Kerry Underwood

Archive for August 2018


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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

It should go without saying that a fast track matter should never be listed for a split trial, and the superior courts are now strongly against split trials in any matter, but nevertheless it does still happen.

In those circumstances what is the correct level of fixed recoverable costs, and when is the claimant entitled to them?

At present the fixed recoverable costs scheme only applies to personal injury cases, and not all of those, and with a maximum value of £25,000, unless the matter has wrongly been placed on the portal.

This issue will become a far more significance as and when fixed recoverable costs spread to all civil litigation valued at £100,000 or less.

Although the rules do not deal with the matter, my view is that a successful claimant cannot be entitled to receive the fixed recoverable costs once he or she has won the liability trial, essentially for two separate reasons.

Firstly, both the preparation fee and the trial advocacy fee are in part calculated by reference to damages, and so it would be impossible to quantify the fixed recoverable costs.

Clearly if the matter is going to trial it has reached the final stage of the Table in CPR 45.29 Table 6B, that is issued – Post Listing and Pre-Trial.

The fixed recoverable costs in the different type of ex-portal claims which have reached that stage are:


  • road traffic accident    2,655 plus 20% of damages

  • employers liability      4,280 plus 30% of damages

  • public liability             3,790 plus 27.5% of damages

In all types of work the trial advocacy fee is fixed by reference to the amount awarded by the court as follows:


  • up to £3,000                     500

  • £3,000 to £10,000            710

  • £10,000 to £15,000       1,070

  • £15,000 and over           1,705

The second reason is that the defendant may have made a Part 36 offer, which the claimant has failed to beat.

Let us assume that the defendant had offered £10,000 very early on in the case, and the claimant then wins on liability, but obviously without quantum being determined, as it is a split trial.

At that stage no one will know whether or not the defendant’s Part 36 offer will be beaten or not, as obviously that will be determined at the quantum trial.

The principle applies even if no Part 36 offer has been made, and in any event a defendant who has lost a liability trial is then very likely to make a Part 36 offer on quantum.

That raises an interesting, and as yet unanswered, question as to what happens in those circumstances.

The claimant has had to do all of the work in readiness for a liability trial, and has thus reached the final stage.

After the liability trial the defendant, for the first time, makes a Part 36 offer, which the claimant then fails to beat at the quantum trial.

What happens to costs?

My view is that the claimant still gets the full preparation costs, that is in accordance with the formula set out above, together with the trial advocacy costs of the liability trial, and does not have to pay the defendant any costs in relation to preparation.

The claimant would not get the costs of the second trial, and would have to pay the defendant’s costs of that trial.

I am unaware of any case on this point.

In relation to the fees for the quantum trial, neither party should get any extra preparation costs as the fixed fee, calculated in relation to the formula above, is intended to cover all liability and quantum issues and the fixed recoverable costs scheme does not differentiate between cases where liability is admitted, and those where it is not admitted.

Thus if a case is settled just before trial for, say, £10,000, then the claimant recovers exactly the same level of fixed costs whether liability was admitted only just before trial, or where it had been admitted at the very beginning of the case, meaning that almost no work on liability was done.

The idea is that it is a swings and roundabout system.

The advocacy fee is a freestanding view and generally a successful claimant should get a second advocacy fee if there is a liability trial and a quantum trial, although again, there is no authority on this point.

Presumably the amounts of damages awarded at the quantum trial would also determine the level of fixed advocacy costs for the liability trial, in accordance with the above formula.

Outside the field of personal injury there is no system of Qualified One-Way Costs Shifting, and therefore where there is a liability trial at which the defendant succeeds, then that is the end of the matter and the defendant will get its costs in accordance with the fixed recoverable costs formula.

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August 31, 2018 at 8:10 am

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

In Gardiner & Theobald LLP v Jackson (Valuation Officer) [2018] UKUT 253 (LC) (3 August 2018)

the Upper Tribunal Lands Chamber looked at the extent to which principles established in

R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 932

concerning an expert witness being paid under a Conditional Fee Agreement or other success fee arrangement, apply to tribunal proceedings.

Factortame established, in  civil proceedings, that it would generally be “highly undesirable” to instruct an expert on a contingency fee basis as that might threaten the objectivity of the evidence and, only in “a very rare case indeed”, would the court consent to it.

The CJC Guidance for the instruction of experts in civil claims strongly discourages payment of experts’ fees contingent on the nature of the expert evidence or the outcome of the case.

The President of the Lands Chamber noted that sometimes a slightly different approach is appropriate under tribunals’ procedures.

