Acasta European Insurance Company Limited is a Gibraltar insurer operating exclusively through Acasta Europe Limited in the UK and is a leading underwriter of After the Event Legal Expenses insurance and non-recourse Litigation Funding products in conjunction with Sparkle Capital.  Established for over 10 years and operating throughout the UK, Acasta has an experienced underwriting team with many years’ experience in litigation insurance and funding work.  Our underwriters actively work in partnership with solicitors  to develop solutions to the most complex litigation of all types through After the Event Legal Expenses insurance and Funding if required.

Acasta can offer individually tailored, staged premiums or delegated authority schemes.

Key Features:
Straightforward, easy to use delegated authority products. Bespoke ATE facilities offered with staged, deferred premiums. 72-hour turnaround on bespoke enquires.

Frazer: Reviewing methodology

The Ministry of Justice (MoJ) today admitted to overcharging court users for certain types of cases, and is to both reduce those fees and refund about £9m to litigants who have overpaid.

The full details have yet to be released, but the change affects a number of civil proceedings in the magistrates’ courts, fees for general applications in insolvency proceedings, the fees charged for High Court judges sitting as arbitrators, and certain proceedings in the Court of Protection.

A Ministry of Justice spokesman told Litigation Futures that around a dozen of more than 300 civil court fees were affected by the “administrative errors”, and 90% of cases concerned council tax liability orders sought by local authorities, where they were overcharged just £2.50 in each case.

In a statement to Parliament today, justice minister Lucy Frazer said the MoJ would be establishing a refund scheme to reimburse people the amounts they have been over-charged.

This will also include those who have been overcharged fees to commence stage 3 low-value personal injury claims.

“The intention when these fees were prescribed was that they should be set at, or below, full cost recovery levels and it was on that basis that they were approved by Parliament,” Ms Frazer said.

“The reduction to these fees follows a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings.

“Our review has identified a number of cases where the fees charged were above full cost recovery levels. We are therefore taking action to reduce those fees…

“Officials are working on the detailed arrangements and full details of the scheme, including the types of case affected, and how to apply, will be announced in due course.”

The minister pledged to continue the review of court fees, including the methodology for setting them, “to minimise the risk of this issue re-occurring in future”.

Augusta is a niche financier that focuses on commercial litigation. It is FCA and JFSC regulated, as well as conforming to UK Consumer Credit Regulations.

Augusta offers its Trinity finance product through accredited law firms. Trinity is ideally suited for small and medium commercial claims, and to date, over 200 firms have accessed the Augusta Trinity platform.

For law firms and their clients, Augusta’s Trinity provides transparency, fast turn around and certainty. The application process is web based, claims have been approved for finance in less than 2 weeks, and Augusta’s funds are deployed in full at the outset.

Key Features:
Small and medium claims financed. Fast turnaround of cases. Transparent online application. Full deployment of financing on approval.

Cost of Funding:
Return of finance and approximately 20% of the net return.

Audrey Henshaw, business development manaeger, DAS UK Group

Leading legal expenses insurer, DAS, has appointed Audrey Henshaw as business development manager for the Northern region.

Audrey will be developing relationships with brokers in key defined areas, essentially Manchester and Leeds, and she will have some management responsibility for the region and its staff.

Audrey comes from an extensive legal expenses background and has experience of running her own business in the North West.  Her specialisms include the compliant handling of motor-related products and add-ons.

Audrey’s appointment coincides with the impending retirement of Geoff Ashton at the end of August, who has been with DAS for almost 30 years.

Andy Westall, group sales manager, DAS UK Group, said: “Audrey understands the legal expenses industry inside out and will be a great asset to our team.  We are delighted to have her on board.  I would also like to take this opportunity to thank Geoff for all of his hard work, commitment and invaluable contribution to the business over the years.  We wish him well in his retirement.”

See how the Proclaim legal software solution enables a smooth client journey – making for lasting and profitable relationships.

Featured in this video:

• Joanna Kingston-Davies, Jackson Canter Group (former CEO, Lees Solicitors – now part of Jackson Canter Group)
• Idris Mir, Mir Solicitors
• Michael Jefferies, Jefferies Solicitors
• Sally Clark and Laura Clapton, Consilia Legal

Proclaim is the only Case and Practice Management Software solution endorsed by the Law Society.

Posted by Paul Hurley, director and head of ATE at ARAG Legal Services

Both claimants and solicitors have suffered significantly from changes introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), according to independent research commissioned by ARAG UK.

In the 18 months following the legislation’s introduction, 80% of firms say that claimant’s access to justice has been restricted, with 64% saying that the impact has been “significant”. 72% of firms also believe that the 10% uplift in general damage is inadequate to cover the additional costs that now have to be met by the claimant.

The research involved anonymous interviews conducted with senior figures working on personal injury and/or clinical negligence cases at 100 different firms.

Paul Hurley explains the findings:

Gallagher: getting under the skin of courts and tribunals

The civil courts need to learn from the ombudsman model, “whereby huge numbers of relatively low value or low stakes cases are resolved simply, quickly and cheaply by avoiding hearings all together”, according to the civil servant in charge of digitising the courts.

Kevin Gallagher, digital director at HM Courts & Tribunals Service, said that, for example, “for a dispute between neighbours about the height of a leylandii tree, iPhone evidence and a video hearing may prove far more effective than the parties appearing in a court miles from the site in question.

It must also be “as straightforward to claim uncontested probate as it is to submit a tax return or renew your annual car tax”.

Speaking at a modernising justice conference in London, Mr Gallagher said that “to develop services for users and for technology to effectively improve how the courts and tribunals service operates, we will not be recreating our current processes online”.

He explained: “The opportunities for digital services cannot be hampered by decades-old processes. Instead, we are getting under the skin of how our courts and tribunals operate and putting user needs at the heart of it all.”

The problem, he said, was that the courts have continued to look and feel the same while change has been happening in so many other areas: “The only place you are likely to see a VHS recorder is in one of our courtrooms.”

Mr Gallagher continued: “As a justice system, we need to reach the point where it is expected that a police officer will give evidence by video, taking 10 minutes rather than half of their working day.

“We need to stop using prison vans to transport prisoners to and from the courts for short plea hearings which could be done online. And we need to, as Sir Brian Leveson recommended in his review, limit what happens in the criminal court room to just trials and complex sentencing.”

A key component of the changes would be to develop a system that took procedures out of court that did not need to be there, he said, such as:

• Helping divorces to be agreed and progressed online; as well as allowing financial issues and child arrangements to be settled through online mediation rather than in the courtroom;
• Taking non summary offences such as traffic or fare evasion out of the court room to be dealt with through automated processes; and
• Supporting the work of tribunals by making it much easier to submit applications and evidence online and share with all parties.

Mr Gallagher said the new online plea functionality for traffic offences has increased the number of pleas made and in turn reduced the number of non-pleas and court sessions held ‘in absence’.

Further, paperless working was becoming a reality in the criminal courts, with more than six million pages of evidence now stored on the Digital Case System, while the eJudiciary system gave all magistrates and judges instant access to key services and information relevant to their role and region.

Digitising the civil, family and tribunal jurisdictions to follow the criminal courts was the next step, he said, while also highlighting four projects where technology was a key enabler.

“The probate service will see the introduction of online applications supporting a structured approach, removing ambiguity, handling payments, providing online case tracking and automated management where possible and appropriate.

“We will also, dramatically improve the efficiency of uncontested divorces, removing unnecessary delays at what can be a difficult time.

“Social security and child support appeals will be supported through the introduction of an online service for tribunal users to start and progress a case, and for judges to use digital case information to decide the case online or in a hearing. And through effective working with the Department of Work and Pensions, we will be able to eradicate the need to post bundles of paper passed between departments.

