Whiplash: evidence on an industrial scale

A leading barrister has called for a study to examine whether anecdotal evidence of abuse and misconduct by expert witnesses is on the “industrial scale” alleged by some, as funding arrangements increase the risk of malpractice.

Tim Dutton QC, a professional discipline specialist at London’s Fountain Court, who took part in a Panorama documentary exposing misconduct by expert witnesses, said in his experience “charlatan forms of behaviour” by expert witnesses is rare.

But he told the Bond Solon expert witness conference in London that anecdotal evidence from circuit judges, who routinely deal with volume low-level personal injury cases, criticised the “industrial scale” on which “so-called expert evidence” was given by doctors for claimants where there was no evidence of injury, particularly in whiplash cases.

This suggested that an expert was being repeatedly used by one side as a “hired gun” in cases that were expected to settle before trial because of costs. “In other words the expert is free to report again and again in the hope that most cases will settle,” Mr Dutton said.

He added that the problems are not likely to arise in well-financed cases, but are more likely to occur in publicly funded cases or where lawyers are working under a conditional fee agreement (CFA) or damages-based agreement. “Under-resourcing” creates risks, he said.

“Where the lawyer is working under a CFA or DBA the risks that lawyer will not discharge his duties – viz a viz the expert – are greater as the lawyer needs to win the case to be paid and may therefore be under greater pressure than in a traditionally paid case not to comply with the rules,’ said Mr Dutton.

In addition, from conversations with judges who do criminal work, he said there is a concern about “experts for hire” in cases including those involving handwriting, facial mapping, or forensics.

But he was cautious about the need for increased regulation. What is needed, he suggested, is a study under the aegis of the Ministry of Justice to discover how serious the problem is.

If after two years a study reveals that abuse is continuing and is widespread the next step, he suggested, might be to make it an offence to “knowingly to fail to comply” with the duties set out in either the Criminal or Civil Procedure Rules.

Mr Dutton also suggested the regulators of those professions from which the experts come be involved and reminded of their duties to uphold standards.

Most experts are already regulated by their professional bodies – doctors, accountants, nurses, surveyors and so on – and they have a duty to behave with integrity and uphold the dignity of their professions, he said.

“Lawyers have a duty to uphold the administration of justice. So a lawyer who gives expert evidence not in compliance with his duties under the CPR or under the Criminal Justice Act 1988 and the Criminal Procedure Rules may well be in breach of his professional duties under the SRA Code of Conduct 2011. Likewise a doctor or an accountant,” he said.

Mr Dutton suggested regulators are not seeing referrals about experts who have given bad evidence. The judges who complained to him about expert reports, he said, had not made complaints to the GMC.

He accepted there may be problems in relation to those experts who are not in regulated professions, but to regulate expert witnesses as a “separate cadre” was difficult.

Rather, he said, look to lawyers to maintain standards. “In every case where a lawyer is involved, the lawyer is bound to spell out the duties to the expert, and not to put an expert into the witness box if he/she believes the duty of the expert has not been complied with.”

Other remedies to address the problem could include proceeding against an expert for contempt of court, attempting to pervert the course of public justice or conspiracy to pervert the course of justice, he said.

“It may only take one or two prosecutions for a salutary effect to be brought to the system as a whole.”

LIBOR claim: others have actions relating to alleged rigging of rates

A claim against Royal Bank of Scotland (RBS), including allegations of rigging the LIBOR rate, has been transferred to the new Financial List even though the move means bringing in a new judge.

The Property Alliance Group (PAG), which claims around £29m in damages, opposed the application by RBS for a transfer.

Sir Terence Etherton, chancellor of the High Court, said the definition of a Financial List claim under CPR 63A included both cases where the amount claimed is over £50m and those raising “issues of general importance” to the financial markets.

Sir Terence said the allegations by PAG “concerning the alleged improper conduct of RBS in relation to the fixing of LIBOR rates” involved “important issues of general market significance”.

He went on: “It is well known that there are others who have claims, and are now or are likely in the future to be litigating, in relation to similar issues arising out of the alleged rigging of LIBOR rates.

“It seems reasonably clear that the judgment following trial in the present proceedings will have an impact on other cases already launched and those which will be launched in the future.

“It is also likely that decisions about provisions in the agreements between RBS and PAG limiting RBS’s exposure to claims for negligence will have relevance elsewhere in the markets.”

Sir Terence said that if the case became “viewed in a general sense as a lead or test case”, followed by others suitable for the Financial List, it was desirable for it to be dealt with by a Financial List judge, so that the judgment carried “appropriate weight and respect in the market”.

The chancellor explained that this would mean that Mr Justice Birss, who had managed proceedings “conscientiously and to a high standard”, would be replaced by a Financial List judge.

The High Court heard in Property Alliance Group v RBS [2016] EWHC 207(Ch) that RBS had filed an amended defence of 172 pages (excluding schedules) to the claims.

Sir Terence picked out a number of points which he said should be noted in connection with the application for transfer to the Financial List.

Among them was that RBS argued that PAG had “misunderstood the nature and content of the British Bankers’ Association (BBA) definition of LIBOR” and that the bank denied making “any of the implied LIBOR representations” alleged by PAG.

“It is alleged that PAG’s case in relation to many of the LIBOR allegations appears to be based entirely upon a number of misunderstandings as to the nature and content of the BBA definition of LIBOR,” Sir Terence said.

The chancellor added: “The Financial List is deliberately restricted to a relatively small cadre of judges who are not only particularly expert in the law applicable to financial markets, but they will also be abreast of important developments in the practices of those markets.”

He directed the case to be transferred to the Financial List and for a new judge to be assigned to it.

ARAG UK is forecasting another tough year for employers as complex new legislation kicks in. For 2015 a major stumbling block is likely to be shared parental leave and other new parenting rights which were created by the Children and Families Act 2014 and come into effect for births from 5 April this year.

The legislation will allow either parent to take responsibility for their child’s care by co-ordinating up to 50 weeks’ shared leave-taking between employers if necessary. Mothers must still take 2 weeks compulsory maternity leave after the birth and fathers are still entitled to two weeks’ paternity leave. After that leave can be shared in single or multiple blocks of leave but employers will be able to refuse discontinuous leave patterns subject to entering into a two week discussion period. There are a number of notices to be completed which must be provided at least 8 weeks before the proposed Shared Parental Leave (SPL).

All leave must be taken during the first year of the child’s life. There will be 20 additional ‘keep-in-touch’ days to be shared between the parents.

David Haynes, head of underwriting and marketing said, “We know that experienced professionals are sometimes wilting under the pressure of accurately interpreting new rules” adding “but we are here to help get it right. Policyholders can get advice directly from qualified legal advisors and are insured against legal defence costs if disputes arise.”

All ARAG commercial legal protection policies include online and telephone assistance backed up by comprehensive legal defence if an employment dispute arises. In addition, for those customers who want additional peace of mind, the Employment Practices Protection policy focuses on complete cover without the requirement for claims to satisfy “reasonable prospects of success” test following a health check of the policyholder’s employment practices and procedures.

In summary

• SPL allows an eligible mother or primary adopter to share up to 50 weeks of leave and 37 weeks of statutory shared parental pay (SSPP) with their co-parent.
• There are a number of eligibility tests that need to be satisfied

In addition

• Employees can return to work during SPL for up to 20 SPLIT (Shared Parental Leave in Touch) days.
• Existing terms and conditions continue to apply save in respect of remuneration.
• Employees are entitled to return to work to the same role or a similar role, depending on the amount of leave taken.
• Employees are protected from detriment and dismissal in connection with exercising their rights to take SPL.

Compensations payments are “spiralling”

The pre-Jackson rush led the Medical Defence Union (MDU) to report a 20% surge in compensation claims in 2013 – what it has described as a “record year”. Claims against dentists rose by 10%.

Dr Christine Tomkins, chief executive of the MDU, said: “We fully support the legal costs reforms that came in to effect in April 2013, but in the short term we have seen claimants’ solicitors rushing to notify claims under the old arrangements, prolonging the disproportionately high costs the legal changes are intended to address.”

Dr Tomkins said 2013 was the busiest year in the MDU’s 128-year history, with over 33,000 calls from members to its advice line being answered and a “record number of new claims files” opened.

“A major factor in the increasing demand for our services was the surge we saw in the number of new claims against our members,” she said.

“We are hopeful that in the longer term the changes will see a reduction in the large sums paid to claimants’ lawyers.”

Dr Tomkins said there was some evidence this was starting to happen, with the numbers of claims being notified against dentists “slowing slightly” towards the end of 2013.

“We hope this trend will continue and spread to medical claims,” she said. “Compensation payments are also spiralling and we are working at government level to effect changes to control claims inflation so damages payments are affordable, sustainable and fair for all parties.”

In the MDU annual report for 2013, Dr Tomkins said the union had expanded its in-house legal department, instructing in-house lawyers on 30% more advisory and claims files than in the previous year.

“This avoided the need to instruct external solicitors in these cases and meant that, despite more members seeking our assistance, the overall spend on advisory legal costs continued to reduce.”