In Keen v Worcestershire County Council (LCA/44/2001),

which pre-dated Factortame, it emerged during a hearing that a surveyor was acting on a no win no fee basis.

The tribunal decided that no weight should be given to his evidence due to his financial interest in the outcome.

The President of the Lands Chamber observed that applying factors established in Factortame to assess the weight to be attached to an expert’s report, rather than the admissibility, might allow “a more nuanced approach”.

However, he emphasised that, whatever approach the tribunal decided to adopt regarding Factortame, it was “wholly unacceptable” for an expert witness to enter into a Conditional Fee Agreement without declaring it in sufficient detail to the tribunal and other parties from the very outset of their involvement in the case.

Failure to do so would be treated as a “serious matter”.

Specific factors considered included the terms of the Conditional Fee Agreement, access to justice, the need for compliance with obligations owed by expert witnesses to the tribunal, and the Code of Conduct and Practice Statement of the Royal Institute of Chartered Surveyors with the Royal Institute of Chartered Surveyors to be asked to consider if any action is required following this case.

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August 30, 2018 at 8:30 am

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

Lenient Approach by Court

In Country Cars of Bristol Ltd v County Cars (SW) Ltd and another [2018] EWHC 839 (IPEC)

the Intellectual Property and Enterprise Court, part of the High Court, considered a case where the defendants were acting in person and the claimant had entered judgment in default following the defendants’ failure to file an acknowledgment of service, even though they had served the acknowledgment on the claimant, albeit a few days later.

The High Court set aside the judgment, and is a rare recent example of the court adopting a lenient approach towards the mistakes of litigants in person, although there was a twist in the tale here in that there were problems with the court’s electronic filing systems.

The acknowledgment of service was due to be filed on 27 November 2017, and on the same date the defendants’ solicitors stopped acting for them and on 7 December 2017 the defendants, now litigants in person, served the acknowledgment and defence on the claimant, but failed to file either document at court and judgment in default was served on them on 18 January 2018.

On 31 January 2018 the defendants instructed new solicitors, who attempted to file an application to set judgment aside under CPR 13.3 on the very same day, and their evidence was that there was difficulty with the court’s electronic filing system causing them to be unable successfully to file that application until 20th February 2018.

Under CPR 13.3 the High Court considered that the delay between 17 January, when the defendants became aware of the default judgment, and 31 January when the attempt was made to file the application, was short and of little consequence, and the court found that the defendants were not culpable for the further delay between 31 January and the eventual filing of the application on 20 February as the judge accepted that this might have been due to the court’s electronical filing system.

Applying the test in CPR 3.9 the judge found that the breach was serious or significant, but he held that the reasons for this were that the defendants were not represented and that they believed that they had done what was required in serving the acknowledgment, but not filing it.

Taking into account the lack of prejudice, and the fact that there was a real prospect of the defendants successfully defending their claim, the judge was satisfied that there were grounds of setting aside the default judgment under CPR 13.3 and that the requirements under CPR 3.9 did not lead to the opposite view.

Hardline in Employment Tribunals

In Green v Mears Ltd [2018] EWCA Civ 751

the Court of Appeal rejected an appeal against an order of the Registrar at the Employment Appeal Tribunal refusing an extension of time to a litigant in person who was more than two months late in lodging the appeal, and who argued that he was computer-illiterate and did not access the judgment booklet online, or asked anyone for help.

Any perceived relaxation of the rules in the ordinary courts, following the decisions in the Mitchell and Denton cases did not supersede the decision in

United Arab Emirates v Abdelghafar & Anor [1995] ICR 65 EAT .

In so far as there was any difference of approach between Abdelghafar and Denton, Abdelghafar still governed Employment Tribunal proceedings.

Even if the Denton guidance should have been applied in this case, the appeal would have failed in any event and a divergence of approaches between the Civil Courts and the Employment Tribunal system was legitimate.

The Court of Appeal held that Mr Green, representing himself, received the Employment Judge’s decision and reasons in October 2013 and had until 12 November 2013 to lodge an appeal to the Employment Appeal Tribunal.

He twice made an application for a reconsideration by the Employment Tribunal and was refused both times, the second time being in December 2013.

It is settled law that an application for a reconsideration or review by the Employment Tribunal of its own decision does not stop time running in relation to the lodging of an appeal with the Employment Appeal Tribunal.

Mr Green lodged an appeal with the correct documentation on 24 January 2014, that is 73 days out of time.

Mr Green argued that he was wrongly advised by staff that the original tribunal to await the outcome of his reconsideration application before lodging any appeal and he said that he found the appeal process to be “a daunting prospect”.

