Kerry Underwood


with 7 comments



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


  • 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.



  • 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

Written by kerryunderwood

June 25, 2015 at 9:38 am

Posted in Uncategorized

7 Responses

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  1. Any chance of you posting full lecture notes? Thanks.

    Adrian Berkeley

    June 25, 2015 at 10:23 am

    • I spoke from these bullet points – there were no more detailed notes. However I will be developing some of the themes in forthcoming blogs.


      June 25, 2015 at 11:07 am

  2. There’s enough material in these bullet points for several more detailed blogs! Here’s hoping …

    Mac McCaskill

    June 25, 2015 at 10:26 am

  3. […] Kerry Underwood on Doing Defence Differently. […]

  4. Reblogged this on Legal Orange and commented:
    Agree with this!


    June 25, 2015 at 7:48 pm

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