“And the online court project has considerable potential for moving lower value civil claims out of the courtroom to be progressed more quickly, and at lower cost.”

Mr Gallagher said they had learned from past government IT project problems. “Gone are the days of single, large scale, beginning-to-end government IT projects handed to multinational IT consultancies. HMCTS is creating its own capability to develop, build and continually improve,” he said.

“Of course we will continue to work with third parties to bring skills, expertise and technology, but we will retain control. This will allow us to work in an agile manner, evolving and improving, delivering and supporting services based on user experience and business need, without being inhibited by expensive, inflexible contracts.”

Full-service firm, Ascot Lawyers based in Ascot and Aldershot has invested in the personal injury version of inCase after recognising the benefits it will give to clients.

Neil Somerville, senior partner said, “having had a chance meeting with Such (managing director of inCase) I showed some promotional material to my key staff.

“They were literally demanding that the whole PI team see a full demonstration and once Such had shown inCase and explained what it was capable of doing, it took no time at all to commit to this service.”

Neil added, “with inCase it is easy to see how we will be able to speed up the turn of cases but also capture more clients with the signature feature especially. The fact that Such is a personal injury solicitor himself and knows the challenges in personal injury means that he has created a product that solves a number of those challenges.”

Managing director and founder of inCase, Sucheet Amin commented, “I rarely get to demonstrate inCase to a whole PI team but the opportunity meant that the workforce could see the benefits of what the app will do for them and their clients.

“Ascots are a great example of where not only management but the whole firm embraces new ideas and I know that inCase will not let them down.”

Scully: important and vital step

The way insurers, brokers, credit hire organisations and repairers deal with vehicle repairs and replacements are to be investigated by the Competition Commission after a reference by the Office of Fair Trading (OFT).

Following a provisional decision to make the reference in May, the OFT said that nothing in the 28 responses received had dissuaded it from the conclusion that the market is not working well for motorists.

Its original market study gave reasonable grounds for suspecting that there are features of the market that prevent, restrict or distort competition because the insurers of drivers responsible for an accident “appear to have little control over the way repairs and replacement vehicles are provided to the ‘not-at-fault’ driver”.

The OFT said: “This may enable the insurers of not-at-fault drivers, and others such as insurance brokers, credit hire organisations and repairers, to engage in practices which appear to result in the cost of replacement vehicles and vehicle repairs provided to not-at-fault drivers being higher than they might otherwise be.”

Insurers told the OFT that credit hire costs can add as much as £13 to the cost of a premium, although three credit hire organisations argued that the OFT had failed to identify sufficiently any cost inflation and to establish a connection with premium increases.

The study has not looked at personal injury referral fees as that was covered in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

OFT chief executive Clive Maxwell said: “Competition appears not to be working effectively in the private motor insurance market. The insurers of at-fault drivers appear to have little control over the bills they must pay, and this may be leading to higher costs for them and ultimately higher premiums for motorists.

“Having publicly consulted on our provisional decision, we are still of the view that there is no quick fix to these problems, and that a more in-depth investigation by the Competition Commission is therefore appropriate.”

In a statement, Donna Scully, chair of the Motor Accident Solicitors Society, said she welcomed the reference: “It’s an important and vital step in addressing a complicated sector that isn’t working efficiently or effectively. There is still much that needs to be done and it is essential that the whole industry continues to work together and with the government to clean up the system.”

The Competition Commission has up to two years to report. If it finds that features of a market are harming competition, it has powers to impose remedies to address the situation.

Anstee: very attractive potential market opportunities

The company that owns third-party funder Therium is looking to raise £17m to invest in its operating platforms, nearly a quarter of which will go towards an international litigation funding joint venture.

An update from the City of London Group said it is looking at various options to raise the money, given that the “delays in the operating platforms achieving scale and the continuing delay in obtaining positive results from litigation cases in Therium” mean the group is likely to make an underlying loss before tax and not meet market expectations.

The company said Therium is “in advanced discussions with a US partner to form a new international joint venture fund, which contemplates the largest fund formation to date for Therium by an order of magnitude”. This would require further £4m equity capital from the group in support of the 50/50 joint venture

“Under the terms being discussed, Therium’s share of the joint venture profits would be expected to bring it to immediate profitability, earning it significant returns over the life of the fund.”

Eric Anstee, chief executive of City of London Group, said: “Whilst it has taken us longer to get the businesses to profitability than originally planned, we are pleased that after three years we have got the underlying platforms to a position where they are ready and have the opportunities to be scaled significantly to address the very attractive potential market opportunities ahead of them.”

Acland-Hood: Results were “largely what we expected at this stage

An independent evaluation of an online video hearing pilot run by HM Courts and Tribunal Service (HMCTS) has found it was beset by technical failures, ended up much smaller than envisaged, and warned that the participants could be “self-selecting”.

The evaluation, by academics at the London School of Economics led by associate law professor Dr Meredith Rossner, tested user experiences in a small number of party-to-state hearings in the First-tier Tribunal (Tax Chamber).

However, as far as it went, the evaluation reported high levels of user satisfaction with the trial, mainly due to the convenience of not having to travel to a physical hearing..

The academics found that only a small proportion of the initial 108 questionnaires issued by HMCTS resulted in respondents who were suitable for video hearings.

Several were discounted by judges because, for example, the case included lengthy submissions. In a further eight, “the appellant needed an interpreter, was hard of hearing or deaf, blind or partially sighted, or did not have access to a private space”.

Of 20 hearings booked initially, just 11 went ahead and three of them could not proceed at all due to technology ‘fails’.

Of the eight video hearings that were eventually completed, seven suffered brief technical hold-ups, such as wifi network connection problems.

The academics reported the concerns of one tribunal judge that the high level of administrative support provided during the pilot would not be maintained when video hearings proper were rolled out.

Generally the judges handled the hearings well, but one judge was recorded as saying: “I think that video hearings should only be used where they are better than the alternative… they are not as good as ‘in person’ hearings and should not be used just because they might be cheaper.”

The evaluators were concerned that the participants were self-selecting, concluding: “It is likely that there was a self-selection bias in that appellants who returned the initial questionnaire were more amenable to video hearings.”

They recommended “further investigation into barriers to access”.

In a blog announcing publication of the evaluation, HMCTS chief executive Susan Acland-Hood acknowledged the pilot had been “small”.

But the results were “largely what we expected at this stage”, she said.

She highlighted that user satisfaction was high, adding: “Participants reported that the hearing itself was clear, easy to navigate, user-friendly and formal enough not to diminish the majesty of the court…

“So, we can take from this that when it works well and it’s suitable, video hearings have the potential to be a more convenient option for some people.”

Further testing and piloting of video hearings would be carried out “later this year as the technology continues to develop”.

She also said: “The prospect of video hearings gives rise to concerns for some – mainly about making sure they are used in the right way and for the right things, and that’s why we are piloting their use and evaluating the impact carefully.

“We also acknowledge that they are not suitable for every hearing and expect their use to be initially relatively limited.”

Wallis: challenging landscape

Work to adapt the RTA portal for extension both vertically and horizontally has begun, the company that runs the technology revealed yesterday – but it said there are “no guarantees” that they will be completed in time for April 2013.

RTA Portal Co has instructed CRIF Decision Solutions Ltd as its technology partner to increase the capacity of the electronic claims system to deal with RTA claims worth up to £25,000, from the current £10,000.

CRIF will also assist with the development of the electronic claims gateway that will support the employers’ liability (EL) and public liability (PL) claims protocols that are currently out for consultation.

The company has always been clear that it needs the rules – that is, the protocols – before it can build the systems to implement them. In a statement, it said that while the protocols are being finalised, RTA Portal Co and CRIF are working on the necessary changes.

