Kerry Underwood

Archive for October 2017

PART 36 AND LATE ACCEPTANCE: SUPER OMNISHAMBLES

leave a comment »


I am organizing, chairing, and speaking at a Part 36 Conference in Central London on Tuesday 14 November with Ben Williams QC and David Pilling. For more information, or to book, click here.

In Whalley v Advantage Insurance Company Limited, Kingston-Upon-Hull County Court, 5 October 2017, case number – B58YM864

Regional Costs Judge Besford held that on late acceptance by a Defendant of a Claimant’s Part 36 offer, the Claimant was only entitled to fixed costs, in a fixed costs case, and not indemnity costs.

As we have seen from previous posts of mine on this subject, First Instance and Circuit Judge decisions are all over the place on this subject, and apparently the issue will be heard by the Court of Appeal reasonably soon.

Why then am I bothering to mention this further decision?

Because it adds a new ingredient to the stew.

The reason is that District Judge Besford, in this decision, actually refutes his own decision in Sutherland v Khan, which I have reported extensively elsewhere.

There, the judge held that on late acceptance by a Defendant a Claimant was entitled to indemnity costs and not fixed costs.

He has now changed his mind.

Now, there is something to be said in praise of anyone who has the courage to admit that they were wrong, but this does add yet further confusion to this vitally important issue.

It is chaos.

I do not blame the individual judges as the Civil Procedure Rules are entirely unhelpful and there is a clear contrast between CPR 45.29 and CPR 36.

This is far from the only instance in which there are mutually contradictory Civil Procedure Rules.

This tension, on this matter of extreme importance as far as costs are concerned, has been apparent for nearly five years and yet throughout the whole of that time the Civil Procedure Rules Committee have not thought it necessary to amend the rules, or issue a Practice Direction.

Soon we will have a new Intermediate Track, with a streamlined procedure and fixed costs in virtually all civil litigation where the damages are £100,000.00 or less.

One hopes that the Civil Procedure Rules Committee will draft the new Intermediate Track Fixed Costs Rules with rather more care than they have drafted the existing Fast Track Fixed Costs Rules.

 

Also see:

PART 36 AND INDEMNITY COSTS

ACCEPTING A PART 36 OFFER DURING TRIAL

PART 36 AND INDEMNITY COSTS ON LATE ACCEPTANCE: THE CHAOS CONTINUES

PART 36 AND LATE ACCEPTANCE: EVEN MORE CHAOS

FIXED COSTS AND PART 36: POST 3

PART 36: CLAIMANT ORDERED TO PAY INDEMNITY COSTS ON LATE ACCEPTANCE

Advertisements

Written by kerryunderwood

October 31, 2017 at 8:53 am

Posted in Uncategorized

NOTICE TO ADMIT FACTS AND FIXED COSTS

leave a comment »


All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

In a Fixed Costs world the less work done the better, and so some neglected tactical tools will gain a new lease of life.

One of those is the Notice to Admit Facts, on prescribed Form N 266, which gives notice to another party in the proceedings that it is being required to:

– admit identified facts in the claim; and

– agree how the admitted facts will be treated.

The party responding to the notice must state which facts are admitted and which are not.

Thus the facts which need to be proved at trial can be reduced, thus cutting time and costs, which is essential in the new Intermediate Track.

Any Notice to Admit must be served no later than 21 days before trial – CPR 32.18(2).

There is no time limit for responding.

More than one Notice to Admit may be served.

Where there are multiple parties, there is no need to serve them simultaneously – MMR and MR Vaccine Litigation (No 5), Sayers v Smithkline Beecham Ltd [2002] EWHC 1280 (QB).

Responding

Failure to respond or an unreasonable failure to admit a fact can lead to costs consequences. In the Intermediate Track unreasonable behaviour can lead to a fixed uplift on fixed costs of 30% or 40%.

Admissions can be made by completing the bottom section of Form N 266 or by service of a respondent’s own Form N 266.

