Kerry Underwood

Archive for May 2014

LEGAL AID IN PERSONAL INJURY WORK

with one comment


The only area in which Legal Aid remains available in personal injury work is in a claim for damages in respect of clinical negligence which caused a neurological injury to a child as a result of which the child is severely disabled, but only where the first and second conditions are met.

The first condition is that the clinical negligence occurred while the child was in his or her mother’s womb, or during or after the child’s birth but before the end of the following period –

  • If the child was born before the beginning of the 37th week of pregnancy, the period of 8 weeks beginning with the first day of what would have been that week;
  • if the child was born during or after the 37th week of pregnancy, the period of 8 weeks beginning with the day of the child’s birth.

The second condition is that the services are provided to the child, or the child has died and the services are provided to the child’s personal representative.
Section 23, Schedule 1, Legal Aid, Sentencing and Punishment of Offenders Act 2013

That is the only area of personal injury work for which Legal Aid is available.

In April 2013 the Legal Aid Agency published the Legal Aid Agency Clinical Negligence Funding Checklist.

If the likely final costs exceed £25,000 then a Very High Costs Contract will be entered into. Those contract terms are unaffected by this Funding Checklist.

These staged sums represent the maximum that is likely to be authorised and payable by the Legal Aid Agency if the case is unsuccessful and the sums can be revised downwards to keep cases within The Civil Legal Aid (Merits Criteria) Regulations 2012 in relation to cost-benefit ratios.

Those cost-benefit ratios are:

For cases with over 80% prospect of success: costs must not exceed expected damages.

For cases with 60%-80% prospect of success: costs must not exceed half expected damages.

For cases with 50%-60% prospects of success: costs must not exceed one quarter of expected damages.

Successful claimants’ solicitors’ costs will be paid at the usual assessed between the parties rates.

The stages are:

1 – The Investigative Stage

2 – Issue of Proceedings to Mutual Exchange

3 – Settlement

4 – Trial

5 – Quantum Investigations

6 – Quantum Trial

Hourly rates (First £25,000)
Solicitor – £108 per hour (this includes enhancement)

Queen’s Counsel (in High Court) – £180 per hour

Senior Junior acting alone – £135 per hour

Led Junior Counsel – £112.50 per hour

Medical experts – the rates that will be authorised for the most commonly sought experts are in The Civil Legal Aid (Remuneration) Regulations 2013.

(Form CIVAPP8A must be completed if you are seeking a higher rate for an expert)

Hourly rates (post £25,000)
Solicitor – £70 per hour

Senior Counsel – £90 per hour

Junior Counsel – £50 per hour

Simplified claims for payment
Where you have agreed costs limits with the Legal Aid Agency using the Funding Checklist you must submit the following:

– Claim 1
– The Funding Checklist
– Time recording sheets for each stage
– Counsel’s fee notes
– Disbursement vouchers

If the Checklist is answered in full and the costs limitations agreed there is no need to provide a separate case plan or detailed costs schedule.

Investigative Help (Stage 1):
Includes:
– Attendance on client
– Medical records
– Client statement(s)
– Instructing experts
– Considering reports
– Supplementary questions to experts
– Instructing counsel
– Conference(s) with counsel and experts
– Protocol letter and response

1 expert – £4,500

2 experts – £6,750

3 experts – £9,000 – £13,500

4 experts – £13,500 – £18,000

5/6 experts (+ MRI) – £20,250 – £22,500

For authorisation of the above sums you must:

– Provide a brief statement (in addition to any client statement) including date of injury, date of knowledge, nature of injury, prognosis (if known), likely particulars of negligence

– State whether there any additional risk factors e.g. limitation, multiple defendants, client credibility (client evidence conflicts with medical records)

– List all medical experts likely to be instructed before proceedings are issued and in relation to each:
o Discipline of expert (and name if known)
o Medical issue the expert will address
o Proposed order of instruction
o Approximate timetable for instruction and receipt of report

– State whether there been any informal or informal admissions (e.g. through the Complaints procedure)?