The Employment Appeal Tribunal found that neither of those reasons constituted exceptional grounds on which to grant an extension.

In Abdelghafar the Employment Appeal Tribunal had refused an extension of time, even though the default had not caused any prejudice to the successful party in the original proceedings and that approach had been upheld on at least three occasions by the Court of Appeal.

The Court of Appeal has frequently been unhappy with the strict approach adopted in the Employment Appeal Tribunal, but has always declined to interfere.

In Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180

the Court of Appeal observed that “ the denizens of the Employment Appeal Tribunal seem to be a hard-hearted lot” in whose blood “mercy flows thinly”, and here the Court of Appeal used those quotes in this decision.

The Court of Appeal here also quoted from Jurkowska v HLMAD Limited [2008] EWCA Civ 231:

“65. This court has more than once approved the policy adopted by the EAT for the administration of the statutory rule requiring any appeal to be instituted within 42 days of the sending out of the tribunal’s reasons. It is a policy which is unforgiving, but it has never been suggested that its effect is to stifle the discretion given by the rule to enlarge time. Its purpose and effect can nevertheless fairly be said to be an equality of misery: anyone who is caught out by the 42-day time limit has, barring something quite exceptional, only himself or herself to blame for leaving it so late to institute their appeal. But one has only to consider the alternatives to see why the policy is justifiable: either any honest excuse would be capable of securing an enlargement of time, shifting the focus to how long a consequential delay might be pardoned in one case or another; or a checklist of acceptable and unacceptable excuses would develop, distinguishing between such things as transport delays, postal delays, administrative oversights, lack of funds, staff sickness, late advice and so forth. This is why judges of this court from time to time find themselves denying permission to appeal from a refusal of the EAT to waive a delay of a few minutes or hours in the delivery of appeal papers to its registry, where they would not have hesitated to enlarge time had there been a similar lapse in filing the papers in the Civil Appeals Office.”

Meanwhile in Vosland

The Chancellor of the High Court Sir Geoffrey Vos in a bizarre speech, which I will report elsewhere, and delivered to the Law Society on 8 May 2018 said:

“35. This online world has allowed the litigant in person to flourish. Indeed, many of the online dispute resolution processes are designed to allow individuals to deal by themselves with their small legal cases.”

I am unaware of any other member of the judiciary who shares this view. Indeed there is overwhelming evidence, both from the criminal and civil judiciary, that litigants in person are struggling to get justice, while at the same time slowing down the whole court process.

The two decisions here demonstrate that fact.


Written by kerryunderwood

August 29, 2018 at 10:23 am

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Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

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In Land Nordrhein-Westfalen v Dirk Renckhoff

the European Court of Justice held that it was a breach of a photographer’s copyright to republish a photograph without permission, even though it had appeared online.

The fact that a photographer had given permission for the photograph to appear elsewhere did not entitle anyone else to use it.

Here a German secondary school re-published the photograph without permission of the photographer.

The European Court of Justice, currently still the highest court in England and Wales, held that even where a work was freely accessible to all internet users with the consent of the copyright holder, publication on a new publicly accessible website constituted making that work available to the public within the meaning EU Directive 2001/29, also known as the InfoSoc Directive.

Linking to the original work is acceptable, but making a new copy available is not.

This decision follows the law in relation to published articles and copyright, where a link to a website is permissible but reproducing the work without permission is not.

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August 24, 2018 at 12:25 pm

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Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

For full details and to book click here 


On 21 August 2018 a new edition – the sixth – of the Queen’s Bench Guidance published and this is known as the Queen’s Bench Guide 2018 and is here.

This replaces the previous guide and is effective immediately and the following changes should be noted:

  • On issue of a claim, the claimant is required to complete the Queen’s Bench Allocation of Claims form (in Annex 3) so that the claim can be allocated to a specialist list or master (paragraph 4.1.6).

  • A directions order for trial will be sent to the Queen’s Bench Listing Office, who will notify all parties of a listing appointment for a trial date or period within the trial window, which will usually be six weeks from the date the order is sealed (or three weeks in the case of mesothelioma liability trials) (paragraphs 10.4.1, 20.1.2 and 20.4.5).

  • For trials, skeleton arguments should be filed and served not later than 10am two days before the trial, and for substantial applications, no later than 10am one day before the application.

Where one party is a litigant in person (LIP) and the other is represented, the represented party should try and provide their skeleton argument to the LIP two days before the hearing (paragraphs 12.3.7 and 20.8).

