Kerry Underwood

Archive for October 2016

LITIGANTS IN PERSON – FAMILY DIVISION GUIDANCE

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In Re B (Litigants in Person: Timely Service of Documents) [2016] EWHC 2365 (Fam)

 

Mr Justice Peter Jackson:

 

  1. This judgment, published with the approval of the President of the Family Division, arises from a recent final hearing in a child abduction case in which legal documents – counsel’s position statement (14 pages) and four law reports (100 pages) – were given at the door of the court to a non-English-speaking litigant in person (LIP). This is unfortunately not an unusual occurrence, and it calls for a remedy.

 

Summary

 

  1. Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the Practice Direction documents under PD27A are to be served on the LIP at least three days before the final hearing, especially where the LIP is not fluent in English. The method of service, usually email, should be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.

 

Reason

 

  1. It is obvious that the right to a fair trial includes the right to know the case one has to meet. Court hearings are already difficult for LIPs, but many, being inexperienced, are hesitant to complain about matters such as late service. In child abduction cases, the applicant is entitled to unconditional legal aid while the respondent is only entitled to means and merits-based legal aid. In consequence, it is common for the court to be faced with an applicant, appropriately represented by specialist solicitors and counsel, while the respondent has no legal advice or representation at all and in many cases cannot speak English.

 

  1. The possible unfairness arising from this imbalance have been repeatedly stressed. Instances are found in K (A Child), Re [2010] EWCA Civ 1546 in which Thorpe LJ (at paragraph 34) and Munby LJ (at paragraph 46) said this respectively:

 

  1. … If a foreign national, albeit an abductor, is obliged to present a case involving specialist issues of international family law before a court in this jurisdiction without any legal representation, and perhaps, as here, without any of our language, it is very hard to see that there is the necessary equality of arms and thus the Article 6 rights to a fair trial.

 

  1. Any dispassionate observer sitting in this court might be forgiven for thinking that there is unfairness in that state of affairs and something very far from the equality of arms which is supposed, consistently with Article 6 of the European Convention, to underlie proceedings of this sort as indeed all proceedings. Justice, as was memorably observed so many years ago, must not merely be done but must be seen to be done.  Although I am confident that, despite the mother’s forensic disabilities, justice has been done, I am much less confident that any dispassionate observer having watched these proceedings today would think that justice has been seen to be done, given the disparity in the resources which the State has made available to the one litigant and not to the other.
  2. Other similar statements have been made, most recently by Holman J in PH v AH [2016] EWHC 1131 (Fam) at paragraph 12.

 

  1. It might be added that late service of documents further weakens the position of LIPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be more familiar with the system and the language.

 

This case

 

  1. A mother wrongfully removed a teenager from a convention country to England in February 2016. In March, Hague Convention proceedings were launched by the father. The mother defended them on the basis that the child objected to return. On 23 May, at a hearing at which the applicant was represented by counsel and the mother appeared in person without an interpreter, directions were given for the final hearing. These included standard directions for the filing of statements and for a Cafcass report. The final hearing was fixed for two days starting on 28 July. The parties were to attend and interpreters were to be provided by the court. Although the directions hearing took place fully two months before the final hearing, no direction was given for timely service of documents on the mother, no doubt because such directions are not usual.

 

  1. Statements were duly exchanged and on 29 June (four weeks before the hearing), the Cafcass report was filed. Counsel for the father, a child abduction specialist, was instructed ten days before the hearing, which began on 28 July.

 

  1. At 6 pm on the eve of the hearing, counsel emailed the father’s position statement to my clerk with an apology for its lateness, and at 10 am the next morning provided a file containing the position statement and the law reports. At the same time, a copy was given to the mother and her husband, who had travelled several hundred miles to attend the hearing.

 

  1. The position statement was of real assistance to the court and, had she had it sooner, could only have helped the mother, even though it was in English. As it was, time was wasted before the hearing could begin, with the mother studying the documents with the help of the court-appointed interpreter. That help was kindly provided even though the core function of the interpreter is as an interpreter and not a translator.

 

The Rules

 

  1. PD 27A is concerned with court bundles in the Family Division and the Family Court. It sets out the basic requirements, but importantly it makes clear at 2.1 that these are subject to specific directions in any particular case. Under paragraph 6:

 

  • The party preparing the bundle must provide a paginated index to all other parties not less than 4 working days before the hearing

 

  • Where counsel is instructed, s/he must have a paginated bundle not less than 3 working days before the hearing

 

  • The bundle (with the exception of the preliminary documents, known as Practice Direction documents) must be lodged with the court not less than 2 working days before the hearing

 

  • The PD documents must be lodged with the court no later than 11 am on the day before the hearing. The rule does not provide for service on the other parties, but the implication must be that the document will be sent to them no later than that.

 

  1. These are minimum service requirements that should be adapted in individual cases to protect the rights of LIPs. The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent the intrinsic unfairness to LIPs that may arise from late service.
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Written by kerryunderwood

October 18, 2016 at 8:46 am

Posted in Uncategorized

MCKENZIE FRIENDS: AN ABSURD DECISION

with 4 comments


In Ravenscroft v Canal and River Trust [2016] EWHC 2282 (Ch)

 

Chief Master Marsh gave guidance in relation to McKenzie Friends.

 

He stated that the starting point was to consider whether the applicant reasonably needed such assistance. If so the scope of that assistance should be determined and that required consideration of the applicant’s personal position, the context in which the application was made, the principles in the overriding objective and the guidance in Practice Notes: McKenzie Friends: Civil and Family Courts [2010] 1 WRL 1881.

 

Here the Master held that it was appropriate to appoint a McKenzie Friend and for him to have rights of advocacy, but that is “an exceptional course of action… only justified by exceptional circumstances”.

 

The Master said that the permission was not open-ended and could be withdrawn at any time if it was abused or if the McKenzie Friend sought to delay the conduct of the trial.

 

Here the claimant had difficulty in understanding written material, as well as the technical nature of the case and thus it was reasonable for him to call on assistance. The McKenzie Friend proposed to act free of charge and had already won a similar case when representing himself.

 

However the McKenzie Friend also had a number of unmet costs orders against him, including ones in favour of the defendant here.

 

Comment

 

An absurd decision that comes very close to saying that anyone who needs representation can chose anyone and does not need to have a lawyer.

 

This representative has ignored costs orders against him and thus can represent people in court but treat court orders that he does not like with impunity.

 

Such conduct by a solicitor would result in automatic suspension and subsequent striking off.

 

Here the Master was influenced by the fact that the McKenzie Friend had helped draft the proceedings etc. and that the claim “is in a reasonable shape” and that “my impression of Mr Moore from the three hearings when he has appeared in front of me is that he is capable of acting in a measured and helpful way.”

 

The logic of this is that if I illegally prescribe medication but it works, then having acted illegally, but reasonably successfully, as a non-qualified doctor I should be allowed to conduct major surgery. If anyone may now appear as an advocate in a full High Court trial, which this case will be, where the Master accepted that it involved an issue of “real public importance” then what is the point of being a barrister or a solicitor?

 

Why train? Why qualify? Why insure? Why obey court orders? Why obey the law?

 

So anyone can now appear in court and ignore court orders as they want.

 

There will be hearingless Briggs courts. I suppose that stops the problem of McKenzie Friends.

 

 

Written by kerryunderwood

October 13, 2016 at 8:00 am

Posted in Uncategorized

QOCS, APPEALS, SET-OFF & KAFKA

with 12 comments


A claimant loses a personal injury claim and a costs order is made in the usual way but the judge also finds fundamental dishonesty and thus allows enforcement of the costs order totalling £7,210.00.

 

The claimant appeals against the finding of fundamental dishonesty, but not the loss of the claim, and wins and so the finding of fundamental dishonesty is quashed and the claimant is awarded costs of the appeal of £12,500.00.

 

The original order against the claimant in respect of the costs of losing the personal injury claim remains in place but is now unenforceable.

 

The Appeal Judge makes no reference to CPR 44.12 which reads:-

 

Set Off

44.12

  • Where a party entitled to costs is also liable to pay costs, the court may assess the costs which that party is liable to pay and either –

 

  • set off the amount assessed against the amount the party is entitled to be paid and direct that party to pay any balance; or

 

  • delay the issue of a certificate for the costs to which the party is entitled until the party has paid the amount which that party is liable to pay.”

 

Thus the court here chose not to exercise that discretion, although it appears that this provision, which very obviously applies to the facts of this case, was not drawn to the judge’s attention.

 

Could the defendant, successful in the primary claim, set-off the £7,210.00 owed to it, under the common law doctrine of set-off?

 

Yes, in my view – see Kai Surrey v Barnet & Chase Farm Hospitals NHS Trust [2015] EWHC B16 (Costs).

Nothing in CPR 44.12 overrules the common law.

 

This has the curious effect of the claimant successfully appealing against a finding of fundamental dishonesty, and therefore enforceability of a costs order, nevertheless having to pay those first instance costs by way of set-off against its costs for successfully pursuing the appeal.

 

Heads you lose; tails you do not win.

 

Only Kafka, Lord Justice Jackson or the Rules Committee could have written this. For me, The Metamorphosis, The Interim Report, The Trial, the Civil Procedure Rules, The Castle and the Final Report are barely distinguishable, but I know which are better written.

 

 

These are the facts of Meadows v La Tasca Restaurants Ltd, Manchester County Court, Claim no. B27YX178, 21 June 2016.

 

The defendant did not seek CPR 44.12 Set-Off and nor did it utilise the common law right of Set-Off.

 

Kafka did not get round to writing this one up, so I have done it for him.

 

Please see my related blogs:-

 

KERRY ON QOCS: BOOK UPDATE AND LINKS

 

Written by kerryunderwood

October 11, 2016 at 12:23 pm

Posted in Uncategorized

KERRY ON QOCS: BOOK UPDATE AND LINKS: UNIFIED

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This blog has been fully updated to 12 October 2016.

This blog is to be used in conjunction with my book Qualified One-Way Costs Shifting, Section 57 and Set-Off. This is available from Amazon.

To see a trailer of the book, including all the contents etc click here.

As the title suggests this post provides all of the links to statutes, statutory instruments and cases etc. referred to in the book and by clicking on the link you get the full text of the section or judgment or whatever.

I also use this post to keep the book completely up to date and to make amendments and corrections etc. The post follows the order of the book. Please leave comments on the blog and ask questions and report to me cases that you are involved in.

I will always get back to you and the information I get from subscribers to my blog is enormously helpful to me when writing my blogs and books etc.

Corrections

Chapter 2 – Scope

Page 51

In the summary MIB Untraced and MIB Uninsured – Does QOCS apply? –  the symbols are the wrong way round. Thus MIB Untraced should have a cross and MIB Uninsured should have a tick.

Chapter 6 – Pre-Jackson Funding Arrangements 

Page 123

In the fifth paragraph. It should be Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Updates 

Pre-Action Disclosure Applications 

Not only is it pointless to make an application for Pre-Action Disclosure in a portal matter, it is potentially positively harmful.

The starting point, even in a successful application for pre-action disclosure, is that the claimant has to pay the costs of the application and such applications are specifically excluded from the protection of Qualified One-Way Costs Shifting – see CPR 44.13(1)…

“but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (Applications for Pre-Action Disclosure)…”

Thus I have no doubt that in a portal claim the best procedure is to put the matter on the portal, which involves no court fee as compared with an application for pre-action disclosure, and rely upon the requirement that the defendant disclose documents as required by the portal, which is a form of pre-action protocol.

If the matter is clearly not a portal claim then different considerations may apply, but it should be noted that, as stated above, the starting point is that even a successful claimant’s application for Pre-Action Disclosure will generally result in the claimant being ordered to pay the costs of the application, which costs are not subject to QOCS protection.

The relevant provision now is CPR 46.1 which reads:-

“46.1

  • This paragraph applies where a person applies –
  • for an order under –
  • section 33 of the Senior Courts Act 1981; or
  • section 52 of the County Courts Act 1984,

(which give the court powers exercisable before commencement of proceedings); or

  • for an order under –
  • section 34 of the Senior Courts Act 1981; or
  • section 53 of the County Courts Act 1984,

(which give the court power to make an order against a non-party for disclosure of documents, inspection of property etc.).

  • The general rule is that the court will award the person against whom the order is sought that person’s costs –
  • of the application; and
  • of complying with any order made on the application.
  • The court may however make a different order, having regard to all the circumstances, including –
  • the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and
  • whether the parties to the application have complied with any relevant pre-action protocol.”

Estoppel

In Price v Egbert H Taylor and Company Ltd, Birmingham County Court, 16 June 2016 (unreported) Claim no. A04YM127: Appeal ref: BM5/007/A

 

the claimant’s personal injury claim had been struck out for failure to serve in time and when it came to dealing with costs the claimant maintained that he had the protection of Qualified One-Way Costs Shifting as he did not have a Conditional Fee Agreement or an After-the-Event insurance policy.

