Kerry Underwood

Archive for September 2019

NO STAY OF COSTS PENDING APPLICATION UNDER CPR 52.30 TO RE-OPEN APPEAL

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Horler v Rubin and others [2019] EWHC 2487 (Ch) (23 September 2019)

the Chancery Division of the High Court, following dismissal of the claimant’s claim, ordered the claimant to make a payment on account of £120,000 towards the defendants’ costs, refusing to defer making a costs order and refusing to grant a stay of execution pending the claimant’s application under CPR 52.30 for permission to re-open the appeal, in relation to previous, related proceedings.

The claimant said that he was impecunious, and enforcement of the costs order would bankrupt him and prevent his application.

The court stated that the defendants had been successful, and they were entitled to have costs determined at this stage, along with a payment on account and detailed assessment.

Whatever the merits of the claimant’s proposed application, they did not justify departing from that approach.

If the claimant succeeded, he could apply to the present court under CPR 3.1(7) to revisit the order following a change in circumstances referring to the relevant case law.

It was not necessary to add a “liberty to apply” provision, which is appropriate where a final order requires further working out

Kavan v Crawford [1877) 6 Ch D 29 and Pawley v Pawley [1905] 1 Ch 593.

Here, what was potentially unforeseen was an application to reverse the costs order in light of further litigation in a different, but related, action.

It was difficult to see how a “liberty to apply” provision would justify a subsequent variation in the absence of a change of circumstances or misstatement of fact, and its absence would not preclude an application under CPR 3.1(7).

The court rejected the claimant’s assertion that the defendants should be deprived of their costs for the period prior to the defendants’ disclosure of certain evidence, which may have affected advice on the merits given to the claimant by a “reasonable lawyer”.

There was no basis for holding that the reasonable lawyer test was the correct test when considering how a party would have behaved in the context of costs when a complaint was made about late disclosure: the correct test was how would the party in question have behaved.

The court found that the claimant’s proposed application did not amount to a “special circumstance” under CPR 83.7(4).

However, it extended the time for payment by four days to allow the claimant time to make his application.

Written by kerryunderwood

September 27, 2019 at 8:29 am

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TOP 2 ROADBLOCKS TO THE UK’S 2021 DRIVERLESS CAR DEPLOYMENT

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BY NIKOLA DJURKOVIC EDITOR IN CHIEF OF CARSURANCE

 

Nikola Djurkovic, Editor in Chief of Carsurance, and someone with a keen interest in, and knowledge of, driverless cars takes over the blog for a guest spot today.

 

Automakers are not the only participants in the

https://carsurance.net/blog/future-of-cars/

Developed nations are also jockeying for position to be ready to accommodate autonomous vehicles at a large scale when they become ripe for mainstream adoption. So far, the United Kingdom is poised to finish first. The British government has been keen to populate the country’s roads with self-driving cars as soon as possible.

Autonomous vehicles are synonymous with a myriad of practical benefits. They promise increased efficiency and improved safety, for they could save all of us 250 million hours of commuting time every year and dramatically reduce traffic-related deaths by 90%.

Moreover, these electric cars are expected to lower fuel consumption by 40%, which could decrease greenhouse gas emissions anywhere between 87% and 94% per mile.

Apart from all of these perceived merits, the UK is also salivating at the prospect of generating an economic boost of £62 billion by 2030.

The country’s market for connected and self-driving vehicles has lucrative potential. What gives the UK the edge over its fiercest rivals, including Germany, the United States, South Korea, and Japan, is its progressive legislation and a more extensive network of roads.

Although the future where driverless cars is the norm right now feels more an eventuality than a possibility, two obstacles could cause the UK not to realise its vision with the current timetable.

Public Scepticism

The unwelcoming behaviour of other road users (non-autonomous vehicle drivers, cyclists, and pedestrians) is a factor that could slow the adoption of self-driving cars in the UK.

A recent survey revealed that autonomous driving technology worries 43% of British consumers. Their fear of driverless cars might stem from ignorance, but the government should not expect the public to be receptive to self-driving automobiles without raising awareness of what they actually do to ease any misconceptions.

Commercial Unavailability

The British government does not just want to see driverless cars roaming around the country by 2021; it’s also committed to adopting fully autonomous vehicles soonest. This ambition is bold but not feasible.

Aston Martin CEO, Andy Palmer, said that robotaxis are likely to be introduced to geofenced areas in the next two to three years. However, the commercial distribution of level-4 autonomous vehicles, those that truly self-drive but only in carefully mapped locations, will not be around the corner.

Level-4 autonomous vehicles may be off-limits to ordinary motorists until the middle of the next decade. Level-5 autonomous vehicles, those that self-drive with no limitations, may not arrive in less than 20 years.

