Kerry Underwood

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PORTALS: EMPLOYERS’ LIABILITY OR PUBLIC LIABILITY?

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

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

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

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

 

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

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

(b) … [irrelevant]”

 

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

 

“(18) “public liability claim” –

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

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

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

(b) … [irrelevant]”.

 

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

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

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

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

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

Likewise an accident at a work related social event.

However, a court could find otherwise.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Consumer Protection Act claims

Section 2 of the Consumer Protection Act 1987 states:

 

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

(2) This subsection applies to—

(a) the producer of the product;

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

A Court may take a different view.

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

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Written by kerryunderwood

October 20, 2017 at 8:01 am

Posted in Uncategorized

FIXED COSTS EXTENSION: WHAT TO DO NOW

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

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

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

 

  • Prepare list of issues to discuss with client.

 

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

 

  • Make Part 36 offer on liability.

 

  • Consider Part 36 offer on quantum.

 

  • Consider appropriate arrangement with counsel

 

  • Speak to counsels’ chambers.

 

  • Study the existing FRC scheme and relevant case law.

 

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

 

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

 

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

 

  • Consider method of charging client.

 

  • Claimant – FRC plus percentage of damages?

 

  • Defendant  – FRC plus percentage of damages saved?

 

  • No Win Lower Fee Agreements.

 

  • ATE insurance.

 

  • Third Party Funding.

 

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

 

  • Go on a course.

 

Also see

FIXED COSTS REPORT OVERVIEW : POST 1

FIXED COSTS AND PART 36: POST 3

FIXED COSTS: THE FAST TRACK FIGURES: POST 4

JUDICIAL REVIEW AND FIXED COSTS: POST 5

CLINICAL NEGLIGENCE AND FIXED COSTS: POST 6

THE NEW FIXED COSTS REGIME: POST 7

Written by kerryunderwood

October 19, 2017 at 8:52 am

Posted in Uncategorized

AUTOMATIC STRIKE-OUT, COSTS AND SMALL CLAIMS

with 2 comments


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

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

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

Qualified One-Way Costs Shifting

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

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

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

(c) the conduct of –

(i) the Claimant; or

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

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

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

Small Claims

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

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

44.9

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Written by kerryunderwood

October 18, 2017 at 7:50 am

Posted in Uncategorized

INDEMNITY COSTS DUE TO EXPERTS’ CONDUCT

with 2 comments


In The Governors and Company of the Bank of Ireland (1) and Bank of Ireland (UK) PLC (2) v Watts Group PLC [2017] EWHC 2472 (TCC)

the Technology and Construction Court ordered that the costs incurred as a result of the conduct of the Claimant’s expert be assessed on the indemnity basis.

The court said that it was particularly critical of the Claimant’s expert quantity surveyor who gave evidence on behalf of the bank and had “grave concerns about his evidence.”

The court took the opportunity to review the case law in relation to conduct so bad that it warrants indemnity costs orders.

The court concluded that there is authority for the proposition that where a court concludes that the conduct of an expert should be marked in the Costs Order, it may be appropriate to order that the specific costs generated by that expert should be assessed on an indemnity basis – see

Balmoral v Borealis [2006] EWHC 2531 (Comm) and

Williams v Jervis [2009] EWHC 1837 (QB).

“Accordingly, I consider that the costs of the Defendant’s QS expert, Mr Whitehead, should be assessed on an indemnity basis, as should the costs of and occasioned by Mr Vosser’s oral evidence at the trial.”

Comment

There is a view that experts have got away with it as far as the extension of fixed costs is concerned, as, alone, their costs remain unfixed and uncapped.

However, there is increasing evidence that the courts are looking at experts’ fees and conduct much more closely than in the past.

Written by kerryunderwood

October 17, 2017 at 9:06 am

Posted in Uncategorized

DISCLOSURE CUT BY 90% BY COMMERCIAL COURT

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In Bank Mellat v Her Majesty’s Treasury [2017] EWHC 2409 (Comm)

The Commercial Court, part of the High Court, considered the appropriate order for disclosure in respect of “affected transactions” identified by the claimant bank.

At an earlier hearing it was thought that the number of “affected transactions” might run into tens of thousands, with the idea that disclosure should only be given in respect of limited, agreed sample transactions.

A schedule subsequently prepared by the claimants identified 2,500 affected transactions.