– Provide an estimate of costs:
o To date (if any)
o To conclude investigative stage (Stage 1)
o To conclude settlement
o To conclude trial

– State whether a split trial likely to be appropriate? (In a case where numerous quantum experts are required the assumption will be that funding is provided on the basis of a split trial unless liability/causation is conceded or a realistic offer of settlement has been made)

– Provide an estimated date for pre-issue conference with counsel and expert

– Provide an estimated date for final hearing

– Provide an estimate of general and special damages, specifying likely heads of damage. A broad estimate is acceptable if quantum is complex or the prognosis unclear.

– The assumption at this stage is that prospects are unclear. You must confirm whether this is the case or not.

Issue of Proceedings – Mutual Exchange (Stage 2):
Includes:
– Issue/service
– Allocation questionnaire
– Case Management Conference
– Considering Defence
– Experts’ consideration of defence/revision of reports
– Exchanging statements and reports
– Part 35
– Conference with counsel and experts

There is an assumption that Leading Counsel may be involved in a 4/5 expert case.

1 expert – £6,750

2 experts – £9,000

3 experts – £10,750 – £13,500

4 experts – £14,250 – £16,750

5 experts -£16,750 – £19,000

For authorisation of the above sums you must:

– Provide a brief updated report on case including particulars of negligence, causation, injury and prognosis, defendant’s response to letter of claim, any formal or informal admissions. Are there any additional risk factors e.g. limitation, multiple Defendants, client credibility?

– List all medical reports obtained and in relation to each:
o Discipline of expert and name
o Medical issue addressed
o Specific conclusion of each expert

– State whether a split trial is likely to be appropriate and give a brief reason. (In a case where numerous quantum experts are required the assumption will be that funding is provided on the basis of a split trial unless liability/causation is conceded or a realistic offer of settlement has been made).

– Provide an estimate of costs:
o To date
o To conclude mutual exchange (Stage 2)
o To settlement
o To trial

– Provide an estimate of general and special damages specifying heads of damage. A broad estimate is acceptable if quantum is very complex or the prognosis unclear.

– Provide the prospects of success in percentage terms

– State the likelihood of settlement

– Provide an estimated date of final hearing

– Submit copies of all reports, Notes of Conference or Counsel’s Advice and Defendant’s letter of response.

Settlement (Stage 3):
Includes:

– Considering quantum reports (preliminary quantum reports if the case is proceeding by way of split trial)

– Instructing experts for meetings and revision of reports

– Making Part 36 offer

– Considering response, settlement meeting/negotiations.

1 expert – £6,750

2 experts – £6,750 – £9,500

3 experts – £12,000 – £14,250

4 experts – £19,000

5 experts – £21,750

For authorisation of the above sums you must:

– Provide a brief updated report on case including a brief summary of the defence theory, any formal or informal admissions and any other risk factors

– State whether the case is proceeding by way of a split trial

– Prospects of success (if case does not settle) in percentage terms

– Provide an estimate of costs:
o To date
o To settlement (stage 3)
o To trial

– Provide an estimate of general and special damages

– Submit a copy of Notes of Conference or Counsel’s written Advice

Trial – Full Trial or Liability only (Stage 4):
Includes:
– Pre-Trial Review
– Finalising statements
– Conference
– Trial bundle
– Trial preparation
– Attendance at trial.

There is an assumption that in a 4/5 expert case, leading Counsel may be involved and that a five day trial is likely.

1 expert – £6,750 – £9,500

2 experts – £12,000 – £14,250

3 experts – £19,000 – £28,500

4 experts – £35,750

5 experts – £40,000

For authorisation of the above sums you must:

– Provide a brief updated report on case including a summary of key issues in dispute, any admissions, outcome of any settlement negotiations including details of offers made/rejected and any other risk factors

– List all medical experts to attend trial and in relation to each:
o Discipline and name
o Issue they will address
o Specific conclusion of each expert
o Summary of defendant’s expert’s view

– State the prospects of success in percentage terms

– Provide an estimate of costs:
o To date
o To conclude trial (stage 4)
o To conclude quantum trial if appropriate

– Provide an estimate of general and special damages

– Provide the defendant’s valuation of claim

– State the prospects of beating any Part 36 offer and advice to client

– Submit copies of joint expert reports and Notes of Conference or written Advice

Quantum Investigations (Stage 5):
Includes:
– Instructing experts
– Considering reports and defendant’s reports
– Revision of reports
– Schedule of loss
– Indexation issues
– Conference
– Settlement negotiations.