However the Letter of Claim dated 30 October 2012, that is before the Jackson Reforms and when recoverability of success fees and ATE premiums remained in place, stated:-

“Please be advised that our client’s claim is being funded by way of a conditional fee agreement which provides for a success fee”.

The claimant’s solicitor gave evidence that this was an error and that there was no Conditional Fee Agreement.

There were no letters on file dealing with funding and no Client Care Letter.

Counsel’s fee notes did not have any additional liability element on them and counsel was instructed on an ordinary basis with the solicitor being responsible for the payment of counsel’s fees in any event.

If there was an oral Conditional Fee Agreement then this would be not be a valid Conditional fee Agreement as Conditional Fee Agreements must be in writing but the defendant argued that that would not mean that Qualified One-Way Costs Shifting applied. The argument there was that the lack of a written agreement merely made the Conditional Fee Agreement unenforceable. There was still a pre-Jackson funding agreement albeit unenforceable, and the existence of such an agreement disqualified the claimant from QOCS protection.

The judge made findings in relation to the implied retainer between the claimant and his solicitor and in relation to wasted costs.

However the key finding was that the claimant was estopped from relying on QOCS.

“49. Mr White submitted that the Claimant made a representation to the Defendant that there was a pre-commencement funding agreement in place – that QOCS does not apply. Put bluntly, the Defendant relied upon that representation. Further, Mr White contended that:-

  • The Defendant did not contemplate the type of economic  compromise of a claim which is more palatable to a Defendant who knows that it might fight, win, and still be more out of pocket than if it had bought the claim off early for a small sum;
  • The Defendant did not advance its position in relation to strike out of the claim in the way that it would have done if it had been told that the Claimant contended that  this  was  a  QOCS case.

In summary, if the Claimant had “revealed” its assertion that this was QOCS case at any time before receipt of judgment, the Defendant would have sought to have the claim struck out expressly as an abuse of process so to avoid application of QOCS.”

In addition to the estoppel argument the defendant had argued that in reality the claim was struck out as an abuse of process and thus QOCS should be dis-applied, or alternatively the court should supplement its judgment to strike out the claim as an abuse of process and thus dis-apply QOCS.

Thus submission stems from CPR 44.15 which reads:-

“44.15

Orders for costs made against the claimant may be enforced to the full extent of such orders without the permission of the court where the proceedings have been struck out on the grounds that –

(a)          the claimant has disclosed no reasonable grounds for bringing the proceedings;

(b)          the proceedings are an abuse of the court’s process; or

(c)           the conduct of –

(i)            the claimant; or

(ii)           a person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct,

is likely to obstruct the just disposal of the proceedings.”

Thus it is not enough that proceedings be struck out to disqualify QOCS protection; they must be struck out on specific grounds.

This is causing a problem as often courts do not say under which specific provision they are striking the matter out.

In relation to estoppel the successful defendant referred to Halsbury’s Laws at 47[307], and that was quoted in the judgment here, which states:-

“Where a person has by words or conduct made a clear and unequivocal representation of fact to another, either knowing of its falsehood or with the intention that it should be acted upon, or having conducted himself so that another would, as a reasonable person, understand that a certain representation of fact was intended to be acted upon, and the other person has acted upon such representation and thereby altered his position, an estoppel arises against the party who made the representation, and he is not allowed to state that the fact  is otherwise than he represented it to be.”

The successful defendant argued that that was precisely the position here and that the purpose of QOCS is to reduce the costs of litigating personal injury claims and not to protect negligent solicitors or their clients from the consequences of that negligence.
In relation to the strike out point the judge here ruled that the matter could have been struck out by the Deputy District Judge for failure to comply with a rule, namely incorrectly sending the application for an extension to the wrong court and without the appropriate fee. Therefore it could not be said that the only reason that the claim could have been struck out was for an abuse of process, thereby bringing CPR 44(15)(b) into play.

Here the judge neither accepted that the claim had been struck for an abuse of process, nor that it should have been.

That left the issue of estoppel and the judge found that the claimant was indeed estopped from maintaining that there was no pre-Jackson funding arrangement in place, given the clear words of the Letter of Claim of 30 October 2012. The court said:-

“80. I accept the submissions made by Mr White in respect of the issue of estoppel. It is, I find, clear that by the letter of 30 October 2012 the Claimant’s solicitor made a clear and unequivocal representation to the Defendant and its solicitors that the Claimant had the benefit of a conditional fee agreement even giving the additional detail in the letter that the agreement provided for a success fee. Further, it is clear that the Defendant and his solicitors relied upon that representation. Therefore, I find that the Claimant is now estopped from asserting that Qualified One-Way Costs Shifting does not [sic] apply.”

Note that clearly the word “not” appears in error in that last sentence which should read:-

“Therefore, I find that the Claimant is now estopped from asserting that Qualified One-Way Costs Shifting does apply.”

Comment

 

This decision is correct on the facts and reinforces the importance of not simply relying on case management systems and standard letters but rather considering each case as an individual case.

Due to the finding of estoppel the court did not have to rule on the issue of whether an oral Conditional Fee Agreement is in fact a Conditional Fee Agreement disqualifying QOCS protection. In my view it cannot be. Conditional Fee Agreements are creatures of statute and if a Conditional Fee Agreement is not in writing, as well as complying with other formalities, then in law it is simply not a Conditional Fee Agreement and it may or may not be some other form of retainer.

This potentially has the effect of the solicitor’s negligence bestowing Qualified One-Way Costs Shifting protection on a client. However it should be noted that if the client won in that situation then they would not be able to recover the success fee, and indeed may not be able to recover any costs at all.

Immaterial lies

In Versloot Dredging BV and another v HDI Gerling Industrie Versicherung AG and others [2016] UKSC 45   20 July 2016

 

the Supreme Court has held that where an insured lies in support of a claim but those lies do not affect the right of the insured’s recovery under the insurance policy, then the insurance company must pay out.

This decision has been widely misunderstood in relation to its application to the concept of fundamental dishonesty in personal injury claims, presumably by people who have not got as far as reading paragraphs 94 to 96 of the 55 page judgment.

Far from indicating a lax approach to fundamental dishonesty the case strongly suggests a very tough line indeed, that is that any dishonest exaggeration for financial gain, however small, amounts to fraud and therefore fundamental dishonesty, and therefore brings Section 57 of the Criminal Justice and Courts Act 2015 into play to overturn the whole award.

At paragraph 95 the Supreme Court points out, but does not seek to define, the “substantial injustice” exception.

Here the Supreme Court termed lies which made no difference “collateral lies” and held, by a 4 – 1 majority, that the fraudulent devices rule, which allows insurers to reject fraudulent claims, does not apply to such collateral lies.

Thus such a claim is not a fraudulent claim entitling the insurer to avoid it.

In relation to contracts of insurance concluded after 12 August 2016 the rule has been restated, and its other consequences defined, in Section 12 of the Insurance Act 2015. This ruling applies to that Act as that Act does not attempt to define what makes a claim fraudulent.

Contracts between insurers and their insured are contracts of utmost good faith. That principle does not apply to negligence actions against another party which is indemnified by insurance.

Here the insurers were seeking to avoid the claim, not the contract, and therefore the Supreme Court was not considering the issue of utmost good faith in its entirety.

It was accepted that even where a party is claiming against its own insurer the utmost good faith condition is modified in relation to the bringing of a claim, as compared with the entering into of the contract in the first place.

This case involved a cargo ship which ran into difficulty after its engine room was flooded. The owners deliberately lied in saying that the crew did not investigate an alarm call as the ship was rolling in heavy seas.

In fact the accident was caused during the voyage by sea water entering the engine room and was thus covered by the insurance policy, which remained valid, and so the lie was irrelevant.

The insured had made this false statement in the belief that it would fortify the claim and accelerate payment, as he was frustrated by the insurer’s delay.

The false statement was made once in one email to the insurer’s solicitors and was not persisted in at the trial.

The High Court sitting at first instance found as a fact that the lie was irrelevant to the merits of the claim but that the insurers were nevertheless entitled to repudiate the claim.

The Court of Appeal agreed but the Supreme Court overturned that finding, with Lord Clarke saying:-

“The critical point is that, in the case of a collateral lie… the  insured  is  trying  to  obtain  no  more  than  the  law  regards  as  his entitlement and the lie is irrelevant to the existence or amount of that entitlement. Such a lie is thus immaterial to the claim. As Lord Sumption puts it, the lie is dishonest but the claim is not.” (Paragraph 40).

Lord Sumption said that for a claim to be fraudulently exaggerated the insured’s dishonesty must be calculated to get him something to which he is not entitled.

The position is different where the insured is trying to obtain no more in law than his entitlement and the lie is irrelevant to that entitlement.

Here the lie was dishonest, but the claim was not. A policy of deterrence did not justify the application of the fraudulent claims rule in such a situation.

The obiter comments of Lord Mance in the Court of Appeal in

Agapitos v Agnew (The Aegeon) [2002] EWCA Civ 247;

 

that insurers could reject a claim because of collateral lies were rejected.

In fact even exaggerated claims against another person’s insurance company have traditionally been allowed by the courts in circumstances where they would have failed against the person’s own insurance company.

On the face of it that remains the law; any exaggerated claim against one’s own insurer would still be disallowed as a material lie is not a collateral lie, but a claim against someone else’s insurance company would be allowed to the extent of the true validity of the claim.

In other words you can “try it on” against someone else’s insurer and still win, but not your own insurer.

The Supreme Court recognized this, saying at paragraph 9:-

9. What matters for present purposes is the rationale of the rule, on which there is a broad consensus in the authorities. It is the deterrence of fraud. As Lord Hobhouse observed in

The “STAR SEA” [Manifest Shipping Co Ltd v Uni-Polari Insurance Company Ltd (The “STAR SEA”) [2003] 1 AC469] at paragraph 62,

“The logic is simple.  The fraudulent insured must not be allowed to think: if the fraud is successful, then I will gain; if it is unsuccessful, I will lose nothing.”

The Supreme Court also recognized that this rule did not apply where the contract was not one of insurance, for example a negligence action in personal injury.

“10. Fraudulent insurance claims are a serious problem, the cost of which ultimately falls on the general body of policyholders in the form of increased premiums. But it was submitted to us that a forfeiture rule was not the answer to that problem. There was, it was said, little empirical evidence that the common law rule was an effective deterrent to fraud, and no reason to think that the problem was peculiar to claims on insurers as opposed to, say, claims in tort for personal injuries, the cost of which also falls ultimately on insurers and policyholders without there being any equivalent common law rule. Informational asymmetry is not a peculiarity of insurance, and in modern conditions may not even be as true of insurance as it once was. These points have some force. But I doubt whether they are relevant. Courts are rarely in a position to assess empirically the wider behavioural consequences of legal rules. The formation of legal policy in this as in other areas depends mainly on the vindication of collective moral values and on judicial instincts about the motivation of rational beings, not on the scientific anthropology of fraud or underwriting. As applied to dishonestly exaggerated claims, the fraudulent claims rule is well established and, as I have said, will shortly become statutory.”

Curiously the law has always been that any duty of good faith in the presentation of a claim ended with the commencement of proceedings even as between an insured and its own insurer.

Returning to the difference between a fraudulently exaggerated claim and a justified claim supported by collateral lies the Supreme Court had this to say:-

“25. In this context, there is an obvious and important difference between a fraudulently exaggerated claim and a justified claim supported by collateral lies. Where a claim has been fraudulently exaggerated, the insured’s dishonesty is calculated to get him something to which he is not entitled. The reason why the insured cannot recover even the honest part of the claim is that the law declines to sever it from the invented part. The policy of deterring fraudulent claims goes to the honesty of the claim, and both are parts of a single claim: Galloway v Guardian Royal Exchange (UK) Ltd[1999] Lloyd’s Rep IR 209, 213-214 (CA); Direct Line Insurance v Khan[2002] 1 Lloyd’s Rep IR 364; AXA General Insurance Ltd v Gottlieb [2005] 1 All ER (Comm) 445 (CA), para 31. The principle is the same as that which applies in the law of illegality. The courts will not sever an agreement affected by illegality into its legal and illegal parts unless it accords with public policy to do so, even if each part is capable of standing on its own: Kuenigl v Donnersmarck [1955] 1 QB 515, 537 (McNair J); Royal Boskalis Westminster NV v Mountain [1999] QB 674, 693 (Stuart-Smith LJ), 704 (Pill LJ).