Mr Justice Males noted that the parties’ expert accountants had been unable to agree an approach to sampling.

The defendants argued that the claimant should be required to give disclosure on all of the transactions it relied on, so that the claim could be “properly tested”, whilst the claimant bank pointed to the “extremely onerous and expensive task” that that would involve, possibly taking over a year, and costing at least £2 million.

The claimant proposed that there should be disclosure in respect of 10% of the transactions in the schedule, selected at random.

Mr Justice Males concluded that, due to the inevitable impact of ordering full disclosure, the sample approach was one that should be attempted.

He noted, though, that this was a very substantial claim and, if the transactions were to be relied on, reliable evidence had to be given.

Therefore, he made the order for sample disclosure on that basis that, once the material had been disclosed and considered, further disclosure might be required.

This is yet another example of the court restricting, or criticising, the volume of documents in litigation, with parties sticking to the outdated concept of standard disclosure, which will shortly be scrapped for virtually all cases worth less than £100,000.

Due to concerns over the huge costs generated by the disclosure process, a working group chaired by Lady Justice Gloster is considering possible procedural reforms in all cases.

Written by kerryunderwood

October 16, 2017 at 8:19 am

Posted in Uncategorized

SOLICITORS ORDERED TO PAY COSTS OF FALSE CLAIM

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In Trehan v Liverpool Victoria Insurance Company Ltd (unreported), 3 October 2017, Nottingham County Court

a firm of solicitors, deceived by a fraudster into pursuing a fraudulent personal injury claim, was ordered to pay all the defendant insurer’s costs, and the costs of an application by the person whose name was fraudulently used as claimant, under the court’s section 51 wasted costs jurisdiction.

The fraudster, the director of a claims referral company, was also jointly and severally ordered to pay costs under the non-party costs jurisdiction.

The claim had been made without the claimant’s knowledge or authority.

The director deceived the solicitors by forging the claimant’s signature on a number of documents, but the solicitors had also behaved reprehensibly by failing to conduct basic client checks and by dating letters incorrectly to hide non-compliance with court rules.

The judge said that, in terms of the professional standards required of a solicitors’ practice, their conduct was appalling, and he refused the solicitors’ claim for indemnification from fraudster.

As between the solicitors and the fraudster, the judge apportioned costs one third to the solicitors and two thirds to the fraudster.

 

Written by kerryunderwood

October 13, 2017 at 8:39 am

Posted in Uncategorized

CLINICAL NEGLIGENCE AND ATE PREMIUMS: A SUITABLE CASE FOR TREATMENT

with 10 comments


In Mitchell v Gilling-Smith [2017] EWHC B18 (Costs)

the Senior Courts Costs Office upheld recovery of an After the Event Insurance Premium of £10,000.00 plus Insurance Premium Tax (IPT) in a clinical negligence case, where such premiums remain recoverable, but only in relation to the risk of incurring a liability to pay for reports relating to reliability or causation.

The total premium was £13,500.00 plus IPT, split into £10,000.00 covering the cost of experts’ reports and just £3,500.00 to cover all other disbursements and adverse costs.

At the time of settlement, the actual cost of the report was £2,000.00, so the Defendant had to pay that sum and five times as much for the insurance to cover that sum.

The Costs Master said that this premium “could not be characterised as disproportionate in a clinical negligence claim that settled for £200,000.00”.

That makes no sense at all. The proportionality test must relate to the disbursement and what it covers.

The logic of this is that in a big claim one could spend, say, £10.00 on a cup of coffee at court or whatever.

I am no fan of the National Health Service Litigation Authority, or Resolution, or Sellafield, or whatever it is now called, nor of its lawyers, but this is absurd and is a waste of money that could be spent on medical treatment.

Who, out of their own money, and not out of their mind, would pay £10,000.00 to insure £2,000.00?

How can the cost of insuring the risk of all other disbursements and adverse costs be only around one-third of the cost of insuring the medical reports?

This brings the clinical negligence sector into disrepute and is one of the drivers for the move towards fixed costs for all clinical negligence actions of all kinds.

The obvious answer is for the NHS to provide an expert at no charge.

Even taking into account cases which do not succeed or proceed, this would be far cheaper for the NHS and would give greater access to justice and prevent insurance companies taking NHS money.

Written by kerryunderwood

October 12, 2017 at 10:27 am

Posted in Uncategorized

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