The overall legal spend for discretionary and insured claims rose from £25.1m in 2012 to £26.9m in 2013. Dr Tomkins added that the MDU successfully defended 70% of negligence claims against doctors.

Beatles: Copyright infringement dispute

A High Court judge was wrong to order a non-party costs order (NPCO) where the respondent had not been warned that the applicant was going to seek one, the Court of Appeal has ruled.

Lord Justice Floyd found that that the judge had been wrong to disregard the respondent’s submission that he would have acted differently had he received such a warning.

Sony/ATV Music Publishing LLC & Anor v WPMC Ltd & Anor [2018] EWCA Civ 2005 concerned a claim of copyright infringement in a documentary about a 1964 concert given by The Beatles.

The claimants were successful at trial before Mr Justice Arnold and ordered WPMC to pay SATV’s costs, on the indemnity basis after the date when a rejected part 36 offer had expired.

It was clear to the claimants before the trial that WPMC could not pay any costs order, and that its only apparent asset was its rights in the documentary.

Just over a year after judgment had been handed down, SATV wrote to David Bailey, the director and majority shareholder of WPMC, so say that it intended to seek an NPCO against him under section 51(3) of the Senior Courts Act 1981.

Amongst his reasons for defending the application was that he had not been warned at any stage up to then that this was a step which SATV intended to take in the event it succeeded in the action.

Mr Bailey told the judge that, had he been given such a warning prior to trial, he would either have put WPMC into liquidation or accepted one of SATV’s settlement offers.

Further, he said that, if he had been warned after the trial, he would have tried to raise funds to pursue the appeal on the one issue for which permission had been granted.

Arnold J concluded that there was no explanation of why SATV did not warn Mr Bailey. While the judge accepted that his evidence had been given honestly, he also said it been given “with 20/20 hindsight”, and that he “did not accept that it necessarily reflects how Mr Bailey would actually have acted”.

As a result, the judge went on to hold that a warning would not have made any difference.

On appeal, Lord Justice Floyd said Arnold J fell into error. “He left out of account a feature which he should have considered, namely the prospect that Mr Bailey would have conducted the defence of the case differently if a warning had been given.”

The fact that evidence was given with hindsight, as often happened, did not necessarily mean that it was not reliable, Floyd LJ said.

“Mr Bailey had given evidence in the clearest possible terms as to how he would have behaved if he had known that he was running the risk of a NPCO. No request had been made to challenge this evidence by applying to cross-examine him.”

He also found that the reasons given by the judge for concluding that the warning would not have caused Mr Bailey to act differently were “inferential ones”, namely that Mr Bailey was motivated by recouping money for his fellow investors, by the advice he had received from his lawyers and by the fact that they were prepared to act on a conditional fee agreement.

“Those factors do not mandate a conclusion that Mr Bailey would have acted in the same way if he had known that he would face a costs bill for several hundreds of thousands of pounds.

“It is one thing to help out fellow investors if there is no appreciable downside, quite another if it is to going to result in a large costs liability if the defence is unsuccessful.”

Mr Bailey, Floyd LJ said, was an experienced entrepreneur, used to assessing risk against reward. “The judge was not entitled, in my judgment, to reject Mr Bailey’s evidence as to how he would have behaved in the event of a warning.”

He added: “I also consider that it is fair to take into account the fact that Mr Bailey could have protected his position by ATE [after-the-event] insurance.

“The judge rejected this point because there was no evidence that Mr Bailey asked for or was given advice about the remedies which were open to SATV if no ATE cover was obtained and WPMC lost.

“However, it was obvious that Mr Bailey and SATV were operating on the assumption that any costs order made against WPMC would not be met. It is not clear to me therefore what should have prompted Mr Bailey to ask for such advice.

“However, if he had been warned that a NPCO was being sought against him, there was every reason for him to ask for and obtain appropriate advice as to how he might protect himself against such an order.”

Exercising the discretion afresh, Floyd LJ described the absence of any form of warning as “fatal” to the application for the NPCO.

“It is plain, as the judge indeed held, that SATV knew or should have appreciated that WPMC would not be able to pay their costs in the event that the claim succeeded, and they knew that WPMC, and Mr Bailey with whom they dealt directly, were operating on the same assumption.

“In those circumstances the failure to warn until a year after final judgment is given strikes me as manifestly unfair to Mr Bailey.

“It would be unjust because Mr Bailey was deprived of realistic opportunities to settle the litigation or to protect himself against the adverse effects of a NPCO, or to abandon the defence of the litigation at a much earlier stage.

“I would therefore allow the appeal and set aside the NPCO.”

Just over 12 months ago inCase hit the legal sector with its revolutionary mobile app, specifically tailored for law firms specialising in personal injury. Offering an effective communication tool for firms, early adopters began to see the advantage of their own mobile app as speed of securing instructions; enhanced client satisfaction and reducing overheads began to take hold.

Today, inCase has already been radically enhanced to offer a signature feature. Allowing firms to send documents and forms securely to a client’s mobile phone or tablet within seconds using PUSH technology and notifications, clients are alerted to take immediate action.

Continuing to reinvest knowledge and experience built up over the last year and previous 2 years from its original conception by founder and PI solicitor, Sucheet Amin, inCase has already released a model specific for the conveyancing market and it has plans to open into other sectors in the coming 12 months.

Founder and managing director, Sucheet Amin said “it is such an achievement to be shortlisted in this category of Associated Industries. Whilst being among some long established and well respected businesses, inCase has demonstrated again that it is worthy of this recognition.”

Djanogly: still working on third-party claims

There is to be no means test to benefit from qualified one-way costs-shifting (QOCS), the government has announced.

In a statement to Parliament today that follows advice given by the Civil Justice Council, justice minister Jonathan Djanogly said there will also be no minimum payment required of a losing party.

He said QOCS protection will be lost if the claim is found to be fraudulent on the balance of probabilities; the claimant has failed to beat a defendant’s part 36 offer to settle; or the case has been struck out where the claim discloses no reasonable cause of action or where it is otherwise an abuse of the court’s process (or is otherwise likely to obstruct the just disposal of the proceedings).

Mr Djanogly added that QOCS protection will apply in relation to claims that are discontinued during proceedings (subject to the fraud exception) and for all appeal proceedings “as the requirement for permission to appeal controls unmeritorious appeals”.

Part 36 will override QOCS, but only up to the level of damages recovered by the claimant. There is to be an additional sanction of 10% of damages (or 10% of costs for non-damages claims) where judgment for the claimant is more advantageous than a defendant’s part 36 offer. This will be subject to a tapering system for claims over £500,000 so that the maximum sanction is likely to be £75,000. Also, there will only be one sanction applicable for split trials.

The minister said the Ministry of Justice is still considering the practicality of QOCS protection not applying to elements of a claim for personal injury that are pursued for the benefit of a third party, such as a property damage insurer or a credit hire provider.

As revealed by the Master of the Rolls, Lord Neuberger, in May, the new rule on proportionality has been agreed by the Civil Procedure Rule Committee. “The senior judiciary are considering revisions to the Costs Practice Direction to give effect to the new rule,” Mr Djanogly said.

He concluded: “Changes to the Civil Procedure Rules will be considered by the committee in the autumn, in order for the necessary changes to come into effect for April 2013.

“The Ministry of Justice will continue to engage with key stakeholders throughout the implementation stage and will also work closely with the senior judiciary on other aspects of Lord Justice Jackson’s reforms, which are due to come into effect at the same time.”

Law Society president Lucy Scott-Moncrieff said: “It’s good that the government has listened to the concerns expressed by solicitors.

“The mooted means test applied to the new qualified one-way costs shifting rules, introduced into personal injury cases by the Jackson reforms, would have undermined the logic of the reforms and been an administrative nightmare.

“It might have led to further litigation about the scope of the rules themselves. We also took the view that access to justice would not be served by claimants having to make a minimum payment on losing a case.

“The society welcomes the government’s decision to amend their original  proposals and looks forward to continued collaboration with the Ministry of Justice and the Civil Justice Council in the implementation of the rest of the civil justice changes.”

Mike Gillibrand, finance director at WHN

Greater Manchester and Lancashire law firm, Woodcocks Haworth & Nuttall (WHN), has implemented the Proclaim Practice Management Software solution from Eclipse Legal Systems.

Employing over 100 specialists across seven locations, WHN offers a comprehensive array of legal services. The firm’s expertise ranges from corporate and commercial property disputes through to conveyancing and medical negligence. WHN prides itself on its commitment to delivering outstanding service and results to businesses, individuals and families.

The deal means the firm will be implementing the Proclaim Matter Management Software solution, with a ready-to-go Conveyancing Case Management system enabling the residential property team to experience immediate process enhancements. WHN will also utilise Proclaim as its integrated practice accounting and reporting toolset, providing a ‘one view’ approach to the firm’s finances and financial management data.

As part of the drive to further enhance efficiencies in property transactions, WHN will take advantage of the integration between Proclaim and the Land Registry’s Business Gateway (LRBG). Providing two-way integration for both data and documentation, solicitors will have instant access via the Proclaim desktop application, delivering the ultimate in operational effectiveness.