  1. The position is different where the insured is trying to obtain no more than the law regards as his entitlement and the lie is irrelevant to the existence or amount of that entitlement. In this case the lie is dishonest, but the claim is not. The immateriality of the lie to the claim makes it not just possible but appropriate to distinguish between them. I do not accept that a policy of deterrence justifies the application of the fraudulent claim rule in this situation. The law deprecates fraud in all circumstances, but the fraudulent claim rule is peculiar to contracts of insurance. It reflects, as I have pointed out, the law’s traditional concern with the informational asymmetry of the contractual relationship, and the consequent vulnerability of insurers. It is therefore right to ask in a case of collateral lies uttered in support of a valid claim, against what should the insurer be protected by the application of the fraudulent claims rule? It would, as it seems to me, serve only to protect him from the obligation to pay, or to pay earlier, an indemnity for which he has been liable in law ever since the loss was suffered. It is not an answer to this to say, as Christopher Clarke LJ did in the Court of Appeal, that the insurer may have been “put off relevant inquiries or … driven to irrelevant ones”. Wasted effort of this kind is no part of the mischief against which the fraudulent claims rule is directed, and even if it were the avoidance of the claim would be a wholly disproportionate response. The rule, moreover, applies irrespective of whether or not the lie set a hare running in the insurer’s claims department. Nor is it an answer to say, as the courts have often said of fraudulently inflated claims, that the insured should not be allowed a one-way bet: he makes an illegitimate gain if the lie persuades, and loses nothing if it does not. This observation, which is true of fraudulently inflated claims, cannot readily be transposed to a situation in which the claim is wholly justified. In that case, the insured gains nothing from the lie which he was not entitled to have anyway. Conversely, the underwriter loses nothing if he meets a liability that he had anyway.”

Although the Supreme Court recognized the difference between claims against one’s own insurance company and claims against another party who is insured it said that “the two species of fraud clearly exhibit shared features” and “an unacceptably high level of fictitious and dishonestly inflated claims thus formed part of the background against which the proper ambit of the fraudulent claims rule falls to be considered.” (Paragraph 56).

Thus the Supreme Court clearly had in mind application of its judgment to so-called third party claims,  that is a claim by one party against another party, rather than its own insured.

Insurers: Rules apply to them as well says Court of Appeal

 

In Gentry v Miller and UK Insurance Company [2016] EWCA Civ 141

 

the Court of Appeal held that an allegation of fraud by an insurance company did not entitle it to any special treatment concerning breaches of the rules.

“The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests.”

“Insurers are in a particularly good position to conduct litigation efficiently and proportionately and to comply with rules and orders. It cannot avail an insurer in this position to say it was not a party to the claim at that stage. It was directly affected by it and knew that it had to protect its interests from the moment liability was admitted.”

The full judgment is worth reading to see the shambolic way that the insurance company dealt with this matter, a depressingly familiar story for any claimant lawyer in relation to certain insurance companies.

It must be said that many claimant firms, especially the factory firms who never see any clients, are just as bad.

Fundamental dishonesty, Section 57 and Qualified One-Way Costs Shifting

In Versloot Dredging BV and another v HDI Gerling Industrie Versicherung AG and others [2016] UKSC 4

the Supreme Court set out three possible scenarios:-

1. The whole claim is fabricated.

 2. There is a genuine claim, the amount of which has been dishonestly exaggerated.

 3. The entire claim is justified, but the information given in support of it has been   dishonestly embellished, either because the insured was unaware of the strength of the case or with a view to obtaining payment faster and with less hassle.

 

Scenario 1: The whole claim is fabricated

 

In scenario 1 the insurer will win on liability and no special rules need apply.

Section 57

 

Section 57 of the Criminal Justice and Courts Act 2015 will not apply as that only comes into effect if the claimant wins on liability.

Qualified One-Way Costs Shifting

 

The starting point is that a losing claimant pays costs.

In personal injury cases that rule is abrogated in certain circumstances by CPR 44.13 – 44.17 of the Civil Procedure Rules dealing with Qualified One-Way Costs Shifting whereby a winning personal injury claimant recovers costs, but a losing claimant does not pay them.

However QOCS does not apply to a fundamentally dishonest claim, which obviously a fabricated claim would be.

This disapplication of QOCS in a lost, fundamentally dishonest claim simply restores the normal, default position,  that is that the losing claimant pays.

As scenario one is the only instance in which the case is lost it is the only one to which QOCS applies.
Thus this decision makes no difference whatsoever to the application of Qualified One-Way Costs Shifting.

Scenario 2: There is a genuine claim, the amount of which has been dishonestly exaggerated

 

Qualified One-Way Costs Shifting

 

The claim is genuine, but exaggerated and so is won and therefore QOCS does not apply.

Section 57

 

This is a classic scenario for Section 57 to apply. The claim is won on liability but has been dishonestly exaggerated.

Thus the win is overturned in a personal injury case, as Section 57 only applies to personal injury claims.

Nothing in this decision softens that approach. On the contrary the Supreme Court reinforces the view that any dishonest exaggeration of the amount claimed, however small, allows the insurer to avoid the claim.

Although the law relating to insurer and insured does not apply directly to claims against someone else’s insurance company it is inconceivable that the court would apply a different principle in personal injury claims where Parliament has enacted that if the claimant has been fundamentally dishonest then the whole claim is lost.

The only issue in relation to fundamental dishonesty is how the courts will interpret Parliament’s use of the word “fundamental”.

Clearly the slightest exaggeration, even of a few pounds in a £1 million claim, is dishonest. It remains unclear as to whether in such circumstances a court could rule that such an exaggeration was dishonest, but nevertheless not fundamentally dishonest, or strictly, as the law requires, whether the claimant was fundamentally dishonest.

On the face of it even a collateral lie involves the claimant in being dishonest, but maybe the courts will hold that such an irrelevant lie does not satisfy the “fundamentally” dishonest test and that the significance or otherwise of the lie goes to its fundamental nature.

In Hayward v Zurich Insurance Company plc [2016] UKSC 48

 

the Supreme Court unanimously allowed Zurich’s appeal and set aside the settlement agreement on the basis of fraudulent misrepresentation by the claimant, holding that Zurich had been induced by the claimant’s fraud to enter into the agreement and had settled for a much greater sum than it would have but for that fraud.

It thus restored the decision of the First Instance Judge.

Encouraging settlement was of considerable importance, but not sufficient to allow a claimant to retain monies obtained by fraud.

The fact that Zurich suspected fraud did not preclude inducement and it was not necessary to show deceit to prove inducement. In a disputed claim in litigation what mattered was the chance that the claimant would be believed at trial.

It was difficult to envisage a situation where a mere suspicion of fraud would preclude unravelling a settlement when fraud was subsequently established.

The statement in its defence that the claimant had exaggerated his difficulties in recovery and current physical condition for financial gain did not preclude the defendant from unravelling the settlement when fraud was subsequently established.
That represented a suspicion of fraud, which was subsequently proven.

The Supreme Court quoted, with approval, from other cases that fraud:-

“is a thing apart” and

“unravels all” and

“vitiates judgments, contracts and all transactions whatsoever”.

Note that in any personal injury case issued on or after 13 April 2015 the whole claim must be dismissed if the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to any part of the claim.

Nothing in the Supreme Court’s decision affects the Court of Appeal’s finding that exaggeration for financial gain equals fraud. What the Supreme Court said was that that was an allegation of, and a suspicion of, fraud which was proven after settlement after information was received from Mr Hayward’s neighbours.

Consequently although the decision of the Court of Appeal has been overturned the significance of the Court of Appeal’s finding, for the purposes of fundamental dishonesty, that exaggeration for financial gain equals fraud has not been affected.

Here, in a different context, the Supreme Court held that any such exaggeration of the amount of a claim is indeed fraudulent.

It seems unlikely that “fundamentally dishonest” requires a higher threshold than “fraudulent”. Thus it is likely that the courts will take a hard line on any exaggeration of any kind, however small, if that exaggeration is for financial gain.
Section 57 is indeed likely to apply to an exaggeration of a very small part of the claim.

Scenario 3: Dishonesty which makes no difference to the claim.

Qualified One-Way Costs Shifting

 

QOCS does not apply as the case is won and QOCS only applies to cases that are lost or where there is a failure to beat a Part 36 offer.

Section 57

 

The Supreme Court has held that such exaggeration which makes no difference to the claim is not fraudulent, even though it is dishonest. The court said that the lie is dishonest but the claim is not.

Given that the test in Section 57 is whether the claimant is fundamentally dishonest, rather than the claim, it could be argued that Section 57 still applies in such a scenario and therefore the win would be overturned.

This part of the decision is the most important as far as Section 57 is concerned.

It leaves open the ability of the court to find that such dishonesty, which does not affect the amount of claim, is indeed dishonest but not fundamentally dishonest, thus leaving the claim intact, valid and won.

It is possible, but in my view unlikely, that even in such circumstances, where a non-personal injury claim would succeed even against one’s own insurers, the courts could hold that the claimant him or herself was being fundamentally dishonest even though the claim was not.

If that is the view that the courts take then the win is overturned.
Those who take the view that requiring the claimant to be fundamentally dishonest, rather than the claim, involves a higher threshold of dishonesty before the claim can be overturned, are, to adapt a phrase, fundamentally wrong.

 

Summary

 

Qualified One-Way Costs Shifting

 

There is no doubt that as far as QOCS is concerned the decision is of no relevance whatsoever.

 

Section 57

 

  1. An entirely fabricated claim is lost anyway and thus Section 57 does not apply.
  1. A claim exaggerated for financial gain is fraudulent and therefore is likely to be held to be made by the claimant being fundamentally dishonest and be disallowed in full under Section 57, however small the exaggerated amount is and however low a percentage it is of the genuine element of the claim.
  1. Exaggeration which does not affect the validity, nor the amount of the claim, while dishonest, is likely to be held not to mean that the claimant is fundamentally dishonest and therefore the claim will not be overturned under Section 57. However for the reasons set out above this is not certain.

Dishonest exaggerations that do not affect a claim.

 

Examples may include:-

  • The speed of the other vehicle;
  • an untrue statement that the other party had admitted liability;
  • an untrue statement that the other driver’s breath smelled of alcohol or that the other driver was aggressive, or whatever;
  • lying about who the driver was in the mistaken belief that the actual driver was not insured – see the Australian case of of

Tiep Thi Ho v  Australian Associated Insurance Ltd [2001] VSCA 48;

 

  • causing further damage to an already damaged door before photographing it and sending it to the insurers in a claim for theft consequent upon a forcible entry – see the Australian case of

GRE Insurance Ltd v Ormsby [1982] 29SASR 498 ;

  • a genuinely burgled householder unquestionably absent at the time lying about where he was to avoid domestic embarrassment (see paragraph 90 of the judgment);
  • fabricating an invoice for the genuine value of a stolen item where the original had been lost.

Anything other than a hard, bright line where there has been dishonesty seeking financial advantage would be almost impossible to apply.

Would a £5,000.00 exaggeration be okay on a £1 million claim but not a £10,000.00 claim?

Is there to be a permissible fraudulent percentage, that is it is okay to lie to the extent of say 10% of the value of the claim, but nothing more?

One analysis of Section 57 is that effectively it applies the insurer/own insured test to claims between parties where the claimant is not seeking recovery from its own insurer, but rather the other party, normally the other party’s insurance company.

It is hard to argue with the logic of the rule being the same in both cases.

It may be that the rule is too severe under Section 57, but if that is the case it is strongly arguable that it is also too severe between an insured and its own insurance company but that argument has been comprehensively rejected by the Supreme Court here, and indeed by all courts over a very long period of time.

Specific reference to Section 57

 

At paragraphs 94 and 95 of the judgment here the Supreme Court refers to Section 57 in the context of a scenario 2 cliam, that is one where the claim is genuine but there is dishonest exaggeration for financial gain.

At paragraph 94 the court said:-

“94. There  is  no  doubt  that  the  purpose  of  the  fraudulent  claims  rule  is  to discourage  fraud,  having  regard  to  the  particular  vulnerability  of  insurers. This rationale has frequently been reiterated. In Galloway v Guardian Royal Exchange (UK) Ltd [1990] Lloyd’s Rep IR 209, 214, it was expressed thus by Millett LJ at 214: “The making of dishonest insurance claims has become all too common. There seems to be a widespread belief that insurance companies are fair game, and that defrauding them is not morally reprehensible. The rule which we are asked to enforce today may appear to some to be harsh, but it is in my opinion a necessary and salutary rule which deserves to be better known by the public. I for my part would be most unwilling to dilute it in any way.” And in The Star Sea Lord Hobhouse said this at para 62: “The logic is simple.  The fraudulent insured must not be allowed to think: if the fraud is successful, then I will gain; if it is unsuccessful, I will lose nothing.” This latter formulation of the justification for the rule, which has often been repeated, gives rise to the commonly used shorthand that the fraudulent insured must not be allowed a “one-way bet”. It was the principal argument relied upon by the insurers in The Aegeon and in the present case for the inclusion of collateral lies within the rule.”

