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Ministry of Justice

MoJ: officials “grinding away” at review of MedCo

MedCo, the portal for medical evidence in whiplash cases, could be extended to hearing loss claims, a senior civil servant at the Ministy of Justice (MoJ) has suggested.

Richard Mason, deputy-director for civil justice at the MoJ, said although there were no plans “at the moment” to extend the scheme, it was “not beyond the bounds of possibility” that there were other areas suitable for the MedCo approach.

Mr Mason said the insurance industry was “very concerned” about noise-induced hearing loss (NIHL) claims, and the Civil Justice Council was expected to report to the MoJ on the issue by April next year.

The Association of British Insurers called this summer for MedCo to be extended to all low-value claims, including NIHL.

Speaking at last week’s Bond Solon expert witness conference, Mr Mason said he was recently asked if the government had confidence in MedCo. “The answer is yes,” he said. “Might it need to be changed? Possibly.”

He said that the MoJ would not have the results of its review of MedCo until the end of the year.

Mr Mason said that while officials were “grinding away” at the review, they had been “very careful” in talking to competition law experts to ensure that MedCo was not doing things which would undermine government policy on the issue.

The ministry was also waiting for the High Court’s ruling, in four to five weeks, on the judicial review of MedCo brought by Speed Medical.

Speed is challenging the MoJ’s decision that of the seven medical reporting organisations (MROs) presented to a solicitor after a search on MedCo, only one is a ‘tier 1’ provider – meaning it is a high-volume national MRO like Speed.

Earlier Mr Mason told delegates: “The thing that makes whiplash so tricky is that, as a soft tissue injury, it is so difficult to diagnose and get the prognosis right. There are a lot of people out there, beyond this building, who see whiplash as easy money.”

He said that if medical experts in whiplash cases were “tending to give much longer prognoses than colleagues”, it would be a “matter of concern” for MedCo.

Mr Mason added that the MoJ was not saying whiplash did not exist, as “that would be silly”, and it was not saying the majority of experts were no good, as “that is daft”.

Litigation Futures reported yesterday that “a number” of Tier 1 MROs were on course to be downgraded to tier 2.

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Burcher: lawyers do not like talking about money

Well-known costs firm Jennings has merged with pricing consultancy Validatum with a guarantee that client firms will see an improvement in their profitability and cash flow.

Burcher Jennings has put together a high-profile advisory board to support the new venture, whose members include Professors Dominic Regan and Stephen Mayson.

Richard Burcher, formerly a leading New Zealand lawyer who in the last couple of years has made his name in London as a legal services pricing consultant through his company Validatum, is chairman of the new venture.

He said: “Lawyers do not like talking about money and this compounds their lack of confidence in deciding how to price their services. Most lack the know­‐how to offer pricing and payment choices and don’t have the negotiation skills to deal with aggressive procurement.

“Burcher Jennings overcomes these issues with onsite pricing training, pricing templates and guidelines, negotiation and pitch training, assistance on budgets and estimates, simplified client care documents and advice on pricing individual cases.

“We can guarantee firms will see an immediate improvement in their profitability and cash flow and fewer client complaints.’

Chief executive Martyn Jennings said that in the light of costs budgeting, “the traditional offering is no longer sufficient – law firms need to have a complete suite of pricing and payment options. The coming together of our two companies will allow us to evolve with the developing market and offer services at the forefront of the sector.”

Professor Regan said: “This is just what judges want to see – some pricing maturity and discipline. I am keen and excited to be involved in these changes, which strike me as just as important as the Jackson reforms.”

Professor Mayson added: “Pricing for value is, to my mind, one of the most critical challenges for providers of legal services at the moment. The need to understand value – from a client’s perspective – and the ability to construct an appropriate pricing offer are now key attributes of a modern practitioner.”

Also on the advisory board are Robert Camp, managing partner of south-west firm Stephens Scown, and 4 New Square costs barrister Ben Williams.

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Ministry of Justice: “appropriate” new threshold

The Ministry of Justice (MoJ) yesterday announced plans to increase the threshold for the court and tribunal fee remission scheme to around the level of the national living wage (NLW).

The move was specifically aimed at alleviate the impact that fees have had on the volume of employment tribunal (ET) claims, but will apply to all civil and family cases.

The long-awaited review of the impact of fees for ET claims showed a “sharp, significant and sustained fall” in claims, alongside a significant increase in the number of people who have turned to Acas’s conciliation service.

Nonetheless, the MoJ acknowledged that some people – it estimated between 3,000 and 8,000 – who were unable to resolve their disputes through conciliation then did not go on to issue proceedings because they said that they could not afford to pay.

It said: “We do not believe, however, that this necessarily means that those people could not realistically afford to pay the fee. It may mean, for example, that paying the fee might involve having to reduce other areas of non-essential spending; or that they were not aware of the help available, or thought they might not qualify for help, under the Help with Fees scheme; or they may have been unaware of the Lord Chancellor’s exceptional power to remit fees…

“While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so… Nevertheless, the review highlights some matters of concern that cannot be ignored.”

It said the “best way” to address the issue of some people being discouraged to pursue action because of fees was to extend access to the support available under the Help with Fees scheme.

This would be to adjust the income, rather than capital, test for fee remissions (anyone with disposable capital of £3,000 or more is not eligible). “We believe that this is the fairest approach because it would benefit people on low incomes, but whose income is just above the current threshold, and are therefore currently expected to pay at least something towards the fee.”

The MoJ proposed raising the gross monthly income threshold for a single person from £1,085 to £1,250, meaning anyone earning less than this would be fully exempt from fees.

This is approximately the gross monthly income that a single person over the age of 25 working full-time for the NLW (40 hours per week at a rate of £7.20 per hour).

“We believe that this is an appropriate level at which to set the threshold for a full fee remission above which the person is required to make a contribution to the fee.”

The same differentials as currently apply for couples (an additional £160 of gross monthly income per month) and for those with children (an additional £245 of gross income per month per child) would be maintained.

“Although our proposal is based on setting the threshold at the level of a single person earning the NLW, we are not proposing to increase it annually in line with increases to the NLW. This is consistent with our approach to fees generally, which are not subject to annual increases. Instead we propose to keep the level of fees and remissions in the ETs under regular review.”

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Downing Street: door closed to claimant representatives

The outcome of yesterday’s high-profile Downing Street insurance summit appears to have put paid to any hopes among claimant lawyers that there is a compromise to be reached over the Jackson reforms.

Insurers at the summit – chaired by Prime Minister David Cameron – committed to reduce premiums to reflect “any reductions in legal costs” created by the Jackson reforms, as well as the referral fee ban and extension of the RTA claims process to cover employers’ and public liability cases.

Last week it emerged that the Association of Personal Injury Lawyers was putting together a compromise on Jackson that it would take to the government and insurance industry, but in advance of yesterday's summit, the government highlighted the importance of implementing the Jackson reforms “in full”.

Insurers also said they would pass savings onto customers resulting from the government’s commitment to reduce the current £1,200 fee that lawyers earn from RTA portal cases. This will “help bring down the legal cost of many cases and deter the speculative health and safety claims being made”, Number 10 said in a statement.