Mike Gillibrand, finance director at Woodcocks Haworth and Nuttall, said:

“The decision is client led. In a modern, flexible world the right IT can make a huge difference in how law firms deliver legal services.”

“More of our solicitors are working offsite, on the move with clients, so the new legal software will give them the tools to bring greater efficiencies into the way they advise clients, accessing important documents as and when they need them.”

“Whether it’s working with businesses or individuals, due to the nature of our business, we must have a rigorous and robust document storage management system. The process in how we store and recover documents will now be quicker and more secure, bringing greater operational efficiencies.”

York: provisional assessment pilot

The Civil Procedure Rule Committee should this week sign off an unexpected tripling of the limit for provisional assessment to £75,000, it has emerged.

The change has been approved by the government, 9L0-006 a Ministry of Justice spokesman told Litigation Futures yesterday, although it is not yet clear why the increase in the pilot level of £25,000 – at which the national roll-out was also expected – has been made.

The rule committee meets this Friday, when it is also expected to approve a raft of other changes to the CPR.

The news has leaked out after a copy of a resource pack for a judicial training session shortly before Christmas entered into circulation.

Provisional assessment, a recommendation of Lord Justice Jackson’s, will allow for a district judge to carry out an assessment on the papers in respect of bills where the costs claimed do not exceed £75,000. Either party can then seek an oral hearing before the same judge if they are unhappy but will face costs consequences if a 20% adjustment in their favour is not made a result.

The draft rules in the resource pack say the court will not award more than £1,500 to any party “in respect of the costs of the provisional assessment”. Simon Gibbs, a partner at costs practice Gibbs Wyatt Stone, has expressed concern about the failure to separate out the court fee from this, saying it is “clearly a drafting oversight”.

Writing on his well-known blog, he pointed out that the current fee payable for requesting a detailed assessment for a bill where the costs claimed are between £50,000 to £100,000 is £980.

Mr Gibbs said: “Hearings for bills of that size can easily last a full day or more. Given provisional assessments take place on paper and with very limited (at least under the provisional assessment pilot) documentation before the court, the judicial time required to undertake a provisional assessment is a fraction of that for a full detailed assessment. Presumably the new fees will be set at an appropriately modest level…

“If the court fee is not reduced in time for April 2013, and VAT is included in the figure, that leaves £433.33 profit costs for dealing with bill of costs up to £75,000.”

The pilot began in October 2010 in Leeds, Scarborough and York. In the first year 100 cases proceeded to assessment, following which there were 17 requests for an oral hearing, but only two actually made it that far. In neither did the requesting party reach the 20% threshold, although one was successfully appealed.

Speaking last year, Lord Justice Jackson said the pilot had shown the process to be quick and simple – the two district judges (also regional costs judges) involved spent an average of 37 minutes per case, and estimated that the parties saved at least £4,000 per case by avoiding a half or full-day hearing.

However, he highlighted the importance of judicial training, given that more recent experience in the pilot showed that assessments carried out by district judges who are not regional costs judges took markedly longer.

Trott: We want to make sure the voices of personal injury victims aren’t lost

Just a fifth of people who have suffered an accident are confident they know how to go about making a personal injury (PI) claim, research commissioned by National Accident Helpline (NAH) has found.

The YouGov poll also found that of 1,009 adults who have had an accident for which they could have potentially made a claim, 42% cited the existence of a ‘compensation culture’ as the reason they did not.

The research was at the core of a report, The Real Cost of Personal Injury, that is part of NAH’s lobbying against government plans to raise the small claims limit for PI from £1,000 to £5,000 and remove the right to compensation for pain and suffering in soft-tissue injuries.

Of those who made a claim, 26% were nervous about the process, 19% felt daunted and intimidated, while 10% worried about what others would think – just 22% felt confident about it.

As well as concern about the so-called compensation culture, the reasons given for not claiming were stress, nervousness about the process and a desire not to make trouble for anyone.

It found that 60% of people suffered financial implications as a result of their injury – with one in five losing out on earnings of £10,000 or more – while over a third had to take more than a month off work.

In fact, a fifth of those who did not claim reported loss of earnings.

The research also highlighted the emotional suffering and stress that victims suffer – half admitted they were anxious about how long they would take to recover, and one in five (20%) were worried they would not be able to pay their household bills.

Feelings of anger were common, with almost half (47%) feeling angry and frustrated with the person or company who caused their accident, and 54% left feeling their injury could have been avoided.

The report also tried to dispel the notion that people make claims for personal gain. Some 37% planned to use their compensation to replace lost earnings and 30% said it was to cover the cost of rehab and medication, while a fifth (21%) said they would pay off debts.

NAH managing director Simon Trott said: “We are also aware that the debate around compensation has become increasingly heated in recent years, and we have carried out our research to gain a better measure of the real cost of personal injury to an individual.

“Using our research, we will continue to work to ensure that people with legitimate cases are supported to get their lives back on track, and secure the justice they deserve. We want to make sure the voices of personal injury victims aren’t lost amongst the criticism of a perceived claims culture.”

Meanwhile, leading claimant firm Thompsons has continued its campaign against insurers by challenging them to explain why premiums have increased while their profits have continued to rise over the last year.

Annual premiums for drivers have risen to an average of £715 – 19% higher than the £600 average this time last year. The increase is the sharpest in five years, and premiums could soon surpass the record levels of 2011.

Insurance broker Willis Towers Watson suggested the rise was due to “the cost and complexity of repairs” on motors. Other reasons cited included the forthcoming increase in insurance premium tax and fraudulent claims.

Thompsons head of policy Tom Jones claimed that the likes of Direct Line and Admiral have failed to comment on the issue of fraud in their annual reports or explain the rise in premiums.

“Car insurance companies absolutely do not need increased revenue – they have seen huge profit and dividend increases in the last year. In 2015, Direct Line increased its UK motor insurance operating profit by 14%, and Admiral increased its UK motor insurance profit before tax by 11%.

“Car insurance share prices have been among the most stable during the uncertainty of Brexit – indicating that the market is still banking on these companies making huge profits…

“Is it being too cynical to view this as insurers jacking up prices now – when the lack of transparency means nobody really knows what they base their premium prices on – so that if the government increases the small claims limit they can miraculously reduce them back down? They will remain very profitable but put the saving down to the small claims limit change.”

“Difficult to see the benefit to defendants” of applying for adjournments

Insurers should not apply for adjournments in pre-April 2013 cases over the payment of success fees and after-the-event (ATE) insurance in the wake of the Supreme Court’s ruling in Coventry, a leading defendant law firm has recommended.

The Supreme Court suggested last month that the pre-Jackson regime of recoverability may have breached the European Convention of Human Rights.

This raises the question of whether defendants/their insurers should apply for an order that the issue of the recoverability of success fees and ATE premiums be adjourned pending the judgment of the Supreme Court in Coventry and a possible declaration that the provisions of the Access to Justice Act 1999 are incompatible with the convention.

In a recently published briefing, Kennedys partners Martin Cox and Greg Wood noted that a declaration of incompatibility does not, according to the 1998 Human Rights Act, “affect the validity, continuing operation or enforcement of the provision in respect of which it is given and is not binding on the parties to the proceedings in which it is made”.

They said: “A claimant entitled to recover his success fee and ATE premium under the law applicable to pre-April 2013 CFAs remains entitled to those sums, even if a declaration of incompatibility is made, and would remain entitled to enforce payment of those sums against the losing defendant.

“In those circumstances, it is difficult to see the benefit to defendants/their insurers in applying to have determination of that issue adjourned pending the judgment of the Supreme Court, or why courts would necessarily grant such a stay.

“Furthermore, adjournments, if granted, will have associated costs including additional interest on claimant’s costs pending final resolution.”

The solicitors said that if the legislation is declared incompatible, that would raise the prospect of claims being made against the government by those who have paid out success fees and ATE premiums under the old legislation over many years for infringement of their convention rights – a prospect specifically highlighted by Lord Neuberger, president of the Supreme Court, who gave the lead judgment in Coventry.

“Overall… we would not recommend that clients apply to adjourn the determination of whether such sums should be paid. No doubt this issue will be carefully considered by insurers, both individually and collectively.”

Dalton: legal fees need to become more proportionate

Industrial deafness claims are “fast becoming the new cash cow for claimant lawyers” and their fees need to be curbed, the Association of British Insurers (ABI) claimed yesterday.

Saying that “as one door closes, another one opens”, it warned that claimant lawyers and claims management companies are “increasingly cashing in” on claims for industrial deafness.

The ABI said that following last year’s reduction of fees for RTA portal cases, “there is growing evidence that claimant law firms are turning their attention to industrial deafness claims which attract substantially higher legal fees”.

Alternative business structure Quindell has publicly stated that it is shifting the focus of its caseload away from road traffic and towards noise-induced deafness.

The ABI said the average legal fee that a claimant lawyer received for settling an industrial deafness claim last year was £10,500, compared to £500 for a whiplash claim settled through the portal.