Facts are admitted for the purpose of the claim only and on the basis that the admitted fact /admission will not be used on any other occasion or by any other person- CPR 32.18(3).

The court may allow a party to amend or withdraw an admission on such terms as it thinks just- CPR 32.18(4).

In Practice

When drafting the Statement of Case, limited to 10 pages in Intermediate Track cases, consider all facts that may be capable of admission and serve a Notice to Admit.

Total witness statements for each party are limited to 30 pages in the Intermediate Track, so Notices to Admit may help cut down the length of the statements.

Admissions may also reduce the number of witnesses attending trial, and thus cut the trial length.

This could result in a claim moving down a Complexity Band and thus lessening costs. That benefits the ultimate paying party but reduces the risk for both parties and means that the fee, whether from the other side or one’s own client, will be earned for less work.

A further review should be undertaken once witness statements are exchanged and again once the matter is nearing trial, and the whole issue should be kept under constant review.

With Fixed Costs less work equals more profit, a reversal of the hourly rate system, so the more that is agreed, the better for both sets of lawyers and their clients.

 

Also see:

FIXED COSTS REPORT OVERVIEW : POST 1

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

THE NEW FIXED COSTS REGIME: POST 7

FIXED COSTS EXTENSION: WHAT TO DO NOW

APPLICATIONS, INJUNCTIONS, NON-MONETARY RELIEF AND FIXED COSTS

Written by kerryunderwood

October 27, 2017 at 8:23 am

Posted in Uncategorized

APPLICATIONS, INJUNCTIONS, NON-MONETARY RELIEF AND FIXED COSTS

leave a comment »


This blog first appeared in Practical Law on 24 October.

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

Fast Track 

In relation to the Fast Track, Lord Justice Jackson proposes no change and the only suggestion, emanating from Claimant representatives, was that there should be better provision for the costs of Pre-Action Disclosure Applications as recommended by the Court of Appeal in Sharp v Leeds City Council [2017] EWCA Civ 33.

 

Interim applications in the Fast Track

LJ Jackson states that the costs of any applications properly made, for example because the other party is in default, should be recovered separately.

CPR 45.29H currently fixes costs for such matters and provides for “one half of the applicable Type A and Type B costs.”

Type A is for preparation and Type B is for advocacy and each type of costs is £250.00.

In relation to Noise-Induced Hearing Loss claims and Fast Track Band 4 cases, the report proposes that two thirds, rather than one half, of Type A and Type B costs be recoverable.

Thus the fee would be £166.66, instead of £125.00, an increase of £41.66 which will probably not open the floodgates.

Band 4 in the Fast Track is in many ways more like Band 1 in the Intermediate Track than it is its Fast Track siblings.

Fast Track Band 4 cases will include Employers’ Liability other than Noise-Induced Hearing Loss claims, any particularly complex tracked possession or housing disrepair claims, property disputes, professional negligence claims and “other claims at the top end of the Fast Track.”

 

Preliminary issues

The costs of any preliminary issue trials should be recovered separately, but are strongly discouraged in the Fast Track.

The report points out that limitation is sometimes tried as a preliminary issue in Employers’ Liability disease claims but states that this is generally unwise as:

(i) there is much overlap of evidence between limitation and liability;

(ii) the litigation will get hopelessly bogged down if the limitation decision is appealed;

(iii) to have two trials of a Fast Track case drives up costs and is disproportionate;

(iv) if the claimant wins on limitation and then loses on liability, the first trial has been a waste of time.

 

Interim injunctions

The fixed recoverable fee for an interim injunction application in the Fast Track should be £750.00.

Non-Monetary Claims

All Fast Track claims will be subject to Fixed Recoverable costs, even where the claim is only, or primarily, for non-monetary relief.

With reference to the Fixed Costs Grid, LJ Jackson says;

“There is obviously some difficulty in applying the above table to claims for, or including, non-monetary relief. The court must, I am afraid assign a value to such relief. I propose that a claim for a declaration or injunction should be treated as the equivalent of a claim for £10,000, with the court having power to vary that figure upwards or downwards.