Tim Wallis, chairman of RTA Portal Co, said: “We expect the landscape ahead to be challenging. We continue to work closely with the Ministry of Justice and await the finalised detail of the protocols. We will continually assess the system requirements as more detail emerges over the coming weeks and months.

“We know that our user community is anxious about the timetable and ensuring they can develop their systems in time to support these changes. In the meantime we are going as far as we can to develop the system as part of the intention to implement this by April 2013 but there are no guarantees.”

Last week, one of the claimant representatives on the board of RTA Portal Co, David Bott, laid out the challenges of having the EL/PL portal ready in time for April.

As things stand, however, the government remains committed to April for implementation of both extensions of the portal.

Hodgkinson: element of greed has taken over in PI

The founder of Compass Costs – who became head of Quindell Legal Services after it bought Compass – has launched an ambitious new costs business that is likely to become an alternative business structure (ABS) as it expands the range of services it offers.

Pure Legal Costs Consultants – which will go live on 5 May – is promising to provide “a huge array of services to the legal industry as a whole, both directly and through its many business partners and affiliates”.

The main focus initially is on bill drafting, costs negotiation and litigation, but it will be developing a new approach to lead generation as well.

Phil Hodgkinson left Quindell at the end of last year. He set up Compass in 2001 and sold it to Quindell for £14m in 2013. After an initial spell as CEO of Quindell’s costs business, he became chief operating officer of Quindell Legal Services in August 2013, and chief executive in January 2014.

He said: “Pure Legal Costs Consultants is a cost drafting and recovery firm, but that is only part of the jigsaw. We will be creating a business that operates in an innovative way, working within and for the legal market, developing synergies with our many business partners. These are very exciting developments that will change the way this sector operates.

“There will be acquisitions along the way, and we are already working on a number of large and innovative joint ventures. In fact within the next few months we’ll be making announcements about these and a number of large long-term contracts. The make-up of the business will change as we progress, with the likely result being progression to an ABS.”

Mr Hodgkinson argued that the personal injury sector has reached the stage “where an element of greed has taken over”.

He explained: “Providers of work are earning more than solicitors who service their customers, whereas if the providers were prepared to share the commercial benefits whilst still earning similar profits, just over a longer gestation period, then the market becomes stronger and benefits everybody. If these changes are not introduced sooner rather than later, then the market will simply wither and die in its already massively altered form.

“There is an opportunity for claimant firms to dictate and propose the future changes by coming together as one and working as a team, driving innovation and credibility.”

He said Pure will be introducing “a number of initiatives” that are designed to provide law firms with high-quality work, but where the commercial benefits previously retained by suppliers are shared by way of discounted marketing fees, “ensuring that this market can once again return to profitability across the board for all law firms despite the recent and on-going changes, along with other innovative solutions as a whole”.

Mr Hodgkinson said the core of Pure was about sharing the success, and as such all staff will receive a bonus every month the company is in profit.

Bacon: document your funding advice

Solicitors will be funding litigation directly in the next few years, a leading silk predicted last week.

Nick Bacon QC said he did not understand why cases from the nineteenth and early twentieth centuries were still driving the law on lawyers sharing in the proceeds of litigation in this way given that there was no practical distinction with conditional fee or damages-based agreements (DBAs).

Speaking at the JLT commercial litigation conference in London last week, the 4 New Square barrister said he had seen some DBAs being used, despite continuing concerns about the rules governing them. One solicitor, he recounted, had “taken a punt” on a case with a DBA and made more from that one matter than he had from a decade of litigation.

Mr Bacon added that he thought the courts would do their best to uphold DBAs if they were challenged so as to encourage their use.

In a speech about retainers, he emphasised the importance of attendance notes and client confirmation of the advice given about costs and fee arrangements – “I’ve seen many cases where there was no attendance note,” he said – and of solicitors understanding the products they recommend to clients.

“I see solicitors signing clients up to products that they didn’t need,” he said, recalling one case where the solicitor recommended after after-the-event insurance to cover the part 36 risk, without realising that it only kicked in once the damages had been exhausted.

Insurance brokers were a “useful middle man” because their evidence in court was hard to counter, Mr Bacon added.

Michael Morton

Kain Knight, one the UK’s largest firms of costs lawyers, has appointed Michael Morton as a Senior Costs Draftsman.

Michael Morton is a highly experienced costs lawyer whose previous employers have included Allen & Overy, Jacques & Lewis/ Eversheds and Masons (now Masons Pinsents).

Working out of Kain Knight’s City of London practice, his duties will include preparing detailed bills of costs, advocacy in relations to bills of costs before Costs Judges, and advising on litigation funding, interim applications and offers of settlement.  He will also be helping Kain Knight’s rapidly growing London client base with the preparation of budgets and costs management.

Peter Petyt, Kain Knight’s Chief Executive Officer, said:

“We are very pleased to welcome Michael Morton to Kain Knight’s London team. We are in the process of bringing in additional senior costs expertise to our London office to offer a new broader range of services to our clients. Michael’s vast experience will be very valuable in helping us to meet these goals.”

Edis J: Insurers admitted Mr Forrett drove car “but denied everything else”

Insurer Admiral has been attacked by a High Court judge for conduct “redolent of an era which had begun to fade into history” even before the Woolf reforms came into force.

Mr Justice Edis was ruling on a road traffic accident case in which a driver insured by Admiral denied liability for three years following a conviction for driving without due care and attention.

Edis J said the conduct of Thomas Forrett and his insurer was “designed to secure an advantage” to which they were not entitled.

“It did so at risk of causing substantially more work and thus cost to themselves and all other parties. This is redolent of an era which had begun to fade into history even before 26th April 1999 when the Civil Procedure Rules 1998 came into force.”

Ruling in Davies v Forrett and others [2015] EWHC 1761 (QB), Edis J recounted that Daniel Davies was a passenger being driven to work by Ryan Partington, who decided to overtake three cars at once.

One of them, a Vectra, decided it wanted to overtake as well, and Mr Partington’s car braked sharply, causing it to veer off the road into a tree.

Edis J said both Mr Davies and Mr Partington “sustained serious injuries”, but Mr Forrett, in the Vectra, “drove on to his place of work”.

The court heard that the police investigated and recovered CCTV which showed Mr Forrett’s Vectra “very near the scene of the accident, very near the time of the accident” and that he arrived for work “very soon afterwards”.

Despite the very strong evidence against him, Mr Forrett denied the car was his Vectra but he was convicted of driving without due care and attention at the local magistrates’ court.

Edis J said: “On that basis, if the magistrates convicted him correctly, he was guilty of disgraceful behaviour. He had played a part in causing a very serious accident, driven away from it, and then lied on oath to avoid its consequences.

“Obviously if he continued to adopt that stance in any subsequent civil proceedings, such conduct might become relevant to costs.”

Edis J said the particulars of claim were served in May 2014 and relied on the conviction, while Mr Forrett’s insurers admitted “that he was the driver of his red Vectra on the road on the relevant day, but denied everything else. It alleged that the accident was entirely the fault of Partington”.

He noted that in relation to the conviction, “the defence contains the following time honoured but, here as in many cases, mystifying words: ‘The defendant admits the conviction referred to in the particulars of claim but denies its relevance to the civil proceedings.'”

Meanwhile Southern Rock, which insured Mr Partington’s car, had tried and failed from June 2012 to May 2014 to get a “straight answer” from the solicitors acting for Admiral, Horwich Farrelly, as to whether Mr Forrett was denying liability or not.

The judge said: “I have not set out above the detail of the lengthy correspondence between Sintons on behalf of Southern Rock and Horwich Farrelly on behalf of Forrett, although I have referred to the main dates.