“Given the average compensation award for an industrial deafness claim was £3,100, this means that for every £1 an insurer pays out in compensation to the claimant, they pay out just over £3 in legal fees to the claimant’s lawyer.”

Speaking at the European Forum on Claims Management, James Dalton, the ABI’s head of motor and liability, said: “Industrial deafness claims are fast becoming the new cash cow for claimant lawyers, eager to make up for last year’s reduction of fixed legal fees in the claims portal. With lawyers typically pocketing three times the amount of compensation paid to the claimant, the rise in industrial deafness claims shows that claimant lawyers are keeping the compensation culture alive and well.

“Insurers are here to pay fair compensation to genuine claimants. But we need to tackle the increasing number of industrial deafness claims by ensuring that claimant lawyers’ excessive legal fees are made more proportionate.”

Rowley: taking away cost uncertainty

Irwin Mitchell has teamed up with Allianz Legal Protection to launch ‘Support4Dispute’, a bespoke funding solution to support insolvency practitioners (IPs) manage the costs and risks of litigation.

Under the terms of the conditional fee agreement that forms part of the package, Irwin Mitchell’s legal costs and success fee is only payable by IPs once a cash recovery is made from the opponent.

The after-the-event (ATE) insurance provided by Allianz is a staged premium facility linked to the amount of damages recovered, and capped to enable IPs to retain a greater share of any recovery made. In addition, the premium is deferred until the case is settled, and only payable on successful cases.

John Vickery, restructuring and insolvency partner in Irwin Mitchell’s Manchester office, said: “This product has been developed specifically for the IP sector and addresses all of the financial issues relating to why they may be reluctant to pursue litigation claims.

“Quite simply, the Support4Dispute service that we provide takes the gamble out of insolvency litigation and enables IPs to launch legal actions far more easily following an insolvency, without having the risk of having to pay their own legal fees or a hefty ATE insurance premium where no actual recovery is made or the opponent’s legal fees if the litigation is unsuccessful.”

Steve Rowley, business development manager at Allianz Legal Protection, said: “We worked with Irwin Mitchell over several months to jointly develop a product specifically aimed at addressing the risks and issues faced by insolvency practitioners.

“Using our combined knowledge and expertise we have created a solution that meets the needs of insolvency practitioners, and takes away the cost uncertainty faced when bringing legal action against creditors.”

Vinayak: significant risk to solicitors

The big medical reporting organisations (MROs) have registered more multiple shell companies on MedCo to maintain market share, rather than increase it, and are responding to the demands of solicitors, the founder and CEO of Doctors Chambers has said.

Bippon Vinayak was speaking in the wake of the revelation that his company, along with three others, has recently registered a second wave of tier 2 shell companies, even though the Ministry of Justice (MoJ) is committed to halting the practice.

MedCo was introduced to randomise the selection of MROs and medical experts for claimants sourcing fixed-cost medical reports for soft tissue injury claims – a solicitor searching MedCo for an MRO is presented with a random selection of one tier 1 MRO (that is, a high-volume national provider) and six smaller tier 2 MROs.

The aim was to address the risks of abuse represented by financial links between some providers of medical evidence and those instructing them.

In a statement to Litigation Futures, Mr Vinayah said: “Whilst I agree that randomisation has its place in tackling abuse, I believe that the speed with which MedCo was introduced, and the rigidity of the MedCo selection system, has been at the expense of jeopardising the availability of the quality reporting standards and processes offered by Doctors Chambers and other leading MROs.

“A particular unintended feature of the MedCo regime has been the registration of a large number of smaller untried MROs as tier 1 or tier 2 providers. [The MedCo] selection offering was predicated on the MoJ anticipating a far lower level of registrations than has in fact been the case (and as was predicted by the leading MRO providers).

“The choice of MROs offered by the MedCo portal, driven simply by the numbers of registrants in each tier with no reference to quality criteria, leads to significant risk that solicitors could be prevented from instructing MROs with proven commitment to quality. Ultimately this is to the detriment of the justice system.”

Mr Vinayak said that this was why he was in the process of registering a further 20 “full operational companies” as tier 2 MROs.

“I believe that our leading peers and competitors are similarly motivated. Our move is driven by the demands of our instructing solicitors who, faced with the influx of registrations by new and untried entrants to the market, demand to be able to select and instruct known MROs with proven and consistent commitment to quality.

“We do not expect it to increase our market share, but rather it is the best way open to us to ensure that our instructing solicitors remain able to select Doctors Chambers from among the MROs presented by the MedCo portal.”

Premier Medical Group is another to have registered 20 new shell companies, and chairman Harry Brünjes said: “Although I understand the philosophy of MedCo, the recent activity reinforces the fragility of the current model.

“At Premier we support the efforts to tackle dishonest whiplash claims and wish to work alongside government but believe the focus should be on established companies with sound financial history and a core focus on medical excellence.”

Neither of the other two MROs involved, Premex and Speed Medical, had a comment.

Supreme Court: 5:2 majority

The pre-Jackson regime that allowed the recovery of success fees and after-the-event insurance premiums from losing defendants was compatible with the European Convention on Human Rights, the Supreme Court ruled today.

In the heavily anticipated decision in Coventry v Lawrence [2015] UKSC 50, the expanded panel of seven justices was not united in its ruling, with Lord Clarke, who as Master of the Rolls (MR) commissioned the Jackson report, and Lady Hale dissenting.

The current MR, Lord Dyson, and his predecessor Lord Neuberger, the president of the Supreme Court, gave the main judgment together, with which Lords Sumption and Carnwath agreed.

They said the issue was not whether the system was unfair or had flaws – rather it was whether it was a disproportionate way of achieving a legitimate aim.

“In our judgment, there is a powerful argument that the 1999 [Access to Justice] Act scheme is compatible with the convention for the simple reason that it is a general measure which was (i) justified by the need to widen access to justice to litigants following the withdrawal of legal aid; (ii) made following wide consultation and fell within the wide area of discretionary judgment of the legislature and rule-makers to make.”

The judges observed that the potential unfairness of the 1999 Act scheme on unsuccessful litigants was mitigated by the fact that district judges and costs judges would perform the role of “watchdog”. They added: “Nor should it be overlooked that respondents could themselves enter into CFAs and take out ATE insurance.”

Lords Neuberger and Dyson concluded that while in some individual cases the scheme might be said to have interfered with a defendant’s right of access to justice, it was necessary to concentrate on the scheme as a whole.

“[It] was a rational and coherent scheme for providing access to justice to those to whom it would probably otherwise have been denied. It was subject to certain safeguards.

“The government was entitled to a considerable area of discretionary judgment in choosing the scheme that it considered would strike the right balance between the interests of appellants and respondents whilst at the same time securing access to justice to those who would previously have qualified for legal aid.

“It had to find a solution to the problem created by the withdrawal of legal aid. The government has now produced three different schemes. Each was produced after wide consultation. Each has generated considerable criticism.

“As already indicated, once civil legal aid was constrained to the extent that it was in 1999, it became impossible to come up with a solution which would meet with universal approval.”

They also decided that the fact the Court of Appeal “actively shaped the law relating to additional liabilities throughout the period from 2000 until 2013” implied that they were recoverable.

“In these circumstances, litigants and their lawyers had a legitimate expectation that the court would not (at least without reasonable notice) decide that these fees were in principle incompatible with the convention.”

In his dissenting judgment, Lord Clarke said the scheme was “plainly” a disproportionate way of achieving the legitimate aim “because it did not treat all respondents in the same way but chose a particular class of respondents on whom to impose liabilities far beyond the bounds of what was reasonable or proportionate”.

Bids for costs protection could lead to intrusions into privacy, say City solicitors

City solicitors have urged the Ministry of Justice (MoJ) to withdraw its consultation on costs protection in defamation and privacy claims because it does not deal with the central issue of how eligibility for protection will be assessed.

It also warned that an application for costs protection under the proposed scheme could in itself lead to “incursions on privacy”.

In September the MoJ proposed the introduction of qualified one-way costs shifting (QOCS) in defamation and privacy cases – depending on the wealth of the party seeking protection.

Full costs protection would be afforded to those who would face “severe financial hardship” if they had to pay the other side’s costs; partial protection would be given to those of “some means” who could pay something “without seriously affecting their overall financial position”; and there would be no QOCS for “very wealthy individuals or organisations”.

In its response, the litigation committee of the City of London Law Society said the consultation paper was premature.

It explained: “What constitutes severe financial hardship and how it is to be determined is not a mere point of detail but is at the heart of the scheme. Unless this is clear in the rules, the scheme will itself generate endless and costly satellite litigation as parties apply to the courts in order to work out how the rules should be applied in practice.

“There is also a real risk of inconsistency in approach and of a resulting lack of fairness (whether to the claimant or defendant).”

The consultation paper was open in not setting out any criteria as to how the court should assess severe financial hardship. “Without an understanding of these criteria, it is impracticable to address the questions raised by the consultation paper or to assess whether the scheme will work effectively and fairly in practice,” the committee said.