“For example, in a housing disrepair claim where the defendant is ordered to carry out repairs with a value of £20,000, the injunction requiring such works should be treated as if it were an award of £20,000.”

 

Intermediate Track

The report states that the new Intermediate Track, for claims valued at between £25,000.00 and £100,000.00 should apply to claims which are principally for monetary relief, such as damages or debt, and will include cases where declarations are sought “largely to support claims for monetary relief.”

It will not be possible evade the regime by including incidental claims for declaratory relief.

In exceptional circumstances a claim for non-monetary relief may be assigned to the FRC Scheme, where it is necessary to promote access to justice and two examples are given:

(i) If individual householders are claiming an injunction to restrain private nuisance caused by a nearby industrial enterprise, they may not be able to proceed unless their adverse costs risk is limited by an FRC regime.

(ii) Individuals of modest means bringing defamation claims because of material on the internet may only feel comfortable if their adverse costs risk is limited by FRC.

LJ Jackson also suggests that in certain categories of litigation, “where emotions are apt to run high, parties may need to be protected from their own enthusiasm for the fray” where “the straitjacket of the Intermediate Track may save them from ruinous litigation.”

He gives as examples disputes about family businesses or boundary disputes between neighbours, where the disputed land has no great value.

It may be that declaratory, and not monetary, relief is the main remedy sought in such cases, but they may still go into the FRC regime.

 

Applications

These should be made at the Case Management Conference (CMC) but if any application is necessary after the CMC then the rules should provide that:

(i) all applications and documents filed in support must be concise;

(ii) the respondent must answer in writing within 7 days of service of the application notice and the response must be concise;

(iii) any reply from the applicant must be provided within two business days of service of the response and be concise;

(iv) the court will deal with an application without a hearing unless it considers it necessary to hold one and in appropriate cases that hearing may be by telephone,

(v) the court will decide who shall pay the costs of any interim application and shall summarily assess them and any such costs will be in addition to FRC.

 

Vexatious applications

Lord Justice Jackson accepted that the court must control the scope and number of interim applications to avoid procedural gamesmanship, for example repeated applications by a wealthy party for specific disclosure or for answers to CPR 18 requests.

This would be dealt with as unreasonable litigation conduct warranting an order for indemnity costs, which will now be a fixed uplift on costs, of either 30% or 40% – that issue remains to be decided.

As to what constitutes unreasonable litigation conduct, Lord Justice Jackson refers to the case of Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269.

 

The future

The report states that if the new proposals work satisfactorily then the Civil Procedure Rule Committee may decide to expand the scope of the Intermediate Track to include monetary claims above £100,000.00 and to include claims for non-monetary relief.

 

Also see:

FIXED COSTS REPORT OVERVIEW : POST 1

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

THE NEW FIXED COSTS REGIME: POST 7

FIXED COSTS EXTENSION: WHAT TO DO NOW

Written by kerryunderwood

October 25, 2017 at 9:41 am

Posted in Uncategorized

CONTRA PROFERENTEM: DOES IT STILL EXIST?

leave a comment »


By Mohammed Tanweer, Underwoods Solicitors

The contra proferentem rule is generally considered to have originated from the decision of the privy council in

Canada Steamship Lines Limited v The King [1952] AC 192

and that rule requires any ambiguity in an exemption clause or indemnity clause in a contract to be resolved against the party who put the clause forward and relies upon it.

At paragraph 208 Lord Morton said:

“(1) If the clause contains language which expressly exempts the person in whose favour it is made (hereafter called “the proferens”) from the consequence of the negligence of his own servants, effect must be given to that provision. Any doubts which existed whether this was the law in the Province of Quebec were removed by the decision of the Supreme Court of Canada in The Glengoil Steamship Company v Pilkington.

