Kerry Underwood

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APPLICATION FOR EXTENSION OF TIME TO REQUEST SOLICITOR/CLIENT ASSESSMENT REFUSED

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

 

In

Rattan v Carter-Ruck Solicitors [2019] 5 WLUK 633 (20 May 2019)

a Master refused a client’s out-of-time application for an extension of time to request a hearing of a detailed assessment of a solicitor’s bill under CPR 46.10 and ordered the costs to be assessed as billed, in the sum of £340,000.

The Master’s decision indicates that CPR 3.9 applies to such an application and rejected the client’s argument that

Haji-Ioannou v Frangos and others [2006] EWCA Civ 1663 and

Less and others v Benedict [2005] EWHC 1643

applied.

Those cases suggested that the court should grant indulgence for breach of a court rule absent misconduct, but they pre-dated the 2013 reforms emphasising compliance, and also concerned a receiving party failing to serve a timely notice of commencement of detailed proceedings in between the parties’ costs proceedings, or to request a hearing under CPR 47.

These principles did not apply to a solicitor and own client assessment under the Solicitors Act 1974, which was governed by CPR 46, and which involved different considerations, as in between the parties’ proceedings the receiving party already had a costs order and so delay was more akin to a delay in enforcement of the judgment, rather than a delay in pursuing the substantive claim.

It was appropriate to treat the application like one for relief from sanction under CPR 3.9.

Mark v Universal Coatings & Services Ltd [2018] EWHC 3206 (QB)

found that the “implied sanction” doctrine does not apply the CPR 3.9 principles to every instance where the rules provide that something “must” be done but there is no express sanction.

It depends upon the significance of the consequences of non-compliance; it was right to apply the doctrine here.

Applying the Denton criteria, the Master found that the client’s delay of three years was clearly serious and significant, and there was no good reason, and it was irrelevant that the client was a litigant in person, which did not justify ignoring court orders.

Requesting a hearing was not onerous.

 

An extension would likely mean extending for months, possibly years, to accommodate other proceedings against the solicitor and directions, and ultimately, it was highly unlikely that the client would derive any material benefit.

Even if Denton did not apply, the Master considered it was not consistent with the overriding objective to allow the extension.

The client was seeking to reduce the solicitor’s costs below a sum authorised by him in a settlement arrangement, to which he freely agreed, from which he benefited, and which represented a substantial reduction of the costs to which the solicitor was contractually entitled.

Indeed, the contractual entitlement of the solicitors was over two and a half times the amount that they actually billed – see paragraph 23 of the judgment.

Their costs would likely be assessed as this sum, and even if not, the client was unlikely to achieve any significant reduction.

 

Comment

A correct decision.

The solicitors did an outstanding job and under-charged by a very considerable margin.

Surely the time has come to end the right of a client to challenge a solicitor’s bill, other than in a usual way by defending any action on the bill as a debt in the County Court/High Court.

 

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Written by kerryunderwood

July 15, 2019 at 11:15 am

Posted in Uncategorized

ALCOHOL, PEDESTRIANS AND CONTRIBUTORY NEGLIGENCE

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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.

In

Lee Edmunds v Motor Insurers’ Bureau, Arbitrator’s Decision, 10 May 2019

Arbitrator Colin McCaul QC was considering an appeal by the claimant against the decision of the Motor Insurers’ Bureau (MIB) in relation to a claim under the Untraced Drivers’ Agreement of 28 February 2017, where the MIB had held the claimant to be 50% liable for the accident due to the amount of alcohol that he had consumed and the clothes that he was wearing.

The claimant was a pedestrian at night, when he was struck by a car and his evidence was that he had drunk six pints of lager.

In

CC v TD [2018] EWHC 1240 (QB)

the Queen’s Bench Division of the High Court held that mere intoxication did not expose the claimant, in that case a pedestrian who died of his injuries, to criticism and that a claimant’s actions are to be judged by reference to a sober person.