It raised a host of matters that it said needed to be considered, such as: should there be strict criteria or judicial discretion? If discretionary, how would consistency be achieved? If strictly financial, what should the limits be? Should they be the same as legal aid? Should the manner in which the applicant is financing the litigation be relevant? Should the costs of childcare be considered? Would it be reasonable to require the applicant to incur debt that they have the income to pay off over a period of time?

The committee pointed out that the “huge advantage” conferred by costs protection is likely to encourage many parties to apply for it and respondents to fight them intensely.

It warned: “Indeed, there is a serious risk that an application for costs protection will itself lead to incursions on privacy if a respondent does not accept at face value the applicant’s statement of the applicant’s assets and liabilities. Ifthe respondent wishes to check these matters – for example, whether the applicant’s lifestyle is consistent with the applicant’s description of his or her means – this will involve watching or otherwise investigating the applicant.”

This meant a new paper should be issued that sets out the options for determining severe financial hardship and assesses how they might operate in practice, the committee said. “Without that, any consideration of the questions in the consultation paper will be incomplete at best, and probably flawed.”

By contrast, the Civil Justice Council gave a much warmer welcome to the consultation in its response. It said costs protection would need to be “underpinned by some form of means test”, with guidelines to clarify the level of means applicable for each group of applicants.

It said: “Regard should be had of means banding in related fields, eg legal aid eligibility, any comparable case law decisions in other fields of law. It is anticipated that case law will in any event develop to provide definitions for each of the groupings”.

• The MoJ has issued a call for evidence as part of the triennial review of the CJC, which is being undertaken by the Judicial Office. This will look at the continuing need for the functions and the form of the council. The review is also looking at the Family Justice Council. See here for more details.

Nash: new era for costs lawyers

Costs lawyers are seeing the benefits of the Jackson reforms as solicitors turn to them in increasing numbers to cope with the intricacies of budgeting, a poll has shown.

Some 53% of members of the Association of Costs Lawyers (ACL) said they have seen a “significant” growth in demand for  budgeting advice in the past year, with a further 28% saying it had increased “slightly”. This was on the back of similar rises in previous years.

Three-quarters expected even more instructions over the next 12 months.

As a result, 55% of costs lawyers said they had grown their practices, taking on more staff, increasing sales and marketing activity, undertaking more advocacy, and diversifying – with ADR, WIP valuations and legal project management the key areas they are looking at.

The increase in demand for budgeting, hand in hand with more fixed fees in fast-track personal injury work, mean that the nature of costs lawyers’ practices is changing. Multi-track work made up 60% of the average firm’s caseload (up from 52% last year), while fast-track PI fell from 22% to 13%.

Asked how budgeting was working, 60% said it had brought costs lawyers’ skills to the fore. Some 52% replied that it depended which judge they were before – reflecting concerns expressed by the ACL and others that judicial inconsistency is undermining the regime – while a similar number (53%) agreed that ‘solicitors think they can do it – and they’re wrong’.

The proportion who found that solicitors remain in denial or unaware of the demands fell slightly, from 43% last year to 36% this.

Costs lawyers remained concerned about the impact of the Jackson reforms, however, with 40% saying they have discouraged solicitors from taking on less straightforward cases, and 31% believing that they have tilted the playing field in favour of defendants.

ACL chairman Sue Nash said: “The Jackson reforms have ushered in a new era for costs lawyers – one where they play a critical role in managing costs from the start of a case to the end. It is satisfying to see how many are looking to spread their wings into other areas where their skills and experience – which cover far more than their core costs drafting role – can offer real value to solicitors, their clients and others.”

Eclipse Legal Systems, the sole law society-endorsed legal software provider, has announced integration with new-to-market ReviewSolicitors.

Founded by trio Saleem Arif (co-founder of QualitySolicitors), Michael Hanney and Pete Storey, ReviewSolicitors is a review site exclusively for the legal profession. It uniquely enables law firms to capture client feedback and display it upon an unbiased online platform.

The integration between ReviewSolicitors and Eclipse’s market-leading proclaim case and practice management solution will allow law firms to automatically email clients at the end of their transaction, requesting a review be left at www.reviewsolicitors.co.uk. This automated feedback capture process will enable law firms to refine their service offerings and provide invaluable information to assist new clients seeking legal advice.

Darren Gower, marketing director at Eclipse, comments:

“This integration with ReviewSolicitors will enable Proclaim users to harness the latest review technology platform, capturing vital satisfaction data in a way that is a seamless part of their client and matter management process.”

Saleem Arif of ReviewSolicitors adds:

“In the past, review sites in the legal profession have attracted two types of review: either from those who are extremely satisfied with their service, or those that have had a bad experience. This integration will help to provide a fuller and more representative sample of overall client satisfaction, not just the extremes. This adds a new level of integrity, helping clients to make an informed decision.”

Bogart: strong response

Burford Capital has raised a further £100m in its two-week issue of bonds, the AIM-listed litigation finance company announced today.

The sum raised exceeded Burford’s first bond issue in 2014, which brought in around £90m.

The bonds will pay interest at an annual rate of 6.125% and mature on 26 October 2024.

The money is ready to invest and Burford said that when combined with Burford’s existing investment commitments, it would take the company’s cumulative litigation finance investment commitments to approximately $1bn.

There are more than 500 individual litigation matters underlying Burford’s current investments

Burford’s recent annual report – which recorded a 26% rise in income to £73m, along with a 27% jump in operating profit to £54m – explained how it was evolving in line with the legal market’s changing attitude towards outside capital. From having originally just funded individual cases, only 13% of its new investments in 2015 were single matters, with the rest “a variety of other forms of capital provision to the legal market”.

This included providing £71m in capital for an unnamed global law firm, in its largest transaction ever.

Burford CEO Christopher Bogart said: “We are very pleased with the strong response to our second bond issue, which at £100m has well exceeded our first issue and continues to provide us with an unmatched capital base.

“The legal sector is rapidly evolving alternative economic models and demand is increasing globally for Burford’s services. The use of external capital by law firms to support their growth is accelerating, even as corporate clients seek new ways to manage ongoing costs and monetize litigation assets.

“We are grateful for the continuing support of our investors in both our bonds, which has permitted this further expansion of our business, and our shares. We look forward to demonstrating Burford’s further potential.”

Jackson: momentum is heavily for reform

Lord Justice Jackson has been drafted in by the senior judiciary to work on extending fixed recoverable costs – even though earlier this year he said he would rather not do it.

The move by Lord Thomas, the Lord Chief Justice, and Sir Terence Etherton, the Master of the Rolls, comes in the wake of the commitment in September’s joint government and judiciary vision statement, Transforming our Courts and Tribunals, to look at options to extend fixed recoverable costs much more widely.

Jackson LJ, who has until 31 July 2017 to complete the review, has been chosen because the work is “a logical extension” of his 2010 report, in which he first recommended greater use of fixed recoverable costs.

Describing the current system as “exorbitantly expensive” in a speech earlier this year, he said the profession was now “more willing” to accept fixed costs, partly because it would “dispense with the need for costs budgeting, which not everyone enjoys”.

He called on the government to take a decision on whether to have fixed costs for cases worth up to £250,000, as he recommended, or for all cases.

Jackson LJ said that if the government did not “wish to pursue this reform as a priority”, it should “suggest that a senior judge who doesn’t mind being pilloried (preferably not me again)” actually draws up the scheme.

A statement put out today by the judiciary said the review has been agreed with the government “and will inform its public consultation on proposed reforms, which will follow the review after consideration of its recommendations”.

Lord Justice Jackson will formally commence his review in January 2017, but will be inviting written submissions on this topic immediately (see details below).

The terms of reference are “to develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants”; and “to consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply”.

Jackson LJ said: “I have set out my present views on the principles of fixed recoverable costs in the final report of my review and in recent lectures and publications.

“I have been commissioned to undertake this review because it is integral to the overall package of reforms which I originally proposed. Chapter 16 of my final report recommended that serious consideration should be given to extending fixed recoverable costs to the lower reaches of the multi-track after the other reforms had bedded in.

“Although the momentum is heavily for reform, the review will provide ample opportunity for comments and submissions on the form and scope that reform should take. I am inviting the views of practitioners, users of the civil courts and any other interested parties on these points. Seminars will be held in London and elsewhere to discuss the issues.

“There is a great deal to be done on the detail of the review, which will inform the government as it prepares proposals for formal consultation in due course.”

Law Society president Robert Bourns said: “We do not oppose the principle of fixed costs for straightforward, low-value claims as they can provide some certainty for both sides in litigation and avoid protracted disputes about the level of costs.

“But we have previously expressed concern at suggestions that costs should be fixed for all claims up to £250,000 – a tenfold increase on the current limit for many claims subject to a fixed-cost regime.

“Cases at this level of compensation include situations where people have been very seriously harmed and where the application of fixed costs would be totally inappropriate. It would also raise significant questions about people’s ability to access justice.

“Such a one-size-fits-all approach for all cases, regardless of complexity, will simply make many cases economically unviable, undermining the principle of justice delivering fairness for all.”