The Supreme Court then links this “own insurer” rule,  that is that any dishonesty of any kind which affects the value of the claim leads to the whole claim being forfeited, to Section 57:

“95. The need for such a rule, severe as it is, has in no sense diminished over the years. On the contrary, Parliament has only recently legislated to apply a version of it to the allied social problem of fraudulent third party personal injuries claims. Section 57 of the Criminal Justice and Courts Act 2015 provides that in a case where such a claim has been exaggerated by a “fundamentally dishonest” claimant, the court  is  to  dismiss  the  claim  altogether,  including  any  unexaggerated  part,  unless satisfied that substantial injustice would thereby be done to him. Parliament has thus gone further than this court was able to do in Summers v Fairclough Homes.”

 

Thus the Supreme Court seems to leave open as the only possible difference being the “substantial injustice” exception.

In paragraph 96, which follows that link the Supreme Court said:-

“96. Severe as the rule is, these considerations demonstrate that there is no occasion to depart from its very long-established status in relation to fraudulent claims, properly so called. It is plain that it applies as explained by Mance LJ in The Aegeon at paras 15 – 18. In particular, it must encompass the case of the claimant insured who at the outset of the claim acts honestly, but who maintains the claim after he knows that it is fraudulent in whole or in part. The insured who originally thought he had lost valuable jewellery in a theft, but afterwards finds it in a drawer yet maintains the now fraudulent assertion that it was stolen, is plainly within the rule. Likewise, the rule plainly encompasses fraud going to a potential defence to the claim. Nor can there be any room for the rule being in some way limited by consideration of how dishonest the fraud was, if it was material in the sense explained above; that would leave the rule hopelessly vague.” (My emphasis)

The Supreme Court’s assertion that any consideration of the extent of the dishonesty would leave the rule “hopelessly vague” must also apply to any attempt to interpret Section 57 in that way.

Contrary to what many assume, this decision undoubtedly envisages a clear, bright, and some would say hard, line in relation to the interpretation of fundamental dishonesty, or rather a fundamentally dishonest claimant, under Section 57.

Notes

 

Section 57 of the Criminal Justice and Courts Act 2015 reads:-

“57         Personal injury claims: cases of fundamental dishonesty

(1)         This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

  • the court finds that the claimant is entitled to damages in respect of the claim, but
  • on an application by the defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

(2)          The court must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice if the claim were dismissed.

(3)          The duty under subsection (2) includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest.

(4)          The court’s order dismissing the claim must record the amount of damages that the court would have awarded to the claimant in respect of the primary claim but for the dismissal of the claim.

(5)          When assessing costs in the proceedings, a court which dismisses a claim under this section must deduct the amount recorded in accordance with subsection (4) from the amount which it would otherwise order the claimant to pay in respect of costs incurred by the defendant.

(6)          If a claim is dismissed under this section, subsection (7) applies to—

(a)          any subsequent criminal proceedings against the claimant in respect of the fundamental dishonesty mentioned in subsection (1)(b), and

  • any subsequent proceedings for contempt of court against the claimant in respect of that dishonesty.

(7)          If the court in those proceedings finds the claimant guilty of an offence or of contempt of court, it must have regard to the dismissal of the primary claim under this section when sentencing the claimant or otherwise disposing of the proceedings.

(8)          In this section—

“claim” includes a counter-claim and, accordingly, “claimant” includes a counter-claimant and “defendant” includes a defendant to a counter-claim;

“personal injury” includes any disease and any other impairment of a person’s physical or mental condition;

“related claim” means a claim for damages in respect of personal injury which is made—

  • in connection with the same incident or series of incidents in connection with which the primary claim is made, and
  • by a person other than the person who made the primary claim.

(9)          This section does not apply to proceedings started by the issue of a claim form before the day on which this section comes into force.”

Section 12 of the Insurance Act 2015 reads:-

“12. Remedies for fraudulent claims

  • If the insured makes a fraudulent claim under a contract of insurance –
  • the insurer is not liable to pay the claim,
  • the insurer  may  recover  from  the  insured any sums paid by the insurer to the insured in respect of the claim, and
  • in addition,  the  insurer  may  by  notice  to  the insured treat the contract as having been terminated with effect from the time of the fraudulent act.”

Setting aside judgment after allegation of fraud

In Brighthouse Ltd v Tazegul [2016] EWHC 2277 (QB) (12 July 2016)

 

the Queen’s Bench Division of the High Court remitted the case to the original County Court after holding that there was on the face of it evidence of fraud and perjury and that issue should be determined by the County Court before deciding whether or not to set judgment aside.

Here, in a personal injury claim, the claimant had been awarded damages following a road traffic accident and at trial a witness who said that he was independent and unknown to the claimant give evidence for the claimant and the trial judgment preferred the claimant’s account of the accident and found in his favour.

On appeal the defendant submitted that there was fresh evidence demonstrating a pre-existing relationship between the claimant and the witness which suggested that they had perjured themselves and that the judgment had been obtained by fraud.

The High Court held that there was no admission of fraud, or incontrovertible evidence of fraud to justify the judgment being set aside – see Owens v Noble [2010] EWCA Civ 224.

However the judge found that the fresh evidence, including a number of Facebook posts, suggested a far closer relationship between the claimant and the witness than had been admitted and was capable of showing that the trial judge had been deliberately mislead.

On the face of it there was a case of fraud and perjury and the original court should determine that and then go on to decide whether or not the judgment should be set aside.

Given his familiarity with the case the original trial judge should carry out that exercise and assess the impact of that fresh evidence upon his assessment of the witnesses.

If the original trial judge was satisfied that the judgment should be set aside then he could proceed to do so by analogy with the Court of Appeal’s approach in Owens v Noble.

Appeals

In Parker v Butler [2016] EWHC 1251 (QB), 26 May 2016

 

the Queen’s Bench Division of the High Court held that where a claimant has the benefit of Qualified One-Way Costs Shifting at trial s/he continues to enjoy that benefit on appeal, whether or not an order under CPR 52.9A has been made.

This is dealt with in pages 23 to 26 of my book and the judgment agrees with my analysis of the law there.

Here the claimant had lost at trial and had been given leave to appeal to the High Court which dismissed his appeal and awarded costs against him in the usual way.

It was common ground that this was a QOCS case and therefore the sole issue was whether the costs order on the appeal could be enforced.

The High Court recognized that this was the first decision on this point.

The judge set out important points of principle in relation to Qualified One-Way Costs Shifting:-

“3.  If (as is likely to be the case here) the claimant’s access to justice is dependent on the benefit of QOCS, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. The effect of QOCS is that his liability to meet any adverse order for costs is limited to the value of sums recovered in the proceedings by way of damages except in certain circumstances. In other words, except in those circumstances, he cannot be worse off as a result of bringing his claim. If he has the benefit of a Conditional Fee Agreement he will not be liable for his own costs and QOCS restricts his liability to the sums recovered in the proceedings. The risk that a failure in litigation may result in the loss of existing assets is a substantial inhibition on access to justice and that is an important part of the reason why QOCS was established.

  1. The power to make enforceable orders for costs is designed to compensate successful parties for their expense in bringing or resisting claims, but it also has an effect of deterring people from bringing or resisting claims unsuccessfully. It is an incentive to resolve disputes and serves a public as well as a private interest. That consideration is in tension with access to justice. In appellate civil proceedings in QOCS cases permission to appeal is always required. That filter affords some protection for the civil justice system and the other parties against unmeritorious appeals. The costs disincentive is not rendered irrelevant by this fact, but in resolving the tension between access to justice and other considerations it is reasonable to start from the proposition that the issue only concerns the claimant’s ability to bring an appeal which a judge has held to have a realistic prospect of success or that there is some other compelling reason for it, or to resist an appeal where a judge has made the order which is challenged. Therefore, in either case the stance of the claimant has a measure of judicial approval at a very early stage in any appeal proceedings. In these circumstances a claimant’s right to access to justice deserves particular weight.”

The judge referred to CPR 44.13 which provides:-

“(1) This Section applies to proceedings which include a claim for damages –

(a) for personal injuries”

 

The judge therefore identified the issue as being whether the appeal is part of the proceedings which include a claim for damages for personal injuries or whether it is separate from them and thus not subject to the QOCS regime.

If it is separate from the proceedings which culminated in the trial, is it nevertheless a set of proceedings which includes a claim for damages and is thus protected by QOCS?

The successful party, that is the defendant here, relied on CPR 52.9A which reads :-

“52.9A—Orders to limit the recoverable costs of an appeal:

52.9A (1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.

(2) In making such an order the court will have regard to—

(a) the means of both parties;

(b) all the circumstances of the case; and

(c) the need to facilitate access to justice.

(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).

(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.”

The defendant submitted that this provision would be unnecessary if all appellate proceedings covered by CPR 52 were subject to the same costs regime as the proceedings at first instance.

In Hawksford Trustees Jersey Ltd v Stella Global UK Ltd & Another (No. 2) [2012] EWCA Civ 987

 

the Court of Appeal held that whether an appeal is part of the same proceedings as the trial will depend upon the context in which the question arises and the purpose of any provisions which have to be construed in order to answer it.

In Landau v The Big Bus Company, 31 October 2014, referred to by the court here in paragraph 13, the Senior Courts Costs Office, Master Haworth, held that where there had been a recoverable additional liability in relation to the trial and a second conditional fee agreement was entered into, without a recoverable additional liability, for the appeal, the claimant did not get the benefit of Qualified One-Way Costs Shifting for the appeal.

Master Haworth held that reference to “proceedings” in the rules means “claim” and that the proceedings, both at first instance and on appeal, plainly concern the same claim:

“It is obvious and was plainly intended that “proceedings” in CPR 44.13(1) and CPR 44.17 includes an appeal.”

In Landau the Claimant contended that the claim at first instance and on appeal were different “proceedings” for the purposes of CPR 44.17. Accordingly as he did not have a “pre-commencement funding arrangement” relating to the appeal, CPR 44.17 did not apply and thus QOCS applied.

The Defendant submitted that the case did not turn on the construction of “proceedings” as the wording of CPR 48.2 makes that determination unnecessary. In the alternative, the second Defendant’s case was that the whole case from issue to conclusion, including any appeal, is one “proceeding”. Thus a pre-commencement funding arrangement in respect of any part of the proceedings deprives the Claimant of QOCS protection in relation to any part of the proceedings.

The Master upheld that submission by the defendant.

This decision has been distinguished in Casseldine v The Diocese of Llandaff Board for Social Responsibility (a charity) Cardiff County Court 3 July 2015, Claim 3YU56348.

Both are first instance decisions of equal weight and are not binding on any other court. Here the judge indicated, obiter, that he thought that Landau may have been wrongly decided. I agree.

As the High Court pointed out here the current case, unlike Landau, did not involve the construction of the transitional provision as in the present case there was no funding arrangement in place prior to 1 April 2013.

The court also considered the decision of the Court of Appeal in

Wagenaar v Weekend Travel Ltd t/a Ski Weekend and Serradj (Third Party) [2014] EWCA Civ 1105

where it held that a Part 20 claim brought by a defendant to a QOCS claim to shift or share the burden of any judgment in favour of the claimant is not a claim to which the QOCS provisions apply.

Although the point was not directly relevant to the current case Wagenaar established that the word “proceedings” in CPR 44.13 is to be construed with reference to the purpose of the Jackson Reforms and the protection of a claimant from adverse costs and by reference to the terms of the Civil Procedure Rules themselves concerning QOCS.

The court then in a clear and helpful conclusion said:-

  1. Following the approach in Wagenaar I accept that not every step in proceedings (broadly defined) which began with a claim for personal injuries is included in the definition of the word “proceedings” as used in CPR 44.13. That word as there used has a narrower construction than that. That rule is all about a claim made by a claimant against one or more defendants which includes a claim for damages for personal injuries. For this reason a claim by a defendant against a third party for a contribution to or indemnity against such a claim is included in the proceedings as broadly defined, but not as narrowly defined for the purposes of CPR 44.13.
  1. An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim. Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word “proceedings” as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime. The other construction, which holds that for the purposes of CPR Part 44.13 an appeal between the claimant and the defendant in a personal injury claim is part of the proceedings which include a claim for personal injuries is open to me, following Hawksford Trustees Jersey Limited, and should be preferred because it more justly achieves what is plainly the purpose of the regime as divined from the Rules.
  1. That construction derives particular force from the facts of this case. The appeal concerned the way in which the judge had determined the claim for personal injuries. It was inextricably linked with that claim. Having found that her approach was flawed, I went on and determined the claim myself (following Cooper v. Floor Cleaning Machines Limited [2003] EWCA Civ 1649). It would be very difficult to describe a hearing at which the claim was determined as not part of the proceedings which include that claim. This reasoning will not apply so closely to other types of appeal, but it illustrates the point. In my judgment for the purposes of the QOCS regime any appeal which concerns the outcome of the claim for damages for personal injuries or the procedure by which it is to be determined is part of the proceedings as defined in CPR 44.13. Therefore an order for costs against the claimant in favour of a defendant will only be enforceable to the extent permitted by the QOCS regime.”

