches. However, I will be resentful if those matches are played behind closed doors so that no supporters can actually watch them.

The vast majority of people in this country do not have satellite television, and so will be unable to watch these matches.

The Football Association is not fit for purpose and when all of this is over, we should, as a country, look at a different way of running Football. I am more than happy to advise.

Kerry Underwood is Vice Chairman of Hemel Hempstead Town Football Club and an expert in Football Law and his firm Underwoods Solicitors have appeared in a number of football related cases.

In the current Coronavirus pandemic, Underwoods Solicitors are happy to have an initial free telephone consultation with any football club, great or small, and please contact Kerry Underwood on or 01442 430900.

Written by kerryunderwood

April 24, 2020 at 10:00 am

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Set out below are three new recipes from my close friend Andy Wakeford who is Head of School for Food Academy, Hospitality & Restaurant Services at West Herts College.


Note for Mushroom Stroganoff  –  THREE NEW RECIPES FROM ANDY WAKEFORD

In the preparation method there is reference in to adding in the tomato juice but that does not appear in the ingredients.

The amount should be between 50ml and 100ml, depending on how wet you would like the dish to be.

Written by kerryunderwood

April 24, 2020 at 9:29 am

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Set out below are three new recipes from my close friend Andy Wakeford who is Head of School for Food Academy, Hospitality & Restaurant Services at West Herts College.


Written by kerryunderwood

April 17, 2020 at 8:01 am

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I know that you are all stuck at home over the Easter Weekend, so thought this might be a good time for us all to get back to cooking something more adventures than a microwave meal😊

So set out below are four recipes from my close friend Andy Wakeford who is Head of School for Food Academy, Hospitality & Restaurant Services at West Herts College.

Written by kerryunderwood

April 9, 2020 at 4:10 pm

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Islandsbanki Hf and others v Stanford [2020] EWCA Civ 480

the Court of Appeal held that a creditor’s bankruptcy petition had been correctly dismissed following premature and unsatisfied execution of an unlawful writ of control, contrary to the Lugano Convention which governs jurisdiction and the enforcement of judgments in civil and commercial matters between European Union member states and Norway, Iceland and Switzerland.

The appellant creditor, one of three who had separately petitioned for the debtor’s bankruptcy, had obtained judgment in Iceland and a registration order in England, pursuant to the Lugano Convention and then attempted to enforce the order in England by obtaining a writ of control.

A writ of control was subsequently issued prematurely by the High Court, during the appeal period prescribed by the Lugano Convention and the registration order and after several failed enforcement attempts, High Court Enforcement Officers certified the writ of control as unsatisfied in whole.

The appellant used this as evidence of the debtor’s inability to pay its debts, pursuant to section 268(1)(b) of the Insolvency Act 1986, in their bankruptcy petition.

The petition was dismissed by the High Court and the writ of control set aside as unlawful.

The creditor appealed, partly to recover their own significant petition costs, as an expense of the bankruptcy, but also to extend the relevant time for challenging the debtor’s antecedent transactions – a bankruptcy order having already been made on another creditor’s later petition.

The  Court of Appeal, considered that an overarching purpose of the Lugano Convention was to strike a fair and proportionate balance between a creditor who applied for an order and a debtor’s right of appeal and it should not, therefore, be undermined by allowing irreversible measures of enforcement.

On the facts, the debtor had a right to set aside the writ of control as a matter of justice, without having to advance a substantive case on its merits.

As such, its purported execution was incapable of establishing a debtor’s insolvency.

The Court of Appeal held that such a fundamental defect in the enforcement and execution procedure could not be remedied or cured under the Lugano Convention, the Civil Jurisdiction and Judgments Act 1982, the Civil Procedure Rules or the Insolvency (England and Wales) Rules 2016: a procedurally irregular writ of control, issued in derogation of the Lugano Convention, was incapable of validation.

Written by kerryunderwood

April 9, 2020 at 2:44 pm

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


Eli Lilly & Co v Genentech Inc [2020] EWHC 564 (Pat)

the costs had to be determined following the decision in the trial of a preliminary issue in a case involving a divisional of a Genentech patent in which there had been a previous action between the same parties relating to the parent patent.

The trial had been held under the shorter trials scheme governed by Civil Procedure Rules Practice Direction 57AB.

The court rejected the defendant’s argument that paragraph 2.59 of Practice Direction 57AB, which provided for a summary assessment of the costs to be made, did not apply because of exceptional circumstances.