Association of Costs Lawyers chairman Iain Stark, a partner at Weightmans, said: “Whilst recognising the desire for wholesale reform, thereby providing certainty in the legal costs arena, this must be tempered by accepting that access to justice must be the bedrock of any consultation. We welcome the opportunity to respond.”

Nigel Teasdale, the new president of the Forum of Insurance Lawyers and a partner at DWF, said: “FOIL welcomes long-anticipated progress in the widening of fixed costs, with the launch of the review a first important step towards a positive outcome for the industry.

“It is very encouraging to see the determination for an extension, not only for clinical negligence and personal injury claims but across the civil justice system, and Lord Justice Jackson is absolutely the best-placed person to lead this review.”

Making submissions

Written submissions should be sent by 16 January 2017 to: fixed.costs@judiciary.gsi.gov.uk.

If evidence is being submitted of actual recoverable costs, this should identify the type of case (eg, clinical negligence, property, judicial review etc), and the source of evidence (eg, detailed assessments under the post-April 2013 rules, approved budgets, agreed budgets etc).

Material submitted should take account of the Civil Procedure Rules on proportionality, in particular the factors set out in rule 44.3(5).

Views are also sought on the level of claim at which fixed recoverable costs should stop and costs budgeting should apply instead.

Other issues that the review will need to consider, and on which views are welcomed, are how to accommodate counsel’s fees, experts’ fees and other disbursements within a fixed recoverable costs regime. Another issue for consideration is the difference which frequently arises between claimant and defendant costs.

Paul Keelan, senior proclaim developer at Smooth Law

Established in July 2015, Smooth Law is a modern progressive law firm providing claimant legal services to a wide range of clients. The firm prides itself on operating as an entirely paperless office, communicating with clients via email, telephone and SMS text messaging for speed and efficiency.

Paul Keelan, Senior Proclaim Developer at Smooth Law, has worked with Eclipse’s Proclaim legal software since 2003 at a variety of firms, and as a result, possesses extensive knowledge of the system.

Most recently, Paul has worked with Eclipse to efficiently implement the Proclaim Practice Management software at Smooth Law and now works as the practice’s primary Proclaim developer.

Why was Eclipse the chosen supplier for Smooth Law?

The partners here had previously worked at a large Liverpool firm which utilised Proclaim heavily so from first-hand experience, it was the solution of choice. As a smaller firm, but with ambitious plans, it’s great that Proclaim is not just exclusive to large firms – whether it’s a 100+ fee earner practice, or a sole practitioner, Proclaim remains the same and is always just as simple-to-use.

Additionally, the Law Society Endorsement was a factor in our decision. Although Eclipse and its Proclaim solution were already known to us – and we were certain it was the software suited to us – the endorsement announcement just cemented our confidence in the decision.

It meant that, to us, Eclipse was continuing to move forward and although it had already conquered the legal sector market, it wasn’t resting on its laurels.

Furthermore, the complete flexibility of Proclaim means we can develop the solution entirely in-house, without the need to bring in external IT consultants – I personally have yet to be in a position to say “we can’t do that”.

Smooth Law originally implemented Eclipse’s out-of-the-box Personal Injury system – how has this been configured to fit in with business requirements?

We did initially take an off-the-shelf Personal Injury solution as that’s the area of law we predominantly practice. However, we’ve also recently created our own case type for Holiday Sickness claims, which is an entirely bespoke solution to Smooth Law, and designed completely in-house using the Personal Injury workflow as a platform.

The sheer flexibility of Proclaim means we have the ability to do this. It gives us the boldness to expand and the confidence to know it’s a possibility – we now have over 1000 live claims in the system.

How was the transition to the latest iteration of Proclaim (v3.3.1)?

It was very easy. Although we have a small database, there are still a wide range of issues that can occur when upgrading software but this wasn’t a problem with Eclipse, it was extremely simple.

I’ve done a number of migrations throughout my time working with Proclaim and have never had a problem. In my experience, this is down to two things:

1. Good internal planning
2. Excellent communication

As part of this second point, Eclipse’s Transition Support team is brilliant, as are all the staff and I’ve found everyone is always happy to help and go that extra mile if needed.

How are you benefiting from Proclaim’s new ‘Options Images’ feature?

This is an absolutely fantastic feature!

One of the main benefits is the ability we now have to develop our client journey. We have two stages of a claim – portal and non-portal – and using Option Images we’ve been able to create an entirely bespoke yet simple case status feature within FileView (Eclipse’s online case tracking tool).

Depending on the stage of the claim, the client’s view will differ and due to Proclaim’s inherent flexibility, we’ve been able to build in high-level automation so the stages are instantly updated to correspond with actions taken by our fee earners.

This is an excellent feature for our clients that like instant access to updated information and an at-a-glance view to their case. It’s also proven vital for those instances we experience a language barrier – the stages are now displayed in simple images and enables clients to see case changes as and when they need to.

Perhaps best of all, and as with a variety of aspects to our Proclaim solution, this was developed entirely in-house. No additional training was required, nor was support from Eclipse – it was all designed purely using the latest release notes, which supplied a user-friendly, step-by-step guide.

How have Eclipse’s additional tools, SecureDocs, FileView and TouchPoint enhanced your service offering?

We’ve used SecureDocs from day one. The online delivery and acceptance tool has proven vital in enhancing our client on-boarding process as it’s now all done with the click of a button.

We often receive an initial enquiry in the morning, and by lunch time, they’re a client. There is no doubt this is a result of the automation and quick turnaround times supplied by SecureDocs.

Furthermore, we pride ourselves on our ability to operate as an entirely paperless office and offer a wholly transparent service – this simply couldn’t be achieved without SecureDocs.

It provides peace of mind for our clients by providing a completely secure service to access and action important documents, whilst also resulting in speedier case progression and an enhanced service offering.

With regards to FileView, and as previously mentioned, using this tool we’ve been able to provide clients with an easy snapshot of their cases. Taking this further, we’re using the online case tracking feature to send details of, for example, medical appointments to clients, as well as allow them to upload images of receipts and expenses such as taxi fares.

Before FileView this would have involved photocopies or originals being sent to us via post, and in turn, would delay the claims process. With FileView, everything is effortlessly uploaded via smartphone or tablet, ensuring an innovative, instantaneous and device-operated option.

Similarly, we’ve taken advantage of Eclipse’s TouchPoint tool and are going live with it this week (at the time of writing) to further enhance our service and provide clients with a complete self-service experience. As part of this, we’ve linked it with FileView and SecureDocs for a centralised solution so clients can access everything associated with their case, from correspondence to file status.

To use my previous example, once a client has received details of their medical appointment, they can log in to their customised TouchPoint portal and find directions to the appointment through the Google Maps tile.

Essentially, the additional toolsets provide modernised and future-proof approaches to keeping in contact with clients and ensuring we are supplying them with the most relevant and up-to-date information – all with minimal input from our staff. In turn, this means we can concentrate on increasing our case volumes but with the added reassurance our current clients remain informed.

Overall, how well does Proclaim suit your on-going requirements?

Without a doubt Proclaim suits us down to the ground.

We have ambitious plans for our firm and as part of this we will be looking to develop other avenues of work. With Proclaim, we no longer need to delay these plans due to software limitations – we can simply design our own case type as and when we need to, to suit our way of working and our future service offering.

With Proclaim the possibilities are endless and in my opinion, its sheer flexibility means the only restriction is imagination!

“The sheer flexibility of Proclaim gives us the boldness to expand and the confidence to know its’s a possibility. I personally have yet to be in a position to say “we can’t do that.”” Paul Keelan, primary proclaim developer at Smooth Law

Kain Knight, a leading firm of Costs Lawyers, and Prestige Network, a professional language services business, have formed a strategic alliance to promote each other’s services via a series of joint initiatives including co-branded seminars and online and offline marketing activities.

Founded 22 years ago, Prestige Network provides document translation in over 200 languages, including Arabic, Polish, French, German, Welsh, Czech, Slovak, Urdu, Spanish and Italian.

Prestige Network’s clients include law firms, insurance companies, barristers’ chambers, police services and local authorities. It supplies qualified and highly-skilled native speaking legal translators and provides written translations of all types of legal documents.

It also offers face-to-face interpreting, telephone interpreting and British sign language (BSL) which are available via its network of over 5,000 linguists.  It has both ISO 9001 Quality Standards and BM Trada accreditations and has won numerous prestigious awards over its many years in operation.

Peter Petyt, Chief Executive Officer of Kain Knight, said:

“Many of our law firm, insurance and barrister clients are also clients of Prestige Network, making regular use of its legal documents translation services as well as its interpreting services.  As we are often marketing to the same audiences, we have formed a partnership to work on joint activities that will deepen our clients’ awareness of both firms’ services.”

CJC: Latest rises “may discourage co-operative behaviour”

The Civil Justice Council (CJC) and Bar Council have condemned government plans for a second wave of court fee rises.

Among the proposed changes are an increase in general application fees from £50 to £100, for applications without notice or by consent, and from £155 to £255 for other contested applications.

The CJC said the latest plans would have a “particularly adverse effect on lower value claimants”. As an example, it said any applications for claims of £1,500 or less would cost more than the fee for commencing proceedings.