“On one side the correspondence is appropriate throughout. Initially it is polite and constructive but becomes more insistent as time wears on. Almost every letter refers to the mounting costs caused by the refusal of Admiral on behalf of Forrett to accept his obvious fault…

“Moving from the correspondence to the steps taken in the proceedings, it appears to me that the same approach continued to govern the conduct of Forrett’s case, despite CPR 1.3. This imposes a duty on the parties to help the court to further the overriding objective. This is a duty and not an exhortation. Breach of duty is a significant matter which is directly relevant to costs issues…

“In contrast to the behaviour of Forrett, Davies and Southern Rock both conducted themselves sensibly, in my judgment.”

It was agreed that Mr Davies was entitled to an order that Mr Forrett pay the costs of bringing the claim against him.

Edis J ordered that Mr Davies was also entitled to an order against Mr Forrett for the costs of suing Mr Partington and Southern Rock and Mr Forrett will pay for the cost of defending those proceedings, which the judge said were only brought because of uncertainty “connived at by Forrett”.

The judge said there would no order relating to Mr Partington’s costs of the claim, but Mr Forrett would also pay for Southern Rock’s costs of a successful part 20 claim against Mr Partington, seeking a declaration that it had liability to him because the car’s policy did not cover a named driver commuting to work.

Both Admiral and Horwich Farrelly declined to comment.

MoJ: working out what to do

The president of employment tribunals in England and Wales, Judge Brian Doyle, has issued a case management order staying claims brought on the basis of the Supreme Court’s ruling last month that the current fees regime is unlawful.

The order says the claims “shall be stayed to await decisions of the Ministry of Justice and Her Majesty’s Courts and Tribunals Service in relation to the implications of that decision”.

Employment barrister Daniel Barnett said that although the order was “seemingly widely phrased”, meaning that in theory it could apply to any new claim brought by someone who might have not have brought a claim under the current regime but was now willing to do so, the preamble referred to rules 11 and 40 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

“Rules 11 and 40 contain the procedure for rejecting or dismissing claims that do not have the proper fee paid or remission granted,” Mr Barnett said.

“So the case management order appears to be aimed at staying applications by people who want to reinstate claims that were dismissed or struck out for non-payment of fees, until the Ministry of Justice and HMCTS have decided how to handle them.”

The order states that “any party or representative wishing to make representations for the further conduct of such claims or applications should do so upon application to the regional employment judge for the relevant employment tribunal region”.

In a strongly-worded ruling last month, the Supreme Court unanimously held that the order introduced in 2013 imposing employment tribunal fees was unlawful and breached both common law and EU rights of access to justice.

Lord Reed, who gave the leading judgment, said: “The question whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world.

“Fees must therefore be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded.”

Warby J: too much work “is no excuse”

A High Court judge has granted relief from sanctions, after a law firm blamed pressure of work for late service of evidence in a Russian libel case.

Despite the absence of a good reason for the breach, Mr Justice Warby said: “Compliance is not an end in itself. A more nuanced approach is required.”

Warby J said an important point clarified by the ruling in Denton was that “a serious default for which there was no good reason would not always lead to the refusal of relief from sanctions”.

The court heard that the claimant’s solicitors, West End firm Hamlins, had served evidence on the defendants three to four hours after the deadline in a Russian libel dispute in which the claimant was accused of fabricating evidence, conspiracy to murder, and bribery and corruption.

Warby J described as “straightforward, but unimpressive” the reasons put forward by the claimant’s counsel for the breach.

“In short, a combination of late finalisation, mistakenly prioritising the filing of papers with the court over service on the defendant, and oversight due to other work.”

Warby J said counsel for the claimant was right to accept that “it is no excuse that the solicitors had too much work on” and “no good reason” was provided for the breach.

However, he said the claimant should be granted relief from sanctions on the grounds, as the court observed in Denton, that there were “degrees of seriousness”.

Delivering judgment in Sloutsker v Romanova [2015] EWHC 545 (QB), the judge described the breach as “far from being at the extreme end of the scale” and said it was not deliberate.

“Apart from necessitating the application for relief – the costs of which will inevitably be borne by the claimant – the breach has not had any or any serious effects on the efficient progress or the cost of this litigation, or any other litigation.”

Concluding on the relief from sanctions point, Mr Justice Warby said the claimant should be relieved from sanctions for serving evidence “some four working hours late”.

The allegations complained of in the case concerned Alexei Kozlov, a former business associate of the claimant, Vladimir Sloutsker. The defendant, Olga Romanova, is a journalist and Mr Kozlov’s wife. She made the allegations in a blog post, many of which were republished on a variety of Russian websites.

Warby J estimated that the online articles “reached as many as 60,000 readers in this jurisdiction”, while a radio programme was probably heard by several thousand more.

He concluded that the claim involved a “real and substantial tort” in this jurisdiction, and England was “clearly the appropriate place in which to try the claim”.

Divorce: IA provides no evidence that petitioners would pay more

The impact assessment (IA) accompanying the Ministry of Justice’s plans to charge some court users fees in excess of cost price is not fit for purpose, a government watchdog has declared.

The regulatory policy committee (RPC) is an independent body which scrutinises the quality of the analysis in IAs accompanying all new regulation proposed by the government, and has issued a relatively rare ‘red’ rating against the IA on enhanced fees which went out with the consultation on raising court fees, which closed yesterday.

The IA said the civil court system currently costs the Exchequer £150m, £105m of which will be recouped by moving to full cost recovery for fees that are not waived. Enhanced fees – that is, those pitched at higher than cost – may eliminate the remaining £45m.

However, the IA also said the policy will result in HM Courts and Tribunal Service increasing its fee income by £190m. The RPC said: “The IA must clearly explain why £190m is required and, if HM Courts and Tribunal Service will be generating a surplus, this must be clearly reflected in the IA and the department must explain what this additional revenue will be used for.”

The RPC said the IA also “contains insufficient discussion of the risks that fees above cost move demand below the economically efficient level”. For example, it provides no evidence to support the statement that those petitioning for divorce would be prepared to pay considerably more than the cost of the petition.

“The IA should discuss any risks associated with a reduction in demand for court services and will need to provide evidence-based estimates of any effect at final stage.”

The committee further criticised the ministry’s failure to explain whether it is considering “various possible levels for the different fees that would raise the same total revenue in different ways, for example a fee that goes up more slowly but with a higher cap.

“The IA should clearly explain how the proposed fee level was arrived at and whether other possible fee levels are being considered.”

More broadly, the committee said the ministry had not set out clearly the market failure the proposal is attempting to remedy. “While the department explains the need for a fee waiver system, it is not clear why this must be funded by other users of the courts system.

“The IA has not identified any negative externalities from use of the courts so it is not clear why users should be charged above costs simply because they are able to pay. The IA should clearly set out the rationale for intervention, supported by appropriate evidence.”

According to the RPC, departments have proceeded with a regulatory proposal which is not supported by an IA rated ‘fit for purpose’ in only “a small number of instances”.

Neuberger: litigation funding is not without risks

“Quick and rough justice” may be a better solution for relatively small claims than invoking the full force of the Civil Procedure Rules and requirements such as disclosure and cross-examination, the president of the Supreme Court has suggested.

Delivering Harbour Litigation Funding’s first annual lecture in London – ostensibly charting the history of barretry, maintenance and champerty to litigation funding – Lord Neuberger expressed concern over access to justice for small claims where legal aid has been withdrawn and the economics do not work for conditional fee agreements (CFAs), damages-based agreements (DBAs) or third-party funding.

