IPEC, FIXED COSTS AND REFUSAL TO TRANSFER CASE TO HIGH COURT

In 77M Ltd v Ordnance Survey Ltd and others [2017] EWHC 1501 (IPEC)

the Intellectual Property and Enterprise Court (IPEC) refused to transfer proceedings to the High Court on the ground that to do so would remove the smaller party’s access to the courts.

Applying the principles set out in

Comic Enterprises Ltd v Twentieth Century Fox Film Corp [2012] EWPCC 13

the judge said that it was clear from the accounts of 77M Ltd that it would be unable to fund litigation if it risked the high costs payable in the High Court.

Ordnance Survey Ltd had not offered any formal undertaking to limit 77M’s costs liability.

The value of the claim carried little weight as 77M had agreed to waive the limit on the maximum amount of damages that could be awarded in the IPEC.

There is a time limit of three days for a trial in the IPEC and the judge thought the matter could be concluded within three days but did not rule out the possibility that the case might still be transferred at the Case Management Conference if it transpired that this would not be possible, even after the issues had been narrowed down.

Comment

This is a potentially important decision given the Fixed Recoverable Cost Pilot now taking place in the Commercial Court in relation to claims up to £250,000.00 and in advance of Lord Justice Jackson’s report on extending Fixed Recoverable Costs, which report which to be published in July 2017.

That pilot, like the IPEC, is voluntary, but it suggests that the courts will be reluctant to transfer matters to the old open costs system.

This makes perfect sense. The whole point of Fixed Recoverable Costs is that it introduces certainty for the parties, who can then make an informed decision as to whether or not to proceed with litigation.

If a party was to start a case on the basis that there would be Fixed Recoverable Costs, but it is then transferred to the open costs regime, then it defeats the point of Fixed Recoverable Costs and effectively amounts to retrospective procedural legislation in relation to that party.

The IPEC has capped, rather than fixed, costs but those costs generally reach the cap and therefore it is akin to a Fixed Costs Scheme.

It is widely regarded as a great success and reinforces the view that although there is great resistance to fixed costs, once lawyers become involved in fixed costs systems they like them.

There is overwhelming evidence that clients want fixed costs.

WITHDRAWING ADMISSIONS

In Blake v Croasdale [2017] EWHC 1336 (QB)

the Queen’s Bench Division of the High Court held that an admission by insurers was binding, but on the facts gave permission to them to resile from that admission.

Here the Claimant was seriously injured in a road traffic accident and the claim was submitted on the RTA Portal.

The Defendant stated that it might be alleging contributory negligence in relation to matters other than failure to wear a seatbelt and that the case was unsuitable for the portal because of its value, but they admitted primary liability.

When proceedings were issued the Defendant filed a Defence denying liability and including an allegation that the Claimant’s injury was caused by his own criminal act, asserting that at the time of the accident he was acting in the course of a joint criminal enterprise with the First Defendant, namely dealing in drugs.

There was sufficient evidence in support of that allegation that it would not be struck out on the usual principles.

The court also took into account the fact that a claim initially issued on the portal, and therefore valued at no more than £25,000.00, was now a multimillion pound claim.

That could be interpreted as meaning that a Defendant will be entitled to resile from an admission on that ground alone.

However in Wood v Days Health UK Limited and Others [2016] EWHC 1079 (QB) the court said:

“It is true that the potential value of C’s claim has increased since 2010; and that is the real ground for the application. But that is a risk which is inherent in any personal injuries claim, and is a reason why it can sometimes be commercially advantageous to try and settle a claim at an early stage. …  I do not consider that the fact that the potential value of the claim has increased since the admission is a good reason for allowing D1 to withdraw the admission.”

Comment

There is still considerable uncertainty in the law relating to admissions and withdrawing admissions.

In the absence of fraud or fundamental dishonesty or whatever it is hard to see why a party should be allowed to withdraw an admission, especially if that admission was made having received professional advice.

SOLICITOR LLP CAN CLAIM SOLICITOR’S COSTS AND IS NOT A LITIGANT IN PERSON

In Halborg v Emw Law LLP [2017] EWCA Civ 793, 23 June 2017

the Court of Appeal upheld the lower court’s decision that a firm of solicitors operating through the medium of a Limited Liability Partnership is not to be treated as a litigant in person when seeking to recover costs in an action where it is a party.

Thus the longstanding rule that a firm of solicitors, when acting for itself, can recover costs as solicitors and not as litigants in person, applies also to LLPs.

The paying party relied on CPR 46.5(6)(b), which declares a solicitor to be a litigant in person, except where he or she is represented by a firm in which that person is a partner.

Thus the paying party relied on the fact that a solicitor in such circumstances is not represented by a firm in which that person is a partner.

The court held that the principles set out in

the London Scottish Benefit Society v Chorley Crawford and Chester [1884] 12 QBD 872 (CA) applied to LLPs as much as to firms of solicitors.
In Malkinson v Trim [2002] EWCA Civ 1273

the Court of Appeal confirmed that that principle also applied where the work was done by others within the solicitors’ firm and not by the solicitor herself or himself and that it also applied where the action could not have involved the firm because it related to matters that took place when the solicitor was a partner in a different firm.

If the wording was applied literately, then it would mean that a sole practitioner, not being a partner could only recover costs as a litigant in person.
The Court of Appeal had this to say about that concept:

“34. That is a slavishly literal interpretation which would produce an absurd and plainly unintended result. Mr Marven offered no policy rationale for such a distinction between, on the one hand, a solicitor litigant in sole practice who represents himself and, on the other hand, a solicitor litigant who is represented by the firm of which he is one of a number of partners. It is perfectly plain that Chadwick LJ in the Malkinson case did not consider that the CPR and Costs Practice Direction provisions under consideration in that case made such a distinction and attenuated the Chorley principle in that way. Indeed, he said (at [14]) that he regarded such a distinction as “absurd”. Paragraph 52.6 of the then Costs Practice Direction expressly treated the solicitor litigant in sole practice and the solicitor litigant in a multi partner firm identically. Further, so far as concerned the application of the indemnity principle, Chadwick LJ’s analysis was to acknowledge that the Chorley principle applied to the case of a solicitor litigant in a multi partner firm because there was no material distinction between such a solicitor and a solicitor in sole practice. Nothing has been shown to us to indicate that a conscious decision was taken by the Civil Procedure Rule Committee or the Government, in bringing into effect CPR 46.5, to create what, on the face of it, would be an irrational and indeed absurd distinction.

35. I consider, therefore, giving the words in parenthesis at the beginning of CPR 46.5(6)(b) a purposive interpretation in the light of Malkinson case and the history of the Chorley principle, that the word “firm” includes a solicitor in sole practice and “partner” includes a case where there is only one principal in the firm.

 

36. That then leaves the issue whether a solicitors LLP within the Limited Liability Partnerships Act 2000, and the members of it, are to be treated differently, for the purposes of CPR 46.5(6), to an ordinary partnership firm of solicitors within the Partnership Act 1890 and the partners of such a firm. No sensible policy reason has been given on behalf of Mr Halborg for such a distinction. There is no discernible reason why the Chorley principle, and the rationale underlying it, should be applicable to a traditional partnership but inapplicable to an LLP.