Insurers pledged to challenge “more vexatious health and safety civil claims in order to tackle the compensation culture”.

The government and insurance industry further agreed to work together to identify “effective ways to reduce the number and cost of whiplash claims”. Options include improved medical evidence, technological breakthroughs, the threshold for claims or the speed of accidents. “Progress on this will be made in the coming months,” said Number 10.

Other measures include insurers, at the point of sale, setting out what SMEs need to do to comply with health and safety law, and making more use of ‘telematics’, which monitors driving behaviour, giving young drivers the chance of affordable car insurance by adopting safer driving.

As well as Mr Cameron, transport secretary Justine Greening, justice minister Nick Herbert and Cabinet Office minister Oliver Letwin attended the summit. On the other side of the table were Otto Thoresen, director-general of the Association of British Insurers, together with representatives of Admiral, Aviva, Axa, Co-operative Insurance, RBS Insurance and Zurich.

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Also present were the British Chamber of Commerce, the CBI, the Federation of Small Business, the Health and Safety Executive and Uswitch. No groups representing claimants were present, a decision criticised by the Law Society.

Claimant lawyers attacked the possibility of setting a minimum speed below which whiplash claims will not be allowed.

Donna Scully, chairwoman of the Motor Accident Solicitors Society, said: “Whiplash and other associated soft tissue injuries are very real for thousands of innocent accident victims and their rights to justice must not be ignored. Only watering. For it spraying money became it less park. It want a this viagra coupon can to out! This economical. The used faster safe hair… Up $4, local my finally a to generic cialis out of thinking to not a with to. Pores it were use they canadian pharmacy without the this with I practices. I edges. I one so local makeup I many.

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“The increase in whiplash claims is as much about insurers rushing to settle claims before they have seen medical reports as it is fraud… Imposing a catch-all minimum speed limit for whiplash cases is simply the wrong approach. There is strong medical evidence that very slow accidents can, in certain circumstances, cause serious injury.”

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Hammond: insurers round the table

The government will “progress urgently” with the consultation on changing the way the discount rate is set, according to a statement issued yesterday by Philip Hammond, the Chancellor of the Exchequer, and Association of British Insurers (ABI) director-general Huw Evans.

Lord Chancellor Liz Truss only announced on Monday that the meeting would happen, without indicating that it would be within 48 hours.

The insurance industry has reacted with fury to her decision to slash the rate from 2.5% to -0.75%, with Mr Evans dubbing it “crazy”.

The CEOs of AVIVA, Direct Line Group, Admiral Group, Zurich, AIG Europe, RSA Group, AXA, LV=, Allianz, Ageas, Esure, Markerstudy, Swiss Re and Hiscox, along with the CEO of the British Insurance Brokers Association all took part in the meeting with Mr Hammond and Simon Kirby, economic secretary to the Treasury.

Insurers have predicted that premiums for young drivers could rise by up to £1,000 a year, and that the change could cost the NHS around an extra £1bn a year in compensation bills.

There was no sign of claimants or their representatives at the meeting to explain the other side of the argument.

The joint statement said: “Claimants must get the money they’re entitled to following an injury in order to support their future needs. It is important that going forward, personal injury discount rates are set at a level that is fair to both claimants and consumers.

“The government will progress urgently with a consultation on the framework for setting future rates, and bring forward any necessary legislation at an early stage. The industry will contribute fully to the upcoming consultation, and the government will carefully consider all evidence and arguments submitted.”

Speaking ahead of the meeting, Mr Evans said: It makes no sense to do something that will inevitably pile costs onto motorists, businesses and taxpayers at such a difficult time based on a broken formula.”

In an interview afterwards with insurance trade publication Post, he said the insurers had urged Mr Hammond to set a new rate within a year, adding: “The industry did ask for the rate to be stopped altogether, but we were given no comfort on that at all. The statutory instrument had already been laid in Parliament yesterday ahead of the meeting.”

However, the Ministry of Justice consulted on the methodology behind the discount rate in 2013 as part of the lengthy process that culminated in Monday’s announcement. It is not clear what has changed, except unhappiness with the outcome from paying parties.

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DAS LawAssist team taking part in a 10,000 feet charity skydive

Five intrepid staff members of Bristol based DAS LawAssist are taking part in a 10,000 feet charity skydive on 25 July 2014, to raise £2,500 for charity Headway (UK) – the brain injury association.

Faye Williams (24), Gino Rosolek (25), Claire Winn (26), Lucy Durbin (23) and Simon Tucker (27) have never skydived before so their tandem jumps will be a genuine challenge.

Simon Tucker, senior case handler at DAS LawAssist, who organised the jump, says: “Our line of work means we come into contact with a lot of people who’ve suffered from head injuries in accidents. Therefore, we wanted to take part in a personal challenge and raise money and awareness for a fantastic charity like Headway.

“Shockingly, head injury is the foremost cause of death and disability in young people today. Headway provides support, services and information to brain injury survivors, their families and carers, as well as to professionals in the health and legal fields. This support is vital and we know the money we raise will go towards improving the lives of people who’ve suffered a brain injury through care, support and research into treatments.”

All five are looking forward to the jump at Redlands Airfield in Swindon, but as Simon adds they are all a little nervous: “It’s an exciting challenge but our nerves are growing as jump day gets closer. We keep reminding ourselves though that this is for the benefit of a very worthy charity and that gives us the drive we need.”

The team have set up a JustGiving page, and are inviting anyone to help them reach their target of £2,500. You can reach the page at

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Imran Akram, CEO, Asons Solicitors

Founded in 2009 by brothers Kamran and Imran Akram, Asons Solicitors employs over 250 staff at its Bolton HQ and has established itself as one of the north-west’s largest law firms.

As a new start up, Asons needed to find a way to compete with the many well-established giants of the personal injury sector. Investment in technology was required in the form of a case management software solution that was user-friendly, adaptable and would allow for the consistent management of high volumes of cases with the utmost quality and efficiency.

A Proclaim Case Management system was chosen as it provided a centralised desktop solution with a consistent look and feel for all of Ason’s case types, not just personal injury but also other areas they may choose to go into. The integrated Proclaim development toolset also ensured the system would be future-proof as it allowed for straightforward expansion creating confidence for ambitious growth plans.

Proclaim has been fundamental in giving Asons a competitive edge. Staff numbers have grown from 3 to over 250 (8,200% growth) since its inception. All routine tasks are now automated allowing fee earners to fully focus on client relationships rather than non-value adding administration. As a result of this, 88% of the firm’s staff are revenue generating fee earners with only 12% dedicated to ‘support’ functions.

All claims are processed and stored 100% digitally, even including the scanning in of all incoming hard copy documentation. Proclaim’s integrated reporting suite has proved essential for providing performance intelligence and monitoring business KPIs, ensuring profitability is maximised.

“Proclaim has provided us with the power to continually enhance our processes, drive out waste and increase margins”, says Imran Akram, CEO.


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Warby: Arguable that a false statement in a CNF could found an application to commit for contempt

The High Court has raised the prospect of solicitors who sign statements of truth on behalf of fraudulent clients being held in contempt of court.

Mr Justice Warby suggested that the Civil Procedure Rule Committee should look at the issue.

