Kerry Underwood

Archive for February 2017

PERSONAL INJURY REFORMS COURSE – 2017 TOUR

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PERSONAL INJURY REFORMS COURSE – 2017 TOUR

  Book here now!

This course looks in detail at the personal injury reforms following the Government’s announcement on 23 February 2017.

Topics covered include:

  • Small claims limit and running small claims profitably
  • Small claims track procedure
  • Restriction of general damages in soft tissue claims
  • The tariff system
  • Extension of fixed costs to all personal injury work
  • Increase in value of claims covered by fixed costs
  • Update on funding and costs.

The course material includes model funding agreements.

The price is £200 + VAT including lunch and detailed course material, with a 10% discount for subsequent delegates. The course runs from 10.00am to 4.30pm and carries 5.5 CPD hours.

This subject is also covered in my new book – Personal Injury Small Claims, Portals and Fixed Costs – which can be ordered here.

Please select the course you would like to attend:

Date            2017 Location Course Book
Wednesday 10 May Birmingham Personal Injury Reforms Course Book
Thursday 11 May Leeds Personal Injury Reforms Course Book
Friday 12 May Newcastle* Personal Injury Reforms Course Book
Tuesday 16 May Liverpool** Personal Injury Reforms Course SOLD OUT
Wednesday 17 May Manchester Personal Injury Reforms Course SOLD OUT
Friday 19 May Cardiff*** Personal Injury Reforms Course SOLD OUT
Tuesday 23 May Plymouth**** Personal Injury Reforms Course Book
Thursday 25 May Exeter**** Personal Injury Reforms Course Book
Tuesday 27 June Liverpool** Personal Injury Reforms Course Book
Wednesday 28 June Manchester Personal Injury Reforms Course Book
Tuesday 4 July Cardiff Personal Injury Reforms Course Book

* sponsored by Trinity Chambers
** with Liverpool Law Society
*** sponsored by 9 Park Place Chambers
**** sponsored by Foot Anstey

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Written by kerryunderwood

February 28, 2017 at 9:41 am

Posted in Uncategorized

PERSONAL INJURY REFORMS ANNOUNCED!

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I am trekking in the Sahara Desert to raise money for the Lord’s Taverners’ cricket charity for disabled and disadvantaged children. If you find my blogs helpful how about making a donation? All donations go straight to the charity as the trekkers pay all of their own expenses. Please donate here.

 

These reforms will all come in on 1 October 2018.

This is all dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs which will be out in March. This is 3 volumes and over 1,400 pages. You can pre-order your copy at a discounted price of £68 including P&P (normal price £80 including P&P) by 6 March. Details here.

Contact me on 01442 430 900 or email me here.

This is also all dealt with in my Personal Injury Reforms course this May, which can be booked here – early bird discount if  paid for by 6 March.

Next month I will be trekking 160 kilometres through the Sahara Desert to raise money for the Lord’s Taverners charity and EY Foundation. If you would like to show your support and make a donation please click here. If you buy the Personal Injury Reforms book by 6 March, £5.00 will go to these charities.

Today the Government announced the result of its consultation into personal injury reforms which can be accessed here.

The personal injury small claims limit will rise from £1,000.00 to £5,000.00 in relation to all road traffic accident matters.

For all non-RTA personal injury matters the small claims limit will rise from £1,000.00 to £2,000.00

The personal injury small claims limit last went up in 1991 and this new limit represents a slightly below inflation increase.

This move is likely to end further debate about the small claims limit for a generation.

Whiplash tariff

The Government has now announced the tariff for soft tissue injuries and has decided on a unified figure that will cover both whiplash claims and minor psychological claims, and therefore there will be no separate figure for minor psychological injuries. This was only going to be £25.00 in the original consultation anyway.

The figures are:

Injury Duration 2015 average payment for PSLA – uplifted to take account of JCG uplift (industry data) Judicial College Guideline (JCG) amounts (13th edition) Published September 2015 New tariff amounts
0–3 months £1,750 A few hundred pounds to £2,050 £225
4–6 months £2,150 £2,050 to £3,630 £450
7–9 months £2,600 £2,050 to £3,630 £765
10–12 months £3,100 £2,050 to £3,630 £1,190
13–15 months £3,500 £3,630 to £6,600 £1,820
16–18 months £3,950 £3,630 to £6,600 £2,660
19–24 months £4,500 £3,630 to £6,600 £3,725

The Prisons and Courts Bill

The introduction of the tariff system, and the banning of pre-medical offers are dealt with in the Prisons and Courts Bill published and made before Parliament today.

However the detail will be in regulations to be made under the Act.

The bill is here.

The relevant part is part 5 – entitled Whiplash and containing clauses 61 to 67.

Points to note are that “whiplash injury” is defined as an injury, or set of injuries, of the neck or the neck and upper torso that is of a description specified in regulations made by the Lord Chancellor. (Clause 61(1)).

The provisions only apply to people injured while using or being carried in or on a motor vehicle other than a motorcycle. (Clause 61(3)).

Thus pedestrians and motorcyclists are not covered by these provisions and are not subject to the tariff system.

If the Act causing the injury is also a breach of one of the statutory provisions in section 53 of the Health and Safety at Work etc Act 1974, then it is excluded from the definition of a whiplash injury.

This mirrors the provisions of the portals.

Clause 63 allows for an uplift in damages in exceptional circumstances, and all of that is to be dealt with by regulations made by the Lord Chancellor.

Clause 64 contains detailed provisions on the prohibition of settlement before a medical report and makes it a breach of the Act, but not a criminal offence and does not give rise to a right of action for breach of statutory duty.

Any action against a regulated person is to be taken by the appropriate regulator, that is professional disciplinary action.

Clause 65(6) specifically provides that a breach of the rule against settling without a medical report does not make the agreement to settle void or unenforceable.

Pre-medical offers

Offers to settle whiplash claims before medical evidence has been obtained will be banned.
That ban and the whiplash compensation tariffs require an Act of Parliament and will be in the Prisons and Courts Bill.

