Kerry Underwood


with 6 comments

Here I look at 3 decisions – all absolutely correctly decided – where losing parties argued against paying costs, or even sought them, on the basis that their cases were so weak that the winning defendants should have applied to strike them out.

Happily the courts rejected such bizarre arguments; as I point out in the video had they not done so then this would have created a whole new sector – No Lose – No Fee, where solicitors would only take on the worst cases in the hope that they would get costs for them not being struck out.

It is a 6-minute video examining the cases and also looking at the harm that such applications do to the arguments of those representing genuine personal injury claimants with genuine injuries.

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.

Written by kerryunderwood

August 28, 2020 at 12:16 pm

Posted in Uncategorized

6 Responses

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  1. Very interesting video.

    I actually disagree with the findings of the court in each case here. Firstly, the court should strike out ludicrous claims on the paper (God knows the issue fees are high enough that judges should at least be expected to filter out hopeless cases without the defence having to do anything). If the claim gets through, if the Defendant believes the case is weak enough to be struck out they have a duty to do so to mitigate the costs rather than let the case drag on, as by definition the extra costs are unnecessary.


    September 3, 2020 at 8:06 pm

    • Thank you. As will be apparent from my video, I disagree, but thank you for commenting – that is the purpose of the videos – to get discussion going.


      September 4, 2020 at 12:19 pm

      • Thanks Kerry, I think the videos are a really good idea and you provide a very valuable forum.

        I just feel that if the Defendant (or the court for that matter) is in any way disincentived from having weak cases struck out at the earliest opportunity then this could allow rich defendants to deliberately run up costs by not applying for strike out on a case they know won’t succeed as a way to punish a Claimant. A lot of Claimants just want the opportunity to have their case heard, even if the result is that it is struck out, at least they will feel they’ve had their day in court.

        And I thought Akay had merit and hope its appealed – clearly the settlement allowed for a personal injury claim to be brought, and there is nothing to say that all work related personal injury claims must be brought in the employment tribunal rather than the county court, it is up to the claimant to decide.


        September 4, 2020 at 6:35 pm

      • Thanks for your kind remarks.

        In Employment Tribunals there is a procedure whereby the tribunal can, early on, give a costs warning to the claimant and order the claimant to pay a deposit as a condition of continuing with the claim.

        Generally, in Employment Tribunals, no costs are awarded.

        Thus, this is a situation where the tribunal itself takes the initiative if it thinks that the case is weak.

        I do actually favour some form of Early Neutral Evaluation in all court cases, whereby a judge who will then have no further involvement in the case, has the parties before her or himself and gives an initial view of what is likely to happen, as I take your point that it is not desirable that a weak matter simply drift on.

        One of the problems is that it is difficult to get a case struck out and an unsuccessful application to strike out a weak case will almost always lead to a costs order against the party making the application, even though it may be marginal, that is that it is a weak case which the court came close to striking out.

        I agree with you that the situation in relation to personal injury claims in Employment Tribunals is unsatisfactory. Few lawyers are aware of the extensive personal injury jurisdiction of Employment Tribunals, let alone lay parties. In Akay the Settlement Agreement did indeed allow for a personal injury claim to be brought but the court rejected the claimant’s contention that the terms of the Settlement Agreement precluded the defendant from seeking to strike out the claim as an abuse of process.

        Clearly the fact that a particular personal injury claim was excluded from the Settlement Agreement cannot forever prohibit the defendant from applying to strike it out, for example because witnesses were being intimidated or whatever.

        However, that was not the case here and the court struck the matter out on the basis that it should have been brought in the Employment Tribunal.

        You state that there is nothing to say that all work-related personal injury claims must be brought in the Employment Tribunal, or rather the County Court and that it is up to the claimant to decide.

        That is not entirely correct. It is true that if no Employment Tribunal claim has been brought, then the claimant can indeed bring the personal injury claim in the County Court.

        However, once Employment Tribunal proceedings have been brought, then a claimant is not free to bring a claim in the County Court in respect of personal injury over which the Employment Tribunal has jurisdiction.

        That rule, that all claims must be brought together, was established in

        Henderson v Henderson (1843) 3 Hare 100.

        It was more recently considered in the context of Employment Tribunals and County Courts in the case of

        Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170.

        I deal in detail with the Akay decision in my post – Personal Injury, Employment Tribunals, QOCS and Abuse of Process.