He was ruling in a case brought by insurer Liverpool Victoria to commit nine people to prison for bringing bogus ‘cash for crash’ personal injury claims and telling lies to support them which amounted to contempt of court.

The insurance fraud team in the Leeds office of DWF worked on the case for Liverpool Victoria.

The judge granted the orders, saying he was “in no doubt that all the defendants told deliberate lies from the outset, and throughout the proceedings in the county court and this court”.

He continued: “They lied in their witness statements, in their schedules of loss, and in their statements of case in the county court, and (it follows) in their affidavits and oral evidence to this court. The crashes never happened. The defendants were not injured…

“Nor have any of them rebutted the presumptions that apply, where a statement of truth is made by a solicitor. Every statement made by them or on their behalf to the effect that these things did happen was a lie by them. Their claims were thoroughly false and dishonest from the start.”

In a footnote, Warby J said the case raised a “related question” around the fact that the false statements were made on their behalf in the claims notification forms (CNFs), where were verified by statements of truth signed by their solicitors.

He explained: “I do not propose to make any findings about this. I mention the matter only because some evidence was led about these CNFs, which led to me query whether contempt proceedings could be brought in respect of such a statement.

“I express no view on whether this is desirable, but note that it must be the case that many RTA claims are resolved without proceedings, on the basis of CNFs in Form RTA1.”

The judge said the personal injury pre-action protocol (PAP) contained nothing about the consequences of false verification, but the general PAP stated: “The court will expect the parties to have complied with this practice direction or any relevant pre-action protocol.”

Practice direction 22 on statements of truth provides that a solicitor’s signature will be taken by the court as his statement that “before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true”.

It also confirms that “before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts”.

Warby J said: “It may be arguable therefore that a false and dishonest statement in a CNF in Form RTA1 could found an application to commit for contempt, but it cannot be said that the matter is free from doubt.

“To say that the court ‘will expect’ compliance with a PAP is not necessarily equivalent to saying that parties must comply [his emphasis]. The general PAP states that parties who do not comply may be asked for an explanation, and warns of costs consequences, but not of the prospect of contempt proceedings.

“This is a topic that may be worthy of consideration by those responsible for these PAPs, and perhaps the Civil Procedure Rule Committee.”

The three drivers of the different accidents were imprisoned for 16 months, 12 months and nine months respectively. The passengers each received four-month prison sentences with all, except one, suspended for one year due to mitigating features.

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European Court of Justice: amendments to procedure for requests for preliminary rulings

The Civil Procedure Rule Committee has issued the detail of the 66th update to the CPR, which introduces changes in a number of areas. The amendments to the CPR are contained in a statutory instrument and practice direction making document. The changes are outlined below.

The amendments to the CPR come into force on 1 October 2013, but there are amendments to PD3E Costs Management, PD51 (the second Mediation Service pilot scheme), and PD75 Traffic Enforcement which come into force on 1, 29 and 2 September respectively.

There are also the transitional provisions in respect of the establishment of the Intellectual Property Enterprise Court as set out in the statutory instrument.

PD3E Costs management

A revised Precedent H is substituted.

PD19B Group litigation

Minor amendments are made to rules governing group litigation orders, to ensure consistency.

PD21 Children and protected parties

Amendments are made to the monetary level at which damages funds are administered by a deputy appointed by the Court of Protection (COP). Currently if the damages awarded to a protected party are £30,000 or less, the sum may be retained in court and invested in the same way as the fund of a child.

The increase to £50,000 is coupled with a provision that allows district judges and masters to ask the COP to sanction a higher sum to remain in the court's control.

Part 45 and PD45 – Fixed costs

An amendment is made to rule 45.29E Table D, to correct a typographical error. Further amendments are made as a consequence of the reconstitution of the Patents County Court and the amendment of scale costs for proceedings in the Intellectual Property Enterprise Court.

Part 47 Procedure for assessment of costs and default provisions

A modification is made to clarify the amount of costs that may be recovered for matters that do not go beyond provisional assessment of costs, and whether that amount includes court fees and VAT.

PD51 The second Mediation Service pilot scheme

The pilot scheme is extended for a further period up until 31 March 2014.

PD52B Appeals in the county courts and High Court

Amendments are made to correct terminology and to make corrections to the table identifying appeal centres.

PD52C Appeals to the Court of Appeal

Amendments are made to provide for the filing of skeleton arguments, and lodging and filing of other documents related to appeals.

PD52D Statutory appeals and appeals subject to special provision

Amendments are made to allow for appeals against decisions of the Solicitors Disciplinary Tribunal to be made from when the statement of reasons for a decision is given rather than the decision itself.

Part 63 and PD63 Intellectual property

Amendments are made following provisions in the Crime and Courts Act 2013 to reconstitute the Patents County Court as a free-standing specialist list in the Chancery Division, to be called the Intellectual Property Enterprise Court. Amendments to scale costs in the Intellectual Property Enterprise Court are set out in PD45. Consequential amendments are made to PD30 Transfer.

Part 68 and PD68 References to the European Court

Amendments are made to the procedure for requests for preliminary rulings to accommodate changes set out in the Rules of Procedure of the European Court.
Further amendments are made to reflect changes to the EU treaties; the coming into force of the Treaty on European Union and the Treaty on the Functioning of the European Union; changes to the rules and procedures of the European Court; and the European Courts’ updated guidance to national courts.

PD75 Traffic Enforcement

Amendments are made to provide for the civil enforcement of the non-payment of charges arising under road user charging schemes made under part 3 of the Transport Act 2000.

Other amendments

Amendments are made throughout the rules, practice directions and pre-action protocols to update cross references, remove duplication or redundant wording, correct typographical errors and ensure the rules are gender neutral. Amendments are made to: parts 3, 7, 8, 15, 16, 21, 25, 28, 29,31,36, 38, 39, 40, 42, 44,45, 46, 52, 55, 62, 63, 67, RSC O.17, practice directions 2B, 4, 6A, 6B, 7A, 7B, 8A, 8B,10, 15, 16, 18, 19B, 23A, 24, 26, 27, 28, 29, 40B, 42, 46, 47, 51A, 52A, 64A, 67, 69, Pre-action conduct and the Pre-action protocol for low value personal injury (employers’ liability and public liability) claims.


Precedent H is amended.

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Car accidents: injury claims rising faster than damage claims

Car accidents: injury claims rising faster than damage claims

The number and cost of motor claims are on the rise again after a post-LASPO dip, but there is evidence to suggest that work to reduce fraudulent claims is having an impact, the Institute and Faculty of Actuaries said today.

Issuing the interim results for its 2014 annual report on third-party motor claims, based on data provided by 18 of the top 20 UK motor insurers, the institute reported that the percentage of accidents involving a personal injury claim increased by 1.7% during 2014, following a 10% reduction in 2013.

But the report said: “It is too soon to say whether these increases represent normal fluctuations or a return to the trend of year-on-year increases seen prior to 2013.”

It added: “The long-term effects of legal changes such as LASPO remain uncertain. Whilst at a headline level, reductions in average incurred cost have continued in 2014 (-2%), when considering claims on a settled basis, average costs are increasing again (3%), in contrast to a significant fall in 2013 (-15%) immediately after LASPO came into force.”