The small claims limit increase can be dealt with by way of statutory instrument but the Government has announced that it will come in on 1 October 2018, along with all of the other changes.

Initial thoughts

For those lawyers not dealing with road traffic matters this announcement pretty much represents no change.

In the past there has always been damages inflation when the small claims limit goes up, that is that the courts work hard to get marginal claims above the new limit. I have always flagged that up and the decision to increase the small claims limit from £1,000.00 to £2,000.00 is  bad news for non-RTA insurers as it will lead to a significant increase in general damages in that band and it is not difficult for a judge to push a claim up from say £1,500.00 to £2,000.00.

Had the increase been from £1,000.00 to £5,000.00, then that would have been impossible.

A huge number of claims are clustered around the current small claims minimum level and are often settled for just above that level, for obvious reasons.
Thus, outside the field of road traffic work, damages will rise and lawyers will get the benefit of that in higher fixed costs and in a higher fee if they are charging the client 25% of damages, as is standard.
For non-road traffic lawyers the key issue now is Lord Justice Jackson’s review of Fixed Recoverable Costs and in particular the new upper level on damages covered by Fixed Recoverable Costs, whatever that will be.

It is now almost certain that the extension of Fixed Recoverable Costs will also come in on 1 October 2018

For lawyers dealing with primarily road traffic matters this is a major blow, and is more significant than if the personal injury small claims limit had gone up to £5,000.00 across the board but with no restriction on whiplash claims.

The effect of the tariff system, set out above, means that the general damages figure in soft tissue claims will never cross the £5,000.00 general damages threshold unless the injuries are very serious.

That being the case the overall claim needs to be above £10,000.00 – the general small claims limit – to escape the small claims limit and to be cost bearing.

For all intents and purposes all road traffic whiplash claims will be small claims.

Overall, as a percentage of the personal injury market, road traffic whiplash claims are thought to account for around 50%.

Losers

The biggest losers, apart obviously from the clients who will no longer get proper compensation for soft tissue injuries, are firms heavily dependent upon road traffic work and in particular on referred work.

Medical reports and agencies will lose out very heavily indeed as they can expect 50% of their work to go.

Winners

Firms doing a general mix of civil litigation, including personal injury but not specialising in such work and not taking referred work, will benefit significantly.

It is the soft tissue injury work that tends to be headed off the pass to reach the factory firms one way or another.

Those firms will, in many instances, cease trading and the traditional mixed practice firms will then benefit from picking up the general personal injury work that is freed up.

Like it or not, this is a very clever move by the Government. No one can seriously argue about increasing the small claims limit for personal injury work generally from £1,000.00 to £2,000.00 as that does not even keep the increase in line with inflation since 1991.

However the effect of the changes will still be to remove around half of all cases from being cost bearing.

That of itself would not, in my view, cause a significant problem as if there was still a reasonable amount of damages, but with a quicker and cheaper procedure, lawyers doing whiplash work could still make a decent living by charging the clients say 40%.

The real killer for personal injury lawyers is the tariff system in whiplash injuries.

In many instances soft tissue injuries will have a value below the existing personal injury small claims limit of £1,000.00.

In practice

The practical advice on funding is now to move to a 40% pre-issue Contingency Fee Agreement on every type of personal injury case without exception.

This is necessary to help compensate for the fact that in any road traffic accident claim under £5,000.00 there will be only small claims track recoverable costs.

It also reflects the fact that fixed recoverable costs will be brought in for much higher value claims and lawyers will need to make up the shortfall by charging their clients more.

As set out above it is very likely that the extension of Fixed Recoverable Costs will come in at the same time as all of these reforms, that is 1 October 2018.

Written by kerryunderwood

February 23, 2017 at 9:30 am

Posted in Uncategorized

FIXED COSTS: GRADES OF SOLICITORS AND LENGTH OF CALL OF COUNSEL

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This is all dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs which will be out in March. This is three volumes and over 1,300 pages. You can pre-order your copy at a discounted price of £68 including P&P (normal price £80 including P&P) by 6 March.

 

To pre-order your copy, contact Kerry Underwood on 01442 430 900 or email kerry.underwood@lawabroad.co.uk.

 

This is also all dealt with in my Personal Injury Reforms course this May, which can booked here – early bird discount for booking and paying by 6 March.

 

In a fixed costs regime should there be any variation of fixed fee depending upon the grade of fee earner and the seniority of counsel?

 

No, in my view. This would not be a truly fixed costs scheme as if there are different fixed fees for different grades of fee earner and seniority of counsel, then that opens up a can of worms in that the paying party will always be able to argue that a more junior level of fee earner, or a less experienced barrister, should have been engaged on the work.

 

Arguments about the level of fee earner are amongst the most common disputes in detailed assessments and indeed it is rare to see a case where the paying party is not alleging that a lower grade fee earner should have been used.

 

In fact the extra amounts for more senior fee earners are very low – around 14% extra for a grade A fee earner as compared with a grade B fee earner, for example.

 

A blended rate, taking into account different levels of fee earners, but resulting in a fixed cost, whatever the seniority of the lawyer, benefits better lawyers and will tend to benefit more experienced lawyers.

 

This is because an experienced lawyer will generally be able to deal with work and make decisions in far less time and will gain a far greater advantage than the 14% extra or whatever.

 

It is the classic conundrum that I pose in my lectures.

 

A client rings up at 2.00pm with a query and the lawyer does not know the answer and says she will look it up.

 

The lawyer does so, takes one hour to do so, and then telephones the client with the answer and says that there will be a bill on its way for £200.00.

 

By a remarkable coincidence, as the lawyer puts the phone down, another client rings with exactly the same query.
Does the solicitor:

 

  • give the answer there and then and tell the new client that it is not worth preparing a bill;

 

  • tell the client that she will research the matter and get back and then subsequently telephone the client and charge £200.00 for the advice; or

 

  • tell the new client that she knows the answer and the fee will be £250.00, the rationale for the higher fee being that she is now a better lawyer than she was an hour ago as she knows the point without the need to look it up.