Wrapping Up

The uncertainties attached to the British government’s deployment of autonomous vehicles by 2021 could raise numerous legal matters. Regardless of how we feel about driverless cars, we must all be tuned in to the news surrounding them because they are coming whether we like it or not.

Written by kerryunderwood

September 25, 2019 at 7:56 am

Posted in Uncategorized

FIXED COSTS, ISSUE BASED ORDERS AND QOCS ETC

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

These principles, and the whole issue of Qualified One-Way Costs Shifting, is dealt with in my book – Qualified One-Way Costs Shifting, Section 57 and Set-Off – Available from me here for £15.

 

In

Khan v Aviva Insurance Limited, Northampton County Court, 8 August 2019

the Circuit Judge awarded the claimant fixed fast-track costs pursuant to CPR 45.29B where the claimant’s personal injury claim failed, but his credit hire claim for £6,265.80 was successful.

The defendant failed to persuade the judge to limit any costs in favour of the claimant to small claims costs on the basis that the only reason the case had been allocated to the fast-track was the failed personal injury aspect of the claim.

The defendant also submitted that the claimant should pay its costs of defending the personal injury element of the claim with those costs being set-off against the claimant’s damages and costs.

The defendant also alleged fundamental dishonesty, but failed in that submission.

The claimant submitted:

 

“a. The Defendant failed to establish fundamental dishonesty. The allegation that this was an LVI claim and was fundamentally dishonest justified allocation to the fast-track;

b. As was decided in Kearsley v Klarfeld,[2006] 2 All ER 303, a re-allocation from the fast-track to the multi-track was justified given the allegation that the injury was fabricated. The causation issue and fundamental dishonesty alleged in this case justified allocation to the fast-track (at the very least), regardless of the financial value of the claim. The issue of fundamental dishonesty went to the issue of credit hire as well as the personal injury claim because of section 57 of the Criminal Justice and Courts Act 2015;

c. Having been correctly allocated to the fast-track, the fixed-costs regime is applicable, to provide the quick rough-and-ready but reasonable solution on the issue of costs;

d. The heads of loss arise out the same cause of action and so must be brought as one claim (Johnson v Gore Wood [2002] 2 AC 31). The claim cannot be split into two different parts with one part allocated to one track and one part to another.”

 

The court then set out its analysis of the law:

 

“12.  Dealing first with allocation, I agree with the Claimant that individual parts of a claim cannot be allocated to different tracks. Not only does CPR 26.5 provide that the court will allocate “a claim to a track” and in 26.8(1) refer to “when deciding the track for a claim”, it would be a nonsense if different rules of evidence applied to the various limbs of the claim (compare the position in small claims and fast track trials). As the notes in Civil Procedure 2019 to Part 26.10 rightly observe (26.10.1) it is not possible to allocate different parts of a claim to different tracks simultaneously.

13. The Court may, of course, re-allocate a claim to a different track, but no such application has been made in this case. The claim was, and remained, allocated to the fast track. It appears to have been assumed that the value of the personal injury claim was over £1,000, although there is no such statement on the Claim Form or Particulars of Claim.

14. In my judgment it was the personal injury element of the claim which was the reason why the claim was allocated to the fast track. If there had not been the personal injury claim, the claim for the other losses (credit hire repairs and miscellaneous) would almost certainly have been allocated to the small claims track as they had a total value of under £10,000.

15. Although the Defendant raised the issue of fundamental dishonesty, this was only raised because of the personal injury claim. I have no doubt that this was raised because a finding of fundamental dishonesty provides a means of avoiding the costs consequences of Qualified One-Way Costs Shifting (QOCS) under CPR 44.16 and/or is a means of having a claim dismissed where on the claim for personal injury the claimant has been fundamentally dishonest (section 57 of the Criminal Justice and Courts Act 2015). But for the personal injury claim, this issue would not have seen the light of day.

16. I then turn to the court’s discretion as to costs. CPR Part 44.2 sets out the Court’s general discretion as to costs. Sub-rule (2) provides that (if the court decides to make an order about costs) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order.

17. In deciding who is the successful party, the most important thing is to identify the party who has to pay money to the other by deciding who has to write the cheque (see generally Civil Procedure 2019 para 44.2.13). On that basis, in my view there is no doubt that the successful party is Mr Khan, the Claimant. It is the Defendant who is writing the cheque.

18. The application of the general rule would therefore mean that the Defendant should pay the Claimant’s costs. Because this is a fixed costs case within the meaning of CPR part 45 Section IIIA, the assessment of those costs would be undertaken by using the fixed costs regime.”

 

The court also looked at the interplay between fixed costs and the power under CPR 44.2 to make a different order to the normal costs rule, including the power to award costs in relation only to a distinct part of the proceedings.

It noted that although there is provision under CPR 45.29J for fixed costs to be exceeded in exceptional circumstances, there is no specific provision allowing an award of an amount which is less than the fixed costs.