There, the judge said that even if the claimant had been guilty of a degree of inadvertence, it did not amount to negligence.

In

Liddell v Middleton [1996] PIQR P36,

the Court of Appeal said:

“It is not the fact that a plaintiff [the old name for a claimant] has consumed too much alcohol that matters, it is what he does. If he steps in front of a car travelling at 30 mph at a time when the driver has no opportunity to avoid an accident, that is a very dangerous and unwise thing to do. The explanation of his conduct may be that he was drunk: but the fact of drunkenness does not, in my judgment, make the conduct any more or less dangerous and it does not in these circumstances increase the blameworthiness of it.”

In

Lunt v Khelifa [2002] EWCA Civ 801

the Court of Appeal said:

“It seems to me, as I have already indicated, that the fact that the appellant had taken drink was of undoubted significance if one was looking for some reason why he might have behaved in the way he did. But for the purposes of determining apportionment, the important question is what he did.”

The Arbitrator described the MIB’s criticism of the claimant for wearing flip flops, which are more likely to cause a person running to avoid a vehicle to trip over, as “faintly absurd”. It was the negligence of the driver that caused the flip flop to break and the claimant to stumble and fall.

The Arbitrator also had this to say about the MIB’s criticism of the claimant for wearing dark clothing at night:

The General Guidance to Pedestrians within the Highway Code at Rule 3 states that pedestrians should wear something light, coloured, bright or florescent in poor daylight conditions and use reflective materials when it is dark. Whilst that advice is not restricted in the countryside, there must be few, if any, pedestrians in citizen towns who adopt it. In consequence, I do not consider it negligent for the claimant to have worn the attire that he did.”

The Arbitrator held that the MIB, upon whom the onus of proof lies, failed to prove that the claimant was contributorily negligent.

 

Comment

A correct, sensible and practical decision.

Thank you to Lisa Quick, a Paralegal with Mooneerams Solicitors for information about this case.

Written by kerryunderwood

July 11, 2019 at 12:57 pm

Posted in Uncategorized

CROSS-EXAMINATION AS TO ASSETS ORDERED IN SUPPORT OF WORLDWIDE FREEZING ORDER AND NON-PARTY COSTS APPLICATION

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In

Kazakhstan Kagazy plc and others v Zhunus and others [2019] EWHC 1693 (Comm) (27 June 2019)

the Queen’s Bench Division of the High Court ordered cross-examination as to assets in support of a Worldwide Freezing Order that had been obtained in support of an application for a non-party costs order.

Although the principles in

Jenington International Inc v Assaubayev [2010] EWHC 2351 (Ch)

applied here, cross-examination orders in support of Worldwide Freezing Orders are the exception rather than the rule.

The claimants had an unsatisfied final judgment for approximately $300 million on a fraud claim against the fourth defendant’s husband and the claimants’ costs were around £13.2 million.

The fourth defendant had provided about £13.8 million to fund the fourth defendant’s husband’s defence and the claimants sought a non-party costs order against the fourth defendant under section 51, Senior Courts Act 1981 and in support of that application,  had obtained a Worldwide Freezing Order against the fourth defendant.

Granting the order, the judge held that cross-examining the fourth defendant as to her assets was likely to further the proper purpose of the Worldwide Freezing Order, in the sense that it might reveal assets that might otherwise be dissipated, preventing any costs order against the fourth defendant from being enforced.

The claimants had a strong case that the fourth defendant’s disclosure had been inadequate, and that cross-examination might lead to further disclosure and prevent asset-dissipation.

Confining cross-examination to identifying the fourth defendant’s assets against which the Worldwide Freezing Order should “bite” would prevent it from being oppressive or for an ulterior purpose.

The fact that there was overlap between the claim against the fourth defendant and other claims that the claimants was pursuing did not mean that it was oppressive for the claimants to seek the cross-examination order.