 

That is obviously an extreme example to make a point, but the general logic of it applies to a great deal of civil litigation.

Written by kerryunderwood

February 21, 2017 at 9:34 am

Posted in Uncategorized

CLINICAL NEGLIGENCE DEPARTMENT OF HEALTH CONSULTATION


This is all dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs which will be out in March. This is three volumes and over 1,300 pages. You can pre-order your copy at a discounted price of £68 including P&P (normal price £80 including P&P) by 6 March.

To pre-order your copy, contact Kerry Underwood on 01442 430 900 or email kerry.underwood@lawabroad.co.uk.

This is also all dealt with in my Personal Injury Reforms course this May, which can booked here – early bird discount for booking and paying by 6 March.

On 30 January 2017 the Department of Health published its consultation paper:

Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims

 

The consultation closes on 1 May 2017.

It covers England and Wales only.

It covers all clinical negligence claims, for example those against private healthcare providers and not for profit organisations, and not just the National Health Service.

This is separate from Lord Justice Jackson’s review of the extension of Fixed Recoverable Costs; LJ Jackson’s report is due out by 31 July 2017.

The Department of Health’s consultation covers clinical negligence claims where the damages are between the current small claims limit of £1,000.00 and the existing Fixed Recoverable Costs upper limit of £25,000.00, which is also the general fast-track upper limit.

However, the scheme would cover claims worth £25,000.00 or less, even if allocated to the multi-track, which many such clinical negligence claims are.

Indeed the consultation paper states that “the vast majority of clinical negligence claims within the £1,000.00 to £5,000.00 damages tranche are allocated to the multi-track.”

At the time of writing, no final decision has been made by the Government as to whether the personal injury small claims limit will go up, and if so what to, and whether or not it will cover all personal injury claims, or only certain categories.

However, given that the vast majority of even £1,000.00 to £5,000.00 clinical negligence claims are allocated to the multi-track, any change to the small claims limit will make little difference in relation to clinical negligence claims.

Any claim which is below the normal small claims track limit, but which is allocated to the fast-track or the multi-track, is cost bearing in the usual way.

The consultation paper states that the £1,000.00 to £25,000.00 band covers around 60% of claims against the National Health Service, based on how much the claim actually settles for, rather than the value of the claim.

21% of claims settled for between £1,000.00 and £5,000.00 (paragraph 3.10).

As the consultation itself makes clear, it does not “affect the sum a lawyer charges a client, which is a matter of private agreement. Nor does it affect the amount of compensation (damages) awarded to the claimant. It solely affects the legal costs that a claimant can recover from the defendant following a successful claim.” (Paragraph 1.2).

Table 4 of the consultation paper sets out the settlement value and number of claims settled in 2015/16.

“Table 4: Value of clinical negligence claims closed against the NHS in England in 2015/16

Damages Tranche £

(note 1)

No. of claims % of total claims % of claims settled for damages
Nil (i.e. settled for no damages) 4,983 46.2% n/a
£1 – £1,000 184 1.7% 3.2%
£1,001 – £5,000 1,203 11.2% 20.8%
£5,001 – £25,000 2,272 21.1% 39.2%
£25,001 – £50,000 866 8.0% 14.9%
£50,001 – £100,000 556 5.2% 9.6%
£100,001 – £150,000 202 1.9% 3.5%
£150,001 – £200,000 129 1.2% 2.2%
£200,001 – £250,000 67 0.6% 1.2%
£250,000 + 316 2.9% 5.5%
Total 10,778

Note 1: the damages tranches includes claims allocated to the small claims track as it is not possible to breakdown the number of claims by track.

Source: NHS Litigation Authority”

 

The paper puts forward two alternative policies for the key date as to when the scheme will apply:

  • Any case in which the Letter of Claim is sent before the implementation date is subject to the existing regime of open costs, with the new Fixed Recoverable Costs scheme applying where the Letter of Claim is submitted on or after the implementation date, but with a deadline for settlement or issue, failing of which the scheme will apply even where the Letter of Claim was sent prior to the implementation date.
  • Any case where the cause of action arises before the implementation date is excluded from the new regime and the old, standard costs would apply. The Government prefers the first option.

The options

 

The consultation paper puts forward four options.

  • A flat fee, determined by the stage that the case has reached, with the claim or settlement value playing no part in determining the fee.
  • A core fee, depending on the stage reached, plus a percentage of damages, that is a system based on the current scheme for road traffic, employers’ liability and public liability claims.
  • Option 1 – a flat fee – but with a small reduction for early admission of liability; the reduction ranges from 10% to 15% depending upon when liability is admitted.
  • A cost analysis approach – this appears to be based on current open costs but with the new figure being arrived at by a combination of a core fee plus a percentage of damages ranging from 19% pre-issue to 47% post-listing.

I do not pretend to understand the logic of option 4, and I am not sure that the authors do either as the figures that they have put forward in table 7 – see below – do not add up.

The figures

 

Options 1, 2 and 3

 

Table 6: Illustrative FRC Rates for Options 1, 2 and 3.

 

Stage Option 1:

Staged Flat Fee Arrangement

Option 2:

Staged Flat Fee Arrangement Plus % of damages

Option 3:

Early Admission of Liability Arrangement

Pre-issue £3,000 £1,500 + 10% of damages:

minimum of £1,600

maximum of £4,000

£3,000 less 10% = £2,700
Post-issue/pre-allocation £3,900 £3,000 + 10% of damages:

minimum of £3,100

maximum of £5,500

£3,900 less 15% = £3,315
Post-allocation/pre-listing £5,650 £6,000 + 10% of damages:

minimum of £6,100

maximum of £8,500

£5,650 less 10% = £5,085
Post-listing £7,150 £6,500 + 10% of damages:

minimum of £6,600 or £7,000

maximum of £9,000

£7,150 less 10% = £6,435
Notes: (1) Factual Witness Costs, Trial Fees are in addition to the figures. Counsel costs are included with the figures but exclude trial advocacy. London weighting would be in addition. Recoverable trial costs to be in accordance with Civil Procedure Rule (CPR) 45.38 (Table 9). Excludes VAT and interest. (2) In option 2, the maximum rate is damages of £25,000 respectively. Two options are given for the minimum rate relating to damages awarded of £1,001 and £5,001. The rate recovered will depend on the amount of damages awarded.