8 -10 quantum expert case – £34,000

For authorisation of the above sum you must:

– Specify number and disciplines of experts

– Detail any offers to settle and response

– Provide an estimate of costs:
o To date
o To conclude quantum investigations (stage 5)
o To conclude the quantum trial

Quantum Trial (Stage 6):
Includes:
– Pre-Trial Review
– Finalising witness statements
– Conference
– Trial bundle
– Trial preparation
– Attend trial

8 – 10 quantum expert case and five day trial -£41,000

For authorisation of the above sum you must:

– Please specify number and disciplines of experts attending trial

– Detail any offers to settle and response and likelihood of beating any Part 36 offer

– Provide an estimate of costs:
o To date
o To conclude quantum trial (stage 6)

– Submit claimant and defendant schedules of loss

Please note that the Legal Aid Agency is likely to authorise a maximum of £178,250 in total for a fully contested cerebral palsy case (split trial) with five liability and ten quantum experts where all six stages are completed.

Written by kerryunderwood

May 29, 2014 at 1:28 pm

Posted in Uncategorized

KERRY’S LAW BECOMES LAW – 28 DAY EXTENSION APPROVED BY PARLIAMENT

with 7 comments


Following yesterday’s key decision in the Hallam Estates case – see my blog Jackson Allows Relief From Sanctions – there is more good news in that Parliament has now passed secondary legislation allowing parties to extend the period for carrying out any step by 28 days subject to the restrictions dealt with below.

Lord Justice Jackson’s ruling yesterday anticipates these changes and gave advance guidance:

“12. By way of digression I comment that rule 3.8 will shortly be amended so that in the ordinary way parties can, without reference to the court, agree extensions of time up to 28 days, provided that this does not put at risk any hearing date. A variety of circumstances may arise in which one or other party (however diligent) may require a modest extension of time. Under rule 1.3 the parties have a duty to help the court in furthering the overriding objective. The overriding objective includes allotting an appropriate share of the court’s resources to an individual case. Therefore legal representatives are not in breach of any duty to their client, when they agree to a reasonable extension of time which neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation. On the contrary, by avoiding the need for a contested application they are furthering the overriding objective and also saving costs for the benefit of their own client.”

The Civil Procedure (Amendment No 5) Rules 2014¬ in force 5 June 2014 – allow parties to extend time by consent without reference to, or permission of, the court. Although technically this does not statutorily repeal Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 it does overturn many of the decisions purporting to follow Mitchell and represents a significant assertion by Parliament of its sovereignty over the courts in the Justice or Administration of Justice debate. Parliament favours Justice. One would have hoped that the courts did too.

The extension must be “by prior written agreement”, that is it must be an “in time” agreement made before the time for complying with a particular deadline has expired.

Consequently retrospective agreements are not allowed by the new rule.

The maximum extension allowed is 28 days.

The date and time of the extension must be made clear and it is best to put in the agreement that the step must be carried out

“On or before the [ ] day of [ ]”

rather than simply referring to a “21 day extension” or whatever.

This was an issue in the case of Thomas, considered below, where the parties had orally agreed an extension of one month and there was then a dispute as to whether the extension ran from the date of the conversation or the date of expiry of the period for serving the claim form.

The Court of Appeal said

“…it is always desirable that agreements between solicitors be reduced to writing and – given the ease of communication by email – these days, hardly a burden. Second, when agreements (or court orders) about the date by which a thing is to be done are made, it is always better to specify that date precisely rather than by reference to a period such as a week or a month. There is always room for misunderstandings or accidentally fixing a weekend or Bank Holiday if time periods are used.”
(Jackson LJ)

It must be a written agreement.

What constitutes a “written agreement” was considered by the Court of Appeal in the context of extending time for service of the claim form, where CPR 2.11 states that time limits can be varied by “the written agreement of the parties.”

In Thomas v Home Office [2006] EWCA Civ 1355

the Court of Appeal held that the fact that an oral agreement had been reached between the parties does not stop one party challenging the agreement on the basis that it is not in writing, that is the doctrine of estoppel cannot apply.

Here the parties agreed an extension of time for service of the claim form, but the District Judge struck out the claim on the basis that the parties could not extend time for service. The Court of Appeal held that the parties could extend time for service but that the agreement had to be in writing and here it was not and so the claim remained struck out.

Lord Justice Neuberger, then in the Court of Appeal and now President of the Supreme Court, set out what is required by CPR 2.11.

“22. It is accepted on behalf of the claimant that the requirements of r.2.11 that there be “a written agreement between the parties” means that there must be some written document. However, there was a sharp division between the parties as to what type of document or documents would satisfy that requirement.

23. Before deciding that point, it is, however, necessary to consider an anterior point made on behalf of the claimant, namely that once there has been one variation which is a “written agreement”, any subsequent variation will be valid even if made orally. This argument, as reformulated by Lloyd LJ in argument, is that r.2.11 is concerned with stipulating that a variation to the time limit in r.7.5 must be in writing, but that any subsequent variation, being a variation to the time limit agreed in the written variation, is not a variation of the time limit “specified by a rule”.

24. Ingenious though that argument is, it must be rejected, in my view. First, as a matter of principle, it seems to me little short of ridiculous to conclude that r.2.11 requires the first variation to be in a “written agreement”, but permits any further variation to be oral, or even to arise implicitly in some way. Secondly, ignoring r7.6 for the moment, it seems to me that where a claim form is served outside the time limit specified in r.7.5, the court could only hold that the claim form had been validly served if satisfied that there had been a variation (or series of variations) of the time limit, and such variation or variations would all have to satisfy r.2.11. Thirdly, as pointed out by Jacob LJ, the logic of the claimant’s argument in this connection is that, once there has been one written variation, there could be no further variations, because there would, on this argument, be no express right to vary the initial variation, and the natural effect of the rules I have been discussing is that the only variations (whether by the court or by the parties) to the time limits contained in r.7.5 are those permitted expressly in the CPR.

25. That brings me, then, to the question of what constitutes a “written agreement of the parties”. Clearly, it would encompass a single document signed by both parties. However, contrary to Mr Serr’s submissions, I see no grounds, either in principle or as a matter of language, for limiting it to a single document. I can see no reason why an exchange of letters between the two solicitors concerned, in which the extension of time is agreed, would not constitute a “written agreement”.

26. An oral agreement which is then confirmed in writing by both sides appears to me also to be within the concept of a “written agreement”. The oral agreement itself would not, of course, be capable of being a written agreement. However, it seems to me that where following the oral agreement, the two solicitors exchange letters confirming what they have agreed, the exchange of letters amounts to an agreement in writing that they have agreed (albeit orally) an extension of time: to my mind, it would, at best, be no more than a quibble to contend that an agreement in writhing that the parties have agreed something orally does not constitute a “written agreement of the parties”. If the oral agreement, because of the very fact that it was oral, could not validly effect a variation, then it seems to me that there is no reason why it cannot be said that the time limit has been “varied by the written agreement of the parties” even though that written agreement was an agreement between the parties that they had orally agreed the variation.

27. I think things get more difficult where the parties, having orally agreed a variation, each subsequently refer to what has been agreed in correspondence passing between them. An example, albeit of a slightly unusual nature, may be found in the facts of the present case. The claimant’s solicitors effectively confirmed the extension to the 1 April in their letter of 24 February 2005 (and if the defendant’s solicitor had replied in a letter confirming this extension, then there would, for the reasons I have just given, have been a written agreement in my view). However, what happened is that, almost four weeks later, the defendant’s solicitor wrote to the claimant’s solicitors in connection with a different matter, namely the expert evidence, and enclosed a letter to the expert in which the solicitor stated that an extension to 1 April 2005 had been agreed.

28. With some hesitation, I have reached the conclusion that this was simply insufficient to amount to a “written agreement” as contemplated by r.2.11. First, it seems to me to involve an impermissible stretching of the expression to cover the contents of a letter, whose purpose had nothing whatsoever to do with agreeing, but was merely communicating to a third party what had been orally agreed. Secondly, it appears to me undesirable that the question of whether or not there has been a valid agreement should turn on what a solicitor happens to write in subsequent correspondence which was not intended to bear on the question of agreement at all. To my mind, the concept of a “written agreement between the parties”, particularly in the context of the CPR, involves a document or exchange of documents which is intended to constitute the agreement or to confirm or record the agreement. Because one cannot envisage every possibility which might eventuate, I would not want this to be seen as being entirely prescriptive.

19. Having said that, it seems to me clear that an oral agreement between two solicitors, subsequently recorded in a letter sent by one solicitor to the other but not replied to by the other, cannot possibly be said to constitute a “written agreement of the parties”. Similarly, an oral agreement between two solicitors, evidenced by an internal confirmatory note by one solicitor, or even by each of the solicitors, cannot constitute a written agreement, unless, of course, the internal notes are exchanged (or, for instance, one solicitor sends its internal note to the other, and the other in some way confirms in writing its relevant contents).”

Text of relevant change:

“Amendments to the Civil Procedure Rules 1998
3. In rule 3.8 –
(a) in paragraph (3)(b) after “agreement between the parties” insert “except as provided in paragraph (4)”;
(b) in paragraph (3) insert-
“(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.”

Written by kerryunderwood

May 20, 2014 at 1:03 pm

Posted in Uncategorized

SETTLEMENT AGREEMENTS IN PERSONAL INJURY

with 11 comments


This piece first appeared in Claims Magazine. I first published it as a blog in May 2014. I re-blog it now in relation to insurers’ conduct as set out in my Insurers At It Again series.

As the dysfunctional Jackson shamble stumbles on, albeit now being progressively overturned by Parliament, it is time to look to the future and a constructive reform of the personal injury system rather than the Jackson-cut-costs-whatever-the-cost agenda.

In employment cases, uniquely as far as I am aware in English law, it is not possible for parties finally to settle a matter without the employee taking the advice of a qualified solicitor, legal executive or barrister.  Failure to do so means that the employee can take the money and still sue, which is an unattractive prospect for an employer.

Consequently the custom has grown up whereby the employer pays the legal fees of the independent solicitor instructed by the employee.

Such a scheme in personal injury matters would solve, at a stroke, the third party capture problem whereby insurers seek to do a deal direct with the accident victim, virtually always under-settling.

There would be no point in an insurer making too low an offer as the lawyer would simply refuse to advise acceptance.  This has proved to be the case in employment cases, that is much more sensible offers are made to start with.

It takes the sting out of the small claims limit issue as the insurer would still pay the fee in what would be a small claim and it would also allow a solicitor to earn a fee for dealing with a child’s claim, thus solving a major Jackson problem – how do you act for a child when the recoverable costs are uneconomic and judges may not allow a deduction from damages?

This could be resolved by payment of the ordinary settlement fee plus a standard fee of say, £250, to obtain the court’s approval in relation to damages, that being the portal add on fee for such applications.

From the insurers point of view matters are resolved quickly and efficiently without significant defence costs being incurred and with good PR.

The benefit to the client is quick settlement and, most significantly now, no 25% deduction from damages and no need to consider after-the-event insurance.

It also knocks out the paralegal-filled factory firms as it must be a qualified solicitor lawyer who certifies the agreement. Claims management companies would become redundant in low value personal injury work.  The illegal referral fee black market would largely disappear as would the cash inducements offered by personal injury firms to clients and which are bringing the profession into disrepute.

Thus we have a quick settlement for a fair sum approved by a qualified lawyer, with no deductions from damages and no CMCs or illegal referral fees. The fee would vary from case to case and would be subject to claimant solicitor market forces, but £600 plus VAT seems about right to me.

From the State’s point of view it frees up the courts to deal with the more serious matters and those incapable of being settled.

Settlement Agreements in personal injury claims is an idea whose time has come.

See also: SETTLEMENT AGREEMENTS IN PERSONAL INJURY

Written by kerryunderwood

May 19, 2014 at 11:51 am

Posted in Uncategorized

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