He said the responsibility for addressing the problem does not just lay with the government: “All those involved in the legal system, that is litigators and judges, have a vital role to play in improving access to justice. And that means cost-effective justice. The reforms propounded by both Woolf and Jackson are based on the need for proportionality. So far as is consistent with it being even-handed, principled, and clear, justice must be practical and realistic…

“Quick and rough justice is better than no justice, and for many people with relatively small claims, no justice may be all that is on offer, unless one is prepared to take a disproportionate risk. And, in ordinary cases, quick and rough justice, whose costs are commensurate with the issues involved, may actually mean better justice than would be achieved by incurring cost and delay by invoking the full force of the Civil Procedure Rules.”

Echoing comments he first expressed more than a year ago, the judge continued: “Disclosure and cross-examination may alter the outcome in a few cases, but I do wonder how cost-effective they are in the great run of average cases in which ordinary citizens are involved. But these general comments are much, much easier to express than they are to put into effect.”

On litigation funding, Lord Neuberger said the original, medieval rationale for maintenance and champerty – as a means to help secure the development of an inclusive, pluralistic society governing by the rule of law – had turned full circle and “the exact reverse of the prohibition is justified for the same reason”.

He recognised that it is still early days for the Association of Litigation Funders and said developing and promoting any form of litigation funding is “not without risks”, such as being used to bring unmeritorious claims in the expectation that, once the opposing side is aware of the existence of funding, they are more likely to be brought to settle in order to buy off the claim.

“The problems which arose after the 1999 [Access to Justice] Act’s amendments to CFAs could be replicated if less than scrupulous funders provide funding… The ethical pressures on lawyers to which any of these funding arrangements may give rise must also be acknowledged. The pressures will presumably be heavier with CFAs and DBAs where there is a real opportunity for conflict of interest for the lawyers, as they have a financial stake in the outcome of the litigation concerned…

“Third party litigation funding does not give rise to such problems, but the commercially driven pressures from expert serial litigation funders on lawyers could be significant.”

Stockwell: astronomical spending by insurers

Lawyers have called for a cap on insurance companies’ marketing spend as a way to ensure that savings made from the Jackson reforms are properly reflected in lower car insurance premiums.

The demand was made during an evidence session on whiplash claims before the House of Commons’ transport committee, which is investigating the cost of motor insurance. MPs took evidence from representatives of the insurance industry, lawyers, and claims management companies (CMCs).

Last month the government announced it would delay its proposals on whiplash reform until after the committee reported.

Lawyers’ representatives included Des Hudson, chief executive of the Law Society, Matthew Stockwell, chairman of the Association of Personal Injury Lawyers (APIL), Andrew Ritchie QC, head of chambers at 9 Gough Square and vice-chairman of the Personal Injury Bar Association, and Craig Budsworth, chairman of the Motor Accident Solicitors Society.

Mr Stockwell said insurers’ advertising spend was “absolutely astronomical” and highlighted prime time TV advertisements as evidence that cash that could be used to reduce motor premiums was being diverted to raise the insurers’ market share. Mr Ritchie said the 1 April reforms had effectively capped legal costs. “Why not cap [the insurers’] advertising costs by reference to their pay out?” he queried.

Meanwhile, Mr Hudson raised referral fees as an unacceptable cost to consumers. The Law Society supported the banning of all referral fees and CMCs, he said, adding: “I supect insurance companies are receving referral fees from car insurers, from the sellers of parts to car repairers, from the sellers of paint to car repairers, and I think what we need is a very transparent understanding of… just where all these flows of money are coming from”

In their questioning, MPs revealed hopes that raising the small claims limit to £5,000 might actually improve access to justice. The committee chair, Labour MP Louise Ellman, asked whether raising the limit might help stimulate a “new market” to develop in which solicitors offered services to those with small claims. But the lawyers were adamant damages within the track would be insufficient.

Andy Wigmore, policy director of the Claims Standards Council, went further and warned the committee that raising the limit would mean “everyone becoming a claims management company” and stimulate an entire industry like that which emerged around referral fees: “The whole cycle will start again; you’ll have the reinvention of new marketing companies.”

On the question of why whiplash claims had risen sharply, the MPs were unimpressed with the idea that traffic congestion and lower average speeds were responsible. Mr Budsworth cited figures that deaths on UK roads were far lower than in other major European countries but said minor collisions were more frequent. Labour MP Graham Stringer dismissed the notion as no more than “hypothesis” unsupported by evidence. Other committee members appeared to share his scepticism.

Mr Hudson said the existence of CMCs and the practice of insurers selling referrals had contributed to a growth in whiplash claims. Mr Ritchie argued that data on road traffic accidents used in the government’s whiplash consultation – which closed on 8 March – were “fundamentally defective” because they compared accurate government figures to those gathered by the police, which were inaccurate “by a factor of at least 200%, if not 300%”.

Asked by the committee whether the UK was “the whiplash capital of the world”, Mr Hudson presented figures published earlier this year that showed total motor claims spending by UK insurance companies in 2011 was comparable with other major EU countries. Germany’s share was 20%, France’s 13% and the UK’s 14% – a “normal market share”, he said.

The insurance industry representatives, which included James Dalton, head of motor and liability at the Association of British Insurers (ABI), Dominic Clayden, director of claims at Aviva UK, and David Fisher, Axa Insurance’s catastrophic and injury claims technical manager, insisted they were committed to lowering motor premiums. Mr Dalton said the ABI had made a public commitment they would be reduced after the Jackson reforms and they would “reduce further” if future reforms also resulted in savings.

Insurers rejected the idea that third party capture – dealing directly with claimants – resulted in under-settlement. Mr Fisher said: “I do not think there is evidence that the insurance industry is under-compensating direct claimants.” Mr Clayden agreed, adding: “It’s something that the lawyers peddle… that I don’t think is justified.”

Asked by the committee what behaviours insurers hoped to see from judges in litigation, Mr Fisher raised what he said was the problem of claimants walking away with reduced compensation after an exaggerated claim had failed: “I would like [the judiciary] to take a more robust approach and to move away from the common law approach that we have at the moment [so] that if part of the claim is tainted… then the whole claim should fall.”

Lawyers accused of “extortionate fees” for low-cost medical negligence cases

Health minister Ben Gummer has announced plans to cap the fees charged by lawyers on medical negligence claims worth less than £100,000, saving the NHS up to £80m a year.

He accused some lawyers of “unscrupulously” loading “grossly excessive costs” onto the NHS and spoke of imposing “financial controls” on legal fees.

“Safe, compassionate care is my upmost priority and to achieve this, the NHS must make sure every penny counts,” Mr Gummer said.

“Unscrupulously, some lawyers have used patient claims to load grossly excessive costs onto the NHS and charge far more than the patient receives in compensation.

“Our One Nation approach is about being on the side of hardworking taxpayers and these financial controls will ensure money is pumped back into patient care.”

In a briefing note, the Department of Health said Mr Gummer had outlined the plans after writing to the Master of the Rolls, Lord Dyson.

The department said claimant lawyers charged the NHS Litigation Authority £259m in legal fees for 2013/14. It said the NHSLA had saved over £74m by challenging excessive costs last year, but “strict limits on legal bills” would help them further.

The department claimed that lawyers could charge “extortionate fees” for low-cost cases because there were no limits. It gave an example of £175,000 being paid in fees for a case where a victim received compensation of only £11,800.

In another case, fees amounted to £80,000 to obtain only £1,000 in damages, though the court reduced the costs to £5,000.

The department said that, under the proposals, the “lawyer’s fee would reflect a percentage of the compensation received by the patient so that it is proportionate.”

Clinical negligence specialist David Marshall, managing partner of Anthony Gold and former president of the Association of Personal Injury Lawyers, said the suggested limit of £100,000 did not sound like a “lower value” medical negligence claim.