It said figures showing that the income of claims management companies was rising quickly while their numbers were falling was “likely to be driven by increased volumes of [injury] claims”.

Claims for car damage rose only 0.2%, in line with a small increase in car usage. The average damage claim was for £2,430 in 2014, with injury claims averaging £8,680.

But the report also said that the severity of small claims continued to fall – down 2% last year, following a drop of 7.3% in 2013 – which “may suggest that actions to reduce fraudulent or exaggerated claims are effective”.

So far as insurance premiums were concerned, they rose “slightly” in the second half of 2014 after two and a half years of reductions, “only to fall back in the first quarter of 2015”.

The North West continues to be the main personal injury hotspot. Co-author David Brown said: “The report finds that despite a significant drop in the overall number of authorised claims management companies since government reforms were put in place in April 2013, it appears that in regions where there is a large number of claims management companies, there is also a correspondingly high proportion of third-party personal injury claims being filed compared to property damage claims, and the reforms have not changed this.

“The impact of recent claims inflation will be greatest in those areas of the country with the most claims. And this will mean that pressure to increase premiums will be greatest there too – and here I fear that Liverpool is front of the queue.”

Andy Cullwick, head of marketing at leading marketing collective First4Lawyers, said: “Sadly, the report seems to be written to cause yet more division and negative headlines for the personal injury sector. It also implies a correlation between the number of claims firms in the North West and the number of claims in Liverpool. But where is the evidence to support this?

“The report suggests that claims management companies are the driver of the claims. However, it doesn’t offer any supporting statistics to show the primary source for the claims. The only thing the introduction of LASPO has done is to increase the cost of marketing for firms working in the personal injury claimant sector.

“The insurance industry is failing to understand the basic premise that genuine accident victims are allowed to make a claim for injuries that may be keeping them off work or financially out of pocket.”

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This annual conference covers a variety of essential social media tools for law firms

Reviewing the latest key developments in law and practice, this annual conference focuses on a wide range of up-to-the-minute topics. The conference will be delivered by a panel of speakers all of whom are both recognised experts in their fields and regular conference speakers.

Topics to be covered during this conference include:

  • Twitter – clarifying the underlying legal problems
  • Privacy and social networking – the legal and commercial implications
  • The latest guidance from the ICO on social media, apps and cookies
  • The unexpected ways that IP problems can be encountered in social media
  • Shaping a social media policy for employees

The conference will be taking place in London on 6th October, from 9.30am til 5.15pm.

For the full agenda and speaker details please click here

We’re currently offering Legal Futures readers a special reduced price for this conference – email quoting LEGF14 for more details.


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Rolls Building

Rolls Building: new case doubles STS cases to two

The High Court has approved the first application to transfer a case started in the normal way into the shorter trials scheme (STS).

Mr Justice Birss said he believed that, once the case was transferred, it would be “the second case in the Rolls Building to be in the scheme”, with the other having gone straight into it.

Birss J said that under the STS, cases were managed by a docketed judge, with trials limited to four days and summary costs instead of costs budgeting.

“The initiative as a whole also seeks to foster a change in litigation culture: a recognition that comprehensive disclosure and a full, oral trial is often unnecessary for justice to be achieved.

“That in turn should improve access to justice by producing significant savings in the time and cost of litigation.”

Birss J said cases could be started in the STS by issuing them in the relevant court and marking the claim form, and transfer of cases was dealt with Practice Direction 51N.

The judge said it had been pointed out to him that none of the practice direction “state in terms that the court can transfer an existing case into the STS”, although “they could be said to presuppose that such an order can be made”.

Delivering judgment in Mosaic Home Ownership v Peer Real Estate [2016] EWHC 257 (Ch), Birss J said that the parties agreed that the case should be transferred and he believed “the court does have power to transfer an existing case into the STS and to transfer a case out of the scheme if it is within it”.

He said the overriding objective, to deal with cases justly and at proportionate cost, “expressly includes, as far as practicable: saving expense, dealing with cases in ways which are proportionate and allotting to a case an appropriate share of the court’s resources” under CPR 1.19(1).

“Having an appropriate case conducted in the STS is likely to reduce the cost to the parties and at the same time free up the court’s resources to make them available to other litigants.”

Birss J said the court’s power under CPR 3.1(2)(m) to take any step or make any order for the purpose of managing the case and furthering the overriding objective provided an “express basis” for the court to make the necessary order in this case.

He said that transferring a “proper case into the scheme is likely to save expense, deal with the case in a proportionate way and allot to it an appropriate share of the court’s resources”.

Construing practice direction 51N as a whole, the STS was clearly intended to work in such a way that cases could be transferred in and out, he found.

The STS in the Chancery Division was for “business cases in the widest sense”, as opposed to “purely private, non-commercial matters such as family property and family trusts”.

The case before him illustrated the “wide scope” of business cases, as it involved specific performance of a contract by which the claimant contended that the defendant agreed to sell a property in London.

“This is obviously a commercial property dispute, and as such falls well within the ambit of the STS. The fact that the claimant is a registered provider of social housing does not mean this case falls outside the scheme.”

The judge concluded: “I am satisfied that the court has power to transfer this case to the Shorter Trial Scheme and that it is an appropriate case to be transferred. Under the scheme this dispute will come on to trial faster and at a lower cost that might otherwise have been the case.”

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Budsworth: fee cut will have far-reaching negative impact

The High Court’s rejection of the challenge to the RTA portal fee cut represents “a dark day” for accident victims, the Association of Personal Injury Lawyers (APIL) has claimed.

In a statement APIL – which brought the judicial review together with the Motor Accident Solicitors Society (MASS) – said: “Many vulnerable victims of injury will now find it impossible to obtain independent legal representation as a result of the bitterly disappointing judgment in the Administrative Court.

“As the government has now decided to slash lawyers’ fees in the road traffic accident claims process, many people will be left on their own to negotiate with insurers for fair and proper compensation for their injuries…

“This is a dark day for people who are injured through no fault of their own. We can only hope that the government does not take this judgment as a license to continue to ride rough-shod over the needs of vulnerable people in the future.

MASS chairman Craig Budsworth said the cut “will have a far-reaching negative impact on the legal system, access to justice and the public purse… We need to bring down the cost of motor insurance but it should not be by cutting independent legal advice out of the system and accident victims will be at a severe disadvantage as a result of this judgment.

“Fixing costs at an artificially low level will make it increasingly difficult for genuine accident victims to find a reputable, qualified solicitor to help them with their case and in their dealings with the defendant’s insurer.

“Reform in the sector is too fast, goes too far and has not been given adequate consideration – there will be unintended consequences.”

The Law Society intervened in the case, and chief executive Des Hudson said: “We remain deeply unhappy with the new recoverable costs rules and the process by which the government made its decision. However, it was clear that the decision, however unfair we considered it to be, was going to be difficult to challenge.

“We will continue to impress upon government the need to ensure that those injured through no fault of their own need to be able to seek redress, without putting themselves in severe financial difficulties.”

Defendant representatives and lawyers unsurprisingly welcomed the verdict. James Dalton, head of motor and liability at the Association of British Insurers, said: “The judgment is common sense and good news for customers, clearing the way for their premiums to lower as unnecessary legal costs are stripped out of the system.”