However, certain safeguards could be put in place including limiting cross-examination to one day and the claimants providing a list of topics for questions in advance.

The fact that substantive rights had not yet been determined was not a reason for the fourth defendant not complying with the Worldwide Freezing Order.

The fourth defendant’s argument that the section 51 application against her might fail, and accordingly, it was not just and convenient to order cross-examination, was rejected.

The judge said that the fourth defendant could avoid being cross-examined by making a payment into court or providing acceptable security over her assets.

Written by kerryunderwood

July 10, 2019 at 7:55 am

Posted in Uncategorized

CHARGING £400 AN HOUR TO OTHER SIDE WARRANTS STRIKING OFF: THE GOOD CASE: A TERRIBLE DECISION

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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.

In

Solicitors Regulation Authority v Good [2019] EWHC 817 (Admin) (02 April 2019)

the Administrative Court, part of the Queen’s Bench Division of the High Court, allowed an appeal under section 49 of the Solicitors Act 1974 by the Solicitors Regulation Authority and ordered the respondent to be struck off the Roll of Solicitors.

The Solicitors Disciplinary Tribunal had imposed a fine of £30,000.

The allegations were that Mr Good had caused the firm routinely to overcharge the other party, generally the National Health Service Litigation Authority, by rendering bills of costs which were, and which they knew to be, excessive and often grossly excessive as regards hourly rates and success fees.

This was alleged to be contrary to Principle 2 of the Solicitors Regulation Authority Principles 2011, and Principle 6 in that the conduct was not such as maintained the trust the public placed in the solicitor and in the provision of legal services.

It was also alleged that Mr Good was dishonest, but the Solicitors Disciplinary Tribunal had found that he was not.

In relation to the firm’s Compliance Officer for Legal Practice, it was alleged that she had failed to take sufficient steps to investigate whether the hourly rates and success fees were reasonable, proportionate and recoverable.

Mr Good had set the hourly rate at £400 with a success fee of 100%.

The Solicitors Disciplinary Tribunal found that the £400 rate was excessive and that £250 an hour for a Grade D fee earner, that is a trainee or paralegal, was excessive.

This produced bills which were unreasonable and disproportionate.

The court felt it appropriate to refer to the Guideline Hourly Rates, even though those rates have traditionally been regarded as only appropriate for summary assessment in straightforward matters, and all of the matters here involved clinical negligence.

It is important to note that the issue here was the allegation of seeking to recover the supposedly excessive costs from the losing party, and this was not a solicitor and own client assessment.

At paragraph 20.62 of its judgment the Solicitors Disciplinary Tribunal said:

 

“The Tribunal accepted that with the £400.00 hourly rate being contained in the CFA [i.e. the Conditional Fee Agreement between the Firm and its client], there was no breach of the costs rules in including that rate in the Bills. However, the costs rules also required Bills to be proportionate. This was not a question of technical costs rules breaches; that had been conceded by the Applicant. The question was, as described by Mr James, an ethical one. The Tribunal agreed with DJ Besford’s assessment that this was not a commercially negotiated rate. In fact, the rate was one which the clients knew they would never be required to pay given the system operated by the Firm. The Tribunal found that the First Respondent had set the rate at an artificially high level in the knowledge that the clients would not object, so that he could maximise costs without regard for the need for those costs to be reasonable and proportionate.”

 

The success fee, set at 100% in all cases, was during the period of recoverability from the other side, and the law then required a risk assessment and it was accepted by Mr Good that this had not taken place in any of the cases.

In paragraph 18 of the present judgment the High Court quoted from the decision of the Solicitors Disciplinary Tribunal:

 

“Members of the public, whilst they viewed solicitors’ bills as expensive, would not expect a solicitor to institute a policy that led to charges being levied at almost four times the acceptable rate and to then charge a 100% uplift to what were already grossly excessive charges. Further less would they expect such charging practices to be levied against the NHS.”