“We are talking about serious incapacity, not about something that is over in a few months or even a year,” he said. “We are talking about a permanent condition that needs to be investigated properly.”

Mr Marshall said quite a significant number of medical negligence claims were for less than £25,000, yet there was no portal or fast-track procedure equivalent to those used for other forms of personal injury.

“You can’t just fix costs without changing the process,” he said. “All that would mean is that claims can’t be brought or can’t be brought properly.

“You could come up with a streamlined system for simpler, smaller medical negligence cases. This sounds like running before you can walk.”

Mr Marshall said there had been an increase in medical negligence claims, but the total was still “tiny” compared to the number of other personal injury claims.

He added that the increase in compensation paid out by the NHS was linked to an increase in more serious cases.

A spokeswoman for the Department of Health said the details of the scheme would be developed after a “period of engagement with stakeholders and a formal consultation”.

Vernon: Significant sums saved

The Court of Appeal has found for NHS Resolution (NHSR) in three test cases over the reasonableness of solicitors switching clients from legal aid to conditional fee agreements (CFAs) ahead of the introduction of LASPO.

NHSR said the ruling to overturn the decision of Mr Justice Foskett saved it £270,000 in these three cases – all run by Irwin Mitchell – and potentially millions more in other cases where clients were switched.

The three cases – Kai Surrey, AH and Yesil – all involved medical negligence victims who were switched from legal aid to CFAs shortly before 1 April 2013, when LASPO restricted the right to recover success fees and after-the-event insurance premiums.

The Court of Appeal ruling in Simmons v Castle sought to counter the effect on damages with the 10% uplift.

At first instance, Irwin Mitchell lost the right to recover the success fees and insurance premiums because it was held that they failed to advise on the 10% uplift before switching clients from legal aid.

However, on appeal, Foskett J, sitting with the Senior Costs Judge Master Gordon-Saker as assessor, overturned these decisions.

He was clear that he wanted to avoid a return to the “bad old days” of the costs wars in the early 2000s, and ruled that in each case staying on legal aid and claiming the 10% would only have achieved a marginal gain.

Giving the unanimous ruling of the Court of Appeal, Lord Justice Lewison said “the real issue is not the advice as such, but the reasons why the receiving party made the choice that he did”.

He said: “The bottom line is that in each of the three cases the advice given to the client had exaggerated (and in two cases misrepresented) the disadvantages of remaining with legal aid funding; and had omitted entirely any mention of the certain disadvantage of entering into a CFA,” Lewison LJ said.

“Moreover, one of the advantages of entering into the CFA was Irwin Mitchell’s own prospective entitlement to a substantial success fee. In those circumstances I consider that DJ Besford [in Yesil] was correct in saying: ‘Where one of two or more options available to a client is more financially beneficial to the solicitor, the need for transparency becomes ever greater.’”

He agreed with Foskett J that the analogy all three costs judges made to the 2016 Supreme Court ruling over informed consent to medical treatment, Montgomery v Lanarkshire Health Board, was a “distraction”.

Foskett J criticised the weight the costs judges gave to the analogy. Lewison LJ said: “Even if that were a fair criticism (and I do not think that it is), it does not amount to saying either that the costs judges took into account an irrelevant consideration; nor that their decisions on the facts were outside the ambit of reasonable decisions open on the facts of the three cases.

“In questions involving the exercise of a discretion, questions of weight are questions for the primary decision maker: not for an appeal court… I do not consider that the judge applied the right test to his appellate role.”

Foskett J was not entitled to interfere with the evaluative judgment of the three costs judges, the court found.

NHSR said there were potentially millions of pounds of savings waiting the wings after this decision. Chief executive Helen Vernon said: “We welcome the Court of Appeal’s decision in this case which shows how important it is for claimants to be properly informed when it comes to their legal costs.

“Having detected this issue and taken the decision to challenge it through the higher courts, we were able to save significant sums for the NHS whilst ensuring that claimants receive the compensation they are entitled to.”

In a statement, Irwin Mitchell said: “Over five years ago, we advised a small proportion of our legally aided clients who had medical negligence claims to switch from legal aid to a [CFA] ahead of unprecedented law reforms…

“This allowed our clients to pursue their cases to a successful conclusion unfettered by any (existing or future) restrictions around legal aid and without having to make any contribution to legal costs (as the [CFAs] pre-dated the change in the law) and many have since recovered many millions of pounds in compensation to provide for their long term needs

“The Court of Appeal is critical of our advice in three individual cases but we remain of the view that the switch was reasonable and in the best interests of those clients as the High Court agreed back in 2016.

“We are considering our position on appeal.”

Lewison LJ found other faults in the High Court ruling. He said Foskett J was wrong to say that the 10% point was determinative in Yesil and so “because he mischaracterised those conclusions, he gave no reasons for disagreeing with them”.

Lewison LJ added: “In my judgment DJ Besford’s conclusions were fully justified on the evidence that he had; and I consider that the judge was wrong to reverse him.”

The 10% uplift was determinative in the other two cases, but the Court of Appeal said Foskett J got the appeal test wrong.

“The judge’s approach casts on the paying party the burden of showing that the decision would have been different. By contrast, the costs judges’ approach casts on the receiving party the burden of showing that the decision would have been the same.

“Since not only does the burden of proof rest on the receiving party, but also any doubt is to be resolved in favour of the paying party, I consider that the costs judges’ approach was right, and the judge’s was wrong.”

Foskett J was also wrong to compare the overall damages claim and the 10% uplift: “The right comparison was one between the amount of costs for which the individual claimant might have been liable on the facts of the particular case, balanced against the amount of the… uplift, as DJ Besford correctly held.

“If costs for which a claimant would be potentially liable (either because of a failure to beat a part 36 offer or because of the operation of the statutory charge) would have been absorbed by the Simmons v Castle uplift, then if the risk eventuates the client is no worse off. If it does not, then the client is obviously better off.

“But since the one is a risk and the other is a certainty, the comparison cannot fairly be made without assessing the seriousness of the risk on the facts of the particular case. The judge did not perform that exercise, even in a ‘broad way’.”

Court of Appeal: solicitor entitled to act on CFA for impecunious client

The failure to obtain after-the-event (ATE) insurance for a client is not, on its own, enough to show that a solicitor has become the ‘real party’ to a case and so liable for a non-party costs order, the Court of Appeal ruled last week.

Lord Justice Leveson also took a swipe at the “ever-widening reference” to county court judgments that have no value as authorities.

Heron v TNT (UK) Ltd [2013] EWCA Civ 469 concerned an employer’s liability case that lasted from late 2005 until the spring of 2011, when at trial the claimant – by this stage representing himself – was awarded far less in damages than had been offered by the defendant under part 36 in late 2006.

The defendant applied for a non-party costs order against his solicitors – London firm Mackrell Turner Garrett (MTG) – on the grounds that the failure to obtain ATE insurance meant there was an undeclared conflict of interest between them and their client and that this motivated the firm to continue with the case.

At first instance, Judge Reid at Guildford County Court rejected this, saying there was no evidence that the conducting solicitor appreciated this “supposed conflict of interest”. He also said that simply standing to gain financially from litigation is insufficient as that would always be the case with a solicitor acting on a CFA; there must be additional factors.

His ruling was upheld by the Court of Appeal. Lord Justice Leveson said: “Based on the facts as found by the judge and with which I would not interfere, the application has to be put on the basis that the failure by MTG to obtain ATE insurance (and the subsequent failure to admit that fact to Mr Heron) is itself sufficient not only to give rise to a breach of duty to him but, in addition, to demonstrate that MTG had become a ‘real party’ to the litigation, the person ‘with the principal interest’ in its outcome, or that it was acting ‘primarily for his own sake’.