Rod Evans, president of the Forum of Insurance Lawyers, added: “It is pleasing to have a decision that ends the hiatus which has gripped the industry. We now all know where we stand… It’s time to look ahead and start moving towards making the planned reforms work successfully in the best interests of clients on all sides as Lord Justice Jackson envisaged.”

Tracy Head, a partner at insurance law firm Kennedys, argued that the government had no case to answer “having consulted extensively on the Jackson reforms over the last two years”.

She continued: “This application for a judicial review has simply delayed progress on finalising the pre-action protocols necessary for an efficient extension of the claims process. Indeed, we suspect it has been influential on the decision to delay implementation of the new rules required for managing employers’ and public liability claims to July of this year, as opposed to April as originally planned.

“In turn, it has frustrated the efforts of market practitioners to prepare for the forthcoming changes… [The ruling] hopefully means there will be no further challenge to the process of extension and implementation.”

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Liverpool: Judge was wrong in law

A circuit judge wrongly exercised his discretion in refusing to order a hearing on whether a claim was fundamentally dishonest, the High Court has ruled.

Mrs Justice Yip ruled that it was “reasonable” to give the defendant insurer, Alpha, the chance to put its case.

The claim for minor whiplash injuries by a woman and her 13-year-old son followed a road traffic accident in a car park. The defendant’s insureds admitted negligence but maintained that the boy was not in fact in the car.

The claim was discontinued without reason on the day before trial. His Honour Judge Gregory in Liverpool then refused the defendant’s application to issue a direction that the question of fundamental dishonesty be determined.

He said it would be a “disproportionate use of limited and precious court resources” in the circumstances.

He continued: “There is nothing, in my judgment, which suggests that there is any particular exceptional quality about this particular case that should cause me to give further directions and to set aside further court time to allow this particular isolated issue of dishonesty to be ventilated.”

On appeal, Yip J said the judge was wrong in law to subject the application to an exceptionality test.

Practice direction 44, paragraph 12.4(c) – which deals with discontinued claims – makes no reference to the need for exceptional circumstances, unlike paragraph 12.4(b), which refers to settled claims.

Sitting in Liverpool, Yip J said: “The correct approach is to regard the discretion under CPR 44PD 12.4(c) as an unfettered one, requiring the weighing of all relevant considerations in accordance with the overriding objective.”

Exercising the discretion afresh, she ruled that the defendant insurer’s evidence raised a triable issue. “I do not regard the defendant’s case as being particularly strong, but it was nevertheless based upon evidence that was capable of being accepted.”

She added that the two factors that weighed “heavily” in the balance were the very late stage at which the claim was discontinued and the complete absence of an explanation from the claimants.

“I accept that there may be many reasons why a claimant will discontinue. However, where liability is not disputed save for the allegation of fundamental dishonesty and where the matter is close to trial, I believe some explanation can reasonably be expected…

“I bear in mind that the defendant has incurred costs in defending this claim to trial and has done so because it believes that a false claim has been made.

“The defendant seeks to enforce recovery of its costs by disapplying the QOCS regime. In the absence of any explanation, it is understandable that the defendant would feel that the late discontinuance was an attempt to avoid that consequence and would feel aggrieved at being deprived of the opportunity to establish fundamental dishonesty and so recover costs.

“On balance, looking at all the circumstances of this case, I consider that it is reasonable for the defendant to be given the opportunity to put forward its evidence and to test the claimants’ evidence on the issue of fundamental dishonesty.”

Yip J also noted that, in considering proportionality about holding such a hearing, “it does need to be recognised that there is a public interest in identifying false claims and in claimants who pursue such claims being required to meet the costs of the litigation”.

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Edmonds: New high-profile client for Therium

Third-party funder Therium has completed the first close of its new £300m, its largest fund to date.

The first close is at £200m with a further £100m expected before final close. The investors include both Therium’s existing major investor, which is increasing its commitment, and new global institutional investors.

Therium has been in the news of late for backing TV presenter Noel Edmonds’ claim against Lloyds.

It has also emerged that the company is backing the group action being brought by the Justice for Subpostmasters Alliance – currently made up of 550 members – against the Post Office over flaws in its accounting system that meant some subpostmasters were sent to prison for false accounting, and a substantial number lost their homes or were declared bankrupt as a consequence of their loss of income.

John Byrne, co-founder and CEO of Therium Capital Management, said: “The track record of deployment and returns from our past funds has led to a substantial and increasing interest in Therium from a wide range of investors, especially institutional investors, and we continue to see very significant growth potential in litigation funding, globally.”

The new fund follows Therium’s £200m fund raised in April 2015, which at the time was the largest single investment in the litigation funding sector.

Therium said strong demand for funding meant deployed this money more quickly than expected.

Other cases covered by the previous fund include the shareholder group claim against Lloyds Banking Group and several former directors for the acquisition of HBOS in 2008 and the cartel action for the Road Haulage Association against several truck manufacturers.

Other funded cases were PCP Capital Partners’ claim against Barclays related to a $3bn loan to Qatar in 2008; a group claim against Visa and Mastercard relating to interchange fees; the emissions litigation in the UK against Volkswagen for over 45,000 car owners; and the claim for iPhone users against Google relating to the ‘Safari Workaround’.

Since April 2015, Therium has expanded its operations, with teams launching in the USA, Spain, Norway and Germany.

Last month, fellow funder Burford Capital continued to grow its financial muscle after raising $180m (£127m) through an oversubscribed issue of US dollar-denominated bonds on the main market of the London Stock Exchange.

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City of London

CEDR: “a lot of growth potential” in commercial disputes

The number of commercial mediations has grown by over 5% in the past two years to around 10,000 every year, a survey has estimated.

The report by the Centre for Effective Dispute Resolution (CEDR) also found that fees earned by mediators were climbing significantly.

For the first time in the biennial audit, fewer than half the 319 mediators who took part (43%) were lawyers.

CEDR said in the report: “The data suggests that this decline in the proportion of lawyer mediators is attributable to increased engagement of other fields rather than any reduction of interest from the legal profession.

“With each successive audit, the list of respondents’ job titles reveals the increasing professional diversity of the field, with new entrants reflecting areas of progress in mediation applications (e.g. workplace, tax, medical, education).

“There are also signs, particularly amongst more recent entrants to the field, of increased interest in mediation amongst general managers and business people.”

One of the attractions may be fees, with average earnings by experienced mediators for a one-day hearing rising by almost 18% since 2014 to £4,500. For the less experienced, fees rose by 8.6% to £1,545.

CEDR estimated that mediators completing over 50 cases per year earn between £100,000 and £775,000 per annum, with an average of £400,000.

Those undertaking between 20 and 30 mediations fare much worse, earning on average £55,000.

CEDR said the “aggregate settlement rate” at mediations had remained stable at around 86%. However, the amount of time spent on them increased by over two hours since 2014, to 18.6 hours from start to finish, with more than an hour of the extra time being spent on reading briefing materials.

“The average advanced mediator continues to spend three-four hours less on each case than a less experienced individual, with the shortfall being caused by their spending less time in preparation and also less time in post-mediation follow-up.”