 

Thus, the High Court has now stated in clear terms what any practising clinical negligence lawyer knows already, and that is that for all intents and purposes the National Health Service Litigation Authority is above the law when it comes to costs.

Thus, Thomas Fuller’s famous words, slightly adapted by Lord Denning must now read:

“Be you ever so high the law is above you, unless you are the National Health Service Litigation Authority”.

It is a matter for Parliament, and not the High Court, to decide whether it wants a different law in relation to costs in clinical negligence claims.

Ironically, under the government’s own proposals for the extension of fixed costs to all claims of up to £100,000, clinical negligence cases have been excepted as being too complicated, and involving too much work, to be subject to fixed recoverable costs.

One of the factors in this case was that the bill of costs submitted to the paying party did not identify the grade of each named fee earner.

The Solicitors Disciplinary Tribunal specifically found, at paragraph 20.77, that Mr Good “had demonstrated a calculated disregard for Practice Directions so as to create a lack of transparency intended to obscure from the paying party the true level of experience and ability of fee earners in order to attempt to charge wholly unwarranted excessive and preposterous costs.”

Here the court substituted a finding of dishonesty, in spite of the fact that it had not seen or heard the witnesses, unlike the Solicitors Disciplinary Tribunal which had seen and heard all of the evidence and had decided that Mr Good was not dishonest.

Helen Vernon, Chief Executive of NHS Resolution, is reported as having said:

“NHS Resolution will not hesitate to take action where it is confronted with dishonest behaviour. This is public money and Mr Good’s actions were an attempt on funds which should be used for patient care.”

NHS Resolution is the successor body to the National Health Service Litigation Authority. The irony of this body making this statement is considerable given its own previous conduct.

It is always telling when a public body changes its name – think Windscale/Sellafield.

Here are a few links to my previous blogs relating to National Health Service Litigation Authority.

 

THE NHS LYING AUTHORITY AT IT AGAIN

 

NHS LITIGATION AUTHORITY: HOW IT MISLED PARLIAMENT

 

NHSLA 2014/15: ANOTHER DISINGENUOUS REPORT TO PARLIAMENT

 

NHS LITIGATION AUTHORITY: STILL DRIVING UP COSTS

 

Comment

Perhaps the worst regulatory decision I have ever seen.

As countless solicitors have openly stated, they charge more than this an hour, and so do I.

Many have pointed out that the amounts that experts charge are often in excess of these rates, and also that the amounts charged by Insolvency Practitioners, again often in excess of these rates, come out of money which would otherwise go to creditors and where the state, through Her Majesty’s Revenue and Customs, is often a creditor.

Curiously, in

MXX v United Lincolnshire NHS Trust [2019] EWHC 1624 (QB) (27 June 2019)

a High Court Judge did not suggest that the claimant’s solicitor’s conduct in putting £465 an hour in a budget, when the retainer only allowed for £350 an hour, was a disciplinary matter.

While upholding the Master’s finding that this was improper conduct, the High Court held that it could be a factor allowing the assessing court to depart from the budget, under CPR 3.18(b).

This too was a clinical negligence matter.

As the court also held that CPR 44.11 covered both mis-certification of hourly rates in a budget, as well as in a bill of costs, it is hard to see what the distinguishing factors are.

I have recently read through Proportionality of Costs In Litigation: Case Analysis, by Practical Law Dispute Resolution, which lists and analyses all of the key cases on proportionality since the change in the law in April 2013.

Unsurprisingly, many of them deal with issues of costs perceived to be too high, and they only deal with between the parties’ costs, as proportionality does not apply to solicitor and own client costs.

In

GSK Project Management Ltd (In Liquidation) v QPR Holdings Ltd [2015] EWHC 2274 (TCC)

the High Court referred some of the incurred and estimated hours as “astonishing”, “quite simply absurd”, “exorbitant” and “grossly excessive”.