  • The trial window will be no longer than three months, unless the court considers there is a good reason for requiring a longer trial window, in which case directions will be given for a trial window no longer than four months (paragraph 20.1.1).

  • While efforts to accommodate the convenience of counsel will be made when listing a trial, this is not a determinative factor (paragraph 20.1.5)

Media & Communications List

A list of claims that should be allocated to the List: defamation, malicious falsehood, misuse of private information, breach of confidence, breach of data protection rights and misuse of personal data, harassment, and injunctions to restrain publication (paragraph 19.3).

  • Clarification that rulings on meaning in defamation cases can take place at any time, since the question is no longer one for a jury (paragraph 19.7).
  • Clarification that, in defamation cases, questions of meaning and serious harm should ordinarily be dealt with together at an interlocutory stage. The court will be slow to direct a preliminary issue as to serious harm involving substantial evidence (paragraph 19.8).

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August 24, 2018 at 11:15 am

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Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

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In Various Claimants in Wave 2 of the Mirror Newspapers Hacking Litigation v MGN Ltd (unreported), 3 August 2018, (Senior Courts Costs Office)

following judgment in “Wave 1” of the phone-hacking litigation the Senior Costs Judge has ruled on the proportionality of ten claimants’ costs in “Wave 2” of the litigation, applying the post-April 2013 test.

The costs were agreed as reasonable and the issue was proportionality, and as the master observed, that is unusual.

The same factors were involved as in the wave 1 cases.

He held:

  • Sums in issue: “Sums in issue” reflects the value of the claim as viewed by the parties during the currency of the claim and, intentionally, is not as narrow as the sum awarded or agreed.

Although, by Wave 2, the court’s approach regarding damages was known, uncertainty remained regarding the number of articles individual claimants could prove to have been the result of phone-hacking.

  • Value of non-monetary relief in issue: Again, “in issue” refers to what is claimed. 

Injunctions, undertakings, statements in open court and apologies were of substantial value: the claim was not just about damages.

  • Complexity: Although Wave 1 resolved the methodology for calculating damages, these claims were not “straightforward”.

The need to establish which articles derived from phone-hacking, the number of interlocutory hearings and the estimated trial length meant that these were not “run of the mill” cases.

  • Additional work generated by the conduct of the paying party: This was “hard-fought litigation with fairly major interlocutory skirmishes” but no significant additional work was caused by the defendant’s conduct.

  • Wider factors: The wider factors in the Wave 1 claims also applied here.

The cases were of significant public importance: the number of people whose privacy was invaded, and the “deplorable conduct” of the defendant made the claims of continuing public interest and importance.

The claimants’ reputations were involved, and there was a degree of vindication (although less than in Wave 1).

Even in two cases where the agreed reasonable costs exceeded the agreed damages, the Master held that the reasonable costs were not disproportionate.

The fact that two claimants’ costs were higher, as they had instructed solicitors not acting for other claimants in this litigation, might have gone to reasonableness but was not relevant to proportionality.

The appropriate Civil Procedure Rule is set out in my recent blog Proportionality and Non-Financial Matters.

The Original blog first appeared on the Practical Law Dispute Resolution Blog on 30 July and I am grateful to Practical Law for this further information.

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August 23, 2018 at 8:10 am

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Kerry is undertaking a 10 city Autumn Tour with his new course – Getting the Retainer Right.

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In JXA v Kettering General Hospital NHS Foundation Trust [2018] EWHC 1747 (QB) (09 July 2018)

a High Court Judge was considering an appeal from a Costs Master in relation to hourly rates allowed in a high value clinical negligence – potentially as much as £20 million – arising from the Trust’s negligent treatment of the claimant during his birth.

The Master had allowed the following rates:

Grade A partner   350 an hour;
Grade C assistant solicitor 200 an hour;
Grade D trainee/paralegal 150 an hour.


The claimant’s solicitors had sought the following:

Grade A partner   380 an hour to 31 March 2013, rising by £10 each to 31 March up to £420 by the end of the case;
Grade C assistant solicitor 270 an hour from 1 January 2017;
Grade D trainee/paralegal 150 an hour to 31 March 2013 rising by £10 each to 31 March to £190 by the end of the case.


While finding that the Master had not properly addressed the issue of whether choosing the Central London firm was reasonable, as required by:

Wraith v Sheffield Forgemasters Ltd & Truscott v Truscott [1998] 1 WLR 132(CA)

the Costs Master had in fact arrived at appropriate hourly rates and thus the appeal was dismissed.


Written by kerryunderwood

August 22, 2018 at 8:10 am

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