(2) If there is no express reference to negligence, the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of the servants of the proferens. If a doubt arises at this point, it must be resolved against the proferens in accordance with Article 1019 of the Civil Code of Lower Canada: “In cases of doubt, the contract is interpreted against him who has stipulated and in favour of him who has contracted the obligation.”

(3) If the words used are wide enough for the above purpose, the court must then consider whether “the head of damage may be based on some ground other than that of negligence”, to quote again Lord Greene in the Alderslade case. The “other ground” must not be so fanciful or remote that the proferens cannot be supposed to have desired protection against it; but subject to this qualification, which is no doubt to be implied from Lord Greene’s words, the existence of a possible head of damage other than that of negligence is fatal to the proferens even if the words used are prima facis wide enough to cover negligence on the part of its servants.”

In Persimmon Homes Limited & Others v Ove Arup and Partners Limited & Another [2017] EWCA Civ 373

where Lord Justice Jackson considered the modern application of the doctrine.

Lord Justice Jackson said that the principle set out in the Canada Steamship case is of more relevance to indemnity clauses, rather than exemption clauses when incorporated into a commercial agreement.

He said that the contra proferentem rule now had a very limited role in commercial contracts negotiated between parties of equal bargaining strength:

“In recent years, and especially since the enactment of UCTA [The Unfair Contracts Terms Act] the courts have softened their approach to both indemnity clauses and exemption clauses: see Lictor Anstalt v MIR Steel UK [2012] EWCA Civ 139; [2013] 2 ALL ER (Comm) 54 at [31][2][34]. Although the present judgment is not the place for a general review of the law of contract, my impression is that, at any rate in commercial contracts, the Canada Steamship guidelines (insofar as they survive) are now more relevant to indemnity clauses than to exemption clauses.”

Consequently the Court of Appeal drew a distinction between the application of the contra proferentem doctrine in exemption clauses and indemnity clauses, and it is clear that the doctrine still has potential application to indemnity clauses.

The Court of Appeal stated that, as a general principle, exemption clauses were used for allocating risk in commercial contracts.

However the Court of Appeal did not extend that reasoning to indemnity clauses.

In any event, much will turn on the wording of the clauses and also the negotiating strength of the parties.

The Persimmon case concerned the meaning of the words “liability for any claim in relation to asbestos is excluded”.

The Claimants submitted that these words did not exclude liability for negligence in failing to identify and report on asbestos found at the site, and they relied on the contra proferentem rule.

The Court of Appeal held that all liability relating to asbestos, including that arising from negligence, was excluded.

The court relied on the clarity of the language.

There is a debate and tension between the court giving a contract a commercial common sense interpretation – the Commercial Meaning Test – and focusing on the language used – the Language Primacy Test.

The commercial common sense interpretation took precedence in the case of

Rainy Sky SA v Kookmin Bank [2011] UKSC 50

whereas the Language Primacy Test took precedence in

Arnold v Britton [2015] UKSC 36.

In Wood v Capita Insurance Services Limited [2017] UKSC 24

the Supreme Court denied any such tension and said that interpretation was a unitary exercise and the weight to be given to the various considerations depended on the circumstances.

Courts give the language use the meaning which would be given by a reasonable person in the position of the parties and furnished with their common knowledge of the background to the transaction.

Others argue that little has changed. In the 1889 case of

Cornish v The Accident Insurance Company Limited [1889] 23 QBD 453

the Court of Appeal said:

“In a case of real doubt, the policy ought to be construed most strongly against the insurers; they frame the policy and insert the exceptions. But this principle ought only to be applied for the purpose of removing a doubt, not for the purpose of creating a doubt, or magnifying an ambiguity, when the circumstances of the case raise no real difficulty.”

Canada Steamship itself made it clear that the stated principles were only employed where there was doubt as to whether the words used were wide enough to cover negligence, and thus the issue may simply be resolved via contractual interpretation in the future.

Clearly careful consideration needs to be given when drafting contractual clauses relating to indemnity and/or exemption.

It also appears that where the parties have unequal bargaining power, the contra proferentem rule may still apply.