The High Court said that this construction was not affected by CPR 52.9A which allowed the court to vary the normal costs rules on appeal where other rules apply to the first instance proceedings. Here the same rules applied.

The High Court also said that it understood that in QOCS cases some courts were specifically stating that the costs order, which must be made as usual, was not enforceable whereas others were not doing so as the lack of enforceability was a consequence of the rules and not of any judicial decision.

Here the High Court said that for the avoidance of doubt it would state specifically that the costs order made was not enforceable.

That must be right and should be a policy followed by other courts.

Chapter 2 – Scope 

Pre-Action Disclosure Applications

Not only is it pointless to make an application for Pre-Action Disclosure in a portal matter, it is potentially positively harmful.

The starting point, even in a successful application for pre-action disclosure, is that the claimant has to pay the costs of the application and such applications are specifically excluded from the protection of Qualified One-Way Costs Shifting – see CPR 44.13(1)…

“but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984 (Applications for Pre-Action Disclosure)…”

Thus I have no doubt that in a portal claim the best procedure is to put the matter on the portal, which involves no court fee as compared with an application for pre-action disclosure, and rely upon the requirement that the defendant disclose documents as required by the portal, which is a form of pre-action protocol.

If the matter is clearly not a portal claim then different considerations may apply, but it should be noted that, as stated above, the starting point is that even a successful claimant’s application for Pre-Action Disclosure will generally result in the claimant being ordered to pay the costs of the application, which costs are not subject to QOCS protection.

QOCS protection applies in MIB cases

In Howe v Motor Insurers’ Bureau [2017] EWCA Civ 932, 6 July 2017

the Court of Appeal held that a Claimant who had lost his claim against the Motor Insurers’ Bureau, following an accident in France, enjoyed the protection of Qualified One-Way Costs Shifting and thus did not have to pay the costs of the MIB.

The Court of Appeal overturned the decision of the High Court which had held that the Claimant was not entitled to QOCS protection as the claim was not a claim for damages for personal injury, but rather for compensation under Regulation 13 of the Motor Vehicle (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003/37).

Here the Court of Appeal held that the reference in CPR 44.13 to  “damages for personal injuries” could be interpreted easily to include a claim for compensation under Regulation 13 by applying the principles set out in Marleasing SA v La Comercial Internacional de Alimentacion SA (Case -106/89 [1990]) ECR 1-4135.

The Marleasing Principle requires national legislation to be interpreted in accordance with European Union Law in so far as possible.

The purpose of QOCS is to ensure that those who have, or may have, valid claims for damages for personal injury are not deterred from pursuing them by fear of having to pay the Defendant’s costs, except in certain circumstances as set out in the QOCS rules

The Court of Appeal also held, although by the stage it reached the hearing the parties had agreed the same, that QOCS applies to appeals in cases that are covered by QOCS at first instance.

Regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 reads:

Entitlement to compensation where a vehicle or insurer is not identified

(1) This regulation applies where— (a) an accident, caused by or arising out of the use of a vehicle which is normally based in an EEA state, occurs on the territory of— (i) an EEA state other than the United Kingdom, or (ii) a subscribing state, and an injured party resides in the United Kingdom, (b) that injured party has made a request for information under regulation 9(2), and (c) it has proved impossible— (i) to identify the vehicle the use of which is alleged to have been responsible for the accident, or (ii) within a period of two months after the date of the request, to identify an insurance undertaking which insures the use of the vehicle.

(2) Where this regulation applies— (a) the injured party may make a claim for compensation from the compensation body, and (b) the compensation body shall compensate the injured party in accordance with the provisions of article 1 of the second motor insurance Directive as if it were the body authorised under paragraph 4 of that article and the accident had occurred in Great Britain.”

Regulation 16 provides:

“Any sum due and owing pursuant to these Regulations shall be recoverable as a civil debt.”

In Moreno v MIB [2016] UKSC 52

the Supreme Court said:

“In construing the 2003 Regulations, the starting point is that they should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135.”

Here the Court of Appeal held that the rationale underlying QOCS is a domestic version of the principle of effectiveness, that is that those who have, or may have, valid personal injury claims should be able to bring them without fear of the Defendant’s costs, save as set out in the QOCS exceptions themselves.

By the Claimant’s Regulation 13 claim being covered by QOCS he would be in an equivalent position to an injured person who sues an insured driver.

Comment

A correct and welcome decision and, out of pure vanity, I set out my comment on the original High Court decision which has been overturned:

““This decision must be wrong in principle. It is over technical and fails to give effect to the clear intention of Parliament in implementing the Jackson Report, that is, as the judge himself here recognized, to protect “those who had suffered injuries from the risk of facing adverse costs orders obtained by insured or self-insured parties or well-funded Defendants.”

QOCS was of course brought in as part of a deal whereby those insured or self-insured parties would no longer have to pay the claimant’s After-the-Event insurance premium.
The effect of this decision is that a claimant in the circumstances does not get QOCS protection and to protect him or herself would need to take out ATE insurance, which is no longer recoverable from the paying party and therefore has to be paid by the claimant.

That is entirely contrary to the whole point of the Jackson Report on this point and entirely contrary to the clear will and intention of Parliament.
This decision should be overturned on appeal.

I am grateful to Ben Williams QC for advising me concerning this decision and for background information and material.”

10% Uplift in all Cases Except where there is a Recoverable Success Fee

Two recent cases, one in the Court of Appeal and one in the Employment Appeal Tribunal, hold that the 10% Simmons v Castle uplift to general damages etc. applies in all cases except where there is a recoverable success fee.

 

Here it was held in the Court of Appeal to apply to legally-aided clients, who would not suffer the loss of recoverability as they never had it, and in the Employment Appeal Tribunal to recipients of damages for personal injury and/or injury to feelings, who likewise could never have recovered a success fee.

 

In Summers v Bundy [2016] EWCA Civ 126

 

the Court of Appeal held that the 10% uplift on general damages as set out by the Court of Appeal in

Simmons v Castle [2012] EWCA Civ 1039[2012] EWCA Civ 1288

is compulsory and not a matter for judicial discretion.

Here the claimant had at all times been legally-aided in a clinical negligence case and the trial judge took the view that he should not receive the 10% uplift as he would not suffer the loss of recoverability of the success fee which the uplift was meant to compensate.

In the two Simmons v Castle cases the Court of Appeal had originally said that the 10% uplift would apply to all cases settled, or where the judgment was given, on or after 1 April 2013, which was the implementation date for most of the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, itself implementing many of the Jackson Reforms, of which this is one.

This original decision was challenged by The Association of British Insurers who pointed out that an across the board increase would mean that claimants with a pre-Jackson Conditional Fee Agreement would get up to a 100% success fee from the paying party and still get the uplift and that that would be an unfair windfall.

The Court of Appeal accepted this contention and thus excluded those claimants who stood to recover a success fee from the paying party.
All other claimants were to get the 10% increase.

Here the judge had considered that a further exception was available to him in relation to a legally-aided client. The Court of Appeal held that he was wrong and that that reasoning was not open to him.
The Court of Appeal pointed out that if there was a discretion some legally-aided clients may get the uplift and some may not and this would lead potentially to “complete uncertainty and inconsistency in awards of the courts throughout England and Wales. There also potentially would be difficulties in calculating and determining the form and amount of Part 36 offers or without prejudice proposals of settlement.” (Paragraph 21).

The Court of Appeal made it clear in forceful terms that the only exception related to claimants with a recoverable success fee and there was no discretion on any court to refuse the 10% uplift in any other type of case.

In paragraph 20 of the original Court of Appeal’s decision in Simmons v Castle it said this:-

“ 20. Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously.”

That general principle was unchanged by the Court of Appeal’s second decision which simply excluded claimants with a recoverable success fee.

Discrimination cases – Simmons v Castle 10% Uplift – pages 48 to 51

The Court of Appeal decision in Summers v Bundy appears to end the controversy as to whether general damages awards in the Employment Tribunal, generally for injury to feelings, attract the 10% uplift.

Following the rationale of Summers v Bundy such cases must now indeed attract the 10% uplift.
There had been different lines of authority with the Employment Appeal Tribunal in

Chawla v Hewlett Packard Ltd [2015] IRLR 356 EAT

 

holding that there could be no such uplift as Employment Tribunal claims were not included in the list of specific types of litigation dealt with in the Jackson Report and nor did the issue of loss of recoverability of the success fee apply as there are no recoverable costs in Employment Tribunal cases generally.

Now that the Court of Appeal has said that it is irrelevant that some claimants without Conditional Fee Agreements, such as legally-aided clients, will get a windfall , that must apply to claimants in Employment Tribunal proceedings as well, as the Court of Appeal has said that the only exclusion is in relation to those with recoverable success fees.

Furthermore the precise types of litigation in the Jackson Report are irrelevant – the law is as set out by the Court of Appeal in Simmons v Castle and as clarified in Summers v Bundy.

Other divisions of the Employment Appeal Tribunal had followed this line and said that the 10% uplift was applicable – see

Ozog v Cadogan Hotel Partners Ltd [2014] EqLR 691 EAT and

The Sash Window Workshop Ltd v King [2015] IRLR 348 EAT

 

The Court of Appeal is just about to hear the appeal in The Sash Window case but it will now be bound by its own decision in Summers v Bundy. Consequently the appeal should be dismissed.

An appeal on the same point in the case of

Pereira de Souza v Vinci Construction UK Ltd [2015] IRLR 536 EAT

 

is due to be heard in December 2016, but again it appears that that is now academic.

On 27 November 2015 the Employment Appeal Tribunal in

Beckford v London Borough of Southwark [2016] IRLR 178

 

followed the Ozog and Sash Window line of cases and rejected the reasoning in Chawla and thus correctly anticipated the decision of the Court of Appeal in Summers v Bundy.

 

The Employment Appeal Tribunal arrived at that conclusion by two routes.

Firstly it gave the precise reasoning subsequently used by the Court of Appeal in Summers v Bundy, even referring to the example of a legally-aided client who never stood to gain the recoverability of the success fee and therefore could not lose it, but who would nevertheless get the 10% uplift.
The Employment Appeal Tribunal also relied on the fact that Section 124 (6) of the Equality Act 2010 provides, in similar terms to its predecessors, that

“(6) The amount of compensation which may be awarded under subsection (2)(b) [that is the subsection which permits a Tribunal to order the Respondent to pay compensation to the Complainant] corresponds to the amount which could be awarded by the County Court or the Sheriff under section 119.”

Section 119 (4) provides that:-

“(4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”

Therefore the Equality Act 2010 requires awards to be comparable in the tribunals to those given in the County Court and although that comparability may be broad, it does not allow for one set of awards to be consistently 10% above the other as that would not be “broadly comparable” but “generally 10% different”.

Furthermore the Equality Act 2010 reflects an important aspect of judicial policy, which is that awards made in the tribunals should broadly be coherent with those made in the civil courts. It would not reflect well on a system of justice that the same injury, as it may seem to a member of the public, should be compensated in one regime at a lower level than it would be in another, particularly given that in discrimination cases there is a general principle of effectiveness deriving from European authority which requires the award to be broadly the same.

Page 50 – the Pereira de Souza case has now been reported as Pereira de Souza v Vinci Construction UK Ltd [2015] IRLR 536 EAT

Does a client with a pre-Jackson Conditional Fee Agreement with a nil success fee get the 10% uplift

In the initial decision in the case of Simmons v Castle [2012] EWCA Civ 1039

the court held that with effect from 1 April 2013, general damages in tort cases would be increased by 10% from current levels as stated in paragraph 20 of that judgment:-

and this was clarified in the judgment in

Simmons v Castle & Ors [2012] EWCA Civ 1288:-

“Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000”

The judgment goes on to state that:-

“27.        In our view, it is clear from these observations that both Sir Rupert and the MoJ envisaged and intended the primary purpose of the 10% increase in damages would be to compensate successful claimants, as a class, for being deprived of the right which they had enjoyed since 2000 to recover success fees from defendants, in cases where a claimant was funding the legal costs of pursuing his or her claim by a CFA. The reason, or at least the principal reason, Sir Rupert made the point that the level of general damages was generally on the low side was to meet the argument that the 10% increase in damages could be said to represent something of a windfall for successful conventional claimants. Similarly, it appears clear that the MoJ regarded the proposed 10% increase in damages as being a quid pro quo for depriving successful CFA claimants of the ability to recover success fees from the defendant.”

and

“40.        … Rather than excluding from the 10% increase those claimants who enter into CFAs before 1 April 2013, we would prefer to exclude those claimants who fall within the ambit of section 44(6) of LASPO. First, this would mean that there will be a guaranteed identity between those successful claimants who are statutorily entitled to recover their success fees from defendants and those successful claimants who are disentitled from enjoying the 10% increase in general damages. Secondly, in so far as there is any risk of satellite litigation, as Mr Aldous suggests, it will be limited to one formulation, namely that set out in section 44(6).

