DOING DEFENCE DIFFERENTLY

 

 

Don’t dumb down

• Senior lawyer intervention at start;
• A stitch in time saves nine;
• Is it in the right portal – employees, Crown servants and all that;

 

Part 36

 

• Immediate offer on liability where appropriate;
• Specials to date;
• Settle early – settle low;

• Consider “one good offer or go to trial” policy;
• Anything and everything.
• Claimant lawyers’ 25% more valuable the earlier the case settles

Portals

• Never let it out!
• Is contributory negligence ever worth it?
• Court fees: unintentional tax on defendants?

Fixed Recoverable Costs

• Extend by agreement;
• Has the Claimant got ATE;
• The Claimant’s solicitors 25% damages charge – making it work for defendants;
• Agreeing to waive the indemnity principle;
• Agreeing DBAs plus costs;
• Don’t make the claimant’s solicitor do unnecessary work;
• Less work, lower costs but more profit makes both parties happy;
• No more fattening up a file up like a pig for market.

Qualified One Way Costs Shifting

 

• Part 36;
• Special Damages;
• Fundamental dishonesty, QOCS and Section 57 Criminal Justice and Courts Act 2015;
• Strike out;
• Summary judgment;
• Discontinuance.

ADR

 

• Private mediation/arbitration;
• Settlement agreements;
• Waiving indemnity principle;
• Waiving small claims limit.

Settlement Agreements

• Based on employment cases;
• Fee paid by defendant;
• Dealt with only by qualified lawyer;
• No deduction from client’s damages;
• Agree never to engage in Third Party Capture – unacceptable

Voluntary extension of Fixed Recoverable Costs

• Seek to agree FRC on anything;
• Use Tables with % applying to higher sums;
• Agree to waive indemnity principles;
• Saving costs of dealing with costs;
• Certainty suits everyone.

Unnecessary Costs

• Issue fee;
• ATE insurance;
• Costs lawyers;
• Costs negotiators;
• Most expert’s fees.

Good firms

• Work collaboratively with good firms;
• Agree structure workable for us both;
• Settlement agreements;
• No technical challenges on costs/retainer;
• Fixed Recoverable Costs extension;
• No small claims limit.

Bad firms and Claims Management Companies, Claim Farms etc.

• Fight;
• Claim fundamental dishonesty to defeat QOCS;
• Defeat QOCS – apply to strike out;
• Use Section 57 – fundamental dishonesty;
• “Financial benefit of another” QOCS exception.

 

 

Relevant Blogs

• FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS

• QUALIFIED ONE WAY COSTS SHIFTING (“QOCS”)

• CONDITIONAL FEE AGREEMENTS, DAMAGES-BASED AGREEMENTS AND CONTINGENCY FEES

• INSURANCE – INTERPLAY BETWEEN ATE INSURANCE AND PROFESSIONAL INDEMNITY INSURANCE

• PORTALS AND FIXED RECOVERABLE COST: 76 FAQ’S

• PERSONAL INJURY: QOCS, S.57 and 10% UPLIFT

• CFAS: NEVER NAME THE DEFENDANT!

• EXAGGERATION = FRAUD – KEY COURT OF APPEAL CASE

• COSTS AGAINST LAWYERS

• DOES QOCS APPLY WHERE THERE IS A NIL SUCCESS FEE?

• JACKSON: 2 YEARS ON

• INDEMNITY COSTS

• PROVISIONAL ASSESSMENT

• NEW PART 36: APRIL IS AGAIN THE CRUELLEST MONTH

• WASTED COSTS AND NON-PARTY COSTS ORDERS

• WHIPLASH: ALL YOU NEED TO KNOW ABOUT COSTS

• PERSONAL INJURY REVOLUTIONIZED: CRIMINAL JUSTICE AND COURTS ACT 2015

• FIXED RECOVERABLE COSTS IN ALL CIVIL CASES UP TO £250,000

• PART 36: CLAIMANTS’ OFFERS AND COURT BIAS – ELSEVIER CONSIDERED

PERSONAL INJURY AND FUNDAMENTAL DISHONESTY – CLIENT CARE WORDING

PERSONAL INJURY AND FUNDAMENTAL DISHONESTY – CLIENT CARE WORDING

I set out below suggested wording for the client care letter and statements by the client to assist lawyers in dealing with Section 57 of the Criminal Justice and Courts Act 2015 and also the disqualification of Qualified One-Way Costs Shifting caused by fundamental dishonesty.

These statements have been tested using the Flesch-Kincaid readability test which indicates how difficult a reading passage in English is to understand and all the statements are easily understood by 13 to 15 year olds.

Obviously having this wording does not prevent the court from overturning a claimant win and dismissing the successful claim under Section 57 and nor does it prevent a court from awarding costs in a lost claimant claim that would otherwise have been covered by QOCS.

However it should assist in dealing with any negligence action or complaint by clients and should also sharpen up a solicitor’s risk assessment in what is a new area of risk, that is that an otherwise safe claim is now lost under Section 57.

Client Care Letter

Add to “Your Responsibilities”:-

“You will not exaggerate any part of your claim.”

Below that I advise the following in bold:-

“Please note that in a personal injury claim any inaccuracy or exaggeration by you or on your behalf in relation to any part of the claim will lead to the whole claim being thrown out with you being ordered to pay the other side’s costs. This will happen even if you have already won your claim. For example if the court finds that the accident was the other party’s fault but you exaggerate your injuries or the amount that you have spent then your claim would be lost. You will then be responsible for my firm’s costs as well as the other side’s costs. Such conduct on your behalf will invalidate any insurance policy.”

This statement has a readability score of 61.7 on the Flesch-Kincaid readability scale meaning that it is easily understood by 13 to 15 year olds.

I advise that all clients be seen by a Senior Lawyer at least for the purposes of explaining the effect and meaning of fundamental dishonesty and also for discussing funding. Obviously a careful attendance note should be made.

Although the client has to sign a Statement of Truth in relation to their statement I suggest a following separate statement to be signed by the client in the following terms:-

“I have read and understood the statement that I have made. I have had any parts that I was unsure about explained to me and I confirm that the statement is true and correct in every respect. I understand that anything wrong in my statement may lead to my whole claim being thrown out and me being ordered to pay the other side’s costs as well as my own solicitor’s costs and expenses.”

This statement has a readability score of 63 on the Flesch-Kincaid readability scale meaning that it is easily understood by 13 to 15 year olds.

In relation to the Schedule of Special Damages I suggest the following be signed separately by the client:-

“I have read and understood my Schedule of Special Damages. I understand that these are expenses that I have actually paid or am liable for. I have had any parts that I was unsure about explained to me. I confirm that the Schedule of Special Damages is true and accurate in every respect. I understand that any inaccuracy in my Schedule of Special Damages may lead to my whole claim being thrown out and me being ordered to pay the other side’s costs as well as my own solicitor’s costs and expenses.”

This statement has a readability score of 64.5 on the Flesch-Kincaid readability scale meaning that it is easily understood by 13 to 15 year olds.

The above statement can be adapted for a Schedule of Future Loss.

In relation to medical evidence I advise the following:-

“I have read and understood my Medical Report. I have had any parts that I was unsure about explained to me. I confirm that the report is true and accurate in every respect. In particular I have been supplied with an explanation of the medical terms and I understand all of them. I understand that any inaccuracy in the Medical Report may lead to my whole claim being thrown out and me being ordered to pay the other side’s costs as well as my own solicitor’s costs and expenses.”

This statement has a readability score of 61 on the Flesch-Kincaid readability scale meaning that it is easily understood by 13 to 15 year olds.

The above wording can be adapted for any other reports obtained.

Solicitors may wish to have the client care statements in any Conditional Fee Agreement.

These are merely suggestions to try and assist lawyers in what is a new and very difficult area with a section of an Act of Parliament which goes against the grain for any lawyer anywhere.

Comments and suggestions as to how to improve the wording, or details of further issues that need to be addressed would be most welcome.

Related blogs:-

Qualified One Way Costs Shifting (“QOCS”)

Personal Injury Revolutionized: Criminal Justice and Courts Act 2015

Exaggeration = Fraud – Key Court of Appeal Case