In

Vitol Bahrain EC v Nasdec General Trading LLC (unreported), 1 November 2013, Queen’s Bench Division Commercial Court,

the court referred to costs as “eye watering” and representing “charging on an epic scale”.

There are other similar comments in other cases, but it seems that, as set out above, it is only a disciplinary matter if the National Health Service is a defendant.

Comments on the Law Society Gazette article of 3 April 2019 include:

1. Anonymous

Commented on: 4 April 2019 15:31 GMT

“The comment at the end of the article by Helen Vernon of the NHS is a disgrace. What is a waste of public money is the NHSLA’s failure to admit liability at an early stage in obvious cases of negligence and their refusal to make sensible offers of settlement and thus avoid costs all round and do justice to innocent victims.”

If you had seen what I have seen. Kitchen sink defences having statements of truth signed in circs where the entire NHS team and their advisors know and have already agreed that they will concede breach, and are holding out only so as to postpone interim payment applications and/or in the hopes of getting a claimant to accept a swingeing percentage reduction to reflect their risk of litigating against the NHSLA!

2. Anonymous

Commented on: 4 April 2019 14:51 GMT

The problem is that there is pressure from above to make legal fees lower (even if in his case the client would never actually pay them). So it’s pretty much strike off now for costing too much or not putting your cheap as chips prices on your websites. Unless you have proper clients like rich people or large companies in which case fleece them as much as you can.

3. Anonymous

Commented on: 4 April 2019 14:38 GMT

The comment at the end of the article by Helen Vernon of the NHS is a disgrace. What is a waste of public money is the NHSLA’s failure to admit liability at an early stage in obvious cases of negligence and their refusal to make sensible offers of settlement and thus avoid costs all round and do justice to innocent victims.

4. Dominic Cooper

Commented on: 4 April 2019 14:12 GMT

This is an example of the Judge trying to achieve the “correct” outcome rather than actually applying the legal principles to the issue at hand. The decision is “oh I say, this Oik seems to have caused a spot of bother. Let’s strike him off”, and then the reasoning is worked back from there.

I hasten to add that there is surely no doubt that Sir Julian Flaux never charged so much as a penny over the relevant guideline hourly rates during his career at the bar. Of course not. (Yes I know that there are no guideline rates for Counsel, and probably none for anybody in 1978 when he was called, but the point stands).

We were told, quite forcefully and with devastating consequences, that even in a CFA matter, the indemnity principle applied. Therefore any technicality that would have rendered the agreement unenforceable meant no inter partes costs recovery irrespective of whether the client himself (or herself) cared one way or the other.

For the indemnity principle to apply, it means that the opponent is only liable to indemnify the client, in respect of a payment that the client is otherwise bound to make anyway.

So the starting point is not “how much are you seeking in an inter partes assessment from the NHS?”, but “how much has your client agreed to pay you if you win the case?”.

The inter partes assessment is only a function of the client’s own bill.

No if there is a rule of law, conduct, practice, procedure (or anything else) that specifies what and how much can be charged by agreement between a solicitor and his /her client, I’d love to know what that is.

The nearest thing I know of is section 74(3) Solicitors Act 1974 and CPR Part 46.9(2) the effect of which a solicitor may only charge the client in a County Court matter whatever you could get from the opponent unless there is a written agreement saying otherwise.

So surely in those circumstances a solicitor may charge the client whatever he / she wants, whether that be £400 per hour or £4,000 per hour.

The other party is only required to pay whatever the court decides is an appropriate amount. If the client is asked to pay, they also have the right to ask the court to decide the correct amount.

If a solicitor “tries it on” by seeking to recover too much, then the real sanction is the costs of the detailed assessment procedure, which end up being paid by the solicitor (whether against the client or the opponent).

And naive, and evidently stupid, as this solicitor’s strategy clearly was, I’m really not sure how it is even a lack of integrity let alone dishonesty. Nobody was ever going to be out of pocket – aside from the firms itself when it kept losing detailed assessments!

