Kerry Underwood

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.

 

 

 

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Written by kerryunderwood

February 14, 2017 at 9:22 am

Posted in Uncategorized

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