 

37. The fact that former has no separate legal personality and the partners have unlimited liability whereas the latter is a body corporate (pursuant to section 1(2) of the 2000 Act) and its members enjoy limited liability (pursuant to section 1(4)) does not bear on the rationale for the Chorley principle.”

The court also endorsed the observations of the High Court in R(Sword Services Limited) v HMRC [2016] EWHC 1473 (Admin)

that “in ordinary parlance the terms “partnership” and “partners” cover both general and Limited Liability Partnerships and their members.

UNPAID COSTS AND LIENS

In Spencer-White v Harding Evans LLP [2017] EWCA Civ 434, 14 June 2017

the Court of Appeal unanimously dismissed an appeal against an order awarding judgment to a firm of solicitors on its claim for unpaid fees.

The Court of Appeal also held that the firm was entitled to a lien over all of the files that it held in connection with that client, and that the lien was not limited to the files that related to matters on which there were outstanding fees.

The Terms of Business and the Client Care letter provided that the solicitors were entitled to retain all of the client’s papers and documents until any outstanding sums had been paid.

Furthermore, the fees were to be charged on a time spent basis and therefore on termination, causing the transaction to be abortive, the client still had to pay all of the solicitor’s charges and expenses up to the date of termination.

The transaction in question was the sale of a property.

PART 36 AND RESERVING COSTS TO END OF CASE

In Interactive Technology Corporation Ltd v Ferster [2017] EWHC 1510 (Ch)

the Chancery Division of the High Court held that the existence of Part 36 offers by the Defendants meant that the issue of costs after a preliminary hearing had to be reserved until the end of the case.

The judge was unaware of terms of the offers but the very fact that they had been made meant that the preliminary trial costs must be reserved, even though there had been a lengthy trial on the preliminary issue.

CPR 36.16 provides:

“36.16.— Restriction on disclosure of a Part 36 offer

(1) A Part 36 offer will be treated as “without prejudice except as to costs”.

(2) The fact that a Part 36 offer has been made and the terms of such offer must not be communicated to the trial judge until the case has been decided.

(3) Paragraph (2) does not apply—

(a) where the defence of tender before claim has been raised;

(b) where the proceedings have been stayed under rule 36.14 following acceptance of a Part 36 offer;

(c) where the offeror and the offeree agree in writing that it should not apply; or

(d) where, although the case has not been decided—

(i) any part of, or issue in, the case has been decided; and

(ii) the Part 36 offer relates only to parts or issues that have been decided.

(4) In a case to which paragraph (3)(d)(i) applies, the trial judge—

(a) may be told whether or not there are Part 36 offers other than those referred to in paragraph (3)(d)(ii); but

(b) must not be told the terms of any such other offers unless any of paragraphs (3)(a) to (c) applies.”

The judge then applied CPR 36.16 to the facts of this case and said:

“Applying CPR 36.16 to this case, the position is as follows:

(1) The case has not “been decided”, for the purposes of rule 36.16(2), because there are issues in the case which remain to be decided; see Beasley v Alexander [2013] 1 WLR 762, a decision on an earlier version of Part 36 but which remains relevant in relation to the current version of Part 36;

(2) Although ITC is content for the court to be told the terms of the three Part 36 offers, the Defendants and, in particular, Jonathan Ferster, do not agree to that and so the case is not within rule 36.16(3)(c);

(3) A part of the case has been decided within rule 36.16(3)(d)(i);

(4) The Part 36 offers do not relate only to parts or issues that have been decided and so the case is not within rule 36.16(3)(d)(ii);

(5) I have been told of the existence of the Part 36 offers, in accordance with rule 36.16(4)(a);

(6) I have not been told the terms of the Part 36 offers, in accordance with rule 36.16(4)(b)”

The judge then explained that he knew that there were Part 36 offers that related not only to the decided issues and he was unaware, and was not entitled to know, whether those offers related only to issues which had not been decided or whether they related both to issues which had been decided and issues which had not been decided.

This follows the decision of the Court of Appeal in

HSS Group plc v BMB Ltd [2005] 1 WLR 3158

which concerned an earlier version of Part 36 but the judge took the view that the relevant reasoning in that case still applied.

I deal extensively with Part 36 in my book Personal Injury Small Claims, Portals and Fixed Costs, which runs to 3 volumes and 1,300 pages and is available for £80.00 from Amazon here or from me here.

MCKENZIE ONLINE JUDGES COMING SOON

Giving the Lord Slynn Memorial Lecture earlier this month the Master of the Rolls spoke about the proposed online court and admitted that the failed Rechtwijzer Dutch Scheme had been inspiration behind the proposals for an online court in England and Wales.

 

That system was set up in 2014 but is to be abandoned next month and is very widely regarded as an absolute disaster with only around one in 100 qualifying disputes actually being dealt with.

 

The concept is logically flawed.

 

The Master of the Rolls referred to three stages:

 

1. The Online Solutions Court will assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute. By helping individuals before who have not yet reached the stage of beginning legal action it will “secure access to preventive justice”.

 

I have not got a clue what “preventive justice” means.

 

If we had a properly funded system of law centres, Citizens Advice Bureaux and legal aid would that not “assist individuals to find the right sources of legal advice and help in order to enable them to consider whether they have a viable legal dispute.“

 

What on earth does an Online Solutions Court bring to the party in terms of advising people as to their legal rights?

 

Furthermore, as any lawyer who has been practicing for more than about two days knows, the law itself is only a small part of our work and the advice that we give to clients.

 

The law is really the background to the potential solutions.

 

Does the client wish to engage in litigation?

 

Does the client wish to maintain a relationship with the proposed opponent?

 

Should the matter be dealt with by negotiation, a settlement and ADR? How obvious is it that it is not the role of the court?

 

2. “Case Officers and Court Administrators exercising judicial functions under the supervision of the judiciary” will assist parties to manage the claim and reach a settlement.

 

“This is a significant departure from the court’s existing role as it will require a Court Officer actively to engage the parties in mediation and conciliation processes.

 

Unqualified and judicially untrained very junior civil servants will be “exercising judicial functions”.

 

That is a paid McKenzie Friend, except that they cannot be a friend to both parties.

 

How obvious is it that it is not the role of the court to assist parties to manage the claim and reach a settlement, rather it is to hear and try the claims.

 

It is the job of lawyers, insurers, ACAS, mediators and a whole host of others to try and reach a settlement.

 

It is not the job of the court!

 

This also ignores the fact, as to all of the “litigation as a last resort” evangelists that the vast majority of claims, well over 90% and in some areas over 99%, are settled without a hearing.

 

In other words the system, as far as resolution and settlement is concerned, works extremely well.

 

3. The claim will be adjudicated by a judge. However “the process will not necessarily take place in a traditional courtroom. It may be carried out online by video link, by telephone or on a paper”.

 

The idea of cross-examination being carried over the telephone is so ludicrous that it beggars belief that anyone with experience of courts should seriously suggest that that is an acceptable or appropriate way for any dispute which has reach a trial to be dealt with.

 

Funny enough this scheme will only be for low value claims and will not be used in the High Court or Commercial Court or whatever.

 

This is yet another attack on ordinary people with ordinary claims.

 

I trust that on the Friday morning when Jeremy Corbyn becomes our Prime Minister this nonsensical idea will be ended forever.

FIXED COSTS AND OFFSHORING

This article first appeared on the Practical Law Dispute Resolution Blog on 22 June 2017.

 

The Master of the Rolls, giving the Lord Slynn Memorial Lecture on 14 June 2017, had this to say about the effect of electronic filing and online courts:

 

“It also means that law firms can offshore work or otherwise structure their businesses to reduce cost while maintaining quality; an offshore office can file a claim online as easily as an office in the same city as the court. Again cost savings are possible. And where international, commercial and business disputes are concerned, ease of filing over the internet enhances global as well as local accessibility of our courts.”(Paragraph 31).

 

Compulsory online filing now exists in all cases in the Rolls Building, that is heavyweight commercial disputes, and with a small number of exceptions all personal injury claims valued at up to £25,000 damages.

 

It is proposed that from October 2018 all civil claims of £10,000 or less be subject to online filing and video or telephone trials. The day when paper filing is impossible in a court or tribunal is but a few years away.

 

As far as I am aware, this is the first time that a senior judge has referred to offshore legal offices enabling firms to operate in England and Wales at lower costs.

 

Underwoods Solicitors have been doing this through our South African office for over 10 years (and in fact, Underwoods Solicitors is a trading name of Law Abroad Limited, whose name reflects this fact). Two other firms have used our facility. Virtually none of the 10,000 plus law firms in England and Wales have given it a thought. It is particularly notable, and surprising, that even the many personal injury firms who do not see clients, and which are subject to fixed recoverable costs, employ paralegals in this country rather than cheaper and better qualified staff abroad.

 

Expect that to change once fixed costs and online filing extend to other areas of work and to claims of higher value. Apart from seeing the client and trial advocacy (and few matters go to trial), everything else can be done abroad.

 

Take experts – ridiculously expensive by any standards. For anything other than a basic medical report, it is cheaper to fly the client to South Africa for an examination and report. Turn that round and pay for a South African expert to travel to England and Wales to examine and report on 30 or 40 clients and the savings are enormous.

 

With non-medical expert reports (where there is no need physically to meet anyone) huge savings can be made by instructing an offshore expert. Why does a forensic accountant need to be based in the jurisdiction? The same is true in relation to costs lawyers: why is it necessary to prepare a bill of costs here when it could be prepared for a fraction of that cost abroad?

 

All of you reading this will have physical goods made abroad and physically imported into the UK, be it a car, television, phone, camera, sound systems, computer, clothes and so on. If it makes economic sense even where the goods have to be physically transported, how much more sense does it make when there is nothing to be transported and thus no cost attached?

 

You may have a view on the rights and wrongs of offshoring, or importing services to give it another description, but it should be on the next partners’ and staff meeting agendas. Decisions about this year’s Christmas party, the fridge not working properly and running out of toilet paper can be delegated.

 

DAMAGES-BASED AGREEMENTS: NEW CASE: NEVER USE THEM

The issues and methods of funding referred to in this post are dealt with in my book – Personal Injury Small Claims, Portals and Fixed Costs – available from me here or from Amazon here.

 

It is in three volumes and runs to over 1,300 pages and costs £80.00.

 

I also deal with this subject in detail in my Personal Injury Reforms course which can be booked here.

 

In Lexlaw Ltd v Shaista Zuberi [2017] EWHC 1350 (Ch)

 

the High Court has ordered a trial of a preliminary issue in a case concerning the enforceability of a Damages-Based Agreement (DBA).

 

The Claimant law firm entered into the agreement in April 2014 with the Defendant client in relation to claims against two banks for alleged mis-selling of interest rate hedging products.

 

The Defendant alleges that the DBA was procured through undue influence and that she was induced to sign the DBA by misrepresentation.

 

She alleges that the firm failed to advise her of the true nature and consequences of the agreement and that the agreement is thus unenforceable because it fails to comply with the requirements of the Courts and Legal Services Act 1990, which is the statute governing DBAs.

 

The Defendant admits that she is liable to pay the firm’s reasonable costs on the hourly rate for the period from April 2014 to May 2015 but disputes her liability under the agreement. It is unclear as to why the Defendant has made that admission, unless it is a tactical ploy to increase the chance of having the DBA set aside.

 

Master Clark, in the Senior Courts Cost Office, considered the warnings of the Court of Appeal over the risks of delay and increased costs in trials of preliminary issues, but accepted that in this case the determination of the enforceability of the DBA was likely to save costs and time as compared with examining the other defences raised.

 

The Master ordered a trial on the following preliminary issue:

 

“Whether the DBA is unenforceable by virtue of section 58AA(2) of the CLSA 1990, by reason of failing to satisfy the conditions in section 58AA(4) CLSA 1990, as pleaded in paragraph 64 to 71 of the Amended Defence dated 22 June 2016.”

 

Essentially the dispute to be tried as a preliminary issue is whether the provision in the DBA allowing the solicitor to charge costs on an hourly rate, together with disbursements, in the event of termination by the client causes there to be a breach of regulation 4(1) and/or regulation 4(3) of the Damages-Based Agreements Regulations 2013, which regulations were made under section 58AA of the Courts and Legal Services Act 1990.

 

As the Master said here at paragraph 9  “the drafting in both is not user-friendly.”

 

Here the parties agree that the meaning and effect of clause 6.2 of the DBA would require the payment of a sum greater than the agreed percentage provided for in the DBA and both parties agreed that the clause did not, in fact, come into effect in this particular case.

 

The client’s argument is that the very existence of the clause invalidates the Damages-Based Agreement.

 

The clause read:

 

“With the exception of the circumstances set out in clause 6.3 (in which you agree not to terminate this Agreement), you may terminate this Agreement at any time. However, you are then liable to pay the Costs and the Expenses incurred up to the date of termination of this Agreement within one month of delivery of our bill to you.”

 

At paragraphs 10 and 11 of the judgment the Master set out, so far as relevant, the relevant parts of Section 58AA and the Damages-Based Regulations:

 

 

 

“10.        Section 58AA(2) of the CLSA 1990 provides, so far as relevant:

 

“(1) A damages-based agreement which satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.

 

(2) But … a damages-based agreement which does not satisfy those conditions is unenforceable.

 

(3) For the purposes of this section—

 

(a) a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that—

 

(i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and

 

(ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained.

 

(4) The agreement—

 

…

 

(b) if regulations so provide, must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner.”

 

11. The Regulations provide, so far as relevant:

 

 

“(2) In these Regulations—

 

“the Act” means the Courts and Legal Services Act 1990;

 

…

 

“client” means the person who has instructed the representative to provide advocacy services, litigation services (within section 119 of the Act) or claims management services (within the meaning of section 4(2)(b) of the Compensation Act 2006) and is liable to make a payment for those services;

 

“costs” means the total of the representative’s time reasonably spent, in respect of the claim or proceedings, multiplied by the reasonable hourly rate of remuneration of the representative;

 

…

 

“expenses” means disbursements incurred by the representative, including the expense of obtaining an expert’s report and, in an employment matter only, counsel’s fees;

 

“payment” means that part of the sum recovered in respect of the claim or damages awarded that the client agrees to pay the representative, and excludes expenses but includes, in respect of any claim or proceedings to which these regulations apply other than an employment matter, any disbursements incurred by the representative in respect of counsel’s fees;

 

“representative” means the person providing the advocacy services, litigation services or claims management services to which the damages-based agreement relates.

 

4. — Payment in respect of claims or proceedings other than an employment matter

 

(1) In respect of any claim or proceedings, other than an employment matter, to which these Regulations apply, a damages-based agreement must not require an amount to be paid by the client other than—

 

(a) the payment, net of—

 

(i) any costs (including fixed costs under Part 45 of the Civil Procedure Rules 1998); and

 

(ii) where relevant, any sum in respect of disbursements incurred by the representative in respect of counsel’s fees,

 

that have been paid or are payable by another party to the proceedings by agreement or order; and

 

(b) any expenses incurred by the representative, net of any amount which has been paid or is payable by another party to the proceedings by agreement or order.

 

…

 

(3) … in any other claim or proceedings to which this regulation applies, a damages-based agreement must not provide for a payment above an amount which, including VAT, is equal to 50% of the sums ultimately recovered by the client.””

 

 

 

In paragraphs 69 to 71 of the Defendant’s defence she asserts that that clause in the DBA, in providing for payment of “the Costs and Expenses” requires her to make a payment other than “the Payment” as defined in regulation 1(2) and that requirement contravenes regulations 4(1) and/or 4(3).

 

The Claimant denies that that contravenes the regulations and in the alternative states that these sums only became payable by the Defendant upon termination of the DBA and thus cannot be caught by the regulations.

 

In the further alternative the Claimant maintained that in so far as the clause is unenforceable it should be severed from the DBA so as to leave the remaining provisions of the DBA enforceable.

 

The rest of the decision is concerned with the rights and wrongs of ordering a trial of a preliminary issue and I do not consider that issue here.

 

Comment

 

A clause making provision for payment by the client on an hourly rate basis is standard in virtually all Damages-Based Agreements if it is the client who has terminated the agreement or indeed the solicitor has terminated the agreement on the basis of the client’s unreasonableness.

 

The issue here is whether that clause offends against the requirement  

that in a DBA covering a claim other than a personal injury claim or an Employment Tribunal claim, the DBA must not provide for payment of a sum, including VAT, of over 50% of the sums ultimately recovered by the client.

 

If this is held to render the DBA unenforceable then non employment tribunal DBAs are dead, not that they are very much alive anyway.

 

It would enable a client to terminate the agreement and discontinue the claim, which may be a very strong claim for a large sum where the solicitor has done an enormous amount of work, and leave the solicitor with the ability to recover a maximum of 50% “of the sums ultimately recovered by the client”, that is 50% of zero which equals zero.

 

In relation to personal injury claims the principle is the same, but the maximum percentage is 25% and that is achieved by identical wording in regulation 4(2)(b) of the regulations.

 

Regulation 7, dealing with just employment matters, has identical wording but the maximum percentage there is 35%.

 

However regulation 4, the one in dispute here, does not apply to employment matters and regulation 8 provides as follows:

 

Terms and Conditions of Termination in an Employment Matter.

 

“8.-         (1) In an employment matter, the additional requirements prescribed for the purposes of section 58AA(4)(c) of the Act are that the terms and conditions of a damages-based agreement must be in accordance with paragraphs (2), (3) and (4).

 

(2) If the agreement is terminated, the representatives may not charge the client more than the representative’s costs and expenses for the work undertaken in respect of the client’s claim or proceedings.

 

(3) The client may not terminate the agreement—

 

(a) after settlement has been agreed; or

 

(b) within seven days before the start of the tribunal hearing.

 

(4) The representative may not terminate the agreement and charge costs unless the client has behaved or is behaving unreasonably.

 

(5) Paragraphs (3) and (4) are without prejudice to any right of either party under general law of contract to terminate the agreement.”

 

 

 

Thus the regulations specifically provide for the basis of charging when an employment matter is terminated and there is a potential conflict between regulation 7 and regulation 8.

 

Regulation 8 appear to allow the solicitor to charge the full costs and expenses for the work undertaken, but it is not clear whether that is then capped by regulation 7 at 35% of the sums ultimately recovered by the client in the claim or proceedings.

 

It seems fairly obvious that regulation 7 is designed to govern matters where client and solicitor remain together and a result is achieved, whereas regulation 8 is designed to govern the situation where the agreement ends before a result has been achieved.

 

The Explanatory Notes throw no light on any of these matters.

 

My strong advice, along with virtually every other commentator, is that solicitors should never enter into a Damages-Based Agreement outside the field of employment.

 

This is because there is an alternative method available, which is a Section 57 Solicitors Act 1974 Contingency Fee Agreement, combined with a Bridging Agreement and a Conditional Fee Agreement, which achieves the desired arrangement, without the two main problems of DBAs which are:

 

• the indemnity principle applies, restricting the liability of the other side to the relevant maximum figure under the DBA;

 

• credit must be given for all costs received from the other side, where as in a Conditional Fee Agreement no credit need be given in respect of the success fee element charged to the client.

 

Outside the field of employment work there is now this third potential problem, although I emphasise that all that the court has done so far is to order a trial of the matter.

 

No decision has been made.

 

The problem in employment matters is that the use of a Damages-Based Agreement is compulsory if the matter is, or could, be before an Employment Tribunal and the fee is contingent upon the outcome.

 

Thus a Section 57 Solicitors Act 1974 Agreement cannot be used because regulation 1(6) says so.

 

As stated above regulation 4 does not apply to employment related Damages-Based Agreements, and consequently there may be no problem.

 

However, as set out above, there is a tension between regulation 7 and regulation 8.

 

As we have seen regulation 8 refers to “the representative’s costs and expenses for the work undertaken in respect of the client’s claim or proceedings.”

 

In relation 1(2) “costs is defined as “the total of the representative’s time reasonably spent, in respect of the claim or proceedings, multiplied by the reasonable hourly rate of remuneration for the representative.”

 

Note the word “total”.

 

There is no reference there to a cap of 35% of damages, which one would expect if regulation 7 applies to the circumstances set out in regulation 8.

 

Thus regulation 8 may seem to be a saving provision governing the position where there is termination of the agreement, but it is not then clear why there is no similar saving provision in relation to personal injury matters and all other civil work apart from personal injury and employment.

 

It may be that the drafters of the regulations assumed that in those circumstances, if the case was won, then the other side would be liable for costs and therefore there would be agreement or assessment on the hourly base in any event, whereas that does not happen in Employment Tribunal matters, as the general rule is that no costs are payable in that jurisdiction.

 

Thus there are four possible outcomes of this trial:

 

1. That the agreement does not invalidate the DBA;

 

1. that it invalidates DBAs in relation to personal injury and other civil work, but not in relation to Employment Tribunal work;

 

1. that it invalidates all DBAs with a similar clause in, including Employment Tribunal DBAs regardless of regulation 8;

 

1. that it invalidates personal injury and other civil DBAs but that any decision in relation to Employment Tribunal matters would be obiter, because of the different wording, and therefore we have no decision in relation to Employment Tribunal matters.

 

Summary

 

Yet another reason why you should never even think of using a DBA, other than in Employment Tribunal proceedings where they are compulsory if working on a contingent basis.

 

So what to do in Employment Tribunal matters?

 

One option is to leave the standard agreement as it is and work on the assumption that regulation 8 overrides the 35% cap in relation 7 if the agreement has been terminated.

 

The alternative is to keep the standard provision, but to provide that costs shall never exceed a 35% of the sum of the ultimately recovered by the Claimant.

 

The problem, as set out above, is that that may very well be 35% of nothing.

PERSONAL INJURY: BAD NEWS IN QUEEN’S SPEECH

Personal injury reforms, including the whiplash Injury tariff scheme for injuries lasting two years or less,  are to go ahead, assuming the government is not defeated and brought down over the Queen’s Speech.

 

The Queen’s Speech, delivered to Parliament today, laid out proposals for a Civil Liability Bill which will introduce the tariff system and also ban pre-medical offers. These are the proposals which were in the Prisons and Courts Bill.

 

That Bill was lost as a result of the dissolution of Parliament following the calling of the General Election but it had already received an unopposed Second Reading in the House of Commons on 20 March 2017.

 

Albeit that the government fell short of obtaining an overall majority, it received the largest number of votes and seats and therefore is unlikely to face significant opposition in the House of Lords in relation to a policy unopposed in the House of Commons and endorsed by the electorate at a General Election.

 

As the government has now stripped out the issue of compensation for personal injury claims and put it into a separate Civil Liability Bill, rather than it being half a dozen clauses of the very long Prisons and Courts Bill, it makes it more likely that this much shorter and simpler Bill will get through Parliament quickly.

 

This session of Parliament will last two years but there is no reason to think that these reforms will be delayed beyond the original proposed date of 1 October 2018.

 

Indeed the latter part of this session of Parliament is likely to be devoted almost entirely to issues arising out of Brexit, and therefore this legislation is likely to go through Parliament sooner, rather than later.

 

As provided for the original Prisons and Courts Bill, the detail of the Whiplash Tariff will be in Regulations made by Statutory Instrument, but again there is no suggestion that they will be any different from those previously proposed.

 

It is still planned that the increase in the small claims limit for road traffic matters be increased from £1,000.00 to £5,000.00 on 1 October 2018 and for all other personal injury matters the limit be increased from £1,000.00 to £2,000.00.

 

Next month we will see the publication of Lord Justice Jackson’s report on extending fixed recoverable costs and on 20 June 2017 it was announced that the commencement of the Pilot Scheme in relation to claims up to £250,000.00 was “imminent” but will apply only to cases where the trial is two days or less.

 

Again it is proposed that the full extension of fixed recoverable costs be implemented on 1 October 2018, but the upper value may well be £100,000.00, rather than £250,000.00.

 

I deal with all of these issues in detail on my Personal Injury Reforms course. There are three left, in Manchester, Liverpool and Cardiff and they can be booked here.

 

I also deal with all of these matters in my new book Personal Injury Small Claims, Portals and Fixed Costs, which runs to 3 volumes and over 1,300 pages and costs £80.00 and can be ordered from me here, or from Amazon here.

CLAIMANT CAN SUE UNIDENTIFIED DRIVER: INSURER MUST INDEMNIFY

In Cameron v Hussain [2017] EWCA Civ 366

 

the Court of Appeal held that a claimant could obtain judgment for damages against an unnamed defendant who could only be identified by description, if this furthered the overriding objective under the Civil Procedure Rules.

 

There is no requirement that such a claim must be allowed only in exceptional circumstances, or where there is no other remedy available to the claimant.

 

Here the claim was in relation to a road traffic accident where the claimant was injured by a hit and run driver.

 

The practical significance here was, that as the vehicle was insured, the judgment against the unnamed defendant would be enforceable against the motor insurers under section 51 of the Road Traffic Act 1988.

 

The Court of Appeal held that it was necessary efficacious and just to allow the claim as the policy underlying section 151 was that when a vehicle was insured, the insurers should compensate anyone injured by that vehicle.
This is apparently the first case to hold that it is possible to bring a claim and obtain a judgment for damages alone against an unidentified tortfeasor.

 

Previous cases had involved injunctions or a combination of an injunction and damages.

 

This decision is likely to lead to an increase in claimants pursuing unidentified drivers of insured vehicles, rather than making claims against the Motor Insurers’ Bureau.

 

Here the vehicle that struck the claimant was identified and it was established that a policy of insurance was in place, but the hit and run driver was never identified.

 

The keeper of the vehicle, Mr Hussain, refused to give information about the driver and was convicted of failing to give the identity of the driver.

 

The claimant issued proceedings against Mr Hussain, believing him to be the driver, and against his insurers who denied liability on the ground that Mr Hussain was not covered at the time and that the claimant could not name the driver.

 

The insurer applied for summary judgment and the claimant applied for permission to amend the Particulars of Claim “so as to substitute, for the named First Defendant, a defendant identified only by the following description:

 

“The person unknown driving vehicle registration number Y598SPS who collided with vehicle registration number KGO3ZJZ on 26 May 2013.””

 

A District Judge dismissed the claimant’s application and a Circuit Judge upheld that decision.

 

The Court of Appeal summarised the issues as follows:

 

1. i) whether it is possible to obtain a judgment in respect of a claim for damages against a defendant identified only by description (“an unnamed defendant”), in the context of a motor claim against an unidentified hit-and-run driver, where the vehicle was identified and an insurance policy had been effected in respect of such vehicle in the name of either a non-existent person or someone who was not traceable;
2. ii) whether an insurer would be liable to satisfy any unsatisfied judgment against such an unnamed defendant under section 151 of the Road Traffic Act 1988 (“the 1988 Act”);

 

iii) whether the judges below were right to refuse to allow the claimant permission to amend her claim form and particulars of claim so as to substitute, for the named first defendant, a defendant identified only by the following description.

 

By the time of the hearing of the appeal it was common ground that Mr Hussain was not in fact the driver of the vehicle on the relevant date.

 

The Circuit Judge’s decision was based on the premise that it would be unjust to the insurance company to allow the claimant to obtain a judgment enforceable against it, when it could not hope to trace any unknown defendant so as to attempt at recoupment.

 

The Circuit Judge also held that there was no injustice to the claimant, because she could still submit a claim to the Motor Insurers’ Bureau.

 

The Court of Appeal then set out in detail the relevant provisions of the Road Traffic Act 1988 and the Civil Procedure Rules and Practice Directions.

 

The Court of Appeal pointed out that a number of provisions in the Civil Procedure Rules expressly contemplate proceedings and/or orders against unnamed parties. However, it was common ground that none of these provisions related directly to this type of case.

 

Ben Williams QC, representing the claimant, pointed out that the MIB Untraced Drivers’ Agreements (UTDA) was a more limited remedy than provided by section 151 as:

 

1. a) only limited legal costs were recoverable;

 

1. b) the collision had to be reported to the police within 14 days of occurrence (if the claim was for personal injury (or five days) if it was for property damage;

 

1. c) the MIB would not meet subrogated or similar claims; and

 

1. d) the MIB itself carried out the investigation of the claim and, subject to review by way of arbitration, decided the amount of the compensation.

 

It irrelevant as to the relationship between the insured and its insurance company; the purpose of the act is the protection of people who sustain injury caused by the wrongful acts of other persons who use vehicles on a road.

 

As was said in Hardy v MIB [1964] 2 QB 745 (Ca)

 

“… it was no part of the policy of the Act that the assured’s right to enforce his own contract against the insurers should constitute the sole measure of the third parties’ right against the insurers…”

 

The case of Bloomsbury Publishing Group Limited v News Group Newspapers Limited [2003] 1 WLR 1633 established that cases decided before the introduction of the Civil Procedure Rules were no longer applicable and that under the CPR there was no procedure Rule R to issuing proceedings, and obtaining orders, against persons unknown.

 

The Court of Appeal here rejected the argument that it is only in exceptional circumstances that a claimant would be permitted to join an unnamed defendant.

 

The Court of Appeal also rejected the argument that the existence of an alternative remedy, here a claim against the MIB precluded the joining of an unnamed defendant.

 

Paragraph 56 the Court of Appeal said:

 

“Put another way, in circumstances where the appellant has an undoubted right conferred by statute to payment by the insurer of a vehicle in the event that she obtains a judgment against its negligent driver, it cannot be just to deprive her of the remedy to give effect to that substantive right, simply by the court’s refusal to exercise a procedural power on grounds of the existence of an alternative remedy against the MIB – a remedy which she is not obliged to pursue and the exercise of which is not a precondition to her entitlement under section 151.”

 

Those who are no fans of insurance companies will be particularly interested in paragraph 43 of the judgment which recites how the original concept of an insurance company being liable to a third party even if it was not liable to indemnify its insurers, came about in 1934:
“43. As Mr Williams submitted, the policy of imposing third party liabilities on the insurer of a vehicle irrespective of its obligations to its insured has stood since the Road Traffic Act 1934. The mischief to which that legislation was directed was stated by Goddard LJ in Zurich Insurance Co Ltd v Morrison [1942] 2 KB 53 (CA), 61:

 

“Part II of the Road Traffic Act 1934 was passed to remedy a state of affairs that became apparent soon after the principle of compulsory insurance against third party risks had been established…. That… would naturally have led the public… to believe that if thereafter they were, through no fault of their own, injured or killed by a motor car they or their dependants would be certain of recovering damages, even though the wrong-doer was an impecunious person. How wrong they were quickly appeared. Insurance was left in the hands of companies and underwriters who had imposed what terms and conditions they chose. Nor was there any standard form of policy, and any company… could hedge round the policies with so many warranties and conditions that no one advising an injured person could say with certainty whether… there was a prospect of recovering against the insurers … It is not surprising therefore… that… Parliament interfered, and… they took steps towards remedying a position which to a great extent nullified the protection that compulsory insurance was intended to afford. Generally speaking, [the legislation] was designed to prevent conditions in policies from defeating the rights of third parties, but insurers were still allowed to repudiate policies obtained by misrepresentation or non-disclosure of material facts.”

 

Likewise, in In Hardy v MIB [1964] 2 QB 745 (CA), 769-770, Diplock LJ stated (in relation to the equivalent provisions of the Road Traffic Act 1960):

 

“The whole purpose of this Part of the Act is for the protection of the persons who sustain injury caused by the wrongful acts of other persons who use vehicles on a road, and it was no part of the policy of the Act that the assured’s rights to enforce his own contract against the insurers should constitute the sole measure of the third parties’ rights against the insurers… .””

Kerry’s Sahara Trek Diary

In March I successfully trekked nearly 200km through the Sahara Desert to raise money for the Lord’s Taverners charity and EY Foundation.

On Friday 16 June Underwoods Solicitors are hosting a Sahara Trek Moroccan tasting dinner at West Herts College in Watford to celebrate my achievement.

Tickets cost £50 per head including dinner and drinks. All profit goes to the Lord’s Taverners and EY Foundation.

The evening will start at 6.15pm with a prosecco reception followed by dinner at 7.00pm.

For further information please visit http://www.underwoods-solicitors.co.uk/events.htm.

Spaces are limited and to book please contact me on 01442 430900 or email claire.long@lawabroad.co.uk

There is still time to make a donation. Please go to https://mydonate.bt.com/fundraisers/kerryunderwood1

Day One – Friday 24 March

Fly from London to Marrakech. Arrived 5.00pm same time zone. Bus to Ouarzazate about six hours over the Altas Mountains. Snow on top and by side of road. Stopped in mountain village – about 7000 feet. Bought some dates for the journey. Later passed highest point at about 8600 feet and stayed in a hotel in Ouarzazate. Stubbed toe on shower surround! Bleeding heavily. Will this stop me? I cannot have come all this way and prepared the way I have to be foiled by a stubbed toe on the night before the walk ☹.

Cleaned up wound – plastered it – worried about this. Slept badly.

Day Two – Saturday 25 March

Cold and bright start. Good breakfast. Nice ramshackle hotel. Left at 8.00am for a long bus journey along the Draa Valley through Zagora to M’Hamid on the edge of the desert. Arrived at about 2.00pm. Met Berber guides and camels. Lunch – tinned tuna, salad, bread and fruit – not bad – it will become a bit overfamiliar over the next few days!

Left about 3.00pm to start the walk and arrived at camp at about 6.00pm having covered 7.5 miles at about 1800 feet altitude. Temperature fine – upper 20 centigrade – sand dunes – 200 feet or so – quite difficult walking on them but easy on flat, hard ground. Nice breeze. Pleasant. No problem with the toe.

Reached camp. Dinner at 7.00pm. Lamb, boiled potatoes, soup bread. Good and filling. 29 men in three tents – very crowded and a couple slept outside. Not a great night’s sleep. Cold by morning.

Day Three – Sunday 26 March

Breakfast at 7.00am. Porridge, honey, jam, marmalade, bread and tons of good coffee.

Off at 7.30am.

Very easy walking on flat, hard ground, nice breeze. Wild camels. Unspectacular scenery. About 20 miles from the Algerian border which is on the left, with a low mountain range on the right.

Stop every hour for about 10 minutes. Wind getting up a bit.

Lunch stop at 11.30am – same as before. Lots of flies. Wind. Leave at 2.00pm in what is now a sandstorm. Very unpleasant – walking directly into the wind and sand and sand everywhere and everything stinging – horrible. Walked for about two and a half hours with just one very short break. Really unpleasant and difficult. A rapid change from easy, unchallenging walking this morning to an unpleasant difficult afternoon. 4.30pm – reached camp – tents already up – straight in. Can’t do anything. The tent – not ours – blows down. Just have to sit it out. Eventually dies down a bit. Subdued dinner. Soup, vegetables, spaghetti. Good. Someone’s birthday – cake.

Berbers sing and dance and the mood picks up and after dinner they light a wood fire around which we sing and dance – it is now quite cold but the wind has died down.

The Berber crew is about 16 people with four drivers, four camel drivers, four cooks, two who set up the tents etc. and two guides.

We did 15 miles today.

A beautiful starry sky, as last night. Slept in the bigger dinner tent where there is tons of room and therefore a much better night’s sleep but it was cold by the morning. 

Day Four – Monday 27 March

Beautiful, still morning. Breakfast as before. Off by 7.45am and chatting to Matthew Hoggard, the former England cricketer who is on the trek.

Easy, flat walking on hard ground with a nice breeze and apparently today is a much tougher walk in the afternoon with a lot of dunes and ending up at a lovely spot near a beautiful dune – apparently.

Stopped for lunch at 11.00am and the pattern so far is to stop at 11.00am to 11.30am, eat at 12 noon and leave at about 1.30pm to 2.00pm.

Tough afternoon. Three and a half hours walking at 35 to 40 centigrade. Broken into three sessions. First not bad. Second up and down over small dunes, but hot windy and tough.

Last session not too bad – flatter and the camp was in sight. The camp is indeed in a nice spot among higher dunes and I slept outside and the stars were amazing, but it was cold.

We covered 18 miles today.

Day Five – Tuesday 28 March

Hot day. Covered 17 miles. Not too bad as we had a long break for lunch due to the heat and so we did not get in until 5.30pm.

Dunes/old river bed – nothing spectacular, but nice camp in dunes and slept outside on a ridge of sand dunes. A warm but windy night.

The food in the evening is beginning to get a bit boring. We have an early start tomorrow as we are climbing a 2200 foot sand dune but there is a promise of showers tomorrow night – that is a shower not rain!

Day Six – Wednesday 29 March

7.00am start. Dunes. Then the big one – 698 metres high, although we had gradually got up to about 350 metres before the long, single file climb to the top along the ridge with some and ups and downs along the way, geographical and mental. Everyone made it!

At the top hard work began switching shirts to have photos taken in a Lord’s Taverners shirt, Hemel Hempstead Town FC shirt, A Hemel Stags shirt and an Ernst Young Foundation shirt and holding the Look No Further Hemel Hempstead slogan card – photographs by and with Matthew Hoggard who is good company and very interesting.

More dunes after the main one. Long lunch. Solar charged the phone.

Long day – 10 hours walking including breaks.

Shower! Camp near well and water containers emptied into a water bag inside a small tent-like structure and the fact that the water had been out in the sun meant it was warm. Plastic leading into a plastic tap – very effective and very welcome.

17 miles today – Berber dancing amusing. A long difficult, but satisfying day.

Day Seven – Thursday 30 March

Not a long day. Three hours in the morning but with a lot of small sand dunes, which are discouraging – up and down with nothing seeming to be achieved. Walking over these dunes is by far the most difficult part of the walk.

Hot. Long lunch break. Only two and half hours in the afternoon on dry flatland.

The drivers had spirited up some Coca-Cola for lunch and evening. Very welcome. The only drinks so far, apart from water, is hot mint tea as we arrive at camp and good hot coffee in the morning.

The water which we carry quickly becomes warm if not hot and is not refreshing.

Matthew Hoggard got stung by a scorpion at lunch time and was taken to hospital. Matthew said he was just playing in the sand and it stung him, but he had mentioned to me that his nine year old boy wanted a picture of a camel – easy – and a picture of scorpion – not easy – so think he was looking for the scorpion.

Heard that he is fine and expected back later at camp tonight.

Been chatting to him a lot. Nice and interesting man. Swapping stories about travelling in South Africa and elsewhere.

Crispin from Ernst Young, and vaguely my age, has done the trek for the last 7 years and is good company, as is his secret supply of alcohol.

Day Eight – Friday 31 March

Last full day of the walk 🙂. 7.30am start. Great walking! Dried-up salt lake – dead flat – easy and good surface. No features and almost no vegetation. Lake is about 12 miles by 20 miles and is between the Algerian border mountain range and the Moroccan mountain range. Three hours. Arrive at lunch camp at 10.30am. It is very hot but I could walk for days on this, both physically and mentally. Very easily physically and I love the empty open space – much better than the endless small sand dunes.

More Coca-Cola!

Easy walk after lunch but very hot. Last full day. Lord’s Taverners flag out when we arrive at camp and pictures with Matthew Hoggard, one of only two non Ernst Young fellow Taverners on the trip – other being Amanda White.

Presentation to the Berbers who had been great throughout.

Chicken and chips!

Berber music. Goodbye to camels. Matthew Hoggard out looking for more scorpions! I knew it.

Last supper. Tinned fruit as well as chicken and chips. Last night in tent 🙂.

Day Nine – Saturday 1 April

Up at 4.30am. Last breakfast. Off at 5.30am across flat, easy rocky landscape.

Stopped for sunrise at about 6.30am.

Walked to lorry and four wheel drives – arriving at about 7.15am and that is it as far as walking is concerned! 🙂

Rocky rough journey for about two hours in the lorry to Foum Zguide where minibuses were waiting. Nice small friendly edge of desert town. Coffee. Wi-Fi. Nice square with café.

Comfortable minibuses all the way to Marrakesh arriving there at about 7.00pm after a couple of stops for food etc.

Hotel is the hotel Diwani – a nice comfortable hotel with a good swimming pool, although the service and food were not great and we all ate together in the hotel. Everyone tired and relieved but a good atmosphere.  

With Matthew Hoggard at the finish

 

FAILURE TO MEDIATE AND COSTS

There seems to be disagreement in the Court of Appeal as to the extent to which a party should be punished in costs for failing to mediate.

Generally the courts had been stating that silence in the face of an invitation to participate in Alternative Dispute Resolution (ADR) should, as a general rule, be treated as unreasonable regardless of whether a refusal to mediate might in the circumstances have been justified.

PGF II SA v OMES Company 1 Limited [2013] EWCA Civ 1288 is an example of such a decision.

A more recent case broadly taking the same line was Thakkar v Patel [2017] Civ 117.

However in a judgment given on 24 May 2017 the Court of Appeal takes a very different view.

In Gore v Naheed & Anor [2017] EWCA Civ 369

Lord Justice Patten said:

“49.        Mr McNae referred us to the decision of this Court in PGF II SA v OMFS Company 1 Ltd in which Briggs LJ emphasised the need, as he saw it, for the courts to encourage parties to embark on ADR in appropriate cases and said that silence in the face of an invitation to participate in ADR should, as a general rule, be treated as unreasonable regardless of whether a refusal to mediate might in the circumstances have been justified. Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated. But, as Briggs LJ makes clear in his judgment, a failure to engage, even if unreasonable, does not automatically result in a costs penalty. It is simply a factor to be taken into account by the judge when exercising his costs discretion.

50. In this case the judge did take it into account but concluded that it was not unreasonable for Mr Gore to have declined to mediate. His solicitor considered that mediation had no realistic prospect of succeeding and would only add to the costs. The judge said that he considered that the case raised quite complex questions of law which made it unsuitable for mediation. His refusal to make an allowance on these grounds cannot in my view be said to be wrong in principle.”

Here the claimant had obtained an injunction and was held to be the winner overall, but the defendants submitted that the judge should have made some allowance in costs in their favour for the fact that the claimant had refused or failed to engage with their proposal that the dispute should be referred to mediation.

Comment: It may be that this apparent move away from a requirement to mediate or be punished in costs, even where there is no realistic point in mediation, is linked to the proposed extension of fixed costs to all civil work with an as yet undetermined upper damages limit.

There is an inherent tension between fixed costs and the requirement to mediate.

That tension is the fact that there are no extra costs allowable for mediation in the current fixed recoverable costs scheme and thus mediation imposes an extra layer of work for which costs are not recoverable by the winner.

Generally, in a more efficient and cheaper court system, mediation should become a thing of the past except in cases where there needs to be a continuing relationship between the parties, for example family matters for which mediation is eminently suitable.

In Thakkar v Patel [2017] EWCA Civ 117

the Court of Appeal ordered that silence in the face of an invitation to participate in alternative dispute resolution is generally unreasonable:

“In my judgment, the time has now come for this court firmly to endorse the advice given in para 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable, regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified by the identification of reasonable grounds.”

“The message which this court sent out in PGF II [PGF II SA V OMFSA Company Limited [2014] 1WLR 1386] was that to remain silent in the face of an offer to mediate is, absent exceptional circumstances, unreasonable conduct meriting a costs sanction, even in cases where mediation is unlikely to succeed. The message which the court sends out in this case is that in a case where bilateral negotiations fail but mediation is obviously appropriate, it behoves both parties to get on with it. If one party frustrates the process by delaying and dragging its feet for no good reason, that will merit a costs sanction. In the present case, the costs sanction was severe, but not so severe that this court should intervene.”

SWITCHING FROM LEGAL AID TO A CONDITIONAL FEE AGREEMENT

In Hyde v Milton Keynes NHS Foundation Trust [2017] EWCA Civ 399

 

the Court of Appeal upheld the decision of a Costs Master and High Court Judge that it was reasonable for a legally aided client in a clinical negligence matter to switch to a Conditional Fee Agreement.

Here the claimant had brought clinical negligence proceedings against the trust and was legally aided but switched to a Conditional Fee Agreement which meant that a success fee and insurance premium were payable by the defendant, as the matter dated back to the time when such additional liabilities were recoverable.

 

The defendant objected but lost in the Senior Court Costs Office and the High Court.

 

On further appeal to the Court of Appeal the defendant conceded that the claimant was entitled to recover base costs but argued that there was no right to recover the success fee or premium.

 

It was agreed that the Legal Aid Certificate had not been formally discharged, even though legal aid had run out and there was no more public funding available.

 

The defendant argued that as the Legal Aid Certificate had not been discharged the court should assume that the work was still being done under that certificate.

 

It was a highly technical argument which was rejected by the Court of Appeal.

 

There was no period of time when the claimant’s solicitors were being paid both by legal aid and under the Conditional Fee Agreement.

 

In this case liability had been agreed but as the dispute over quantum continued the Legal Services Commission declined to increase the funding.

 

The client therefore signed the Conditional Fee Agreement but did not apply for a Notice of Discharge from the commission.

 

The Court of Appeal held that there was no period of time when the solicitors could, let alone did, take payment both under the private retainer and the undischarged funding certificate.

 

Here the trust had “readily accepted that in the present case there was no intention whatsoever on the part of the solicitors (or claimant) that there would or might be such topping up”, that is using public funding as a base and taking extra money from the client.

 

The Court of Appeal rejected the defendant’s argument that while the Legal Aid Certificate was undischarged, the Conditional Fee Agreement had to be treated as unlawful and unenforceable.

 

Comment: Yet another practical and sensible decision by the Court of Appeal to seek to maintain access to justice and yet another piece of disgraceful conduct by the National Health Service Legal Aid Authority, or whatever it is now called.

 

That body is a blot on the legal landscape.

ASPERGER’S SYNDROME AND JOB RECRUITMENT

I am grateful to Terri Brookes for supplying me with information about this case.

In Government Legal Service v Brookes – UKEAT/0302/16/RN

the Employment Appeal Tribunal upheld the decision of an Employment Tribunal that the Government Legal Service (GLS) had discriminated against the applicant, who had Asperger’s Syndrome, in requiring her to sit a multiple choice test at the first stage of its recruitment process.

The EAT also upheld the finding that, by refusing her request to provide answers to the test in narrative form, rather than in a multiple choice format, the GLS had failed to make reasonable adjustments.

The GLS recruits around 35 trainee solicitors each year and receives several thousand applications.

All applicants are required to sit a multiple choice test online.

Ms Brookes contacted the GLS ahead of the recruitment process and requested adjustments to allow her to submit her answers in a short narrative form.

The GLS refused.

Ms Brookes took the test and received 12 marks out of 22 thus her application did not proceed as the pass mark was 14.

The Employment Tribunal found that the GLS had applied a provision, criterion or practice of requiring all applicants to take this online multiple choice test.

Having heard expert medical evidence the Employment Tribunal concluded that this placed people with Asperger’s Syndrome at a particular disadvantage compared with those who did not have it and that this caused Ms Brookes’ disadvantage.

The GLS argued that, even if Ms Brookes had successfully shown that that was the case, the testing was a proportionate method of filtering candidates.

The Employment Tribunal disagreed and said there was a less discriminatory alternative, as proposed by Ms Brookes.

The Employment Appeal Tribunal upheld that claim:

“The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT (Situational Judgment Test, but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT”

The Employment Appeal Tribunal held that the decision making powers of the small number of candidates with Asperger’s could properly have been measured by allowing answers in a narrative format.

The decision does not mean that employers need to water down the standards for a role, but must consider, where appropriate, adjusting the means of testing whether an individual meets the standards for the job.

Multiple choice tests are considered to be efficient in that there are considered to be objectively right or wrong answers to each question, meaning that marking can be done by a computer without human intervention or judgment.

The Employment Appeal Tribunal refused the Government Legal Service permission to appeal.