“An assumption is made on these increased costs being recoverable. That is not always possible and depends on the circumstances of the case and a defendant’s means.

“Another concern is that in some of the general applications the court acts as little more than a ‘rubber stamp’ and the size of this increase is excessive given the limited nature of the administrative task.

“A further general point that should be noted is that the costs of these increases will be passed on by claimants. Lenders and landlords in particular will review rates and rents and recover them from mortgage payers and tenants.”

The CJC went on: “It should be borne in mind that in a number of cases these applications arise from the behaviour of the other party (the respondent) or circumstances beyond a claimant’s own control – for example time extensions due to ill health or an expert witness failing to meet a court deadline.

“We fear that these measures may discourage co-operative behaviour by the parties – for example being required to pay a fee for an application for a consent order may discourage settlements.

“We would also recommend exempting small claims (those below £10,000) from these increases.”

The CJC added that it strongly supported the proposal to exempt three suggested areas (injunctions to protect against harassment and violence, applications on behalf of a child or vulnerable adult for payments out of court funds and specified insolvency proceedings) from the latest fee increases.

Alistair MacDonald QC, chairman of the Bar Council, commented: “Raising the fees for general applications by 65% and 100% means people will have to pay considerably greater sums just to keep their cases going.

“Alternatively, they will avoid issuing applications, which can lead to poor management of proceedings and an increased likelihood of satellite litigation, all of which wastes court time.

“We are not talking about multinational firms in multi-million pound law suits. General applications relate to things like chasing a cowboy builder, or challenging an application for possession of your home.

“Studies show that there is price elasticity around the use of courts, so the government knows this will stop some people from using the law to seek the redress they need.

“It is right that court users make a contribution, but wrong in principle that court fees should be used to generate more money than the courts cost to operate.”

Thoresen: anger and disappointment

The Association of British Insurers has stepped up the pressure over the Law Society’s controversial “Don’t get mugged by an insurer” campaign targeting personal injury clients by calling for the £300,000 campaign to be pulled.

Director-general Otto Thoresen has escalated the row in a letter addressed to new Law Society president Nick Fluck which expressed his “anger and disappointment”.

In a strong-worded repost, Mr Thorensen branded the striking strategy as “a gross error of judgment” and said that it is “little more than public name-calling”.

And he has argued that the data, on which the central claims of the campaign are based, is flawed.

Last month, Legal Futures revealed the Law Society’s new advertising campaign which, for the first time, was focusing on a particular area of practice.

The society said the campaign “deliberately takes a bold, humorous and memorable approach” to gets its message across. It features posters on public transport and stations, PR coverage in regional media, radio advertising, online advertising and a video on YouTube. Firms can request A3-size posters and postcards, as well as a rotating banner advert for their websites.

The key message of the campaign is to urge personal injury consumers to not just accept the first offer of compensation from insurers.

According to Chancery Lane, research from the Financial Services Authority following a freedom of information challenge “revealed personal injury claimants who turn down an insurer’s initial offer and take legal advice from a solicitor get on average three times more compensation”.

However, after ABI director of general insurance Nick Starling hit back at the campaign, claiming it is lawyers who are “mugging” the public, and the Forum of Insurance Lawyers also complained about it, Mr Thorensen’s letter has added more heat to the debate.

Discrediting the Law Society’s data, the ABI stated that the figures are from a study of 113 cases from three insurers, undertaken four years ago.

In the letter, Mr Thoresen says that the authors of the FSA report themselves describe the data that underpins the study as “patchy”, “limited” and that it doesn’t give a “definitive conclusion”.

In his letter calling for the campaign to be withdrawn, Mr Thoresen states: “Your campaign is a gross error of judgment, represents a deeply regrettable resort to little more than public name-calling and it comes as a matter of considerable surprise that a professional and well-respected organisation such as the Law Society is prepared to lower itself to such action.

“I am more than aware that the insurance industry and some – but by no means all – of your members have taken different positions in the on-going debates over personal injury compensation reform.

“Robust debate on key policy issues is to be welcomed and, as part of those debates, the insurance industry has always been careful to ensure our contributions are based on evidence rather than the highly misleading and selective use of statistics.

“This campaign can only be damaging to relationships between the Law Society’s wider membership and insurers. I look forward to your assurance it will be withdrawn immediately.”

The Law Society had no comment yesterday.

Dyson: urgent and concerted action needed

A higher threshold for appeals and an end to the right to an oral hearing of permissions to appeal (PTAs) are at the heart of major reforms aimed at bringing the Court of Appeal’s (CA) workload under control.

With the volume of appeals up 59% over the past five years, the current waiting time for full appeals is now up to 19 months, up to six months for PTA decisions on the documents and up to a further six months for oral renewal of PTA applications.

In his introduction to a consultation paper issued by the Civil Procedure Rule Committee, the Master of the Rolls, Lord Dyson, said: “The judges of the court do not regard the present position as acceptable or sustainable.”

Under the plans, the threshold for grant of PTA would rise from ‘a real prospect of success’ to ‘a substantial prospect of success’ on appeal. The consultation explained that it would have to be “seriously arguable that an error has been made (and not merely arguable so that it cannot be said to be fanciful)”.

The right for a litigant to require a refusal of PTA or other application based on the papers to be re-considered at a hearing would be replaced with a discretion for the judge who considers the papers to hold an oral hearing if they think it appropriate as a matter of case management.

The consultation also set out proposals to amend Practice Direction 52C, the principal practice direction governing litigation in the Court of Appeal, to make it “more user-friendly” and to limit the volume of documents before the court.

Lord Dyson said: “In the light of my discussions with the Ministry [of Justice] and in view of the current fiscal constraints, I have no doubt that there is no possibility at the present time of increasing the number of judges in the court.

“Unless urgent and concerted action is taken to ease the pressures on the Court of Appeal we risk damaging not just the international reputation of the court, but its integral role in the proper and efficient administration of justice in this country.”

Other, more minor, reforms are already in hand, such as legislative measures to re-route certain appeals from lower courts to the High Court, and making more use of two-judge courts.

The consultation paper said that until about 18 months ago, the CA managed to absorb the increase in its workload largely by the judges working longer hours. But it is now falling “significantly behind” in dealing with these.

The three main symptoms of the overload were a dramatic increase in waiting time for hearings, an “unacceptable increase” in the amount of work being done by judges out of hours – 48% of the time spent on writing lead judgments was being done out of hours – and greater delay in the preparation and delivery of reserved judgments.

A time and motion study carried out last year showed that, although the number of PTAs and demands for leadership work had increased, “the overwhelming demand upon the time of the members of the court remains the work required for preparing, hearing and judgment writing in connection with full appeals”:

The paper continued: “Although the number of full appeals requiring to be heard has only increased modestly over the last five years, it is probable that the time taken per full appeal has also been rising (albeit there are no statistics from which this can be measured, because there has never before been an attempt to measure the CA’s workload by anything more sophisticated than bare numbers of appeals)…

“The probable reason for this, apart from the ever increasing complexity of the law, is that the court is hearing a smaller proportion of a greatly increased incoming workload as full appeals, and therefore concentrating its attention on the most difficult cases.”

It warned that without reform, the ever-growing case backlog would have grown a further 20% by the end of 2016.

Vara: fee increases are necessary to “fix the economy”

Justice minister Shailesh Vara has today announced a further wave of court fee rises for possession, divorce and general civil claims.

At the same time he has unveiled plans to raise the £10,000 cap on money claims to “at least £20,000”, and double fees in the Immigration and Asylum Chamber.

Responding to a consultation launched in January this year, the minister said fees for issuing a possession claim in the county court would rise by £75, from £280 to £355.

Fees for issuing divorce proceedings will go up from £410 to £550. The Ministry of Justice (MoJ) said it had “carefully considered the concerns raised during the consultation and decided not to increase fees by 80%” as originally proposed.

“Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low-wage households.”

Fees for general applications in civil proceedings are to increase from £50 to £100 for applications by consent, and from £155 to £255 for contested applications.

“In order to ensure the most vulnerable are not affected, we are excluding from this fee rise applications such as those to vary or extend an injunction for protection from harassment or violence,” Mr Vara said.

The minister said it had estimated that the latest wave of court fee rises would deliver over £60m in additional income each year.

However, Mr Vara said yet more court fee hikes would be necessary to raise a further £48m.

The MoJ is proposing to increase the cap on fees for money claims from £10,000 to “at least £20,000”.

“Many of the claims brought for higher values will involve large multi-national organisations or wealthy individuals, and we believe it is right to ask them to contribute more,” he said.

“In order to protect the most vulnerable, personal injury and clinical negligence claims will be excluded from this higher cap and fee remissions for those of limited means will continue to apply.”

At the same time, the MoJ is proposing to double fees in the Immigration and Asylum Chamber, while applying exemptions to protect the most vulnerable.

Mr Vara promised that the existing remissions scheme would become “more generous” and the amount of disposal capital people paying a “larger court fee” needed to have in order to quality would increase.

“We recognise that fee increases are not popular, but they are necessary if we are to deliver our promises to fix the economy and bring the nation into surplus,” he said. “Every pound we collect from these fee increases will be spent on providing an efficient and effective system of courts and tribunals.”