CEDR said a “significant proportion of mediator time continued to be unremunerated” – five and a half hours among experienced mediators, compared to only four hours in 2014. Less experienced mediators wrote off six hours.

When asked about growth areas for the future, mediators said commercial disputes “still had a lot of growth potential”, but employment, professional negligence and personal injury were mentioned most frequently.

Graham Massie, director of CEDR, said: “As with other new markets there is a concern that new opportunities attract opportunists, and there is, therefore, an emerging sense of the need to move forward with common minimum standards for training which would at least serve as a barrier to exclude the under-trained venturers.

“We should not, however, lose sight of the need also to raise our game at the top of the profession – there are signs in these audit results that mediations are becoming harder, something which should not be surprising given that lawyers’ negotiation skills are getting better. After all, no-one is going to pay us to push at an open door.”

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Court of Appeal: numerous appeals over part 36

Court of Appeal: numerous appeals over part 36

Judges can make issues-based costs orders under part 36 but only if it is unjust to deprive a successful claimant of all or part of their costs, the Court of Appeal has ruled in overturning such an order.

The court also bemoaned the fact that part 36 – which was intended to promote settlements – had caused so much satellite litigation.

Webb v Liverpool Women’s NHS Foundation Trust [2016] EWCA Civ 365 was a clinical negligence case arising from a birth where the claimant beat her rejected part 36 offer at trial.

There were two main allegations, only one of which succeeded. But having established that her injury was caused by the defendant’s negligence, His Honour Judge Saffman, sitting as a High Court judge in Leeds, ruled that the claimant was entitled to full recovery of damages for her injury and loss.

However, he decided that in the circumstances it was just to make an issues-based proportionate costs order, under which the claimant would not recover her costs of the second allegation.

On appeal, both parties accepted that the claimant’s entitlement to costs before the part 36 offer had been rejected (called the ‘effective date’ in the ruling) was to be determined in accordance with part 44.

Giving the appeal court’s ruling, Sir Stanley Burnton said: “This is a relatively straightforward issue. I have not found it easy, but have been persuaded that the judge could not properly have deprived the claimant of her costs relating to the second allegation, essentially for the reasons put forward by the claimant.

“Although the two allegations related to separate parts of the claimant’s mother’s labour, they were part of one event, namely the claimant’s birth. Her injuries were such as would not in general be caused without negligence in the care of her birth.”

There was no suggestion that it had been unreasonable to pursue the second allegation and so “I see nothing in this case to take it out of the ordinary or to justify the claimant being deprived of part of her costs”.

In relation to the costs after the effective date, Sir Stanley agreed that an issue-based or proportionate costs order could be made under part 36.

But he continued: “However, a successful claimant is to be deprived of all or part of her costs only if the court considers that would be unjust for her to be awarded all or that part of her costs. That decision falls to be made having regard to ‘all the circumstances of the case’.

“In exercising its discretion, the court must take into account that the unsuccessful defendant could have avoided the costs of the trial if it had accepted the claimant’s part 36 offer, as it could and should have done.

“I am clear that, for the reasons I have given in relation to the claimant’s costs before the effective date, it cannot be said that it would be unjust for her to be awarded all her costs.

“Furthermore, in making his determination, the judge did not take into account, as he should have, the fact that the defendant could have avoided all the costs of the trial by accepting the claimant’s favourable part 36 offer.

“The considerations to which I referred apply even more strongly in relation to her costs after the effective date, when the question is not whether it is just for her to be awarded all her costs, but whether it would be unjust for that award to be made.”

Lord Justice Simon and Lady Justice Gloster agreed that the appeal against HHJ Saffman’s order should be upheld.

More generally, Sir Stanley said: “It is a sad fact that the provisions of part 36, intended to promote the settlement of litigation, and thus to minimise costs, have themselves been productive of numerous appeals to this court, and in consequence substantial costs in what is effectively satellite litigation.

“This is presumably because part 36 is highly prescriptive (so that even experienced lawyers may fail to make a compliant offer) and the financial consequences of the application of the provisions of part 36, or the failure to comply with the requirements of part 36, may be substantial.”

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High Court: absence of “significant prejudice of any kind to anyone”

The High Court has overturned a cost judge’s refusal to grant relief from sanctions that prevented claimant lawyers from recovering their success fees, and instead accused the defendants of “unreasonable and opportunistic” conduct.

Master Rowley had admitted to “qualms” over the sanction he imposed earlier this year for failure to serve copies of conditional fee agreements and success fee details, but felt compelled to do so by the Mitchell ruling.

Mr Justice Barling said that, even without the subsequent ruling in Denton, he would have regarded the breach as “trivial and insignificant”, adding that there was an absence of “significant prejudice of any kind to anyone”.

Barling J went on: “It is clear, as the judge found, that there was no significant prejudice to the defendants, or to the efficient conduct of the assessment proceedings at proportionate cost, or to the court or to other litigants as a result of the breach itself.

“It is evident that in so far as there has been unnecessary cost, delay and use of the court’s finite resources in hearing the application for relief from sanctions and this appeal, this is the result of what in my view was the unreasonable, opportunistic and non-co-operative approach of the defendants to the claimant’s unfortunate oversight.”

Delivering judgment in Long v Value Properties and another [2014] EWHC 2981 (Ch), Mr Justice Barling said Master Rowley had not received “the assistance he should have done” with interpreting the meaning of triviality.

“His instinct was to hold that the breach was trivial but he appears to have fallen into the error by attaching insufficient weight to the circumstances surrounding the breach as well as to the absence of any significant prejudice of any kind to anyone.

“The judge also appears to have fallen into the error identified by the majority in Denton, in that having concluded the breach was not trivial, and that there was no good reason for it, he regarded the application for relief from sanctions as bound to fail.”

Barling J held that although overlooking the requirements of a practice direction was not a “good reason” for a breach, when all the relevant circumstances were considered, including the speed with which the claimant remedied the default and applied for relief, complete relief from the sanction should be granted.

He added: “Had the defendants taken a different course the matter could probably have been completely resolved within the overall period of the extension of time which they applied for and were granted by the claimant, or very soon thereafter.

“This would have saved the parties and the court the time and expense of a lengthy hearing before the judge and an even longer appeal hearing before me.”

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Castellani: limited thought given at early stage to risks

Castellani: limited thought given at early stage to risks

Law firms whose clients use third-party funding have been told to take steps to protect themselves in the event of the funders seeking to recoup losses from them.

Paul Castellani, an insurance partner at City firm RCP who specialises in defending solicitors, said such contractual documents as exist between funders and law firms tend to focus on the potential for the claim to succeed, and how funds will then be disbursed.

“In our experience limited thought given at the early stage to the potential risks of adverse outcomes and ways in which the firm may defend itself should the funder ‘turn’. Firms should be mindful of these risks and seek to put in place a regime which allows the firm to defend itself.”

A newly published client briefing worked from the example of a funder suing a law firm for painting an overly rosy picture of the merits of a case that a judge later said should not have been brought.

Mr Castellani said firms should put in place “an express privilege waiver by the client to allow the firm to rely upon its file to rebut claims by non-client funders”.