Where the court cannot achieve protection for the weaker party through various statutory provisions, such as the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015, it could still apply the principles.

Section 69(1) of the Consumer Rights Act 2015 is a statutory restatement of the contra proferentem rule in favour of the weaker party:

“If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.”

That will not always be against the preparer of the contract, but in fact in a consumer contract it will virtually always be the stronger party, that is the non-consumer, who has prepared the contract.

As we have seen the doctrine is likely to continue to have relevance in relation to the indemnity clauses.

Indemnity clauses are ones which provide for one party to give an indemnity to another for losses occurring on the happening of certain events.

One of the issues that can arise is as to whether a person guilty of negligence can benefit from the indemnity given by the other party to the contract.

Following the Canada Steamship case, the courts have generally required that either there must be a reference to negligence in order for such liability to be included in the indemnity or the language must be wide enough to cover negligence.

Persimmon suggests that where indemnity clauses are involved, the Canada Steamship guidelines may continue to have a role, but if the language used is clear then the role of the rule may be limited, or indeed non-existent.

The modern approach is that courts are less likely to resort to rules for construction generally to resolve issues of interpretation, but are more likely to focus on the language and the contact.

The Court of Appeal said in

K/S Victoria Street v House of Fraser [2011] EWCA Civ 904

that “such rules are rarely, if ever, of any assistance when it comes to construing commercial contracts”.

This modern approach also raises doubts as to whether other traditional principles of construction will continue to be relevant.

The doctrine of expressio unius est exclusio alterius asserts that the express mentioned of a particular thing shows an intention to exclude another similar thing.

The principle of ejusdem generis is that when general words follow a list of specific matters, often causes or events, of a similar kind, the general words may be given a similarly limited meaning.

In Transocean Drilling UK Ltd v Providence Resources Plc [2016] EWCA Civ 372

the first instance judge used the ejusdem generis principle to cut down the meaning of “loss of use” in that contract.

However the Court of Appeal overturned that decision and had regard to the language and context and disregarded both the ejusdem generis and contra proferentem principles.

Written by kerryunderwood

October 24, 2017 at 9:02 am

Posted in Uncategorized

PORTALS: EMPLOYERS’ LIABILITY OR PUBLIC LIABILITY?

leave a comment »


All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

What happens if an employee suffers an injury at a work-related social event, or when attending work outside normal working hours, for example to collect pay?

Is that an Employers’ Liability or a Public Liability Portal claim?

Under paragraph 1.1(14) of the Employers’ Liability and Public Liability Portal, which is a single portal, the definition of employers’ liability claim is given as follows:

 

(14) ‘employers’ liability claim’ means a claim by an employee against their employer for damages arising from—

(a) a bodily injury sustained by the employee in the course of employment; or

(b) … [irrelevant]”

 

Under paragraph 1.1(18) a public liability claim is defined as follows:

 

“(18) “public liability claim” –

(a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—

(i) a person other than the claimant’s employer; or

(ii) the claimant’s employer in respect of matters arising other than in the course the claimant’s employment; but

(b) … [irrelevant]”.

 

Thus the protocol specifically envisages a claim against one’s employer as potentially being a public liability claim, and the key issue is as to whether the accident happened “in the course of employment” or “in the course of the Claimant’s employment”, or otherwise.

It is unfortunate that there are two slightly different definitions, but they amount to the same thing in my view.

The fact that something occurs outside of working hours does not of itself take the matter outside the course of employment.

For example there is considerable employment case law holding that work related social events, such as Christmas parties etc. can be in the course of employment.

On balance, I take the view that attending work by arrangement with one’s employer in order to collect one’s wages for working is indeed acting in the course of employment as it is part of the employment arrangement, that is the receipt of wages in return for the provision of work.

Likewise an accident at a work related social event.

However, a court could find otherwise.

I referred above to the Employers’ Liability and Public Liability Protocol being a single protocol.

There is no concept of there being a separate Employers’ Liability Protocol and a separate Public Liability Protocol, although it would have been easy to do so had the Rules Committee and Parliament wished to do so.