 

Option 4

 

Table 7: Illustrative FRC Rates for Option 4.

 

Stage Illustrative Figures
Rate Minimum: damages are £1,001 Maximum : damages are £25,000
Pre-issue £3,080 + 19% of damages £3,270 £7,830
Post-issue/pre-allocation £5,920 + 34% of damages £6,260 £14,420
Post-allocation/pre-listing £11,560 + 38% of damages £11,880 £21,000
Post-listing £10,320 + 47% of damages £11,970 £22,070

 

The figures in table 7, giving illustrative rates for option 4, appear to be incorrect.
For example post-allocation/pre-listing minimum damages, that is £1,001.00, produces a fixed fee, by my calculations, of £11,940.10, that is £11,560.00 plus £380.00, being 38% of the damages as follows:

Core fee 38% of £1,001.00 Total
£11,560.00 £380.38 £11,940.38

However the table shows a figure of £11,880.00.

For post-listing in the same claim I calculate the figure to be £10,790.10 as follows:

Core fee 47% of damages Total
£10,320.00 £470.47 £10,790.47

However the table shows a figure of £11,970.00.

Advocacy

 

As with the existing personal injury fixed costs scheme, there is no separate provision for counsel’s fees for an advice or conference or whatever, but there is an advocacy fee determined by the value of the award.

The figures are the existing ones for non-personal injury cases, as set out in CPR 45.38 and these are lower than the personal injury fixed advocacy costs in CPR 45.29.

Thus the advocacy fee for a clinical negligence trial will be less than for a road traffic accident trial.

This anomaly is even more marked if the clinical negligence claim has been allocated to the multi-track, as we know most such cases are.

Thus, for example, a clinical negligence trial in the multi-track for say £20,000.00 will attract a fee of £1,650.00, whereas a road traffic accident fast-track trial involving £20,000.00 would attract a fee of £1,705.00.

Note also that if the road traffic accident matter is allocated to the multi-track then the advocacy fees are not fixed at all following the decision of the Court of Appeal in Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, 16 November 2016, and now confirmed by the Civil Procedure (Amendment) Rules 2017, Statutory Instruments 2017 No. 95 (L. 1), note 8(1), effective 6 April 2017.

 

The proposed trial cost figures are in table 8.

Fee for counsel if matter settles

I suggest:

25% of the fixed advocacy fee if the matter settles between 21 days and 42 days before trial.

50% of the fee if it settles between seven days and 21 days before trial.

75% of the fee if it settles within seven days of trial.

That is fair to counsel and encourages relatively early instruction of counsel by solicitors, and if there is to be settlement then this encourages settlement rather earlier than at the doors of the court.

Table 8: Amount of fast track trial costs which the court may award

Damages Value Trial Costs
No more than £3,000 £485
More than 3,000 but not more than £10,000 £690
More than £10,000 but not more than £15,000 £1,035
For proceedings issued on or after 06/04/09, more than £15,000 £1,650

 

Experts

 

A maximum fee of £1,200.00 for experts for any one party is proposed.

Thus a claimant will be allowed to incur £1,200.00 in expert fees and so would a defendant, giving £2,400.00 in all.

 

Recoverable After-the-Event insurance premium

 

There is no reference to the issue of After-the-Event insurance premiums, which currently remain recoverable in relation to the cost of expert reports on liability and causation.

If a fixed costs scheme, including capped expert fees comes in, then recoverability is bound to be abolished.

Multiple claimants

 

There will be one fee for each claimant, as per the current Fixed Recoverable Costs scheme.

Escape Clause

 

The existing test of exceptional circumstances and obtaining at least 20% more than fixed costs is proposed.

Note that it will need to be exceptional circumstances in the context of a clinical negligence case.

This is clearly to avoid claimant solicitors arguing that any clinical negligence case involves exceptional circumstances as compared with other personal injury cases.

 

London weighting

 

The existing 12.5% London weighting allowance would continue.

VAT

 

VAT is added to all the figures.

Children

 

There will be an additional, unspecified, fee for costs and fees relating to infant approval hearings.

As the courts generally allow no deduction from a child’s damages I am now of the view that any case involving a child should attract a 30% increase in Fixed Recoverable Costs. In a sense this is allowing recoverability of what would be a success fee but I think that is justifiable given that the defendant is a state body and the state’s duty is to protect children and the state has taken the view that there should be no deduction from a child’s damages.

Part 36

I also think that there should be a fixed recoverable counsel or specialist solicitors’ fee for advising on a Part 36 offer as that is likely to lead to earlier settlement.

On no particularly scientific basis I was think of 2.5% of the value of the offer with a minimum fee of £350.00.

That would encourage solicitors to seek advice and hopefully encourage earlier settlement.

It would also discourage defendants from making several offers as they would be paying each time and therefore one would hope that they will make a more thought out and attractive offer early on.

I also think that counsel should get a percentage of the fee for advocacy if the matter was settled and my initial thoughts on that are 25% of the fee is the matter settles up to 42 days before trial, and 50% of the fee if it settles up to 21 days before trial and 75% of the fee if it settles up to seven days before trial.

If that encourages solicitors to instruct counsel earlier rather than later then that is surely a good thing.

Defence costs

 

Qualified One-Way Costs Shifting will apply as now and defence costs will be capped on the same basis as in the current fixed costs scheme as set out in CPR 45.29F.

Defence costs can arise if Qualified One-Way Costs Shifting is dis-applied, or if the claimant fails to beat, or accepts late, a defendant’s Part 36 offer.