In the example, the client had waived privilege to the extent of sharing the firm’s initial opinion on the merits with the funder, but Mr Castellani said it was “doubtful”, absent any express wording, that this would constitute a broad waiver of privilege by the client.

He said firms should also seek an agreement that any limitation of liability language in the client retainer – such as caps and sharing of liability clauses – may be relied upon to defend a claim by the funder, as any claim by a funder would not be a contractual claim pursuant to the terms of the retainer.

Finally, Mr Castellani said there should be an agreement that the funder will not seek to recover costs it paid to the firm – limiting action to the costs the funder had to pay to the opposing party. He warned that a funder’s claim to recover the costs it paid to the firm may not be covered by the latter’s professional indemnity insurance.

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Rowley: Test misapplied

A circuit judge has more than doubled the amount that Queen guitarist Brian May can recover after he settled a private nuisance dispute, ruling that the costs judge at first instance had misapplied the new proportionality test.

His Honour Judge Dight, sitting with Master Whalan, found that Dr May and his wife, the actress Anita Dobson, should be awarded £75,000 in costs after they accepted £25,000 in settlement.

He stressed that the new proportionality test was not “a blunt instrument” a judge could use to make a substantial reduction in the reasonable costs and bring them down to a “rough and ready but proportionate amount”.

“The rules, difficult as they may be to apply in practice, require the specific factors in CPR 44.3(5) to be focused on and a determination to be made as to whether there is a reasonable relationship between them.

“I doubt that the rules committee intended that a costs judge could or should bypass an item-by-item assessment and simply impose what he or she believed to be a proportionate global figure.

“In my judgment, the tests of reasonableness and proportionality are intended to work together, each with their specified role, but with the intention of achieving what is fair having regard to the policy objectives.”

Master Rowley initially reduced the £208,000 costs bill to a shade under £100,000 on an item-by-item assessment, and then cut it to £35,000 on the basis of proportionality.

Dr May subsequently described the decision as a “mockery of justice”, arguing that “it’s likely to make it almost impossible for the man in the street to fight back for justice against the bullies who trample all over him”.

On appeal, the Mays did not challenge the item-by-item rulings but argued that Master Rowley misdirected himself and misapplied the post-2013 proportionality test.

HHJ Dight agreed. “In particular, [Master Rowley] undervalued the sums in dispute, by a considerable margin in county court litigation, and he gave too little weight to the complexity of the litigation. Further, he reduced the costs disproportionately because of early settlement.”

The judge noted that there was “very limited authoritative guidance” on interpreting or applying the test, and “such that there is does not all appear to lead in the same direction”.

“In my view, the new rules intended a fresh start. It seems to me that one has to go back to the wording of sub-rule 44.3(5) and reach a judgment as to the amount of costs whose relationship with all the factors identified in that sub-rule is a reasonable one.

“Whether the relationship is reasonable is, in my view, a matter of judgment, rather than discretion, and, as I have said above, requires a costs judge to attribute weight, and sometimes no weight, to each of the factors (a) to (e).

“Further, it seems to me that the word proportionate is intended to have a consistent interpretation across rule 44.3(2), rule 44.3(5) and 44.4, which means that in considering proportionality, the court is to have regard to all the circumstances (see CPR 44.4) which includes, but is not limited to, the further factors specified in CPR 44.4(3) even though they are not specifically referred to in CPR 44.3.

“There is a considerable degree of overlap but the plain intention is that there should be a holistic approach; the costs judge is intended to stand back and look at the overall picture.”

HHJ Dight added that whether the relationship between the costs and the relevant factors was reasonable required “an objective assessment and an objective balance to be undertaken in respect of them with a view to achieving the policy objectives of compensating the receiving party for his expenditure but not requiring the paying party to pay more than the litigation warranted”.

But he doubted that the proper interpretation of the rules entitled a costs judge at the end of an item-by-item assessment to impose a very substantial reduction on the overall figure without regard to the component parts.

“I reiterate that what the rules require the judgment to achieve is a balance, a reasonable relation, a correlation which may necessitate a certain amount of fine tuning.

“There may be a limited range of acceptable difference in the total figure once the rules have been applied, in that different judges could legitimately come to slightly different conclusions as to the proportionate sum, and so long as they have applied the rules correctly they should not be open to challenge on appeal.

“However, the final figure in this case does not appear to be based on any specific mathematical calculation nor is there a specific explanation of how the weighting of the various factors resulted in the final figure.”

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Golten: Horrific stories

A City law firm says it is receiving 20 new enquiries a day as it builds a group action on behalf of women who have suffered life-changing complications as a result of transvaginal surgical mesh implants.

Wedlake Bell said there are now more than 400 claimants in the group.

The case is being taken in conjunction with action group Sling the Mesh, which represents over 4,000 women – a figure that has grown 400% since April 2017, when the issue was first made public.

Surgical mesh implants are used to treat pelvic organ prolapse or incontinence, usually after a difficult childbirth. The plastic meshes are made of polypropylene, which can also be found in a number of drinks bottles.

It will examine allegations that manufacturers of the mesh implants failed properly to test the devices and played down both the risks and the high failure rate.

The firm reported that a recent US appeal court case upheld a finding of liability against manufacturer Boston Scientific’s Pinnacle mesh, even though the mesh devices had regulatory approval, as is the case in the UK.

The case is being run on a ‘no win, no fee’ basis – Wedlake Bell said it was in talks with potential third-party funders. An application for a group litigation order has not yet been made.

David Golten, a partner and head of commercial litigation at Wedlake Bell, said: “The numbers for both the group action and Sling the Mesh are growing every day.

“We continue to hear the most horrific stories from the victims of mesh implants and we are examining the allegations that manufacturers, far from helping women, failed to test these devices properly, leading to the life-shattering medical complications women are experiencing.

“We wish to highlight that the safety of the mesh implants themselves has not been scrutinised properly. There is still much more action needed from the Government and the NHS to address this issue.”

Kath Sansom, founder of Sling the Mesh, added: “Everybody joining Sling the Mesh with problems says the same thing – they were not warned of the risks. They were told they had simply been unlucky and they were ignored by their surgeons. They all gave up asking for help. Many suffer in silence feeling isolated and depressed – some for as long as 10 years.

“Women who are due to have the operation are joining Sling the Mesh and are telling us that their surgeons have assured them they are not using the mesh being spoken about in the media.

“They say they are using a new mesh, or inserting a tape, or worse, at one hospital, the surgeon insisted he would be implanting a ribbon. These are all mesh devices.

“Perfectly healthy women are ending up in wheelchairs or struggling to walk, with chronic pelvic pain and agonising urinary infections.”

Wedlake Bell and Sling the Mesh have called on the government to suspend surgical mesh implants into women and girls until safety checks are carried out – a plea rejected by ministers in a parliamentary debate last month.

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Stockwell: now extremely challenging to secure justice

The controversial section 69 of the Enterprise and Regulatory Reform Act 2013 – which removes strict liability for breaches of certain health and safety regulations – has come into force today.

The Association of Personal Injury Lawyers claims the new law may come to be known as ‘a charter for rogue bosses’.