        Thank you for your contribution to this debate.



        September 7, 2020 at 8:43 am

      • Many thanks Kerry.

        I agree, an Early Neutral Evaluation would be a good idea – this need not involve either party, with very weak cases being struck out by a judge on the paper (indeed courts are supposed to be doing this under CPR 3.4 2(a) and 3.4 2(b) and Rule 24.2 and given that England & Wales costs of issuing proceedings are amongst the most expensive in the world then it should be expected that the courts will fulfil their case management duties properly), or could involve just the Claimant having to make a case to a judge as to why a case should proceed. In this way many weak cases could be struck out without a Defendant having to do anything (or even know about the claim). I agree that courts do sometimes fail to strike out weak cases (although on rarer occasions they also strike out cases where there is a prospect of success/settlement), but it is right that if a party applies to have a case struck out and fails they should bear the costs of the strike out application. However, these costs should be strictly capped, probably at around a high three figure or low four figure sum, as the strike out hearing should be very straightforward and not a mini-trial.

        Akay was a very odd decision in that the court struck out as abuse of process something which the parties agreed contractually would not be an abuse of process. The Defendant would be able to apply for strike out if the claim became time-barred, there was witness intimidation, etc., but not (in the absence of any other circumstances) because Akay brough a personal injury claim which the Defendant previously agreed he could bring. In the cited Sheriff v Klyne Tugs case, the claim was struck out because i) the claimant had contractually agreed in the settlement that any claims which could have been brought in the Industrial Tribunal were prohibited (even although in Akay the opposite approach was taken and the claim was struck out despite it being contractually agreed the claim could proceed!) and ii) on res judicata grounds. On res judicata, I don’t think Henderson is relevant here, as that case was more related to a claim which could have been brought in the same forum but wasn’t, rather than one which was being brought in a different forum, and because the principle in Henderson states that claims can’t be subsequently brought where they could have been brought earlier, but weren’t due to ‘negligence, inadvertence or accident’, but it doesn’t include claims which were not brought by the Claimant’s conscious choice to bring the claim in a different forum. Even if it was relevant in terms of the circumstances, Henderson dates from 1843, which was decades before the existence of the Industrial or Employment tribunals, and therefore is to a large extent obsolete in relation to Akay, as it couldn’t possible have foreseen the possibility of a Claimant having the choice of different forums. Also, the understanding of mental health issues has progressed greatly since Henderson, and even the Sheriff case which is much more recent (1999) demonstrates what now looks like an somewhat antiquated view of mental health issues (the judge saying “The phenomenon of post traumatic stress disorder seems to be a comparatively recent phenomenon, at least as such” and the original Recorder believing that injury to feelings and psychological injuries are one and the same thing). It follows that if Henderson is obsolete or irrelevant to Akay, then so is Sheriff, which relies to a large extent on Henderson. It is time the Court of Appeal looked specifically at the question of a Claimant choosing to claim in the county courts instead of the employment tribunal (even if they have previously raised non personal injury claims in the ET) in the context of modern understanding of mental health, and outside of Henderson, as to my knowledge there is no case law which has addressed the specific issue of the Claimant’s choice of which forum to claim in. It should be the Claimant’s choice. The logical inference of the decision in Akay (even aside from the contractual agreement that the claim could proceed) is that if, for whatever reason, a Claimant exercises their right to bring an employment related personal injury claim in the County Couty, then they must forego their entitlement to bring a discrimination claim, etc. in the ET. This cannot be right or fair.


        September 9, 2020 at 11:42 am

      • I like the idea of capped, or fixed, costs for strike-out applications.

        I agree that Akay and the Sheriff v Klyne Tugs cases are not identical.

        I do not see why the principle in Henderson should not extend to claims which the claimant deliberately chose not to bring.

        In some ways that is worse than failing to bring the claim due to negligence, inadvertence or accident as the claimant has made a deliberate choice to duplicate proceedings.

        I do accept the argument that there is a difference in the sense that a claimant in employment matters often has a choice of different forums.

        I see the sense in many of the points that you are making.

        I think that there is a powerful argument for having an Employment Court which has all of the current jurisdiction of the Employment Tribunal, together with full jurisdiction in relation to all personal injury matters occurring at work, that is all Employer’s Liability cases.

        The current situation is certainly unsatisfactory and somewhat arbitrary.



        September 14, 2020 at 10:04 am

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