A draft Pre-Action Protocol and draft Civil Procedure Rules and draft amendments to Part 36 all appear at Annex D of the consultation paper.

The draft Pre-Action Protocol for resolution of fixed cost clinical disputes appears at chapter 54.

The proposed new CPR 36.20 to CPR 36.21A, including the costs consequences of Part 36 in relation to the clinical negligence fixed costs scheme, appears at chapter 55.

A new draft CPR 45 section VIII: Fixed Recoverable Costs in Clinical Disputes – appears at chapter 56.

 

 

 

 

 

 

 

 

Some examples

 

Here I look at some examples of cases settled at different stages for different values under the different proposed schemes.

Option 3 in the Department of Health’s Consultation Paper simply involves a 10% to 15% reduction from the figures in option 1 for an admission of liability.

The proposed reduction is 10% for all stages, except post-issue/pre-allocation, where the proposed reduction is 15%.

I do not include option 3 in the examples set out below as they are complicated enough already. You can work out yourselves the consequences of a 10% or 15% reduction.

For the same reason neither have I prepared separate calculations for the 12.5% London uplift, and it is about time that that was scrapped anyway.

Nor do I include advocacy fees which are fixed in all cases as considered in detail above.

Consequently the tables consist of the figures for option 1, option 2, option 4 and also my proposals submitted to Lord Justice Jackson’s review, and which were considered at the seminar in Manchester on 7 February 2017.

It should be noted that the Department of Health’s proposed fixed costs figures cover fast-track and multi-track cases, with the same figure being used whichever matter the track is allocated to.

My proposals have a significantly higher figure for multi-track work.

It seems to me to be self-evident that if a judge decides that the matter is of sufficient complexity to warrant being in the multi-track, then a higher fee should be paid.

Given that the Department of Health itself states that the vast majority of clinical negligence cases, even in the lowest £1,000.00 to £5,000.00 bracket, is allocated to the multi-track, the true comparison is with my multi-track figures, rather than my fast-track figures.

I allow a £10,000.00 reduction against the core fee in the multi-track if liability is admitted in the defence, or before the defence is filed.

Although I do not set out advocacy fees in the examples given below, as they are complicated enough in any event, my proposal for advocacy fees for clinical negligence claims of £25,000.00 or less are based on the existing personal injury fast-track advocacy costs for personal injury work, but uprated slightly for inflation.

However I have unified the bands of up to £3,000.00 and £3,001.00 to £10,000.00 and so in my scheme there is a single figure for any advocacy involving a claim up to £10,000.00, to reflect the fact that considerable work and travelling and waiting etc. is involved in any trial.

It also needs to be borne in mind that there is no fee for preparation by counsel and therefore, in my view, there should be a higher core fee and I have made that £1,000.00, rather than the existing fees of £485.00 for the lower band and £690.00 for the next band up.

However I propose that they be doubled in any case when liability has not been admitted before the trial of the action.

Thus if the trial is on liability, and not just quantum, then my fees are significantly higher – double in fact – and apply whether the claim is in the fast-track or multi-track.

I set out those figures below and these are add-ons to the figures in the examples given.

Proposed advocacy fees table

 

Clinical negligence claims of £25,000.00 or under – fast-track or multi-track

 

 

 

Department of Health

(All cases)

Kerry Underwood (Liability admitted) Kerry Underwood (Liability not admitted)
Up to £3,000.00 £485.00 £1,000.00 £2,000.00
£3,001.00 to £10,000.00 £690.00 £1,000.00 £2,000.00
£10,001.00 to £15,000.00 £1,035.00 £1,200.00 £2,400.00
Over £15,000.00 £1,650.00 £1,900.00 £3,800.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Claim settles for £1,000.01

 

Stage Option 1

Staged

Flat Fee Arrangement

Option 2

Staged Flat Fee

Arrangement + % of damages

Option 4

Illustrative figures as per table 7 on page 24

Kerry Underwood’s Proposal to

L.J Jackson

Fast Track

Kerry Underwood’s Proposal to

L.J Jackson

Multi-Track

 

 

Pre-Issue

£3,000.00 £1,600.00 £3,270.00 £2,400.00 N/A
 

Post Issue/Pre-Allocation

£3,900.00 £3,100.00 £6,260.00 £3.400.00 N/A
 

Pre-Listing

£5,650.00 £6,100.00 £11,940.00 £4,400.00 £30,410.00 or £20,410.00 if liability is admitted
 

 

Post Listing

£7,150.00 £6,600.00 £10,790.00 £5,400.00 £30,410.00 or £20,410.00 if liability is admitted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Claim settles for £5,000.00

Stage Option 1

Staged

Flat Fee Arrangement

Option 2

Staged Flat Fee

Arrangement + % of damages

Option 4

Illustrative figures as per table 7 on page 24

Kerry Underwood’s Proposal to

L.J Jackson

Fast Track

Kerry Underwood’s Proposal to

L.J Jackson

Multi-Track

 

 

Pre-Issue

£3,000.00 £2,000.00 £4,030.00 £4,000.00 N/A
 

Post Issue/Pre-Allocation

£3,900.00 £3,500.00 £7,620.00 £5,000.00 N/A
 

Pre-Listing

£5,650.00 £6,500.00 £13,460.00 £6,000.00 £32,400.00

or £22,400.00 if liability admitted

 

 

Post Listing

£7,150.00 £7,000.00 £12,670.00 £7,000.00 £32,400.00

or £22,400.00 if liability admitted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Claim settles for £10,000.00

 

Stage Option 1

Staged

Flat Fee Arrangement

Option 2

Staged Flat Fee

Arrangement + % of damages

Option 4

Illustrative figures as per table 7 on page 24

Kerry Underwood’s Proposal to

L.J Jackson

Fast Track

Kerry Underwood’s Proposal to

L.J Jackson

Multi-Track

 

 

Pre-Issue

£3,000.00 £2,500.00 £4,980.00 £6,000.00 N/A
 

Post Issue/Pre-Allocation

£3,900.00 £4,000.00 £9,320.00 £7,000.00 N/A
 

Pre-Listing

£5,650.00 £7,000.00 £15,360.00 £8,000.00 £34,000.00 or £24,000.00 if liability admitted
 

 

Post Listing

£7,150.00 £7,500.00 £15,020.00 £9,000.00 £34,000.00 or £24,000.00 if liability admitted

 

 

 

                                 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Claim settles for £25,000.00

 

 

 

 

Stage Option 1

Staged

Flat Fee Arrangement

Option 2

Staged Flat Fee

Arrangement + % of damages

Option 4

Illustrative figures as per table 7 on page 24

Kerry Underwood’s Proposal to

L.J Jackson

Fast Track

Kerry Underwood’s Proposal to

L.J Jackson

Multi-Track

 

 

Pre-Issue

£3,000.00 £4,000.00 £7,830.00 £12,000.00 N/A
 

Post Issue/Pre-Allocation

£3,900.00 £5,500.00 £14,420.00 £13,000.00 N/A
 

Pre-Listing

£5,650.00 £8,500.00 £21,060.00 £14,000.00 £40,000.00 or £30,000.00 if liability admitted
 

 

Post Listing

£7,150.00 £9,000.00 £22,070.00 £15,000.00 £40,000.00 or £30,000.00 if liability admitted

 

 

 

Written by kerryunderwood

February 20, 2017 at 9:59 am

Posted in Uncategorized

CIVIL PROCEDURE RULE CHANGES

with 10 comments


The Civil Procedure (Amendment) Rules 2017 were laid before Parliament on 3 February 2017 and will come into force at various times over the next three months.

 

Multi-track cases not subject to fixed costs – effective 6 April 2017.  

 

The new rules give statutory force to the Court of Appeal’s decision in Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, 16 November 2016 by specifically providing that Fixed Recoverable Costs apply only “for as long as the case is not allocated to the multi-track.”

 

£25,000.00 upper fixed costs limit scrapped – effective 6 April 2017

 

The words “but not more than £25,000.00” are removed throughout the CPR 45.29 fixed costs tables.

 

Thus an ex-portal claim remains subject to Fixed Recoverable Costs whatever its value. It is only allocation to the multi-track that takes it out of fixed costs.

 

Non-payment of trial fees – effective 6 March 2017

 

There is a new provision which has been described as the re-introduction of Automatic Strike Out, which, up to a point, it is.

 

However this will only occur after a notice has been sent out giving details of the fee to be paid, when it is to be paid, and the consequences of not paying the fee.

 

The new procedure

 

The court sends out a notice to the claimant when the trial date is set, and that notice states:

 

  • the amount of the trial fee;

 

  • the date by which it is to be paid;

 

  • the consequences of non-payment.

 

If the fee is not paid on time then the claimant’s action is automatically struck out with the claimant paying the defendant’s costs.

 

Any counterclaim continues and if the action is continuing on the counterclaim only, then identical provisions apply to that counterclaim.

 

Reinstatement

 

There is power to reinstate an automatically struck out claim provided that the court fees have been paid in full.

 

There is no guidance as to the basis on which that discretionary power should be exercised.

 

Fee remission (Help with Fees)

 

There are detailed provisions in relation to those entitled to help with fees.

 

Costs Budgeting – effective 6 April 2017

 

The new rules make specific provision for the court to record comments about costs already incurred before the budget.

 

The court now records any agreement about “budgeted costs”, that is costs not yet incurred, as well as any agreement in relation to costs already incurred.

 

The effect is to overturn the decision of the Court of Appeal in

 

SARPD Oil International Limited v. Addax Energy SA and another [2016] EWCA Civ 120

 

In that case the Court of Appeal held that at a cost budgeting hearing there could be full argument about costs already incurred.

 

Now the position reverts to the pre SARPD regime, where the judge simply records her or his views on the costs incurred to date, and whether they appear proportionate, without any form of assessment.

 

Aarhus Convention claims – effective 28 February 2017

 

Aarhus Convention claims essentially deal with judicial review of decisions relating to the environment.

 

Such claims are subject to capped liabilities for costs as follows:-

 

  • for an individual claimant: £  5,000.00

 

  • for any other claimant: £10,000.00

 

  • for any defendant: £35,000.00

 

The new rules insert new CPR 45.41 to 45.45 dealing with its procedure in such claims.

Written by kerryunderwood

February 16, 2017 at 8:08 am

Posted in Uncategorized

PROPOSAL FOR FIXED COSTS IN MULTI-TRACK PERSONAL INJURY CLAIMS UP TO £250,000.00

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I consider these issues as part of the general update during my spring courses on Personal Injury Small Claims, Portals and Fixed Costs – which can be booked here or see the Law Society Gazette. I also deal with this in my new book – Personal Injury Small Claims, Portals and Fixed Costs which can be ordered here.

 

The structure of the matrix is the same as the existing fast-track fixed costs matrix. This is for a number of reasons.

 

It works

 

The existing matrix has been in for nearly four years and, subject to some teething problems and considerable inconsistencies in the Civil Procedure Rules, works well.

 

Familiarity

 

Lawyers and judges dealing with personal injury work are familiar with the existing matrix and the relevant Civil Procedure Rules.

 

Case law consistency

 

Case law can be applied across all fixed costs matters, rather than having fast-track fixed costs case law and multi-track fixed costs case law.

 

For example the Court of Appeal’s decision in Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94 concerning Part 36 would apply to all fixed costs cases, as would the Court of Appeal’s decision on disposal hearing costs in Bird v Acorn Ltd [2016] EWCA Civ 1096.

 

An example of the problems that may arise if there are different structures is Qader & Others v Esure Ltd & Khan v McGee [2016] EWCA Civ 1109, where the Court of Appeal held that an ex-portal claim allocated to the multi-track is not subject to fixed costs, but left unanswered the question of what happens if an ex-portal case, likely to be allocated to the multi-track on value, settles pre-issue.

 

Earlier clarification

 

If higher value claims are subject to the same structure, then we are likely to get earlier clarification, and therefore certainty.

 

This is because decisions can be made by a High Court Judge, and thus will be binding, and also because points will be pursued more often, because more is at stake.

 

This is inevitable and initially may be a disadvantage for the court system and lawyers, but it will provide earlier guidance and will allow existing guidance to apply immediately in a fixed costs multi-track scheme.

 

Civil Procedure Rules

 

It is preferable to have one set of rules.

 

Inconsistency in the rules is a problem at present that needs resolving, but better to have one set of rules than two.

 

Anything else risks a return to the old system of the Green Book and the White Book – that is different, and often entirely contradictory, rules between the County Court and the High Court and now between the fast-track and the multi-track.

THE STAGES

 

In any event the potential differences between the fast-track and the multi-track apply to just two stages, and those stages could be reduced to one.

 

Pre-allocation

 

Until a matter is allocated it follows the same judicial path, that is it can be settled pre-issue with no entitlement to costs, or settled post-issue and pre-allocation.

 

Until then it has not been tracked and there is no point, nor logic, in differentiating between such claims except on value; a value-based recoverable costs figure deals with that issue.

 

Advocacy

 

At the other end the advocacy fee is, and always has been, a freestanding matter and should remain so with potential variables for value and length of trial, effectively the matters fed in already to any brief fee.

 

However my view is that the length of trial should not of itself affect the advocacy fee.

 

To allow more for, say, a three day trial than a two day trial, is to maintain a system where lawyers get paid for time spent rather than anything else.

 

Lawyers who conclude the same matter in two days as compared with lawyers who take three days, should be paid more, not less.

 

Rather I have proposed a value-based advocacy fee, along the lines of the existing system, but also a 100% increase in the advocacy fee if liability remains in dispute at trial.

 

In-between

 

There are two stages in-between:-

 

Issued – post-allocation – pre-listing

 

Issued – post-listing – pre-trial

 

These can be reduced to one stage by an amended CPR 28.2 applying to multi-track cases as well as fast-track cases. This already happens in many courts.

 

Here is the existing rule with proposed tracked changes to achieve this effect:-

 

General provisions

 

28.2

 

  • When it allocates a case to the fast track, the court will give directions for the management of the case and set a timetable for the steps to be taken between the giving of the directions and the trial.

 

  • When it gives directions, the court will fix the trial date

 

  • fix the trial date; or

 

  • fix a period, not exceeding 3 weeks, within which the trial is to take place.

 

  • The trial date or trial period will be specified in the notice of allocation.

 

  • The standard period between the giving of directions and the trial will be not more than 30 weeks.

 

  • The court’s power to award trial costs is limited in accordance with Section VI of Part 45.

 

 

 

 

 

 


 

THE FIGURES

 

In considering the figures certain facts need to be remembered.

 

  1. Part 36 retains its full force in fixed costs cases and thus a claimant can achieve greater costs, or earlier settlement, by making a Part 36 offer. If the claimant matches or beats that offer it gets open, and not fixed, costs – see Broadhurst v Tan and Taylor v Smith [2016] EWCA Civ 94.

 

On judgment those costs are on the indemnity basis. A definitive ruling is awaited as to whether a claimant gets indemnity costs on late acceptance by a defendant.

 

  1. These are recoverable fixed costs and the claimant solicitor is free to charge the client an additional sum and 25% of damages is now the usual figure.

 

Thus in considering these figures solicitors should add 25% of damages to the costs that they are in practice able to charge.

 

  1. In personal injury claims claimants, uniquely, enjoy Qualified One-Way Costs Shifting.

 

  1. In personal injury cases the defendant is nearly always good for the money, being an insurance company. This is in sharp contrast to any other area of civil litigation.

 

 The success rate in any given type of work must under no circumstances be taken into account in determining recoverable costs.

 

That is a success fee matter and Parliament has chosen to abolish recoverability of the success fee from the losing party. Solicitors do not have to take matters on a no win no fee basis and if they do so then the risk must fall on the client and not on the losing and paying party.

 

Anything else is, wittingly or unwittingly, a contempt of Parliament.

 

This is a key issue; it is raised time and time again by clinical negligence lawyers. It is irrelevant.

 

The detail

 

An initial response may be to provide for greater variability in the multi-track to reflect the greater value and potential complexity of cases.

 

I disagree.

 

By definition a multi-track case will not be of the lowest value, nor the simplest of cases; if it is then it should be in the fast-track.

 

Consequently I propose a significant core fee in any a case allocated to the multi-track, but on a swings and roundabouts basis. This applies to any case allocated to the multi-track, so a low value sub £25,000 claim allocated to the multi-track will attract these higher fees.

 

I also propose keeping the existing escape clause whereby if there are exceptional circumstances the claimant solicitor can seek to escape fixed costs, but with costs penalties if it fails to do so.

 

Once allocated I see no need to distinguish between any type of claim, if quantum is all that is in issue.

 

Value, rather than the type of claim, is likely to determine the complexity or otherwise of quantum.

 

Rather, what I propose is a significant extra fee for the whole of each stage where liability remains unadmitted. Specifically I propose a doubling of the core fee.

 

Thus if liability is not admitted in the defence or before the filing of a defence, then the additional post-issue – pre-trial core fee will be doubled, from an additional £10,000 to an additional £20,000.

 

If liability is still in issue at trial, then the advocacy fee shall also be doubled.