His plan (albeit not one that I would personally endorse) was just to try to work the system, based on how the rules have been devised. (Devised is the wrong word, nobody would devise the drivel that is CPR Parts 45 to 48; cobbled together and botched is the correct description).

On that basis even a fine seems excessive and wrong in principle to me. If the SRA want to introduce a new section in the code of conduct on costs (you must never charge your client more than the guideline hourly rates or you can charge your client what you like, but you must never seek more than guideline hourly rates on a detailed assessment) then fine, let them say that and punish those who do not comply.

But statements from the SDT and court are extremely worrying such as:-

* “the First Respondent’s conduct was motivated by his desire for the clinical negligence department to be profitable”(are we not supposed to make a profit?);

* a criticism that the solicitor placed “his assessment of the self-importance of his own opinion over and above that of no fewer than six different costs Judges” (can’t we have a different opinion to a judge now?)

* “The Tribunal accepted that with the £400.00 hourly rate being contained in the CFA [i.e. the Conditional Fee Agreement between the Firm and its client], there was no breach of the costs rules in including that rate in the Bills. However, the costs rules also required Bills to be proportionate.” (what is proportionate? Who is supposed to know what is proportionate)?

and the piece de resistance

* “The Tribunal found that the First Respondent had set the rate at an artificially high level in the knowledge that the clients would not object, so that he could maximise costs…”

So we should not seek to make a profit, must only charge what is “proportionate” (even though nobody from the Court of Appeal down knows how to define “proportionate”, can not ever disagree with a judge and most importantly, must not maximise costs. Presumably we have to minimise costs?

Ridiculous decision, and there’s even mention in the judgment that it is somehow worse (for reasons not specified) because the party who didn’t pay the costs bills claimed, but only paid the correct assessed amount was the NHS.

Unfortunately, because there is no challenge to the substantive decision, but only the sanction to be applied, and it is a fact specific determination, there is unlikely to be any prospect of an appeal, so we are stuck with this.

Others have pointed out that rates based on office location cannot be justified with modern working methods.

 

Here is the link to the Solicitors Disciplinary Tribunal’s original decision.

Written by kerryunderwood

July 9, 2019 at 7:54 am

Posted in Uncategorized

MISCONDUCT RE COSTS BUDGETS COVERED BY CPR 44.11 AND MAY PROVIDE GOOD REASON TO DEPART AT ASSESSMENT

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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.

In

MXX v United Lincolnshire NHS Trust [2019] EWHC 1624 (QB) (27 June 2019)

in detailed assessment proceedings, a High Court Judge partially allowed an appeal of a preliminary issue decision disallowing costs under CPR 44.11 by reason of mis-certification of rates in the claimant/receiving party’s costs budget.

The claimant had sought £465 an hour for a Grade 1 fee earner in the budget, but £350 in the bill of costs, which was the correct figure in the retainer at the relevant time, as a result of which the Master found improper conduct within the meaning of

Ridehalgh v Horsefield [1994] 1 WLR 462 ,

and there was no appeal against that finding.

The Master disallowed the costs in the bill of, and related to, the preparation of the budget and the defendant, the paying party here, appealed on the basis that that was too lenient a sanction, and that the Master had erred in failing to determine whether the improper conduct was a good reason under CPR 3.18 to depart from the budget.

The High Court confirmed that the principles regarding penalising misconduct in costs under CPR 44.11 set out in

Gempride v Bamrah and another [2018] EWCA Civ 1367 ,

which involved improper or unreasonable conduct in preparation of a bill of costs, apply equally to preparation of costs budgets.

The High Court disagreed with the Master on the effect of the conduct in this case, which contributed to his sanction. The Master’s finding that the misstatement of the rates in the budget did not affect the judge’s decision at the Case and Costs Management Conference was speculation not supported by evidence.