“If that was so, as I have said, every act of negligence by a solicitor in the conduct of litigation (thereby giving rise to a conflict) which means that an opposing party incurs costs which might not otherwise have been incurred would be sufficient. When pressed by Beatson LJ during the course of argument, Mr Bacon [Nick Bacon QC for TNT] was unable to identify a principled way of drawing the line so as to avoid this consequence.”

The judge continued: “I do not accept that the law goes anything like that far. A solicitor is entitled to act on a CFA for an impecunious client who they know or suspect will not be able to pay own (or other side’s costs) if unsuccessful.

“As far as the other side is concerned, whether the solicitor has negligently failed to obtain ATE insurance to protect his client (as opposed to not being able to obtain such insurance) does not impact on the costs they will incur unless it is demonstrably provable that the costs would not have been incurred (as in Adris). That is not the case here.”

MTG’s counsel argued that the appeal was an attempt to short circuit threatened professional negligence proceedings to which MTG would be able to put in issue questions of breach, causation, contributory negligence and quantum.

Lord Justice Leveson said: “Speaking for myself, I doubt how live some of those issues will be but that arguments can be deployed with the benefit of tested evidence is beyond question. It is certainly appropriate for that forum to determine the extent to which MTG may be liable to compensate Mr Heron for any costs that he will have to pay to his employers’ insurers; this summary procedure is not.”

Among the cases to which Mr Bacon had referred the court during argument was an unreported county court decision. Leveson LJ said: “In my judgment, that decision does not take the analysis further even if (about which, with respect, I have real reservations) it was correctly decided. On the wider issue and in any event, I deprecate an ever-widening reference to judgments which have no authoritative value and may be no more than examples of the exercise of judicial discretion.”

After the event (ATE) insurer Keystone Legal is pleased to announce the launch of Protect 36, an ATE insurance policy designed to be taken out at the Part 36 stage of a personal injury (PI) claim.

Since the LASPO / Jackson changes on the 1^st April, it is clear that many PI Solicitors and Firms are unsure as to the best way to approach the mediation and the ‘selling’ of ATE insurance with their Clients. This is especially the case now that ATE insurance is like any other ‘consumer’ insurance product and issues such as a policies features, benefits & value for money must be properly considered and a one size fits all solution may in many scenarios not represent best advice.

Andy Parker, Managing Director of Keystone Legal says “Protect 36 is aimed at Firms who don’t  need ‘day-1’ cover for all Clients but who do recognise that the bulk of the costs risk in the post-LASPO regime – i.e. adverse costs should a Part 36 offer not be beaten – means that cover certainly should be in place at this point”.

“Protect 36 allows Firms to take out a policy after a defendant Part 36 offer is made, and cover includes adverse costs, litigation disbursements and our unique damages indemnity / shortfall cover. As premiums are only payable should there be an increase in the Part 36 offer, we feel that Protect 36 offers excellent value for money for Clients and could well be the only cover you need for many PI case types.

Protect 36 can be used to cover all PI claim types (RTA, EL, PL, OL) and for Industrial Disease & Clinical Negligence cases. Cover is simple to explain, quick & easy to apply for online and the Part 36 damages indemnity / shortfall cover provides real peace of mind for Clients & Firms alike.

For more information about Protect 36 and our current ATE and LEI products and services, please contact info@keystonelegal.co.uk

Medical reports portal to be followed by accreditation scheme

A portal created by the Association of British Insurers (ABI) and known as ‘MedCo’ would be the sole point of access for lawyers seeking medical reports on whiplash cases under Ministry of Justice (MoJ) plans.

Launching the second phase of its whiplash reforms, the MoJ also said that a compulsory accreditation scheme for experts would be introduced, but not until after the portal opened for business.

The ministry said that to achieve its objective of severing the financial links between some law firms and reporting agencies, filters would be applied to MedCo search results.

“This will preclude not such organisations from owning medical reporting organisations which would be available to source work from elsewhere”.

In a further measure aimed at tackling “fraudulent and unnecessary claims”, the government said it would implement an industry agreement on data-sharing, which will require claimant lawyers to check potential clients’ previous claims records.

The reforms would be implemented through amendments to the pre-action protocol and related civil procedure rules.

In the consultation, the MoJ described MedCo as “a new independent IT hub”, and said the name was simply a “working title”.

The paper explained that there was “no government funding available” to cover the start-up costs of the system, but the ABI had agreed to fund and build it.

However, the MoJ said that it was working with representatives across the industry to develop an “independent governance system” both for the portal and the accreditation scheme.

All current experts will be able to register with MedCo initially. They will then be given an as-yet unspecified period of time in which to gain their accreditation. They will also be subject to monitoring and peer review through management information, spot checks and user feedback.

Lord Faulks, justice minister, said: “Our reforms will create an improved, robust system for medical evidence – so genuine whiplash claims can still be settled but fraud is driven out of the market. We have already seen a fall in premiums paid by motorists – we are working to ensure this continues.”

The MoJ said proposals from the first phase of its reforms, including limiting fees for whiplash medical reports to £180, would come into force on 1 October.

This would be combined with new court rules to discourage pre-medical offers, limit evidence to a single expert in most cases and prevent the reporting expert from being the doctor who treated the victim.

The issue of whiplash reform will be discussed at the PI Futures Conference in Manchester on 16 September.

There will be filters applied to the MedCo search results to ensure the medical expert or reporting organisation does not have a direct financial link with the commissioning organisation. This will not preclude such organisations from owning medical reporting organisations, which would be available to source work from elsewhere.

Williams: from bike to bench

Another tranche of new High Court judges has been named, half of whom are women – and one of them is a former partner at City giant Linklaters.

The six new judges takes to 13 the number of new appointments over the past month. They take up their posts on 2 October.

Her Honour Judge Clare Moulder, who has been authorised to sit as a deputy High Court judge since 2013, replaces Sir Julian Flaux, who has been elevated to the Court of Appeal.

HHJ Moulder, aged 57, was admitted as a solicitor in 1984 and was a capital markets partner at Linklaters from 1991. She was appointed as a Recorder in 2010 and then as a specialist mercantile circuit judge in Manchester in 2015. She has been assigned to the Queen’s Bench Division (QBD).

Amanda Yip QC of Exchange Chambers in Liverpool will also be assigned to the QBD. Her appointment follows the retirement of Sir Wyn Lewis Williams.

Aged 48, the personal injury specialist was appointed as a Recorder in 2008 and authorised to sit as a deputy High Court judge in 2013.

Her profile states that “having juggled practice through maternity leave and part-time working, Amanda is a strong supporter of flexible working at the Bar”.

Sara Cockerill QC of Essex Court Chambers joins the QBD too after the retirement of former Labour Solicitor-General Sir Ross Cranston.

Also aged 48, she was appointed as a deputy High Court judge in 2016. A commercial law specialist and arbitrator, Ms Cockerill is the author of the main textbook on compelled evidence in civil proceedings and editor of two sections of the White Book (Commercial Court and arbitration).

She is also a keen student of medieval history; her biography of Eleanor of Castile was published in 2014 and she is currently working on a biography of Eleanor of Aquitaine.

Another new judge for the QBD is Julian Knowles QC, following the promotion of Dame Kate Thirlwall to the Court of Appeal.

Appointed as a Recorder in 2009 and a deputy High Court judge just this year, the 48-year-old – who the judiciary notes point out grew up on a council estate in Manchester and attended the local comprehensive school – specialised in complex criminal law, extradition, human rights law, public law and media law.

He appeared in numerous significant cases, including: the Pinochet extradition case, the Siôn Jenkins murder case, the Dewani ‘honeymoon murder’ extradition case, the shooting of Jean Charles De Menezes and the MPs’ expenses prosecutions.