 

 

 

THE TABLES

 

Proposed Personal Injury Multi-Track Matrix – liability admitted in or before defence
  Pre issue

Up to £250,000

Issued –

Post issue

Pre Allocation

Post Allocation – Pre-trial Trial –

Advocacy Fee

 
Fixed costs £5,000 plus 30% of damages £10,000 plus 40% of damages £20,000 plus 40%

of damages

Band 1: (Up to £50,000) –              £3,750

Band 2: (£50,001 – £100,000) –   £6,000

Band 3: (£100,001 – £175,000) – £11,000

Band 4: (£175,001 – £250,000) – £18,000

         
Proposed Personal Injury Multi-Track Matrix – liability admitted post-allocation pre-trial
  Pre issue

Up to £250,000

Issued –

Post issue

Pre Allocation

Post Allocation – Pre-trial Trial –

Advocacy Fee

 
Fixed costs £5,000 plus 30% of damages £10,000 plus 40% of damages £30,000 plus 40% of damages Band 1: (Up to £50,000) –              £3,750

Band 2: (£50,001 – £100,000) –   £6,000

Band 3: (£100,001 – £175,000) – £11,000

Band 4: (£175,001 – £250,000) – £18,000

         

 

 

Proposed Personal Injury Multi-Track Matrix – liability not admitted
  Pre issue

Up to £250,000

Issued –

Post issue

Pre Allocation

Post Allocation – Pre-trial Trial –

Advocacy Fee

 
Fixed costs £5,000 plus 30% of damages £10,000 plus 40% of damages £30,000 plus 40% of damages Band 1: (Up to £50,000) –              £7,500

Band 2: (£50,001 – £100,000) –   £12,000

Band 3: (£100,001 – £175,000) – £22,000

Band 4: (£175,001 – £250,000) – £36,000

Interim hearings can be dealt with as per the existing fixed cost personal injury Type A, Type B and Type C payments.

 

In the fast track these are;

Type A             £250

Type B             £250

Type C             £150.

 

I propose that in the multi-track these be doubled.

Note that the escape clause applies to these figures, so in any given case, for any given hearing, the court can summarily assess the costs of an interim hearing and order additional costs if exceptional circumstances apply.

 

 

 

Written by kerryunderwood

February 14, 2017 at 9:22 am

Posted in Uncategorized

CFA SUCCESS FEES AND ATE RECOVERABILITY: DEFINITION OF “NEWS PUBLISHER”

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I consider these issues as part of the general update during my spring courses on Personal Injury Small Claims, Portals and Fixed Costs – which can be booked here or see the Law Society Gazette.

 

In Stone v Flynet Pictures Ltd [2017] EWHC B3 (Costs)

 

the claimants brought an action against the second defendant photographic agency under the Protection from Harassment Act 1997 and ultimately the matter was settled by way of a Tomlin Order under which the second defendant was entitled to its costs.

 

In certain types of proceedings recoverability of additional liabilities, that is a success fee and an After-the-Event insurance premium, remain recoverable.

 

In the personal injury field recoverability remains in full in mesothelioma cases, and in clinical negligence cases the ATE premium in relation to the cost of liability/causation reports remains recoverable.

 

Outside the personal injury field recoverability remains in full in publication and privacy proceedings.

 

The prohibition of recoverability generally was brought about by sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and was brought into force on 1 April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement number 5 and Saving Provision) Order 2013.

 

Article 4 specifically exempted publication and privacy proceedings and by article 1 of the order publication and privacy proceedings means proceedings for:

 

  • defamation;

 

  • malicious falsehood;

 

  • breach of confidence involving publication to the general public;

 

  • misuse of private information; or

 

  • harassment, where the defendant is a news publisher.

 

“News publisher” means a person who publishes a newspaper, magazine or website containing news or information about, or comment on, current affairs.

 

The second defendant, a photographic agency, had entered into a Conditional Fee Agreement and paid an ATE premium and the issue here was whether those additional liabilities where recoverable from the claimant under the terms of the Tomlin order.

 

It was accepted that if the second defendant was a news publisher, then it was entitled to recover the additional liabilities.

 

The claimant’s case was that the second defendant had deliberately changed the focus of its website after the event in order to try and bring itself within the category of being a news publisher.

 

The court held that the second defendant was not in fact a news publisher and therefore not entitled to recover additional liabilities from the claimant.

 

The court said that to fall within the definition, the defendant must be a news publisher at the time of the acts complained of and that becoming a news publisher later would not be sufficient.

 

As at the time in question the second defendant had never published a newspaper or magazine and therefore could only be a news publisher if it had published a website either containing news or containing information about, or comment on, current affairs.

 

Neither “news”, nor “current affairs” are defined in the commencement order.

 

Section 42 of the Crime and Courts Act 2013 does define “news related material” as:

 

  • news or information about current affairs;

 

  • opinion about matters relating to the news or current affairs; or

 

  • gossip about celebrities, other public figures or other persons in the news.

 

The fact that there is a separate category for gossip about celebrities etc. suggested, in the court’s opinion, that such gossip about celebrities is neither news nor current affairs, but a freestanding category.

 

The second defendant did publish a website at the time and thus the issue was whether it contained news or information about, or comment on, current affairs.

 

The court held that the photographs on the site may illustrate news or current affairs but are not, in themselves, news or comment on current affairs. Hyperlinks may lead to other websites which contain news or comment on current affairs but are not, in themselves news or comment on current affairs.

 

The court held that a YouTube channel is not of itself a website. Rather YouTube is the publisher of the website. The fact that the second defendant uploaded videos onto the YouTube website did not make it a publisher of the website, even though it was a publisher of the content that had been uploaded.

 

The court also said:

 

“It also seems to me that stories about the comings and goings of celebrities are neither “news” nor “comment on current affairs”. There is some content on the Second Defendant’s YouTube channel which could properly be described as news or current affairs (that listed in paragraph 26 of Mr Double’s witness statement) but the preponderance of the videos listed and referred to in the evidence can fairly be described as “celebrity tittle-tattle”. The substance of the Second Defendant’s YouTube channel is not news or current affairs, it is gossip about celebrities.”

 

Consequently the court found that the second defendant was not, at the time, a news publisher and therefore could not recover additional liabilities.

Written by kerryunderwood

February 13, 2017 at 9:42 am

Posted in Uncategorized

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