Kerry Underwood

Archive for February 2017


with 4 comments

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


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


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

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.



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




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 is added to all the figures.



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


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





£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


£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


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





£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


£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


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





£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


£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


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





£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


£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


with 17 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.




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


leave a comment »

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.




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.



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.




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.




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.




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




  • 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.










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.






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


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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


with 18 comments

In Griffith and Griffith v Paragon Personal Finance Ltd, case 0MA25805, Sheffield County Court, 17 October 2016


the District Judge held that, following Jenkins v Young Brothers Transport Ltd [2006] EWHC 151 (QB), where a solicitor moves firms, taking the client with her, any Conditional Fee Agreement can be lawfully assigned to the new firm and there is no need for a fresh CFA to be entered into.


The case involved an assignment from a law firm operating through the medium of a partnership to a law firm operating as a limited company, and thus the same solicitor was involved throughout and in the same organisation and using the same trading name.


There was then a second assignment to a separate and new law firm, albeit one controlled by the solicitor who had been dealing with the cases and who was setting up on his own.


The court held that in a Jenkins type case, where the client moved firms with the solicitor, no formal consent was required, but rather a lack of objection.


Formal consent would create a three-way agreement that could be considered a novation.


The formalities should only be between the two law firms, or the partnership and the limited company or LLP, or whatever.


An oral assignment is valid. There is no requirement that an assignment of a contract has to be in writing.


As a Conditional Fee Agreement is a contract for legal services, the client must be able to determine who her solicitors are.


Lack of express consent was not fatal to the validity of the assignment.


The client’s consent could be implied from her continuing to instruct the new solicitors.


In any event the evidence here was that the client did not wish to avoid the assignment.


Written by kerryunderwood

February 10, 2017 at 7:05 am

Posted in Uncategorized


with 13 comments

This blog has been updated as of 7 March 2017 to take into account the dramatic developments following the publication of this blog

Last week I wrote a blog about the new Motor Insurers Bureau (MIB) Untraced Drivers Scheme in the context of its Fixed Recoverable Costs Scheme.

It is dated 10 January 2017 and was due to be effective from 1 March 2017.

However, following publication of the blog set out below the new scheme was scrapped before it ever came into force and was replaced by a new new scheme dated 28 February 2017 and did indeed come into force on 1 March 2017 and can be accessed here.

The key change is that the words in brackets – (and no other person) have now been removed from clause 10(1).

I set out the original text below.

Here I look at some disturbing aspects of the scheme itself in its treatment of solicitors and its failure to engage with modern technology.

Although the scheme itself provides for a system of fixed costs for solicitors, the new agreement, which remember is between the Government through the Secretary of State for Transport and insurance companies through the Motor Insurers Bureau, seeks to exclude solicitors from the process, especially at the crucial early stage.

Clause 10(1) reads:

“The claimant (and no other person) shall comply with the requirements of this clause failing which MIB shall be entitled to reject the claim (or the relevant part of the claim) and, for the purposes of this clause, reference to the claimant shall include an authorised person.”

The definition section 1(5) specifically states:

““authorised person” means a person acting on the claimant’s behalf who is recognised in law as having authority so to act but this does not include a solicitor or other legal representative of the claimant, unless appointed as the claimant’s Guardian or Deputy or a person authorised under an Intervention Order pursuant to section 53 of the Adults Incapacity (Scotland) Act 2000;”  (my bold).

That could not be clearer – a deliberate exclusion of solicitors from the process at the beginning.

As the claim form, which the lay client must complete and submit, contains an onerous disclosure mandate, this is particularly serious.

Clause 10 discourages and obstructs the involvement of lawyers, and it is those lawyers who will be able to determine which private records are relevant to the case and which ones are not.

There is no constitutional justification for this clause, which I trust a court will find illegal.

To add to the lay claimant’s misery clause 25 insists that service is by fax or Recorded Delivery – no other method of service is allowed.

I was not aware that fax machines were still being made and I cannot remember the last time anyone used Recorded Delivery. No-one under about 35 will have heard of either.

Service by way of Recorded Delivery will be rather difficult. It has been abolished.

On the assumption that there are only about 15 fax machines left in the United Kingdom, how on earth can anyone actually now engage in the MIB Untraced Drivers process?

In an electronic age when the courts are moving to an online system, this is absurd, but perhaps a cynical move to make it more difficult for anyone to claim.

Clause 22 then goes on to allow the arbitrator to make a costs order against the solicitor under clause 22(3), even though the conventional court system now has a full system of Qualified One-Way Costs Shifting in place in relation to personal injury matters and solicitors are barred from the process at the beginning.

With a traced driver the claimant enjoys full protection against an adverse costs order, and recovers costs, but if the driver is untraced, then the claimant’s solicitor is at risk of paying costs.

There are many in the personal injury sector who think that the Government is the puppet of insurance companies.

This document will do nothing to change that view.

Given that road traffic insurance is compulsory, surely it is time that that aspect of insurance was run by the state and by the state only in the same way that the collection of car tax is.

This could either be done by a fresh state body, or by the nationalisation, with compensation, of the road traffic insurance industry.

I am very grateful to Nicholas Bevan for bringing my attention to these matters and for his work in this field generally.

Please see my related blog:


Written by kerryunderwood

February 8, 2017 at 8:42 am

Posted in Uncategorized

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