  1. … In principle, as reflected in our earlier judgment, general damages should be increased by 10% in all cases where judgment is given after 1 April 2013, subject to the exception, explained above, where the claimant entered into a CFA before 1 April 2013. That exception is based on the fact that CFA claimants are better off under such a CFA than they will be under a CFA (or a damages based agreement) entered into after that date.”

The judgment does not deal with the different types of Conditional Fee Agreements and does not deal with those Conditional Fee Agreements with a nil success fee.

Section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sates:-

“(6) The amendment made by subsection (4) does not prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a conditional fee agreement entered into before the day on which that subsection comes into force (“the commencement day”) if—

  • the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or
  • advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.”

Thus in simple terms those Agreements that fall within the ambit of section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are pre-1 April 2013 Conditional Fee Agreements for the provision of advocacy or litigation services where there is a success fee payable.

As I have set out previously a Conditional Fee Agreement with a nil success fee does indeed have a success fee, albeit that that success fee is nil and no success fee payable, because it is nil.

The Oxford English Dictionary defines “payable” as:-

  1. that is to be paid; due, owing; falling due

 

  1. that can be paid; capable of being paid

Pay is defined as:-

“The action of paying, as a verb it is defined as:-

  1. to give
  1. (personal) what is due in discharge of a debt, or as a return for services done, or goods received, or in compensation for injury done; to remunerate, recompense.
  1. to give a recompense for, to recompense, reward, requite (a service, work, or action of any kind)
  1. to give, deliver, or hand over (money, or some other thing) in return for goods or services, or in discharge of an obligation; to render (a sum or amount owed).
  1. to give or hand over the amount of, give money in discharge of (a debt, dues, tribute, tithes, ransom, fees, hire, wages, etc.)
  1. to give money or other equivalent in return for something or in discharge for an obligation;”

In my view there cannot be payment of zero and therefore there can be nothing payable and therefore a nil success fee cannot be “payable” and those Agreements with a nil success fee would therefore not fall within the meaning of section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

On balance, it is my view that a pre-1 April 2013 Conditional Fee Agreement with a nil success fee cannot be included within the ambit of section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and thus will attract the 10% uplift stated in Simmons v Castle & Ors [2012] EWCA Civ 1288.

In Summers v Bundy [2016] EWCA Civ 126

the Court of Appeal held that the 10% uplift applies to all claimants except those covered by Section 44 (6).

Chapter 5 – Fundamental Dishonesty

In Hayward v Zurich Insurance Company plc [2016] UKSC 48

 

the Supreme Court unanimously allowed Zurich’s appeal and set aside the settlement agreement on the basis of fraudulent misrepresentation by the claimant, holding that Zurich had been induced by the claimant’s fraud to enter into the agreement and had settled for a much greater sum than it would have but for that fraud.

It thus restored the decision of the First Instance Judge.

Encouraging settlement was of considerable importance, but not sufficient to allow a claimant to retain monies obtained by fraud.

The fact that Zurich suspected fraud did not preclude inducement and it was not necessary to show deceit to prove inducement. In a disputed claim in litigation what mattered was the chance that the claimant would be believed at trial.

It was difficult to envisage a situation where a mere suspicion of fraud would preclude unravelling a settlement when fraud was subsequently established.

The statement in its defence that the claimant had exaggerated his difficulties in recovery and current physical condition for financial gain did not preclude the defendant from unravelling the settlement when fraud was subsequently established.
That represented a suspicion of fraud, which was subsequently proven.

The Supreme Court quoted, with approval, from other cases that fraud:-

“is a thing apart” and

“unravels all” and

“vitiates judgments, contracts and all transactions whatsoever”.

Note that in any personal injury case issued on or after 13 April 2015 the whole claim must be dismissed if the court is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest in relation to any part of the claim.

Nothing in the Supreme Court’s decision affects the Court of Appeal’s finding that exaggeration for financial gain equals fraud. What the Supreme Court said was that that was an allegation of, and a suspicion of, fraud which was proven after settlement after information was received from Mr Hayward’s neighbours.

Consequently although the decision of the Court of Appeal has been overturned the significance of the Court of Appeal’s finding, for the purposes of fundamental dishonesty, that exaggeration for financial gain equals fraud has not been affected.

In Waggett v Witold Warchalowski and Others, Claim No. A84YJ740, Blackpool County Court, 15 September 2015

Mr Waggett brought an RTA claim against Mr Warchalowski and Bacup Private Hire and both Mr Warchalowski and Bacup Private Hire counterclaimed and thus both Mr Waggett & Mr Warchalowski had made claims for personal injury and Bacup Private Hire had made a claim for special damages only.

Neither defendant/counterclaimant attended the trial.

Unsurprisingly the judge gave Judgment for the claimant and dismissed the counterclaims of both defendants.

The judge held that the defendant/counterclaimants’ conduct including dishonesty and not attending the trial and failing to advise the court and the claimants of the position constituted exceptional circumstances within the meaning of CPR 45.1(3) meaning that the Fixed Costs Regime should not apply and indeed the judge ordered those costs to be paid on the indemnity basis as well as being open costs rather than fixed costs.

In relation to Qualified One-Way Costs Shifting the court correctly held that the counterclaim by the second defendant, being for special damages only and against the Part 20 defendant was not a QOCS case.

However the claim by the first defendant, including a personal injury claim, was, on the face of it covered by QOCS.

The judge had found fundamental dishonesty on the part of the first claimant and that meant that the costs order could be enforced to the full extent of such order with the permission of the court and the judge gave such permission.

Financial Benefit of Another

The judge also held that the credit hire claim, which in his words “dwarfed” the personal injury claim brought the matter within the “financial benefit of a person other than the claimant” exception and thus also allowed the full enforcement of the order. The vehicle in relation to which a credit hire replacement was claimed was owned by the second defendant Bacup Private Hire, but the first defendant’s counterclaim included the credit hire element.

The court said:

“The agreement , which is referred to within the bundle of  papers , between the first and second defendants makes it quite clear that the vehicle is  effectively leased to the first defendant and in those circumstances it does seem to me  that the first defendant’s claim for credit hire ,  is  by virtue of the terms of his agreement  with the second defendant ,  a claim made by the first defendant for and on behalf of  another party, ie the second defendant.

  1. It seems to me in those circumstances that this is exactly the situation envisaged by CPR 44.16(2) (b) and in those circumstances it seems to me that potentially this is one where I can find an exception to QOCS.
  2. The only question that does arise is, of course, that there are two elements to this first defendant’s claim, namely the claim for personal injury and the claim for credit hire. The claim for credit hire and other costs amounts to somewhere in the region of £19,000. I raised the question as to what happens in a mixed claim of this nature and was directed to the guidance provided in the little booklet entitled Costs and Funding following the Civil Justice Reforms at page 118, section 615 where the question is raised, “How will QOCS apply where a claim compromises both a personal injury and non – personal injury element?” and the answer is:

“This will have to be subject to judicial guidance in due course.  The Rule expressly allows the court do dis – apply QOCS to the extent that it considers just where this situation arises.”

The practice direction envisages that w here this arises the court will normally order the claimant to pay costs notwithstanding that they exceed the level of damages and interest awarded, i.e. will allow enforcement.  I t goes on to consider the position, where the personal injury claim is only a modest part of the total claim and the additional claim is the dominant one.

  1. There is little doubt to me, based on the medical evidence that I have seen, that the first defendant’s personal injury claim is worth no more than £2,000 to £2,500. On that basis it is clearly dwarfed by the claim for credit hire. In those circumstances I agree entirely with the submissions made to me by Mr Robinson that this is a case in which it would be appropriate to make an exception to QOCS in respect of the claim by the first defendant as well as the claim by the second defendant.  This is in addition to any finding I make in relation to the claimant’s claim itself.”

Fundamental Dishonesty

 

In relation to fundamental dishonesty the facts clearly meant that the judge was entitled, one might say bound, to find fundamental dishonesty on the part of both counterclaimants.

Of interest is the fact that District Judge felt able to rule on the issue of fundamental dishonesty in the absence of the allegedly dishonest parties, although they were represented.

The judge’s approach to determining Fundamental dishonesty is also of interest.

“32. I have asked what the test is in this matter and it seems to me that it is a two – part test.   Firstly, is there dishonesty?  In my view the answer is yes.  Is that dishonesty fundamental to the issues in this claim?  I remind myself that the value of the defendants ’ – and in this respect it is the first and second defendant’s claim  – consists of  special damages, which together come to somewhere in the region of a bout £23,000 or  £24,000, and a personal injury claim which might be worth, as I have already said, about  £2,500.  The fundamental issues in this case concerned the claims for storage, recovery, repair and most importantly credit hire and it is those which are most specifically touched upon by the inconsistencies that I have gone through.  It is my view, that the dishonesty goes straight to the heart of those fundamental elements of this claim and that therefore it is appropriate for me to find, and I do so find, that there has been fundamental dishonesty by the defendants in this case.”

Thus the judge dis applied QOCS on two grounds and also ordered the counter-claimants to pay the claimant’s costs of defending those counterclaims on the indemnity basis.

In Costello & Muscroft v First Bus, Leeds County Court, August 2016

two passengers in a bus lost their personal injury claims where they had sought £2,400.00 and £4,200.00 respectively.

The two were passengers in a bus packed full of football supporters which was involved in a minor collision with a Ford Fiesta while moving at a very low speed and there was only minor damage to the two vehicles and the elderly couple in the Ford Fiesta had been entirely unharmed.

In the case of Mr Costello, CCTV footage from the bus showed him twice holding his neck while smiling immediately after the incident, although his claim stated that his pain only began the following day.

Mr Muscroft claimed that the impact of the collision had thrown him to the ground, causing injuries to his neck and shoulder that lasted between eight and ten months, although he had taken no time off work and had failed to mention the injuries during two appointments with his GP in the months after the collision.

CCTV footage showed the fans to be so tightly packed in the bus that there was no room for Mr Muscroft to have fallen.

Unsurprisingly it was found that the claims were fundamentally dishonest, resulting in Qualified One-Way Costs Shifting costs protection being lost.

Mr Costello was ordered to pay costs of £4,839.00 plus VAT and Mr Muscroft was ordered to pay costs of £7,163.00.

In Hughes, Kindon & Jones v KGM, Taunton County Court, April 2016

 

two of the claimants were initially awarded £750.00 each in damages, obviously having won their claim.

The defendant then made an application under Section 57 of the Criminal Justice and Courts Act 2015 on the basis that the two claimants had “presented a deliberate inaccurate position to the medical expert for financial gain”.

The judge had found that they were likely to have suffered injuries for two weeks and accepted that the claims were fundamentally dishonest as they had stated during an examination six weeks after the accident that they were still suffering from their injuries.

Consequently the claimants received nothing and were ordered to pay £6,100.00 costs.

This is believed to be the first finding under Section 57.

In James v Diamantekk, unreported, 8 February 2016

 

HH Judge Gregory, on appeal, held the claim to be fundamentally dishonest and thus allowed enforceability of the costs order.

This was a noise-induced hearing claim and the issue at trial was whether the claimant was provided with, and used, hearing protection.
The Deputy District Judge dismissed the claim and said:-

“the claimant has not been telling the truth here today”

but declined to allow enforceability of the costs order saying that his dishonesty fell short of making him a “dishonest person”.

The Circuit Judge overturned that decision holding that the allegation that the claimant was not provided with, and required to wear, hearing protection was one of the principles assertions of fact upon which he had based his claim and so was “fundamental”.

He had lied about that and thus the fundamental dishonesty test was satisfied.

In Bain v Zurich, Newcastle County Court, Unreported

Mr Bain was involved in an accident in a carpark in Newcastle when a car reversed into his car.

Liability was admitted immediately and the insurance company paid for the damage to the vehicle.

Three months after the accident, in a telephone conversation with those insurers, Zurich, Mr Bain stated that he had not suffered any personal injury.

However six months later he claimed for a back injury and during the trial it emerged that he had been approached by a claims management company and that he had submitted a false claim by not disclosing back problems which he had prior to the accident.

Mr Bain’s claim was dismissed but the trial judge refused to disqualify QOCS protection and thus Zurich were unable to enforce the costs order.

On appeal Newcastle County Court overturned that decision and allowed enforceability with HH Judge Freedman saying:-

“…this claim would never have been started but for Mr Bain’s false assertion that he had suffered injury… the dishonesty here goes far beyond mere exaggeration; it props up, and provides the sole basis for the claim. Without it… there would be no claim.”

In Sage v Stringer, Bristol County Court, 8 October 2015, Unreported

 

the Claimant lost and was denied QOCS protection on the basis that his claim was fundamentally dishonest and enforcement of the costs order of over £5,500.00 was allowed.

The claimant was the driver of a motor vehicle when it was reversed into by the defendant’s vehicle and breach of duty was admitted.

The accident occurred on 10 December 2012.