The judge held that the mere fact that substantial costs – over £1.5 million – had been incurred was not, of itself, exceptional.

In this case, the preliminary issue had been an attempt to avoid a trial on the same very large scale as the first action., where the costs had exceeded £11 million.

Costs would be summarily assessed.



Surely it is time to cap costs in any case – say a maximum of £250,000. If you can’t get your point across within that budget – then you are in the wrong profession.

Written by kerryunderwood

April 9, 2020 at 1:48 pm

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Central London County Court

The specialist Circuit Judges for business and property work in the Central London County Court have published a protocol setting out how insolvency and company work will be dealt with in the Central London County Court.

The protocol applies with immediate effect and until further notice.

The measures are as follows:

  • By arrangement with HMRC, HMRC petitions currently listed for hearing will not be heard but will be ordered to be relisted for hearing at least 12 weeks later.
  • The relisted date will be sent to HMRC and the debtor and any opposing or supporting creditors will then be notified by HMRC of the relisted hearing date.
  • HMRC will continue to ask, on paper, for dismissal or withdrawal of the petition where the debt has been paid.
  • Listed bankruptcy petitions by other petitioners will be relisted in the same way unless a request for a remote hearing is made by email to
  • Applications in bankruptcy proceedings will be dealt with on the first occasion on paper.
  • Any hearing then directed will be a remote hearing.
  • Public examinations will remain listed but should not be attended and will be adjourned unless there is a request for rescission, conclusion or a suspension of discharge from bankruptcy.
  • Such a request should be made by email to and will be considered on paper.
  • Claims for an extension of time to register company charges will remain listed but will be considered on paper without attendance.
  • The requirement to produce the original charge is waived in this period and evidence of solvency will be accepted by email to
  • Claims for the restoration of companies to the register will remain listed but will be considered on paper without attendance.


HMCTS Publishes Revised Operational Summary on Courts and Tribunals

On 2 April 2020, HM Courts & Tribunals Service published an update to its page providing a daily operational summary on courts and tribunals during the COVID-19 outbreak.

The 2 April summary provides new information in relation to various operational matters, including:

Civil Court listing priorities – “Priority 2” work, which refers to work that “could be done”, has been updated in the Civil court listing priorities document to include: “Applications or hearings pursuant to the Insolvency Act 1986 which concern the survival of a business or the solvency of a business or an individual”.


North and North-Eastern Business and Property Courts

Mr Justice Snowden has stated that a new emergency Practice Direction on insolvency matters will be published shortly, dealing with the e-filing of Notices of Intention to appoint administrators and Notices of Appointment of administrators.

Snowden J’s position summary given in his capacity as supervising judge of the Business and Property Courts for the North and North-Eastern Circuits does not give further detail on the pending emergency Practice Direction, which is a matter for all Business and Property Courts and not just the circuits he oversees.

He notes that the emergency Practice Direction will also provide a structure for the hearing of winding-up petitions in the coming weeks.

The position summary otherwise concerns the Leeds, Liverpool, Manchester and Newcastle Business and Property Courts although it does not suggest that there are differences for other circuits.

It states that:

  • The CE-file in the Leeds, Liverpool, Manchester and Newcastle Business and Property Courts will remain operational, although there may be delay in processing filings and judges will not have access to unprocessed filings.
  • Practitioners should assume that insolvency lists for winding-up petitions will be proceeding by a remote hearing unless notified to the contrary.
  • The policy of blanket adjournment of winding-up and bankruptcy petitions across all the Business and Property Courts is no longer being pursued.

There are two guides for urgent applications in the Leeds, Liverpool, Manchester and Newcastle Business and Property Courts: for urgent applications within court hours and for urgent applications outside court hours.

The latter applications outside court hours will continue to follow established procedure for the time being.

Source: Mr Justice Snowden: Covid-19 update number 1: Position Summary and Guides for Urgent Applications


Temporary Insolvency Practice Direction – April 2020

On 6 April 2020 a temporary Practice Direction on insolvency proceedings came into force and it expires on 1 October 2020 unless amended or revoked before then.

Most of it concerns emergency measures to deal with  COVID-19, but it also addresses longer running issues relating to the e-filing process for administration appointments.

It covers:

  • New rules on the ability to use electronic working, CE-file, to file Notice of Intention to appoint an administrator and Notice of Appointment of an administrator outside court hours.
  • Adjournment of pending applications, petitions and claim forms and procedures for  re-listing.
  • The process for listing urgent hearings in the High Court.
  • Remote hearings.
  • Temporary listing procedure for winding-up and bankruptcy petitions.
  • Making of statutory declarations before an authorised person but not in their physical presence.