Lord Neuberger: “unusual number of particularly demanding cases”

The Supreme Court heard over 25% fewer appeals in the year to 31 March 2015, its latest annual report has shown.

The number of appeals heard fell from 120 to 89, and the number of judgments from 115 to 81, despite the court sitting for nine more days.

A spokesman for the court said among the reasons for the drop were longer hearings and fewer linked appeals. An increase in the number of appeals heard by seven or nine justices, from 9% of cases to 12%, was also cited as a factor.

However, the number of applications for permission to appeal considered by the Supreme Court rose by 34% to 269 during the year.

The spokesman said there was a particular increase in applications to bring criminal appeals (from eight to 19) and public law appeals involving employment (seven to 15) and housing (four to 11).

There was a big fall in the number of applications for the Supreme Court to hear appeals about legal procedure, from 38 to 22.

The justices granted permission to appeal in a smaller proportion of judicial review, immigration and family law cases than the year before, but an increased proportion of criminal and housing cases.

Lord Neuberger, president of the Supreme Court, said in his foreword to the report that for the first time since the court opened in October 2009 there were no changes of justices, bringing a “welcome period of stability”.

However, he said: “We have had an unusual number of particularly demanding cases, which is reflected in the fact that the average time between hearing and judgment has increased from last year, and the number of decisions is lower than last year.”

Lord Neuberger said he had held “regular, but not frequent” meetings with former justice secretary Chris Grayling and the Law Officers, along with his annual appearance with deupty president Lady Hale before the House of Lords constitution committee.

The president said that although it would take time for recent changes to “work their way through the system”, the increase in the number of litigants in person applying for permission to appeal had been maintained. The current figure is 24 out of a total of 231 permission applications.

Law Society Endorsed legal software provider, Eclipse Legal Systems, has announced superb summer quarterly results.

The 3-month period from 1 June 2015 – 31 August 2015 saw a total of 32 new client signings including 4 six-figure deals. Ranging from established high street practices through to boutique operators and new start-ups, the firms implemented an array of Proclaim Case and Practice Management Software solutions. Among the wins were:

• Full service law firm, Slater Heelis – utilising the Proclaim Practice Management Software solution across multiple areas of law

• Thomson Snell & Passmore, Guinness World Record holder for the UK’s oldest law firm – implementing a ready-to-go Personal Injury Case Management system

• Niche new start-up, Consilia Legal – utilising Proclaim Case Management Software with a bespoke Mediation solution

The continuing success of Eclipse and its Proclaim solution – now with over 23,000 users – can be attributed to the complete flexibility of the system. Available in a variety of flavours to suit firms’ needs, Proclaim has grown organically to become the most tailorable and complete solution available.

Eclipse’s sales director, Dolores Evelyn, comments:

“Our recent performance is evidence of the demand for flexible robust legal software and Eclipse’s reputation as the market leading supplier. Our broad range of clients and the diversity of their requirements mean Proclaim is often not seen as just a legal case management solution, but as an all-inclusive business management solution.”

Ruffle: law will only be open to those who can afford it

The after-the-event insurer which saw its premium halved by the Senior Costs Judge in his controversial application of the post-Jackson proportionality test said today it should not apply to those areas of litigation where additional liabilities are still recoverable.

Temple Legal Protection said it was supporting the claimant’s bid to appeal in BNM v MGN, arguing that the ruling risked reducing claimants’ access to justice.

The case has been much talked-about by costs specialists and Temple said the ability for individuals and businesses to litigate was under threat from “a judgment that implements a new costs regime with no indication on how to make an assessment of what is proportionate.

“The implications for this judgment are that the rule of law will only be open to those who can afford it.”

Steve Ruffle, Temple’s senior underwriting manager for commercial ATE claims, said: “In my view, the Senior Costs Judge is wrong to apply the new proportionality costs regime to areas of the litigation landscape where additional liabilities are still recoverable.

“Parliament has determined that, in certain categories of case, this method of funding to ensure access to justice must continue and, therefore, the new test of proportionality has no part to play when assessing additional liabilities.”

He noted that even though the judge found the ATE insurance premium was set at a reasonable level, and that it was necessary for the claimant to purchase ATE, “the judge has slashed this figure in half with no apparent justification”.

Mr Ruffle added: “My deepest concern is that this judgment will be used by well-resourced defendants, who can afford not to recover all of their costs, to run up their legal spend knowing full well that a claimant would not be able to match this and, therefore, could only recover a level of costs in line with their damages.

“This flies in the face of the recent judgment in Miller v Associated Newspapers Limited where the Judge found that ‘ATE provides a legitimate social purpose’ and that the ‘burden imposed by the ATE premium scheme is not so large and not so lacking in appropriate controls as to amount to a disproportionate inference in their right to freedom of expression’.”

He argued that ATE should be considered in the context of the risk assumed by Temple, rather than against the level of damages being claimed. “In addition, a premium for a particular case must be considered in the context of a book of similar cases insured.”

Mr Ruffle said Master Gordon-Saker did not apply the principles laid out in the 2007 Court of Appeal case of Rogers v Merthyr Tydfil BC that any necessarily incurred premium would be proportionate but also that any challenge to or reduction of the ATE premium should be based on evidence which was absent in this case.

“Temple’s premiums have been set at an appropriate level using years of underwriting data and experience. Many of the country’s leading media law firms rely on the backing and support of Temple in order to pursue claims for their clients. If premiums are unreasonably reduced, this will limit our ability to support meritorious claims going forward and restrict access to justice.”

Nigel Tait, managing partner and head of media law at renowned media claimant firm Carter-Ruck – who was not involved in the case – said that the ruling would mean that only the “super rich” would be able to bring proceedings for misuse of private information.

Lavender: Unsatisfactory approach

A High Court judge has thrown out judicial reviews brought by two medical reporting organisations (MROs) against their suspension from the MedCo portal.

Mr Justice Lavender said there was “obviously something unsatisfactory” about the approach taken by Med Chambers and Prime Medicals, using the dispute resolution procedure set out in MedCo’s user agreement – called the ‘escalation’ procedure – and judicial review simultaneously.

He went on: “The decision in each case was that they should be suspended because they did not meet the qualifying criteria.

“The claimants have each sought to challenge two aspects of that decision by two different routes, using the escalation procedure to challenge the decision that they did not meet the qualifying criteria, and using these applications to challenge the suspension decision.

“In some cases it may be necessary and appropriate for a claimant to pursue two different proceedings simultaneously, but it is generally inconvenient and undesirable.”

Delivering judgment in R (on the application of Med Chambers and Prime Medicals) v MedCo Registration Solutions [2017] EWHC 3258 (Admin), Lavender J said MedCo carried out detailed audits of the claimants in February 2017.

Having received the claimants’ responses to the draft audits, MedCo decided the claimants “did not meet the minimum qualifying criteria” and set out in decision letters sent in June last year a series of eight breaches of the qualifying criteria by each claimant.

Lavender J said that the decisions that the MROs did not meet the qualifying criteria were challenged by them under the escalation procedure set out in clause 10 of the user agreements and were not at issue in the judicial reviews.

Clause 10 provides first for representatives of MedCo and the MRO to try and resolve their differences. If this does not work, the matter is escalated to “senior” representatives on both sides. Failing that, 30 days later a party can refer the dispute to mediation overseen by CEDR.

A party cannot take legal action until 30 days after the ADR notice has been served.

The judge noted that the applications for judicial reviews were not filed until September 2017, “at the very limit of the time period specified by CPR 54.5(1)(b)”.

The MROs argued that clause 10 was not an “adequate remedy” because MedCo did not consider submissions which the claimants made within 14 days of the decision letters, in breach of its compliance procedure.

Lavender J replied that this submission “amounted to an argument” that MedCo would not take its obligations seriously to engage in the escalation procedure, but there was no evidence to support this.

The judge rebuffed the MROs’ second argument, that the escalation procedure was “far too slow” in taking up to 90 days.

“It took the claimants 92 days to commence these proceedings. In that context, it cannot be said that a process taking 90 days is too slow.”

Lavender J said the MROs’ third argument, that the MRO procedure did not “provide the claimants with the remedies of interim relief or damages”, was to “misunderstand the nature of the procedure”.

It was a negotiation and there was no reason why the parties could not agree to lift a suspension.

He responded to an additional argument, that a review by the decision-maker was not an adequate remedy, by saying this was what happened in homelessness cases.

“All in all, I do not consider that the arguments advanced by the claimants demonstrate that the escalation procedure was not a suitable alternative remedy in the present case. On that basis, I refuse permission to apply for judicial review.”

Lavender J added that even if he was wrong on the issue of alternative remedy, he would dismissed the applications for permission to apply for judicial review on the basis that they were not brought promptly.

His ruling also said that another MRO which failed to meet the criteria had brought a claim against MedCo but it had settled.

In that case, he said, the MRO had taken a positive approach to ensuring compliance, whereas the two claimants had taken a negative approach by disputing that any issues needed to be addressed.