Compare and contrast that with the Road Traffic Accident Portal, which is a separate protocol in a separate portal.

When you initiate the process you are required to select one of the two protocols, that is the RTA Protocol on the one hand or the EL/PL Protocol on the other hand.

Thus an ex EL/PL Portal Claim, and will remain in, the Fixed Recoverable Costs Scheme unless and until the matter is allocated to the Multi-Track.

If the claim settles for between £1,000.00 and £5,000.00 pre-issue, the fixed costs for an Employers’ Liability and Public Liability matter are the same, that is £950.00 plus 17.5% of damages.

If it settles for between £5,000.00 and £10,000.00, then the core fee is the same, that is £1,855.00, but the percentage of damages is different.

For employers’ liability it is 12.5% of damages over £5,000.00 whereas for public liability it is 10% of damages over £5,000.00.

Thus the difference is 2.5% of the damages over £5,000.00, which is £2.50 per £100.00 or £25.00 per £1,0000.00.

In the £10,0001.00 to £25,000.00 bracket the core fee for employers’ liability is £2,500.00 as compared with £2,370.00 for public liability cases.

In each case the percentage fee is 10% of damages over £10,000.00.

There is then a greater difference, both in the core fee and the damages, as the matter progresses through the litigation stages.

A matter that has exited one portal can then be put onto the other portal, but the EL/PL portal is one single portal.

 

Consumer Protection Act claims

Section 2 of the Consumer Protection Act 1987 states:

 

(1) Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.

(2) This subsection applies to—

(a) the producer of the product;

(b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product;

(c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.

 

Do such claims fall within the PL Portal, that is, is it a breach of a statutory duty?

By virtue of section 2 of the Consumer Protection Act, those listed have a statutory duty not to cause damage which is caused wholly or partly by a defect in a product.

The fact that it refers to three different types of people, seems to me to make no difference.

Thus, a producer of the product is in breach of the duty and so is any person who, by putting his name on the product or using a trademark or other distinguishing mark in relation to the product, has held himself out to be the producer for the product, and so is any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply to another.

Indeed it seems to me that this is far more an incident of breach of statutory duty rather than a straightforward injury.

Without the statute, that is the Consumer Protection Act, arguably those mentioned in section 2(2)(b) and (c) would have no liability.

Thus the section creates a liability on a person who puts his name to the product or imports the product etc., over and above the common law duty on the producer.

How does one plead the matter in a statement of case?

By saying “…is in breach of its duty under section 2 of the Consumer Protection Act…”?

The Portal definition is intended to be inclusive and the exclusion is contained at paragraph 1.1(18)(b) where it says that a public liability claim does not include a claim for damages arising from a disease that the Claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single events.

Had the portal intended to exclude any other type of public liability claim, one would have expected it to do so there.

Paragraph 4.3 of the portal lists another series of exceptions, and this is not one of those exceptions, although if the matter was never potentially on the portal it does not need to be excluded.

Case law on other matters shows that it is the intention, where possible, that claims should be in the portal, rather than outside it and my view is that, on balance, a court is likely to find that this is indeed a portal claim.

A Court may take a different view.

I am grateful to Catherine Hyde of Coodes Solicitors for bringing some of the material in this piece to my attention, and also to Andrew Last of Mooneerams Solicitors.

Written by kerryunderwood

October 20, 2017 at 8:01 am

Posted in Uncategorized

FIXED COSTS EXTENSION: WHAT TO DO NOW

leave a comment »


I deal with Fixed Costs at length in my book Personal Injury Small Claims, Portals and Fixed Costs running to 1,300 pages and three volumes, available for £80.00 including P&P from Amazon here or me here.

Fixed Recoverable Costs: What clients need to know and what we should be telling them?

  • Consider the Track and Complexity Band for all new work up to £250,000.00.

 

  • Prepare list of issues to discuss with client.

 

  • Prepare Letter of Claim/Response as to appropriate track and band.