Written by kerryunderwood

April 9, 2020 at 1:31 pm

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On 24 March 2020, the Administrative Court emailed guidance measures for urgent judicial review applications to the members of the Administrative Court User Group which includes the Administrative Law Bar Association to reflect the government’s guidance on social distancing, due to COVID-19.

Effective from 25 March 2020, and until further notice, the Administrative Court Office will no longer accept judicial review applications for immediate or urgent consideration over the counter, by post or by DX.

The guidance was subsequently updated on 27 March 2020 to include information on the procedures to be followed for non-urgent judicial review applications.

The guidance, which provides details of the email address to be used, includes information on:

 – Payment of fees.

 – The requirements of an electronic bundle, which are the same for both urgent and non- urgent judicial reviews.

 – The conduct of the hearings.

What is apparent from the new guidance is that some processes, particularly concerning non-urgent judicial review claims, initially may take longer such as the consideration of an application for permission to apply for judicial review on the papers and the hearings of non-urgent business which may take longer to come on.

Written by kerryunderwood

April 9, 2020 at 11:05 am

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.


Google Granted Permission to Appeal Representative Data Protection Class Action for Compensation


Richard Lloyd v Google LLC [2019] EWCA Civ 1599

the Supreme Court has granted Google LLC permission to appeal against the Court of Appeal’s order, which granted Mr Lloyd, a representative claimant, permission to serve proceedings outside of the jurisdiction on Google in the US, in a class action seeking compensation for  breach of section 4(4) of the Data Protection Act 1998.

The breach is said to have occurred between 2011 and 2012 in connection with Google’s use of its “Safari Workaround” technology by which it allegedly used its “DoubleClick cookie” technology to track the online behaviour of millions of Apple iPhone users in the UK without their knowledge or consent and then sold the accumulated data to advertisers, contrary to its privacy policy.

The claim is based solely on a contravention of the Data Protection Act 1998 and Mr Lloyd is alleging no financial loss or distress but instead, infringement of data protection rights, the commission of a wrong and loss of control over personal data.

Mr Lloyd is the only named claimant and is relying on an “opt-out” style of class action involving the meaning of “same interest” under Civil Procedure Rule Part 19.6(1).

Mr Lloyd is seeking a uniform amount of damages on behalf of each member of the class and while each amount will be small, the total bill for damages could amount to millions of pounds.

The examination of the right to compensation under the Data Protection Act 1998 will still be relevant for those seeking to recover compensation under Article 82 of the General Data Protection Regulation ((EU) 2016/679) as the principles are largely unchanged.

Recital 85 of the General Data Protection Regulation specifically cites “loss of control” over personal data as a type of damage.


Applicable Principles for Competing Firms of Claimants’ Solicitors in Group Litigation


Lungowe and others v Vedanta and another [2020] EWHC 749 (TCC)

the first defendant applied for a Group Litigation Order in respect of three sets of proceedings brought against itself and the second defendant.

The claimants in two of the sets of proceedings were represented by a well-known firm of solicitors and in the other proceedings by another firm of solicitors, but the subject matter and the defendants were the same in all of the proceedings.

The claimant firms submitted that, if a Group Litigation Order was made, it ought to keep the two firms’ “strands” separate.

The court considered that their submissions in this regard were underpinned by the commercial advantage to each firm of keeping the interests of their own claimants separate from the other firm.

However, this was not a good reason, it should not influence sensible case management and was contrary to the ethos of group litigation.


38. From the provisions of CPR Part 19, PD19 and these authorities, I derive the following principles:

1. Parties to litigation are generally entitled to be represented by the solicitors of their choice, and to have their case argued by their own representatives. However, in group litigation, that entitlement is qualified. In order properly to achieve efficient conduct and case management of the group litigation, that basic right takes second place to the advancement of the rights of the cohort. This is achieved through the role of the lead solicitor, and the use of counsel chosen and instructed by the lead solicitor.

2. The relationship between the lead solicitor and other firms, whether on a steering committee or otherwise, must be carefully defined in writing. In the absence of agreement, or in the event of deficiency in that agreement, the court will become involved, but this will occur only rarely. It is a reserve power and therefore rarely will it be deployed.