10 months later the claimant brought a claim and when he attended for the medical report 11 months after the accident he said that he had suffered severe neck pain and pain to his right elbow and right knee immediately after the accident and that this pain was still intermittent at the time of the examination.

He had not sought treatment.

The Claim Notification Form said that he had been absent from his job as a courier for one day. No loss of earnings was sought.

He attended his GP during this period but no record of any accident related injury was made.

At trial the claimant amended the claim to include a Smith v Manchester award on the basis that the injuries prejudiced him on the open labour market. The claim was valued at around £15,000.00.

The District Judge dismissed the claim and found that the claimant was lying and that had he been injured he would have mentioned it to his GP and that his inability to work was due to depression, which was mentioned in the medical records.

A costs order was made in the usual way and the defendant sought permission to enforce it on the ground of fundamental dishonesty.

The court held that the only reason the case came to trial was that the claimant had lied about his injuries and that was his only head of claim and the defendant had been put to the expense of defending it.

This was at the heart of the claim and it was fundamental and thus fundamental dishonesty had been established and thus enforcement of the costs order was allowed.

In Ravenscroft v Ikea, Manchester County Court, Unreported

 

the District Judge dismissed a Section 57 allegation by the defense but declined to award the claimant either indemnity costs or aggravated damages.

On 16 March 2014 Ms Ravenscroft, a teaching assistant, was visiting an Ikea store in Warrington with her daughter and two year old grandson.

A mirrored wardrobe, which had recently been moved by Ikea staff, started to fall in their direction and Ms Ravenscroft reached out to prevent it falling on her grandson and in doing so she suffered injury to her wrist, arm, shoulder and neck.

Ikea argued that she had exaggerated the nature of the incident and the extent of her injuries and alleged that she was being fundamentally dishonest and that under Section 57 the claim should be dismissed, even though it was Ikea’s fault.

The court rejected the defence’s allegation and said that Ikea had adopted a “state of suspicion rather than sympathy” and awarded Ms Ravenscroft £3,500.00 plus costs.

However the court declined to award either indemnity costs or aggravated damages.

Chapter 9 – Financial Benefit of Another

 

In Waggett v Witold Warchalowski and Others, Claim No. A84YJ740, Blackpool County Court, 15 September 2015

Mr Waggett brought an RTA claim against Mr Warchalowski and Bacup Private Hire and both Mr Warchalowski and Bacup Private Hire counterclaimed and thus both Mr Waggett & Mr Warchalowski had made claims for personal injury and Bacup Private Hire had made a claim for special damages only.

Neither defendant/counterclaimant attended the trial.

Unsurprisingly the judge gave Judgment for the claimant and dismissed the counterclaims of both defendants.

The judge held that the defendant/counterclaimants’ conduct including dishonesty and not attending the trial and failing to advise the court and the claimants of the position constituted exceptional circumstances within the meaning of CPR 45.1(3) meaning that the Fixed Costs Regime should not apply and indeed the judge ordered those costs to be paid on the indemnity basis as well as being open costs rather than fixed costs.

In relation to Qualified One-Way Costs Shifting the court correctly held that the counterclaim by the second defendant, being for special damages only and against the Part 20 defendant was not a QOCS case.

However the claim by the first defendant, including a personal injury claim, was, on the face of it covered by QOCS.

The judge had found fundamental dishonesty on the part of the first claimant and that meant that the costs order could be enforced to the full extent of such order with the permission of the court and the judge gave such permission.

Financial Benefit of Another

The judge also held that the credit hire claim, which in his words “dwarfed” the personal injury claim brought the matter within the “financial benefit of a person other than the claimant” exception and thus also allowed the full enforcement of the order. The vehicle in relation to which a credit hire replacement was claimed was owned by the second defendant Bacup Private Hire, but the first defendant’s counterclaim included the credit hire element.

The court said:

“The agreement , which is referred to within the bundle of  papers , between the first and second defendants makes it quite clear that the vehicle is  effectively leased to the first defendant and in those circumstances it does seem to me  that the first defendant’s claim for credit hire ,  is  by virtue of the terms of his agreement  with the second defendant ,  a claim made by the first defendant for and on behalf of  another party, ie the second defendant.

  1. It seems to me in those circumstances that this is exactly the situation envisaged by CPR 44.16(2) (b) and in those circumstances it seems to me that potentially this is one where I can find an exception to QOCS.
  2. The only question that does arise is, of course, that there are two elements to this first defendant’s claim, namely the claim for personal injury and the claim for credit hire. The claim for credit hire and other costs amounts to somewhere in the region of £19,000. I raised the question as to what happens in a mixed claim of this nature and was directed to the guidance provided in the little booklet entitled Costs and Funding following the Civil Justice Reforms at page 118, section 615 where the question is raised, “How will QOCS apply where a claim compromises both a personal injury and non – personal injury element?” and the answer is:

“This will have to be subject to judicial guidance in due course.  The Rule expressly allows the court do dis – apply QOCS to the extent that it considers just where this situation arises.”

The practice direction envisages that w here this arises the court will normally order the claimant to pay costs notwithstanding that they exceed the level of damages and interest awarded, i.e. will allow enforcement.  I t goes on to consider the position, where the personal injury claim is only a modest part of the total claim and the additional claim is the dominant one.

  1. There is little doubt to me, based on the medical evidence that I have seen, that the first defendant’s personal injury claim is worth no more than £2,000 to £2,500. On that basis it is clearly dwarfed by the claim for credit hire. In those circumstances I agree entirely with the submissions made to me by Mr Robinson that this is a case in which it would be appropriate to make an exception to QOCS in respect of the claim by the first defendant as well as the claim by the second defendant.  This is in addition to any finding I make in relation to the claimant’s claim itself.”

Fundamental Dishonesty

 

In relation to fundamental dishonesty the facts clearly meant that the judge was entitled, one might say bound, to find fundamental dishonesty on the part of both counterclaimants.

Of interest is the fact that District Judge felt able to rule on the issue of fundamental dishonesty in the absence of the allegedly dishonest parties, although they were represented.

The judge’s approach to determining Fundamental dishonesty is also of interest.

“32. I have asked what the test is in this matter and it seems to me that it is a two – part test.   Firstly, is there dishonesty?  In my view the answer is yes.  Is that dishonesty fundamental to the issues in this claim?  I remind myself that the value of the defendants ’ – and in this respect it is the first and second defendant’s claim  – consists of  special damages, which together come to somewhere in the region of a bout £23,000 or  £24,000, and a personal injury claim which might be worth, as I have already said, about  £2,500.  The fundamental issues in this case concerned the claims for storage, recovery, repair and most importantly credit hire and it is those which are most specifically touched upon by the inconsistencies that I have gone through.  It is my view, that the dishonesty goes straight to the heart of those fundamental elements of this claim and that therefore it is appropriate for me to find, and I do so find, that there has been fundamental dishonesty by the defendants in this case.”

Thus the judge dis applied QOCS on two grounds and also ordered the counterclaimants to pay the claimant’s costs of defending those counterclaims on the indemnity basis.

Chapter 8 – Discontinuance, strike out and summary judgment 

Discontinuance 

In Magon v Royal and Sun Alliance Insurance plc, Central London County Court, 26 February 2016, Case no. B53Y J995

 

the court was considering the costs consequences of discontinuance in a personal injury case covered by Qualified One-Way Costs Shifting.

Here the claimant was injured by a driver who was insured by a foreign insurer and proceedings were wrongly issued against Royal and Sun Alliance as a defendant when in fact they were merely the case handler  for another insurer.

The claimant was unable to substitute the correct insurer and so amended proceedings were prepared against the driver personally and the claim subsequently settled.

The claimant then discontinued against Royal and Sun Alliance who made an application to dis-apply the Qualified One-Way Costs Shifting regime, which on the face of it applies on discontinuance.

Initially the application was for permission to enforce the costs order that followed upon discontinuance, QOCS being about the enforcement or otherwise of costs orders, rather than the costs orders themselves, which are always made in the usual way.

At the beginning of the hearing Royal and Sun Alliance applied out of time to amend the application to set the Notice of Discontinuance aside and that application was allowed by the District Judge.

However on appeal the Circuit Judge allowed the appeal  and reinstated the Notice of Discontinuance and ruled that Qualified One-Way Costs Shifting continued to apply.

The purposes of applying for the Notice of Discontinuance to be set aside is that it revived the claim allowing the defendant to make an application to strike out the claim for disclosing no reasonable cause of action. If that occurs then QOCS does not apply as that is a specific exception to QOCS set out in CPR 44.15(a).

Here the matter had not been struck out, and indeed the defendant had made a very late application to set aside the Notice of Discontinuance.
The court quoted from “Costs and Funding following the Civil Justice Reforms: Questions and Answers” which appears as an addendum to The White Book which reads:-

“Interesting issues arise when a claim is one which was arguably abusive or in relation to which there are no reasonable grounds for bringing the claim, but the claimant has beaten the defendant to the point by discontinuing the claim before an application could be heard to have the proceedings struck out.

“Under CPR 38.4 it will be possible to apply to have a notice of discontinuance set aside in order for the court to hear an application for strike-out which, if successful, would allow for a full enforcement of the costs order without permission. It is likely that the court will then permit this in exceptional circumstances, perhaps where a claimant has been repeatedly warned as to the abusive nature of the claim but has persisted but then responds to a formal application to strike-out by discontinuing. However, it remains to be seen in practice how the court approaches such issues”.

Here the Circuit Judge found that the Deputy District Judge considered whether this was a case which wasted court resources and whether it was a case where the defendant might or ought to recover costs rather than taking into account the origin and purposes of the QOCS regime.

The Deputy District Judge should have taken into account the exceptions provided for in the rules and should also have considered the cases where Notices of Discontinuance have been set aside, which essentially involve an abuse of process.

The Deputy District Judge simply did not consider the background and reasons for the Qualified One-Way Costs Shifting scheme.

That meant that the decision could not stand and the Circuit Judge overturned the decision to set aside the Notice of Discontinuance which meant that the Notice of Discontinuance remained in place and as none of the QOCS exceptions applied, the matter not being capable of being struck out, Qualified One-Way Costs Shifting continued to apply and therefore the costs order made on discontinuance could not be enforced.

Note that there is a specific provision in relation to Qualified One-Way Costs Shifting whereby Notice of Discontinuance has been served and there is an allegation of fundamental dishonesty.

Practice Direction 44, Section II, dealing with Qualified One-Way Costs Shifting covers fundamental dishonesty at paragraph 12.4 in these terms:-

“12.4

In a case to which rule 44.16(1) applies (fundamentally dishonest claims) –

  • the court will normally direct that issues arising out of an allegation that the claim is fundamentally dishonest be determined at the trial;
  • where the proceedings have been settled, the court will not, save in exceptional circumstances, order that issues arising out of an allegation that the claim was fundamentally dishonest be determined in those proceedings;
  • where the claimant has served a notice of discontinuance, the court may direct that issues arising out of an allegation that the claim was fundamentally dishonest be determined notwithstanding that the notice has not been set aside pursuant to rule 38.4;
  • the court may, as it thinks fair and just, determine the costs attributable to the claim having been found to be fundamentally dishonest.”

That Practice Direction is not without its problems. Paragraph 12.4(d) suggests that the court may deny QOCS protection in relation just to the costs attributable to the claim having been found to be fundamentally dishonest, but that is a discretion so the court, which has to make a full costs order in any event, may order the unsuccessful claimant to pay all of the defendant’s costs.

In Rouse v Aviva Insurance Ltd, Unreported, 15 January 2016, Bradford County Court, Claim no. A28YP882

 

His Honour Judge Gosnell found that where a claimant discontinues and the defendant seeks a finding of fundamental dishonesty under CPR 44.16 so as to dis-apply Qualified One-Way Costs Shifting, the relevant procedure is in the discretion of the court.

The claimant Rouse sued for personal injury arising out of an alleged car accident and the defendant insurance company was suspicious and investigated fully and a few days before trial Rouse discontinued and the insurance company sought a finding of fundamental dishonesty under CPR 44.16.

The District Judge had held that the claimant did not need to explain the discontinuance and nor was the court obliged to draw an adverse conclusion from the failure to explain discontinuance and that any CPR 44.16 issue had to be determined on the papers irrespective of the timing of discontinuance and in spite of the guidance given by HH Judge Maloney in Gosling v Hailo and Another, Unreported, 29 April 2014, Cambridge County Court.

 

Aviva Insurance appealed. On appeal the judge held that under Practice Direction 44.12.4(c) the court did indeed have a discretion to direct a paper determination or limited enquiry or full trial as per the guidance in Gosling.

The judge also said:-

  • Where there was a prima facie case of dishonesty on the paperwork, it was only fair to the claimant and to the court to allow the claimant to explain why he had made a claim and then discontinued it. Where the claimant failed to give evidence or failed to explain the discontinuance, then the defendant could invite the court to draw an adverse influence from that conduct.
  • A hearing may be proportionate where, for example, the case was virtually ready for trial and evidence had been exchanged. If discontinuance occurred just after service of the defence then that weighed strongly against incurring substantial further costs.

