Earles v Barclays Bank plc; Merc 8 Oct 2009

References: [2009] EWHC 2500 (Mercantile), [2009] WLR (D) 309
Links: Times, Bailii, WLRD
Coram: Judge Simon Brown, QC
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. The bank had also, and despite having inhouse counsel, employed disproportionately expensive lawyers. The bank should receive only 25% of its costs claim. The court suggested that the bank’s difficulty might have been avoided by active costs management.
As to documents held electronically, while there was no general obligation to retain such material, such an obligation did arise once proceedings were commenced.
Statutes: Civil Procedure Rules 31.4
This case cites:

  • Cited – Onassis and Calogeropoulos -v- Vergottis HL ([1968] 2 Lloyd’s Rep 403)
    Lord Pearce (dissenting) discussed the assessment of a witness’ oral evidence: ‘Credibility involves wider problems than mere demeanour which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. . .
  • Cited – Grace Shipping -v- CF Sharp & Co (Malaya) Pte Ltd PC ([1987] 1 Lloyd’s Rep 207, Bailii, [1986] UKPC 57)
    (Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
    Lord . .
  • Cited – Woods -v- Martins Bank Ltd ([1958] 3 All ER 166, [1958] 1 WLR 1018, [1959] 1 QB 55)
    If a bank chooses to give advice to a customer, then the Bank’s obligation is to advise with ordinary skill and care. The liability is primarily on contract: ‘In my judgment, the limits of a banker’s business cannot be laid down as a matter of law. . .
  • Cited – British Railways Board -v- Herrington HL (lip, [1972] AC 877, [1972] 2 WLR 537, [1971] 1 All ER 749, Bailii, [1972] UKHL 1)
    The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
    Held: Whilst a land-owner owes no general duty of care to a . .
  • Cited – Indian Oil Corporation -v- Greenstone Shipping SA QBD ([1988] 1 QB 345, Times 23-Apr-87)
    Staughton J discussed the modern meaning of the rule of evidence known in Latin as ‘omnia praesumuntur contra spoliatorem’ (everything is presumed against a destroyer (of evidence) – ‘spoliation’ as it is termed in US and which the rule of . .
  • Cited – Infabrics Ltd -v- Jaytex Ltd ([1985] FSR 75)
    Where a party fails to preserve documents after the commencement of proceedings, the defaulting party risks ‘adverse inferences’ being drawn for such ‘spoliation’. Because the defendant had not preserved documents affecting the quantum of damage, . .
  • Cited – Crantrave Ltd (In Liquidation) -v- Lloyd’s Bank Plc CA (Times 24-Apr-00, Gazette 18-May-00, Bailii, [2000] EWCA Civ 127, [2000] QB 917, [2000] 4 All ER 473, [2000] 3 WLR 877)
    The bank received a garnishee order nisi, but acted before it was made absolute to pay the judgment creditor.
    Held: The bank had no defence against the customer claiming restitution relying on the equitable doctrine that one person paying the . .

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