3.In group litigation, all the claimants in that group litigation who will be represented by a lead solicitor (or, as in the British Steel Group Litigation, two firms jointly acting as lead solicitor) are only entitled to instruct one counsel team (although that may have, of course, multiple members). Different groups of claimants are not entitled to instruct different groups of counsel.

39. Some explanation can be provided to each of the above. So far as principle (1) is concerned, the lead solicitor is not being instructed by the court to act against its wishes for all the other claimants, including those for whom it does not wish to act, who are (or because they are) represented by another firm. The lead solicitor is acting as precisely that – the lead solicitor in group litigation. They will be the contact point for the court and for the other parties in terms of service and communication. They will instruct counsel. The degree of consultation and liaison with other firms also instructed will be a matter of agreement between all the firms. It is to be hoped that rarely would there be disagreements, but if there are, the court has the reserve power in principle (2).

40. Principle (2) is self-explanatory. There was no written agreement available at the hearing before me on 27 February 2020, although each of Leigh Day and Hausfeld argued there was. This “agreement” consisted of a paragraph in a draft order that effectively stated Leigh Day would act for the Leigh Day claimants, and Hausfeld would act for the Hausfeld claimants. That is not the type of agreement envisaged by PD19B 3.3 and it is not the type of agreement that would be acceptable. Since the detailed GLO issues were drafted by me and the outstanding controversies on the wording of the GLO itself were resolved between the hearing on 27 February 2020 and the date of this judgment, a more detailed agreement was lodged. I will refrain from passing any comment upon it, positive or negative, as that is a matter for the Managing Judge once appointed.

41. Principle (3) is, in my judgment, so obvious that it does not appear to have been stated anywhere expressly before. However, it now seems necessary to do so, given some of the submissions made before me on 27 February 2020. Given group litigation involves resolving GLO issues, and given by definition GLO issues are all common or related issues of fact and/or law, there should never be any need for separate counsel representing separate groups of claimants. The claimants will have, broadly, co-existence of interest in the same issues. After the GLO Issues are all resolved, it will be a matter for the Managing Judge how (say) individual quantum claims are each to be litigated. Depending upon the subject matter of the group litigation, there will be different ways of achieving this. But certainly so far as resolving the GLO Issues themselves is concerned, no court should be faced with different counsel teams acting for the same cohort, save in the very rarest of circumstances which it is not possible fully to envisage. Certainly, no such rare circumstances exist in this litigation.

42. Finally, the court has broad case management powers under the CPR generally, and if anything a Managing Judge in group litigation has even wider powers under CPR Part 19. Group litigation presents particular challenges not only to the court, but also to the parties. Co-operation is an integral part of CPR Part 1.4(2)(a), and the parties have an express duty under CPR Part 1.3 to assist the court to further the over-riding objective. Co-operation in group litigation is of particular importance. The importance of this cannot be over-stated.

Written by kerryunderwood

April 6, 2020 at 10:55 am

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.



Benyatov v Credit Suisse Securities (Europe) Ltd [2020] EWHC 682 (QB)

the court considered CPR 44.2(8),  which provides that where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs unless there is good reason not to do so; it is rare that good reason is established.

Here, various reasons suggested by a defendant facing costs orders were rejected:

Costs orders in both directions – the claimant had a costs order regarding three applications but had been ordered to pay the defendant costs regarding struck out paragraphs of the particulars of claim.

The defendant had not sought an interim payment for those costs and they could only be properly assessed at the end of proceedings when work thrown away could be considered in the full context.

The judge rejected this as a reason not to order an interim payment as it would allow a party to bring into account contingent and uncertain entitlements as to costs to defeat an otherwise sure entitlement of the other party to an interim payment.

This could not only undermine CPR 44.2(8) but also encourage satellite disputes.

Had the defendant made an application for an inteim payment, the position might be different.

Likelihood of a further costs order in the defendant’s favour – the defendant submitted that a costs order might be made against the claimant regarding a future amendment application.

The judge considered it would be wrong to deny the claimant his entitlement to a payment on account of costs because a future costs order might be made against him.

The appropriate course was to deal with the implications of any future costs order as and when such an order was made.

Defendant had sought permission to appeal – the judge said that this did not prevent him ordering an interim payment.

However, as time for applying for permission had been extended, he ordered that the time for making the payment should not start to run until the application had been determined.

Prospect of subsequently recovering costs – the judge did not accept on the facts that the claimant might not be able to repay. Evidence for a previous security for costs application was noted.

The judge went on to order one third of the sum sought by the claimant.

Written by kerryunderwood

April 3, 2020 at 11:01 am

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