On the facts of this matter, where discontinuance took place just before trial, it was right and fair to have either a full trial or a limited enquiry giving the claimant and his witness the opportunity to give evidence.

Please see my blog – FUNDAMENTAL DISHONESTY: SUPREME COURT INDICATES HARD LINE: VERSLOOT CONSIDERED

Chapter 13 – Set-Off

QOCS, Appeals, Set-Off & Kafka

A claimant loses a personal injury claim and a costs order is made in the usual way but the judge also finds fundamental dishonesty and thus allows enforcement of the costs order totalling £7,210.00.

 

The claimant appeals against the finding of fundamental dishonesty, but not the loss of the claim, and wins and so the finding of fundamental dishonesty is quashed and the claimant is awarded costs of the appeal of £12,500.00.

 

The original order against the claimant in respect of the costs of losing the personal injury claim remains in place but is now unenforceable.

 

The Appeal Judge makes no reference to CPR 44.12 which reads:-

 

Set Off

44.12

  • Where a party entitled to costs is also liable to pay costs, the court may assess the costs which that party is liable to pay and either –

 

  • set off the amount assessed against the amount the party is entitled to be paid and direct that party to pay any balance; or

 

  • delay the issue of a certificate for the costs to which the party is entitled until the party has paid the amount which that party is liable to pay.”

 

Thus the court here chose not to exercise that discretion, although it appears that this provision, which very obviously applies to the facts of this case, was not drawn to the judge’s attention.

 

Could the defendant, successful in the primary claim, set-off the £7,210.00 owed to it, under the common law doctrine of set-off?

 

Yes, in my view – see Kai Surrey v Barnet & Chase Farm Hospitals NHS Trust [2015] EWHC B16 (Costs).

Nothing in CPR 44.12 overrules the common law.

 

This has the curious effect of the claimant successfully appealing against a finding of fundamental dishonesty, and therefore enforceability of a costs order, nevertheless having to pay those first instance costs by way of set-off against its costs for successfully pursuing the appeal.

 

Heads you lose; tails you do not win.

 

Only Kafka, Lord Justice Jackson or the Rules Committee could have written this. For me, The Metamorphosis, The Interim Report, The Trial, the Civil Procedure Rules, The Castle and the Final Report are barely distinguishable, but I know which are better written.

 

 

These are the facts of Meadows v La Tasca Restaurants Ltd, Manchester County Court, Claim no. B27YX178, 21 June 2016.

 

The defendant did not seek CPR 44.12 Set-Off and nor did it utilise the common law right of Set-Off.

 

Kafka did not get round to writing this one up, so I have done it for him.

Chapter 14 – References and sources

 

Below are all the references and sources that appear in Chapter XIV of the book where we have links and by clicking on the link below you have access to the full judgment or section of the Act or Statutory Instrument or report or whatever.

REFERENCES AND SOURCES

 

Statutes

Administration of Justice Act 1985, s 29

Assize of Clarendon 1166

Assize of Northampton 1176

Attorneys in County Courts Act 1235

Civil Liability and Courts Act 2004 (Republic of Ireland)

County Courts Act 1984 s 52

Courts and Legal Services Act 1990 s 58(2), s 58(4)

Crime and Courts Act 2013

Criminal Injuries Compensation Act 1995, s 11(1)

Criminal Justice and Courts Act 2015, s 57

Defamation Act 1996

Distress Act 1267

Fatal Accidents Act 1976

Fatal Accidents Act and Law Reform (Miscellaneous Provisions) Act 1934

Income and Corporation Taxes Act 1988 s 148

Income Tax (Earnings and Pensions) Act 2003 s 406

Judicature Act 1873

Law Reform (Miscellaneous Provisions) Act 1934 s 1(1)

Legal Aid Act 1949

Legal Aid Act 1974

Legal Aid Act 1988

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Limitation Act 1623

Lord Denman’s Act 1840

Poor Persons Act 1495

Recovery of Damages and Costs Act 1278

Senior Courts Act 1981 s 33

Slander of Women Act 1891

Statute of Elizabeth c.6

Statute of Gloucester 1277

Statute of Marlbridge 1267

Statute of Westminster 1275

Supreme Court of Judicature Act 1873

1531 Statute (Henry VIII c.15)

1606 Statute of 4 James I c.3

Statutory Instruments

 

Civil Legal Aid (General) Regulations (SI 1989 No. 339)

Civil Procedure Rules 1998 (SI 1998 No. 3132)

Civil Procedure (Amendment) Rules 2013

Criminal Justice and Courts 2015 (Commencement No. 1, Saving and Transitional Provisions) Order 2015 (SI 2015 No. 778)

 

Civil Procedure Rules

 

CPR 2.3 (1)

CPR 3.19 (5) (b)

CPR 27.14 (2) (g)

CPR 36

CPR 43.2 (1) (k) (i-iii)

CPR 44.12

CPR 44.13 to CPR 44.17

CPR 44.13 (1)

CPR 44.13 (1) (k) (i-iii)

CPR 44.15 (a)

CPR 48.2

CPR 48.2 (1)

CPR 48.2 (1) (aa)

CPR 48.2 (1) (bb)

CPR 48.2(1) (a) (i)

CPR 48.2 (1) (a) (i) (aa)

CPR 52.9 (A)

CPR 52.9 (A) (4)

Practice Directions

Practice Direction 44, section II

Case Law

AB v CD [2011] EWHC 602 (Ch)

Agapitos v Agnew (The Aegeon) [2002] EWCA Civ 247;

Ahern v Bus Éireann [2011] IESC 44

Akhtar and Khan v Ball, Walsall County Court, Unreported, 10 July 2015

Alpha Rocks Solicitors v Alade [2015] EWCA Civ 685

AXA General Insurance Ltd v Gottlieb [2005] 1 All ER (Comm) 445 (CA)

Beckford v London Borough of Southwark [2016] IRLR 178

Bee v Jenson [2007] EWCA Civ 923

Behan v Allied Irish Banks Plc [2009] IEHC 554

Birmingham City Council v Jaddoo UKEAT/0448/04/LA

Black v Arriva North East Limited [2014] EWCA Civ 1115

Boland v Dublin City Council and Others [2011] 1EHC 176

Brahilika v Allianz Insurance plc, unreported, 30 July 2015

Brian Kite v Phoenix Pub Group 2015 Unreported

Carmello v Casey and another

Casseldine v The Diocese of Llandaff Board for Social Responsibly (a charity) 3 July 2015

Clutterbuck and others v HSBC plc and others, Chancery Division, 2 October 2015

Chawla v Hewlett Packard Ltd [2015] IRLR 356 EAT

Creech v Severn Valley Railway, 25 March 2015, Telford County Court, Unreported

Currie & Co v Law Society [1977] QB 990

Da’ Bell v NSPCC [2010] IRLR 19 EAT

David v Rees [1904] 2 KB 435

Davison v Leitch [2013] EWHC 3092 (QB)

Dar Al Arkan Real Estate Company v Al Refai [2015] EWHC 1793 (Comm)

Day v Day [2006] EWCA Civ 415

Dietz v Lennig Chemicals [1969] 1 AC 170

Direct Line Insurance v Khan[2002] 1 Lloyd’s Rep IR 364

Dunleavy v Swan Park Ltd. [2011] IEHC 232

Edwards v Hope (1885) 14 QBD 922

Excalibur Ventures LLC v Texas Keystone Inc & Ors [2014] EWHC 3436 (Comm)

Farrell v Dublin Bus [2010]1EHC 327

Federal Commerce Ltd v Molena Alpha Inc, C A [1978] 1 QB

Flatman and Germany v Weddall and Barchester Health Care Limited [2013] EWCA Civ 278

Folan v Mairtin Corraion and others [2011] IEHC 487

Gilbert v Endean [1878] 9 Ch D 259

Gosling v Screwfix and Another, Cambridge County Court, 29 March 2014, unreported

Hanak v Green, Court of Appeal 1958, 2 QB 9

Hayward v Zurich Insurance Company plc [2015] EWCA Civ 327 under appeal to Supreme Court-UKSC 2015/0099

Higgins v Caldark Ltd

HM Prison Service v Salmon [2001] IRLR 425

JE v Secretary of State for the Home Department [2014] EWCA Civ 192

Kuenigl v Donnersmarck [1955] 1 QB 515, 537 (McNair J);

Landau v The Big Bus Company, 31 October 2014, Master Haworth SCCO

Leung v Eftekhari and Eftekhari [2015] Central London County Court, 20 October 2015

Lockley v National Blood Transfusion Service [1991], The Times, 11 November 1991

LSC v F, A and V [2011] EWHC 899 (QB)

Ludlow v Unsworth and Zurich Insurance [2013] IEHC 153

Manifest Shipping Co Ltd v Uni-Polari Insurance Company Ltd (The “STAR SEA”) [2003] 1 AC469

Medcalf v Mardell [2002] 3 WLR 172

Masood v Zahoor (Practice Note) [2009] EWCA Civ 650

Meehan v BKNS Curtain Walling Systems Ltd and others [2012] IEHC 441

Morgan & Son Ltd v S Martin Johnson & Co Ltd [1949] 1 K B 107

Moorthy v Commissioners for HM Revenue and Customs [2015] IRLR 4 UKFTT

Multiplex Constructions UK Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2280 TCC

National Westminster Bank plc v Skelton [1993] 1 WLR 72

Nolan v Kerry Foods Ltd. [2012] IEHC 208

Nolan v Mitchell and another [2012] IEHC 151

Orthet Ltd v Vince-Cain [2004] IRLR 857 EAT

Ozog v Cadogan Hotel Partners Ltd [2014] EqLR 691 EAT

Pereira de Souza v Vinci Construction UK Ltd [2015] IRLR 536 EAT

R (Burkett) v London Borough of Hammersmith and Fulham [2004] EWCA Civ 1342

R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192

Rawson v Samuel (1841) CR. & Ph. 161

re A Bankruptcy Notice [No 171 of 1934]

Reid v Cupper [1915] 2 KB 147

Rouse v Aviva Insurance Ltd, Unreported, 15 January 2016, Bradford County Court

Royal Boskalis Westminster NV v Mountain [1999] QB 674, 693 (Stuart-Smith LJ), 704 (Pill LJ)

Salako v O’Carroll [2013]1EHC 17

Samantha Woodward v Cardiff Council, Cardiff County Court, 19 August 2015

Sibthorpe and Morris v Southwark London Borough Council (Law Society intervening) [2011] EWCA Civ 25.

Simmons v Castle (2012) EWCA 1039

The Sash Window Workshop Ltd v King [2015] IRLR 348 EAT

Solland v Clifford Harris and Co [2015] EWHC 3259 (Ch)

Summers v Fairclough Homes Ltd [2012] UKSC 26

Summers v Bundy [2016] EWCA Civ 126

Thinc Group Ltd v Jeremy Kingdom [2013] EWCA Civ 1306

Timothy James Consulting Ltd v Wilton [2015] IRLR 368 EAT

United Scientific Holdings Ltd v Burnley Borough Council [1978] A C 904

UWUG Ltd and Haiss v Ball [2015] EWHC 74 (IPEC)

Vava and others v Anglo American South Africa Limited [2013] EWHC 2326 QB

Vento v Chief Constable of West Yorkshire Police (No 2) [2002] IRLR 102 Court of Appeal

Versloot Dredging BV and another v HDI Gerling Industrie Versicherung AG and others [2016] UKSC 4

Waggett v Witold Warchalowski and Others, Claim No. A84YJ740, Blackpool County Court, 15 September 2015

Waliszewski v McArthur and Company(Steel and Metal Ltd), High Court of Ireland,24 April 2015 Unreported

Wall v British Canoe Union, Birmingham County Court 30 July 2015

Wagenaar v Weekend Travel Limitedt/a Ski Weekend and Serradji (Third Party) [2014] EWCA Civ 1105

Webb v Liverpool Womens’ NHS Foundation Trust [2015] EWHC 449 (QB)

Other

Criminal Injuries Compensation Scheme 2012

Employment Tribunals: Presidential Guidance

Frederick, Sir Pollock and Frederic William Maitland: The History of English Law before the Time of Edward I

Hansard: House of Commons, 25 November 2015

Hansard: House of Lords, 23 July 2014

Jackson, Lord Justice: Preliminary Report

Jackson, Lord Justice: Final Report

Law Society Gazette: 5 September 2015

Motor Insurers’ Bureau: Uninsured Driver’s Agreement

Motor Insurers’ Bureau: Untraced Driver’s Agreement

Oxford English Dictionary

Roget’s Thesaurus

Shorter Oxford English Dictionary

Statement to Parliament: Chancellor of the Exchequer 25 November 2015

Written by kerryunderwood

October 10, 2016 at 4:07 pm

Posted in Uncategorized

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