He is the co-author of the extradition textbook Nicholls, Montgomery and Knowles.

The fifth new face for the QBD is well-known media lawyer Matthew Nicklin QC, following the elevation of Sir Timothy Holroyde to the Court of Appeal.

The co-head of 5RB and one-time member of the Bar Standards Board, Mr Nicklin, 46, was appointed as a Recorder in 2009 and has sat as a deputy High Court judge since earlier this year.

He has acted for both claimants – such as Madonna – and various leading defendant newspapers over the years, and acts regularly for Channel Four Television, particularly for the Dispatches programme. He successfully defended the libel action by Andrew Wakefield brought over a Dispatches investigation over the MMR scandal.

Finally, David Williams QC of 4 Paper Buildings has been assigned to the Family Division after Sir Andrew Moylan was promoted to the Court of Appeal.

Aged 53, he was only appointed as a Recorder in 2016 and authorised to sit as a deputy High Court judge earlier this year.

He specialises particularly in children cases with an international dimension and has also acted in private law disputes where there are psychological issues. He has appeared twice in the Court of Justice of the European Union and the European Court of Human Rights, as well as the UK Supreme Court.

He is the editor of the children volume of Rayden and Jackson, a leading family law textbook.

Mr Williams used to tweet under the name ‘Biking Barrister’ but the account has now been deleted.

Kain Knight, one of the UK’s largest firms of costs lawyers, has appointed Scott Jarrold to join Nicholas Clark’s team as the business development manager working across England and Wales with existing clients and new business. This new appointment compliments Kain Knight’s long term policy of controlled expansion in specialist costs areas, building on their significant business development successes.

Scott has been working in the legal sector with business development roles in ATE, funding and costs for the last 7 years and has experience in commercial, personal injury and clinical negligence cases.

Scott has worked with a range of firms from magic circle firms, international, large regional and specialist boutique firms providing solutions for their costs and funding needs.

Kain Knight continue to welcome any approaches from experienced costs lawyers with specialist background in commercial, admiralty, high value personal injury/industrial disease or clinical negligence interested in joining our team.

Matthew Kain, director of Kain Knight, said:

“We are delighted to welcome Scott to the Kain Knight Group. This is the next step in our growth strategy for the UK and International markets. Scott has significant experience in high quality customer service and client retention; he also brings a wealth of knowledge in litigation funding and ATE, adding a new dimension to our business development offering.”

Holiday: mere presence of ADR scheme does not mean you have to use it, says court

Claimants who litigate instead of using an available ADR scheme are not automatically acting unreasonably, the High Court has ruled

Mr Justice Singh overturned a costs judge’s decision that it was neither reasonable nor proportionate for a group of claimants to spend £456,000 in base costs alone on litigating holiday claims that could have been dealt with far more cheaply by the mediation scheme run by the Association of British Travel Agents (ABTA).

Master James had ruled on several preliminary issues following a group action brought by 599 claimants who had stayed at a resort in Turkey in the summer of 2009.

They settled their cases for £1.7m, and their solicitors, Irwin Mitchell, claimed base costs of just under £2m, with a further £2.5m in additional liabilities. At issue in particular were the 152 claimants who were not ill but had to endure substandard accommodation and service, and caring for family members and companions who had fallen ill.

The ABTA scheme provided compensation of up to £5,000 per person or £25,000 per booking, a cap that Master James said would have covered the 152 claimants “perfectly adequately”.

She ordered that the maximum costs the defendant First Choice Holidays should have to pay in relation to these claimants was what they would have paid to use the ABTA scheme – a maximum of £264 each.

But according to a report today on Lawtel of Briggs & 598 Ors v First Choice Holidays & Flights Ltd, Mr Justice Singh held that the position had not yet been reached where the mere presence of ADR meant that it was not reasonable to litigate.

The report said: “The parties had reached the stage of proceedings where a detailed assessment of costs was to occur; they were not at a stage where decisions were to be made as to whether to make costs orders at all.

“There were already costs orders in place for the claimants, and the effect of the costs judgment was to negate the earlier orders. The cost judge’s conclusion that it was inherently unreasonable for the appellants to enter into a CFA rather than a voluntary mediation scheme went too far. The costs judge had erred.”

Dyas: Hidden, subconscious agenda

Posted by Tony Dyas, senior business developer at Litigation Futures Associate Allianz Legal Protection

With the Civil Liability Bill generating further turbulence in the legal market, ALP hosted a local roundtable with solicitors in the Bristol area to discuss the challenges and opportunities in the personal injury and clinical negligence market.

Over the course of two hours, the conversation focused on both customers and the profession, beginning with the impacts of the legal reforms.

So, what are the impacts of the legal reforms on customers?

The group was of the view that there’s a hidden, subconscious agenda which they’ve been slow to pick up on. This is the question of whether honest customers should receive compensation for minor injuries. It’s an unconscious debate in that it gets lost in all the talk about the financial impact of the reforms.

No doubt it’s going to become harder to bring low-value cases in the same way they’ve been brought in the past with full legal representation. All agreed that there will be an impact but it won’t be seen for some time – begging the question of whether it will be too late for customer groups to respond effectively.

In the longer term, what are the impacts on the legal profession?

The immediate response was de-skilling, with recruitment focused on paralegals rather than proven expertise. There will be fewer experienced personal injury and clinical negligence lawyers and a smaller talent pool to draw from in the long term.

For those paralegals entering the market, high-value cases are attractive but with so few of these around, there already seems to be a move to enter commercial law, where the rewards are greater.

This means low-value cases will become less attractive and lawyers won’t be able to run them as they won’t be cost effective. So, who will pick up this work? Unproven experts or will cases simply not be run?

A representative from Clarke Willmott summarised it well: “I didn’t enter the profession to turn down cases where compensation is rightly deserved due to such cases being uneconomical to run.”

And what about the short-term impacts?

Solicitors will become more selective about the cases that are taken on. That’s a logical next step but it might mean that some more difficult cases that solicitors’ firms would have previously taken on and won, won’t be pursued.

Also, law firms will be under more pressure to accept offers on cases. Whilst the interest of the client is fundamental, there will unconsciously be some pressure to settle cases earlier as margins become tighter.

Advertising and marketing has changed in the market – social media has grown and is now a fundamental part of promoting brands and services to customers. The spike in TV advertising has slightly reduced over the past 12 months and this channel is often seen to have a negative impact on the industry as it promotes a compensation culture.

Liked or not, however, TV advertising has huge reach and solicitors would find it difficult to compete with the largest in the market through other marketing channels.

Turning to customer perception, discussion focused on whether customers are aware of their rights and how they access legal services

Consensus was that people are becoming more aware of their legal rights, although there are generational differences. Millennials access and use information far quicker and are generally more aware of their rights. This makes them more inclined to ‘claim’ than older generations.

All customers can now easily shop around, so it’s not uncommon for them to approach two or three firms before making a decision. This makes a law firm’s online customer journey vital for establishing confidence with a customer on first impression.

And whilst there also seems to be customer demand for law firms to embrace technology with online transactions supporting growth, a face-to-face experience is still valued and needed.

There is also an expectation from customers around fixed-price deals and price publication so they can easily compare costs. With price a more highly considered factor than brand and proven expertise, it’s likely this customer expectation is only set to increase.

And lastly, where does mediation sit in all this?

Generally, all law firms attending said they were not seeing a growing trend for mediation, because defendant law firms have little appetite for it. However, there has been a slight increase in NHS Resolution promoting mediation.

Our panel concluded that solicitors will always settle cases by negotiation but they readily accept it takes both parties to have that view for cases to settle. They’re open minded to change but don’t think that any form of compulsory meditation is likely to be successful in the near future.