The Master had held that the District Judge had no intention of approving a budget containing an hourly rate of £465 for a Grade A fee earner, and would not have done so even if that had been reduced as £350.

Consequently the paying party had not been prejudiced.

That finding was unsupported by evidence and was an error of law.

The Master was also wrong in holding that the case here was indistinguishable from

Tucker v Griffiths and another [2017] 5 WLUK 461.

Whilst in both cases there was improper inflating of sums claimed as incurred costs in the budget, the conduct of the parties was different, as in Tucker the solicitors had used a “blended” rate, whereas here what the solicitor had done was to include an hourly rate for a Grade 1 fee earner which was greater than the claimant was obliged to pay under the terms of the retainer.

The High Court said that each case of penalty for breach of CPR 44.11 must be judged on its own facts.

The failure of the Master to decide whether the improper conduct in overstating the hourly rate beyond that in the retainer amounted to a good reason under CPR 3.18(b) to depart from the budget, was an error of law.

The High Court held that that issue remained to be determined on assessment and added that, without seeking to fetter the Master’s discretion, the court expected the Master to have regard to what was in this judgment.

Written by kerryunderwood

July 8, 2019 at 10:41 am

Posted in Uncategorized

OUT OF TIME ABOUT SOMETHING YOU KNOW NOTHING ABOUT BECAUSE THE COURT SYSTEM HAS COLLAPSED

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I have written up the case of

 JLE (a child by her mother and litigation friend, ELH) v Warrington & Halton Hospitals NHS Foundation Trust [2019] EWHC 1582 (QB)

in relation to Part 36.

The case also has a twist in relation to the High Court granting permission to appeal out of time.

This is a Kafkaesque story.

The appellant has 21 days to appeal, running from the date of judgment, which was given in the absence of the parties.

To appeal the appellant needs a sealed order, and although the appellant tried to file in time, the court office refused the application because there was no sealed order, as the court itself had not sent it out.

The sealed order was not sent out by the court until well after the time for appealing had passed.

I tweeted recently about a case in Central London County Court, where an unless order was made in the absence of the parties and not issued by the court until weeks after the time for complying with the unless order had expired.

Thus, we now have Draconian penalties for failing to comply with court orders that we know nothing about.

We have judges pontificating about how it is not just the case in hand where justice must be done, it is the effect on other court users, and so if injustice is done in a particular case, so be it; that is for the greater good of the efficiency of the system.

Except that the system has all but collapsed, and if the courts and judges were subject to the same discipline as solicitors, most would be removed from office.

I fully appreciate that this is not the fault of the judiciary or the staff – it is the fault of very right wing economic policies in this country.

However all judges should now stop insisting on rigorous adherence to timetables that they themselves cannot comply with.

I blogged recently about the Legal Services Ombudsman punishing solicitors for delay and failing to adhere to timetables, even though the Ombudsman admits that he is missing every single one of his targets, often by a country mile.

This is Star Chamber justice.

I have said it before, say it now, and will say it again – in this country we are on the road to Nuremberg.

 

Written by kerryunderwood

July 5, 2019 at 9:30 am

Posted in Uncategorized

PART 36: ERROR OF LAW TO CONSIDER HOW MUCH OFFER BEATEN BY

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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.

In

JLE (a child by her mother and litigation friend, ELH) v Warrington & Halton Hospitals NHS Foundation Trust [2019] EWHC 1582 (QB)

the Queen’s Bench Division of the High Court, overturning a decision of Master McCloud, held that the amount by which a claimant beat its own Part 36 offer is irrelevant in considering whether it was unjust to make the additional 10% uplift on damages under CPR 36.17(4)(d), and to take that matter into account is an error of law.

Here the claimant served a bill of costs for £615,751 and then made a Part 36 offer to accept £425,000 and on assessment beat her offer by £7,000.