The court held that it had the power to make an issue based costs order in a fixed costs case but “the very fact that a fixed costs regime is applicable would, in my view, suggest that exercising the power to make an order as set out in rule 44.2(6) should be exercised with caution”. (Paragraph 27)

 

Here the court concluded:

 

29. In considering all the circumstances, and in particular the specific factors set out in rule

44.2(4) and (5), in my judgment the following matters are worthy of emphasis:

a. The Claimant has succeeded on what in terms of value was the largest part of his claim;

b. In finding for the Claimant on his credit hire claim I did accept the Claimant’s evidence that he was impecunious. Although I admitted bank statements which were produced by the Claimant late (without good reason) in fact, as I said in my original judgment, even without that late evidence I would still have found for the Claimant on this point as the additional documents added little to the matter;

c. However, the Claimant failed in proving his personal injury claim: he therefore succeeded on only part of his claim. To that extent, the Defence was successful;

d. Although it was the personal injury element of the claim which was the reason why the claim was allocated to the fast track (see above), the entire claim was indeed allocated to the fast track;

e. The findings which I made at trial in this case are somewhat unusual in that although I was not satisfied that the Claimant had proved his personal injury claim, equally I was not satisfied by the Defendant that the Claim or the Claimant were fundamentally dishonest. As I have said, I accepted that he was impecunious. It is not often that such matters will turn on who bears the burden of proof. However, such a result was one recognised by Martin Spencer J in Molodi (see para 44) where the court is not satisfied that the Claimant is reliable, as opposed to being dishonest or demonstrably untrue (which I did not find in this case). The Defendant raised the issue of fundamental dishonesty, but failed to satisfy the Court on the issue. This is not a case in which I have found that a claim has been exaggerated, but simply not proved. Factually, this is a different scenario to that in Painting. I do not view it as unreasonable for the Claimant to have raised the personal injury issue. The position is simply that that element of the claim has failed;

f. The purpose of the fixed costs regime is to provide certainty and ease of calculation. To depart from the regime is these circumstances would be to create uncertainty where the interests of justice do not, on the facts of this case, demand it;

g. The Defendant could have protected itself against the credit hire claim by making an appropriate Part 36 offer. It failed to do so, having pitched its offer at only a little more than half of the damages award.

30. In balancing these various matters, I am not persuaded that it is appropriate to depart from the normal rule and the fast track fixed-costs regime. In the exercise of my discretion I determine that the Claimant should be (and is) awarded his costs to be assessed on the normal fixed costs basis under part 45.29B.

 

I am grateful to Mohammed Imran of Ashmans Solicitors, who acted for the claimant in this matter, for sending me the judgment and details of the case.

Written by kerryunderwood

September 23, 2019 at 2:28 pm

Posted in Uncategorized

EXECUTION OF DOCUMENTS: LAW COMMISSION REPORT ON ELECTRONIC EXECUTION

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

On 4 September 2019, the Law Commission published a report on the electronic execution of documents.

It had sought views on its provisional conclusions and proposals in August 2018 – see

Legal update, Execution of documents: Law Commission consultation on electronic execution

The report includes a statement which sets out theconclusions of the Law Commission as to the law regarding the validity of electronic signatures.

This includes:

An electronic signature is capable in law of being used to execute a document, including a deed, provided that the person signing the document intends to authenticate the document and any execution formalities are satisfied.

An electronic signature is admissible in evidence in legal proceedings.

It is admissible, for example, to prove or disprove the identity of a signatory and/or the signatory’s intention to authenticate the document.

Save where the contrary is provided for in relevant legislation or contractual arrangements, or where case law specific to the document in question leads to a contrary conclusion, the common law adopts a pragmatic approach and does not prescribe any particular form or type of signature.

In determining whether the method of signature adopted demonstrates an authenticating intention the courts adopt an objective approach considering all of the surrounding circumstances.

Examples are given of non-electronic forms that the courts have held to amount to valid signatures and it states that electronic equivalents of these non-electronic forms of signature are likely to be recognised by a court as legally valid.

Examples are also given of electronic forms that the courts have held to amount to valid signatures in the case of statutory obligations to provide a signature where the statute is silent as to whether an electronic signature is acceptable.

The Law Commission’s view is that the requirement under the current law that a deed must be signed “in the presence of a witness” requires the physical presence of that witness.

This is the case even where both the person executing the deed and the witness executing or attesting the document are using an electronic signature.

The Law Commission recommends an industry working group be established to consider practical issues relating to the electronic execution of documents.

The working group should, among other things, consider potential solutions to the obstacles to video witnessing of electronic signatures on deeds and attestation, and legislative reform should be considered to allow for video witnessing. It also recommends a future review of the law of deeds.

Written by kerryunderwood

September 6, 2019 at 7:51 am

Posted in Uncategorized

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