 

  • Make Part 36 offer on liability.

 

  • Consider Part 36 offer on quantum.

 

  • Consider appropriate arrangement with counsel

 

  • Speak to counsels’ chambers.

 

  • Study the existing FRC scheme and relevant case law.

 

  • Part 36 to be fixed percentage uplift, not open costs- how will this affect your tactics?

 

  • Learn about contingency fees and Section 57 Solicitors Act 1974.

 

  • FRC are bound to increase work significantly – plan to make a profit out of it!

 

  • Consider method of charging client.

 

  • Claimant – FRC plus percentage of damages?

 

  • Defendant  – FRC plus percentage of damages saved?

 

  • No Win Lower Fee Agreements.

 

  • ATE insurance.

 

  • Third Party Funding.

 

  • Online Courts – No costs under £25,000.00.

 

  • Go on a course.

 

Also see

FIXED COSTS REPORT OVERVIEW : POST 1

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

THE NEW FIXED COSTS REGIME: POST 7

Written by kerryunderwood

October 19, 2017 at 8:52 am

Posted in Uncategorized

AUTOMATIC STRIKE-OUT, COSTS AND SMALL CLAIMS

with 4 comments


CPR 3.7A 1(7) provides that if the trial fee has not been paid on or before the trial fee payment date, then the claim will automatically be struck out without further order of the court, and unless the court orders otherwise, the Claimant will be liable for the costs which the Defendant has incurred.

That is a draconian penalty which lawyers need to be aware of and if a claim is struck out an immediate application to reinstate should be made.

However, here I want to consider the effects of the automatic liability for payment of the Defendant’s costs, unless the court orders otherwise.

Qualified One-Way Costs Shifting

CPR 44.15 allows a Defendant to enforce “to the full extent of such orders” – that is exceeding damages, without permission of the court, where the proceedings have been struck out on the ground that –

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

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

(c) the conduct of –

(i) the Claimant; or

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

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

Automatic strike-out for failure to pay the trial fee is not caught by this exception and thus, although the Defendant will have a costs order in its favour against a personal injury Claimant whose claim is struck out for failure to pay the fee, the Defendant will be unable to enforce that costs order.

Small Claims

CPR 27.14 sets out the limited circumstances in which costs may be ordered in the Small Claims Track, and the circumstances set out in CPR 3.7 do not come with any of the listed exceptions in CPR 27.14.

CPR 44.9 is headed “Cases where costs orders deemed to have been made” and reads:

44.9

(1) Subject to paragraph (2), where a right to costs arises under –

(a) rule 3.7 or 3.7A1 (defendant’s right to costs where claim is struck out for non-payment of fees);

(a1) rule 3.7B (sanctions for dishonouring cheque);

(b) rule 36.13(1) or (2) (claimant’s entitlement to costs where a Part 36 offer is accepted); or

(c) rule 38.6 (defendant’s right to costs where claimant discontinues),

a costs order will be deemed to have been made on the standard basis.”

The rest of the rule does not apply to this situation.

Thus CPR 44.9 deems there to have been an order in those circumstances and, as we have seen, the strike-out is automatic.

Thus the effect of the combination of CPR 3.7 and CPR 44.9(1)(a) is that upon the non-payment of a trial fee the matter is automatically struck out and there is automatically deemed to have been a costs order made.

Thus the strike-out and the costs order occur without any judicial discretion or intervention. They are automatic.

Thus there is a clear contrast and conflict between these provisions and CPR 27.14

This issue needs clarifying as it will become of much greater importance as and when the small claims limit for personal injury rises to £2,000.00 generally and £5,000.00 in relation to road traffic accident matters.

The general small claims limit is already £10,000.00 and under the Briggs Reforms is proposed to rise to £25,000.00.

I am grateful to Alex Williams of Oriel Chambers for bringing this to my attention.

Written by kerryunderwood

October 18, 2017 at 7:50 am

Posted in Uncategorized

%d bloggers like this: