Kerry Underwood

LOVE SONG TO HEMEL HEMPSTEAD

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The following is an extract from Mike Carter’s outstanding book – All Together Now – available here

Merry Christmas to, and from, everyone in Hemel Hempstead 😊

Written by kerryunderwood

December 24, 2019 at 10:04 am

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NON-PAYMENT OF STAGE 1 COSTS TRIGGERS HIGHER FIXED COSTS

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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.

 

In

Lysaght v Lyndon Scaffolding Limited Huddersfield County Court, 5 December 2019, Claim Number F00HD497

Huddersfield County Court held that where a matter settled in the portal process, but the defendant failed to pay Stage 1 costs on time, the claimant’s solicitors were entitled to issue Part 8 proceedings and get fixed costs pursuant to Table 6C.

I am grateful to Nicola Allen of Brearleys Solicitors for information about this case.

Written by kerryunderwood

December 23, 2019 at 9:20 am

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PART 36: OFFERS “EXCLUSIVE OF INTEREST” NOT VALID

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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.

 

In

King v City of London Corporation [2019] EWCA Civ 2266

the Court of Appeal, in an exhaustive analysis of Part 36, held that an offer “exclusive of interest” is not a valid Part 36 offer, and that rule applies in detailed assessment proceedings as well.

The decision to the contrary in relation to detailed assessment proceedings in

Horne v Prescot (No.1) Ltd (Rev 1) [2019] EWHC 1322 (QB)

is no longer good law.

Written by kerryunderwood

December 23, 2019 at 9:08 am

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APPEAL AGAINST PROVISIONAL ASSESSMENT LIMITED TO POINTS RAISED AT INITIAL ORAL HEARING CHALLENGING ASSESSMENT

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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.

 

In

PME v The Scout Association [2019] EWHC 3421 (QB)

the High Court dismissed an appeal against the decision of a Master in the Senior Court Costs Office and  held that parties wishing to challenge a provisional assessment by an Authorised Cost Officer must first request an oral hearing under CPR 47.15(7), setting out the items they wish to challenge.

Parties may subsequently appeal under CPR 47.23, by way of re-hearing, the decision made by the Authorised Cost Officer at the oral hearing in relation to those items.

However, the court confirmed that the appeal process is not an opportunity for a party to demand a re-hearing of decisions which they previously accepted and did not challenge at the oral hearing.

The judge considered the wording of CPR 47.24, the court’s powers on appeal from an Authorised Cost Officer, in particular the meaning of the obligation to “re-hear the proceedings which gave rise to the decision appealed against”.

In the judge’s view, a provisional assessment was not a “hearing”; a  “re-hearing” was a further hearing of a “hearing” that had taken place.

This was the oral hearing under CPR 47.15(7) at which a provisional assessment was challenged, and not the provisional assessment on paper.

This was in spite of the fact that Practice Direction 47.14.4(2) referred to the results of the paper provisional assessment as a “decision” and that CPR 47.21 enabled a party to appeal “against a decision” of an Authorised Cost Officer in detailed assessment proceedings.

The judge suggested that if the wording needed to be explained, the words in the Practice Direction were “infelicitously chosen” and held that a provisional assessment on paper did not give rise to a “decision” which could be the subject of an appeal.

It might better be described as provisional assessment of items on the bill which became binding on the parties if no oral hearing was requested, or if an oral hearing was requested, which gave rise to decisions capable of being appealed.

The Master also rejected the argument that an Authorised Cost Officer, cannot conduct a provisional assessment and that point was not pursued on appeal.

Written by kerryunderwood

December 20, 2019 at 3:32 pm

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HIGH COURT JUDGE SLAMS £74,000 COSTS FOR TWO-HOUR HEARING

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

In

Weisz v Weisz & Ors [2019] EWHC 3101 (Fam)

a High Court Judge sitting in the Family Court expressed astonishment that the costs of a single application, for all of the parties, was around £74,000 in relation to a claim for a £75,000 lump sum and £8,511 a month.

 

The judge said:

 

“…It cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today’s application.”

 

“5. The starting point in relation to this case, having set out the provision which is sought by the claimant, is to express concern, if not astonishment, at the level of costs in relation to today’s application. The claimant’s costs – and this is just for today and not the claim overall – are just over £18,000. The costs of the third and fourth defendants, who are two of the children of the deceased, are £37,880. Remarkably, I am told that the executors of the estate do not even know what their costs of today are, and I should say that if any of the lawyers in this court appear in front of me again not knowing what their costs are for the application in front of me, I will have a lot more to say about it than I have done today; but, if I take the executors’ costs as being the same as the claimant’s (and I note that the claimant has instructed – I hope I can say this without any disrespect – much less expensive solicitors than the third and fourth defendants), then that means that the overall costs of today are in the order of £74,000.

6. That is to be set in the context of the total amount claimed today by the claimant of £75,000 in terms of the lump sum plus the £8,511 a month to which I have referred. It cannot be proportionate for so much money to be spent on this issue and it is very sad indeed that the parties have been unable to settle today’s application.”

 

Comment

It is high time that all costs in all types of work were capped for specific events.

I would have thought the maximum for any application listed, as this one was, for two hours should be £5,000.

Written by kerryunderwood

December 20, 2019 at 10:53 am

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FUNDER LIABLE TO SOLICITORS BUT WITHOUT SOLICITORS ACT 1974 PROTECTION

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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.

 

In

Abbhi v Slade (trading as Richard Slade And Company) [2019] EWCA Civ 2175

the Court of Appeal held that an agreement by a son-in-law to give his father-in-law money to pay legal fees was not a guarantee but a primary obligation, and that he was acting as a funder and was therefore liable to the solicitors, but as he was not the client chargeable under the Solicitors Act 1974, he had none of the extensive protection which that act gives to clients.

Here, the agreement had been structured so as to limit the liability of the son-in-law under section 51 of the Senior Courts Act – that is a non-party costs liability.

As the appellant’s father-in-law could not afford to pay the legal fees it was agreed by his son-in-law, the appellant, at a meeting with the solicitor, the respondent, that the appellant would pay these.

To avoid becoming liable for any cost order arising from litigation, the appellant agreed to transfer the funds to his father-in-law for the purpose of paying legal fees as they arose.

The agreement was not put in writing.

When the appellant’s father-in-law died his estate was insolvent, and there were substantial legal fees owing to the respondent.

The appellant argued that the arrangement to pay the legal fees constituted an oral guarantee and was, therefore, unenforceable as it did not comply with the requirements of section 4 of the Statute of Frauds 1677.

The court unanimously held that the agreement was not a guarantee because it was known at the outset that the appellant’s father-in-law could not cover the fees, and the appellant would, in fact, be providing the funds.

There was never any suggestion of the appellant’s father-in-law being capable of paying the fees himself.

Therefore, the agreement constituted a primary obligation because the appellant’s obligation to pay the fees did not rely on any default by the appellant’s father-in-law.

As the agreement was a primary obligation, not a guarantee, it was valid and binding even though it was not in writing or recorded in writing or signed.

The distinction between a guarantee and an indemnity is a fine one.

The Solicitors Act 1974 needs a total re-write.

Written by kerryunderwood

December 20, 2019 at 8:29 am

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PORTALS, VULNERABLE ADULTS, HARM AND INCORRECT VALUATION

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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.

 

In

Scott v Ministry of Justice [2019] EWHC B13 (Costs)

the Senior Courts Costs Office allowed recovery of costs on the standard, open, basis where the claim had been valued at £5,000, not put on the portal, re-valued at over the £25,000 portal limit, and settled by acceptance of the defendant’s Part 36 offer of £15,000.

The court also ruled on the meaning of “vulnerable adult” within the portal process and on the definition of “harm” in the portal.

Here the claimant, a prison officer, was injured by a prisoner.

A Claim Form was issued stating that the claimant did not expect to recover more than £5,000, but following receipt of an expert’s report three days later, and a conference with counsel, the endorsement of the value on the Claim Form was amended to in excess of £30,000.

On acceptance of the defendant’s Part 36 offer of £15,000, the defendant argued that only Employers’ Liability/Public Liability portal costs should be paid.

The claimant argued that the portal, and therefore CPR 45, did not apply as the prisoner who injured the claimant was a vulnerable adult and Paragraph 4.3(8) of EL/PL Protocol reads:

“This Protocol does not apply to a claim… for damages in relation to harm, abuse or neglect of or by children or vulnerable adults.” (My italics).

Thus, there needs to be “harm, abuse or neglect” to, or by, a vulnerable adult.

 

Harm

Here, there was no “abuse or neglect”, so the issues were whether conventional personal injury amounts to “harm” and whether a prisoner was, by definition, a vulnerable adult.

The court held that personal injury, of itself, was not “harm”.

 

“16. If that phrase had read ‘abuse, neglect or harm’ (namely, if the order of the words had been different), I would have had no hesitation in saying that the word ‘harm’ was a reference to acts or omissions that are akin to abuse or neglect. The fact that the word ‘harm’ precedes the words ‘abuse’ and ‘neglect’ makes me pause for thought, but I am not overly troubled by this as there is precedent for qualifying words following (rather than preceding) words that are qualified (see, for example, Pengelly v Bell Punch Co Ltd [1964] 1 WLR 1055). In my view, the meaning of the phrase ‘harm, abuse or neglect’ is that it means abuse, neglect or other such harm. Put otherwise, it focusses on the nature of the acts or omissions in question, not on the mere fact that a personal injury has been caused.

17. Furthermore, if it were right to say that the word ‘harm’ encompassed personal injuries per se, I would have expected it to be separated from the words ‘abuse or neglect’ by something weightier than a mere comma. This is because harm (in the sense of injuries) is fundamentally different from abuse and neglect (which are acts or omissions); by way of illustration, the phrase ‘personal injury, abuse or neglect’ reads badly and is jarring.

18. There is, however, a more fundamental problem with Mr Fletcher’s argument. If the word ‘harm’ could be read as meaning personal injuries per se, this would cause serious internal inconsistencies in the EL/PL Protocol. In particular, if Mr Fletcher’s analysis were correct, it would also apply to children (including those who bring public liability claims as a result of having sustained an injury). This would mean that any child with any personal injury (whether as a result of abuse or neglect or otherwise) would be excluded from the EL/PL Protocol. This, however, is demonstrably false, as that protocol repeatedly makes reference to children. By way of example, paragraph 6.4 states that ‘where the claimant is a child, this must be noted in the relevant section of the CNF, and paragraph 6.5 says that ‘where the claimant is a child the statement of truth may be signed by the parent or guardian’. There are similar references at paragraphs 6.16, 7.24. 7.44 and 7.53. In my view, it would make no sense at all for the EL/PL Protocol to include multiple provisions relating specifically to child claimants, only for that same protocol to disapply itself. This requires a different reading of the meaning of the word ‘harm’ to that urged upon me by Mr Fletcher.

19. As a crosscheck (and it is no more than that), I note that if Mr Fletcher’s analysis were correct, the exception created by paragraph 4.3(8) of the EL/PL Protocol would be a demographically sizeable one. It would include all claims involving children, and would potentially include claims involving the elderly (not to mention disabled people and people with mental illnesses). This could include, say, a quarter of the population. In my view, it is inherently unlikely that the exception created by paragraph 4.3(8) of the EL/PL Protocol was intended to be so broad.

 

Vulnerable Adults

The court held that the status of a person covered could change depending upon the circumstances:

 

“…a woman may well be ‘vulnerable’ for the purposes of the EL/PL Protocol if she were to bring an employers’ liability claim alleging sexual abuse within her workplace, but that same person may well not be classed as being ‘vulnerable’ if she were to bring a public liability claim against a supermarket because she slipped on a grape. Put otherwise, a person’s status may change depending on the circumstances. In this regard, I note that a context-specific approach tends to apply in other circumstances in which the court considers the phrase ‘vulnerable adult’ (see, for example, A Local Authority v (1) MA (2) NA and (3) SA [2005] EWHC 2942 at [77] and [78], per Mumby J, which deals with the use of that phrase for the purposes of the court’s inherent jurisdiction).”

 

On the facts here, the court held that the prisoner was not a vulnerable adult and therefore the EL/PL exception did not apply.

 

Valuation

The court found that the claimant had not unreasonably valued the claim and that there had been no intention to mislead the court or the defendant by initially putting the value at only £5,000 on the Claim Form.

Consequently, the costs should be assessed without reference to CPR 45, that is they should be assessed on the open, standard, basis and not on the fixed costs or portal basis.

Written by kerryunderwood

December 18, 2019 at 7:24 am

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