The Master awarded the sums provided for in CPR 36.17(4)(a)-(c) but held that it would be unjust to award the additional amount, that is the uplift on damages or, in this case, costs, under CPR 36.17(4)(d).

It was that decision which was overturned here by the High Court.

The High Court upheld the Master’s finding that, when considering injustice, the court may find it unjust to award some of the CPR 36.17(4)(a) – (d) bonuses, but not others.

In relation to the uplift the High Court said, in very clear terms, that it was not open to judges to take into account the amount by which a Part 36 offer had been beaten as this risked reintroducing the policy in

Carver v BAA Plc [2008] EWCA Civ 412,

which had been expressly reversed by Parliament.

Taking into account the large size of the 10% uplift relative to the margin by which the offer was beaten was an error of law. This additional amount was meant to include a penal element when a claimant had made an offer which it matched or beat, and looking at it as a bonus was an error of law.

The lack of disclosure in costs proceedings was irrelevant, and to consider the same was an error of law. Any pre-issue or pre-disclosure Part 36 offer in substantive proceedings would involve the same lack of disclosure.

The High Court also said, obiter, that the decision of Master Friston, not under appeal here, in

White & Anor v Wincott Galliford Ltd [2019] EWHC B6 (Costs) (28 May 2019)

where he said there was a power to award a lower percentage than the 10% prescribed by CPR 36.17(4)(d) was wrong, and that the clear language of CPR 36.17(4) makes it clear that the 10% uplift in damages is all or nothing.

That  finding, and a similar finding in

Bataillion v Shone [2015] EWHC 3177 (QB)

are wrong.

Here the High Court adopted in full the reasoning set out in my blog

SUCCESSFUL PART 36 CLAIMANT DENIED UPLIFT – A MAD DECISION

in relation to the fact that the 10% uplift must be all or nothing, the court here adopted the reasoning in my blog

UNJUST TO AWARD DAMAGES UPLIFT WHERE OFFER DEALT ONLY WITH HOURLY RATES ON ASSESSMENT

 This follows the Court of Appeal, in the case of

Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 (03 May 2019)

adopting the reasoning in my blog –

PART 36: WHEN IS A CLAIM NOT A CLAIM?

 All of these decisions, and plenty more, are dealt with in my blog

PART 36: THE DIRTY BAKER’S DOZEN: 13 NEW CASES

 

The relevant parts of CPR 36.17 read as follows:

 

“Costs consequences following judgment

36.17 –

(1) … this rule applies where upon judgment being entered –

(a) …

(b) judgment against the [paying party] is at least as advantageous to the [receiving party] as the proposals contained in a [receiving party’s] Part 36 offer.

….

(2) For the purposes of paragraph (1), in relation to any money claim or money element of a claim, “more advantageous” means better in money terms by any amount, however small, and “at least as advantageous” shall be construed accordingly.

(4) … where paragraph (1)(b) applies, the court must, unless it considers it unjust to do so, order that the claimant is entitled to –

(a) interest on the whole or part of any sum of money (excluding interest) awarded, at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;

(c) interest on those costs at a rate not exceeding 10% above base rate; and

(d) provided that the case has been decided and there has not been a previous order under this sub-paragraph, an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is –

(i) the sum awarded to the claimant by the court; or

(ii) where there is no monetary award, the sum awarded to the claimant by the court in respect of costs –

Amount awarded by the court Prescribed percentage

Up to £500,000 10% of the amount awarded

Above £500,000 10% of the first £5000,000 and (subject to the limit of £75,000) 5% of any amount above that figure.

(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including –

(a) the terms of any Part 36 offer;

(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;

(c) the information available to the parties at the time when the Part 36 offer was made;

(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and

(e) whether the offer was a genuine attempt to settle the proceedings.

(6) Where the court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest must not exceed 10% above base rate…”

Written by kerryunderwood

July 4, 2019 at 10:19 am

Posted in Uncategorized

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