Kerry Underwood

Archive for July 2015


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A Dick Chilblain Special!

Our intrepid reporter catches up with legal entrepreneur Chris Innovator  who tells of his life in the law in his own words:

” I started with the protection rackets of the Kray Twins – lovely boys – much maligned- but they got banged up so I moved in to Financial Services – same thing really but less violence.

That got regulated so I became a will-writer flogging dodgy funeral packages. Good one that as the client is always dead when the complaints roll in.

Then Claims Direct and The Accident Group – same thing as the protection rackets but with a bit more violence – but all good things must come to an end. As one door shuts another opens – Claims Management Companies and referral fees and ATE insurance! Those were the days!

Apart from a bit of PPI that is all over. Saw that coming so set up a few Medical Reporting Organisations – MROs – MOR’s more like – Money for Old Rope. This Gove chap seems to have sussed that one though, so I’ve got a few ABS’s on the go – they can get away with anything – and do.

Yes, the law has been good to me.”

Written by kerryunderwood

July 31, 2015 at 1:25 pm

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The Judicial Office has agreed to Lord Justice Jackson’s request that there be a temporary break in costs budgeting in clinical negligence cases.

Its statement in July 2015 read:-

“As a temporary measure, to clear a backlog of cases, the Queen’s Bench Masters responsible for the case management of clinical negligence cases are exercising this discretion in relation to cases listed before them between October 2015 and January 2016. This approach will be kept under review.”

The discretion referred to was described by the Judicial Office in the same statement in these terms:-

“The court has a standing discretion to dis-apply the costs budgeting/management provisions in individual cases”.

Quite how a blanket ban on costs budgeting in all cases for three months comes under a discretion “to disapply the costs budgeting/management provisions in individual cases” is beyond me.

Lord Justice Jackson himself had said that the nine month waiting time for a first Case Management Conference was “unacceptable” and risked undermining his reforms.

This decision has not met with universal approval. Unkind commentators have pointed out that this was precisely the type of issue – heavy workload, ups and downs of litigation – which was rejected by the Court of Appeal as an excuse in the Mitchell case.

It is also apparent to all that costs budgeting has increased, not decreased, costs.

One is tempted to agree with a person who said that Jackson’s reforms cannot cope with reality and so reality must be altered to fit the reforms.

Written by kerryunderwood

July 30, 2015 at 12:17 pm

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On 2 July 2015 the Law Society published a practice note entitled Law Society: Meeting the Needs of Vulnerable Clients

The notes provides guidance on identifying vulnerable clients and their needs. It covers assessing capacity under the Mental Capacity Act 2005 and providing accessible services in accordance with the Equality Act 2010.

It also discusses the role of carers and other third parties such as attorneys, deputies and litigation friends. It includes examples of working with clients who have physical or learning disabilities, lack mental capacity or are vulnerable to undue influence.

The guidance is addressed to solicitors in all areas of practice, particularly if they do not act for vulnerable clients on a regular basis.

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July 20, 2015 at 9:23 am

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In Fairclough Homes Ltd v Summers [2012] UKSC 26

the Supreme Court held that a court had the power to strike out a claim in its entirety in the event of fraud, but that that power should only be exercised in very exceptional circumstances. It has rarely been used.

Under the principles of this case a claimant would generally receive the genuine element of a claim even if a court found that s/he had dishonestly claimed other losses. This case is in a sense a forerunner of Section 57 of the Criminal Justice and Courts Act 2015. Here the Supreme Court said, at paragraph 1:-

“The principal issues in this appeal are whether a civil court (“the court”) has power to strike out a statement of case as an abuse of process after a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum and, if so, in what circumstances such a power should be exercised.”
There was no doubt that the claimant had had an accident which was the defendant’s fault but the trial judge found that he had exaggerated his symptoms to the extent of being fraudulent and had deliberately lied to those preparing medical reports.

At paragraph 33 of its judgment the Supreme Court said:-

“33. We have reached the conclusion that, notwithstanding the decision and clear reasoning of the Court of Appeal in Ul-Haq, the court does have jurisdiction to strike out a statement of case under CPR 3.4(2) for abuse of process even after the trial of an action in circumstances where the court has been able to make a proper assessment of both liability and quantum. However, we further conclude, for many of the reasons given by the Court of Appeal, that, as a matter of principle, it should only do so in very exceptional circumstances.”

Interestingly at paragraph 45 the Supreme Court said:-

“It was submitted that an ascertained claim for damages could only be removed by Parliament and not by the courts. We are unable to accept that submission. It is for the court, not for Parliament, to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process.”

Parliament has clearly taken a different view from the Supreme Court in passing Section 57.

Most interestingly of all the Supreme Court considered the role of the European Convention on Human Rights in the context. Specifically the Supreme Court accepted that a judgment is a possession within the meaning of Article 1 Protocol 1 of the European Convention on Human Rights and that the effect of striking out a claim for damages would be to deprive someone of that possession, which would only be permissible if “in the public interest and subject to the conditions provided for by law…”

The Supreme Court said that the State has a wide margin of appreciation in deciding what is in the public interest but that is subject to the principle of proportionality – Pressos Compania Naviera SA v Belgium (1995) 21 EHRR 301 Paras 31 to 39.

“48. It is in the public interest that there should be a power to strike out a statement of case for abuse of process, both under the inherent jurisdiction of the court and under the CPR, but the Court accepts the submission that in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.”

The court then went on to say, at paragraph 49:-

“The draconian step of striking a claim out is always a last resort, a fortiori where to do so would deprive the claimant of a substantive right to which the court had held that he was entitled after a fair trial. It is very difficult indeed to think of circumstances in which such a conclusion would be proportionate. Such circumstances might, however, include a case where there had been a massive attempt to deceive the court but the award of damages would be very small.” (My italics)

Section 57 very obviously raises a major Human Rights Act issue. This case may give some indication as to how the Supreme Court will treat that issue.

Written by kerryunderwood

July 10, 2015 at 8:58 am

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