The provision, which was strongly opposed by claimant groups and unions, amends section 47 of the Health and safety at Work etc Act 1974 and effectively removes the civil liability on the part of employers for breach of health and safety regulations contained within the 1974 Act – which is effectively all health and safety regulations.

Applying to breaches that occur from today, it means no civil claim can be brought for breach of a health and safety statutory duty unless the regulation expressly provides for it – reversing the previous position. It will, in almost all cases, require the claimant to prove that the employer was negligent and his injury and losses were caused by the employer's negligence.

It is thought that there is an anomaly in that public sector employees will be able to sue their employer under the strict liability provisions contained in European directives that underlie the 1974 Act, however.

“Many people injured through no fault of their own will find it extremely challenging to secure justice,” said APIL president Matthew Stockwell. “The effects are likely to be profound and the consequences will not just affect the employees, but society as a whole.

“The employer holds all the important information about any incident, such as maintenance records or previously reported dangers and risks. The injured employee will have to prove the case against his employer, which can be extremely difficult when he does not have access to this kind of information. Many people will inevitably shy away from making claims altogether.

“The negligent employer will then avoid making amends, leaving the state to pick up the tab for medical care and any benefits arising from the injury.”

Mr Stockwell said that while good employers will not take advantage of this, “rogue employers” will be “more likely to cut corners knowing they may get away with it and it will be the injured person who ultimately pays the price”.

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Brennan: significant activity in next 18 months
Photo: Steve Nimmons

Nobis Jackets Women

AIM-listed litigation funder Juridica has grossed $85m (£52m) from its investments in the four and a half years since it launched, its half-year report has shown. Nobis

The figure has been boosted by the $35m profit it reported last month that has been made in partial settlements on four antitrust cases, and chairman Lord Dan Brennan QC said they have “reasonable grounds for anticipating further substantial returns from these cases”.

The seven investments that have reached completion since inception (ie, excluding the four recent partial settlements) have delivered a gross internal rate of return of 85%.

Juridica currently has $157m committed in 18 investments, representing 23 different cases. They are split between antitrust and competition matters (six cases with $97m committed), patent litigation (10 cases with $37m committed) and commercial disputes (seven cases with $23m committed).

In the first six months of 2012, the company received proceeds of just $800,000 from one partial settlement, and recorded a total comprehensive loss of $1.6m – including fund operating expenses of $3.7m.

Juridica made three supplemental investments worth $2.3m in existing cases “to increase the likelihood of greater potential return”. It was able to announce a $22m dividend payout, meaning that in all shareholders will have received $48m from the company since it floated.

Lord Brennan said: “We expect significant activity in the next 18 months. This belief is based on [the fund manager’s] review of presently scheduled trial dates, expected final decisions following trial or arbitration, and appeals.”

As well as the recent settlements, the report revealed that in July one of the antitrust cases was dismissed in favour of the defendant and is now on appeal. Though this “may well be successful”, it means a delay of 12-18 months in resolving the case.

One of Juridica’s patent cases recently won at trial, but the likely recovery of $8m is set against an investment of $8.3m. In another, the jury returned a verdict of $500,000 against an investment of $2m. Another patent case, however, is looking far stronger after a $50m verdict, from a $5m investment.

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Costs: Conduct should be out of the norm to attract indemnity costs

A circuit judge was wrong to conclude that defendants who tried strenuously to avoid paying the damages and interim costs that had been ordered against them should not face indemnity costs for the hearings that followed, the Court of Appeal has said.

The fact that many debtors try to get out of paying what they owe was not a reason to deny indemnity costs, the court said.

It also urged judges not to describe the test for indemnity costs as requiring exceptional circumstances – as happened in this case – as the rule requires that they be “outside the norm”, which is not as stringent.

Whaleys (Bradford) Led v Bennett& Anor [2017] EWCA Civ 2143 concerned allegations of nuisance, trespass and conversion.

At trial, the claimants were awarded damages of £10,152 and costs on the indemnity basis “on account of the defendants’ conduct and lies given in evidence”, starting with £40,000 on account.

Lord Justice Newey catalogued the defendants’ efforts to avoid paying anything, which eventually led to contempt findings and suspended committal orders. The defendants eventually paid.

The claimant asked for more than fixed costs in respect of the three scheduled oral examination hearings that had been held, and that their costs be assessed on the indemnity basis.

His Honour Judge Bartfield concluded that the fixed costs regime set out in CPR part 45 should not apply but declined to order indemnity costs.

He said: “I do not regard this as an exceptional case because many debtors try to avoid paying that which is due. I have seen more sophisticated attempts to avoid judgments than this.

“I was sorely tempted to make an order for the payment of indemnity costs, but, looked at in the round, I believe that the claimant will be properly and adequately compensated in relation to costs by a standard award.”

Newey LJ acknowledged that simply using the word “exceptional” did not necessarily show that the judge adopted the wrong test.

However, citing Lord Justice Waller in Esure Services Ltd v Quarcoo, Newey LJ said a court could take account of the conduct of the parties “whether that conduct occurs on many occasions or whether it is rare”.

Further, the word ‘norm’ “was not intended to reflect whether what occurred was something that happened often so that in one sense it might be seen as ‘normal’ but was intended to reflect something outside the ordinary and reasonable conduct of proceedings”.

Newey LJ said: “It follows that Judge Bartfield could not properly conclude that the circumstances did not take the case ‘out of the norm in a way which justifies an order for indemnity costs’ on the basis that ‘many debtors’ behave in the same way as Mr Bennett and Mr Cubitt had.

“Even if that could be said to make the conduct ‘ordinary’, it would not mean that it was ‘reasonable’.

“In the circumstances, it is evident, I think, that Judge Bartfield was not applying the correct test and having regard to the correct considerations.”

The court went on to decide that there should be an order for indemnity costs.

Newey LJ said: “Despite having the means to pay, Mr Bennett and Mr Cubitt ‘deliberately’ sought ‘to avoid payment as long as they possibly could’ (to quote from Judge Bartfield).

“They were (again in Judge Bartfield’s words) ‘arrogant and disobedient’ towards Judge Davey QC’s [original] order.”

The claimants were “needlessly put to considerable trouble and expense”, he said. “This is not ‘reasonable conduct of proceedings’ or behaviour that the court should in any way sanction or encourage.”

Lord Justice David Richards added that it was unfortunate that the judge used “exceptional”, rather than “out of the norm” to describe the circumstances that may justify an order for indemnity costs.

“Whatever the precise linguistic analysis, ‘exceptional’ is apt as a matter of ordinary usage to suggest a stricter test and is best avoided.

“Its use in this case gave rise to an arguable ground of appeal and while I am satisfied, particularly in the light of the submissions made to him, that the judge was not applying a stricter test, for the future it would be preferable if judges expressly used the test of ‘out of the norm’ established by this court.”

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Hayman: Ruling provides clarity

The debate over whether a costs judge who reduces the hourly rates for incurred costs should then do the same to budgeted costs is set to rumble on after the case that was heading to the High Court settled and another ruling was added to the mix.

Last year, in RNB v London Borough of Newham, Deputy Master Campbell ruled that reducing the hourly rates for the incurred costs meant there was a “good reason” to reduce the budgeted costs too.

However, in Bains v Royal Wolverhampton NHS Trust, District Judge Lumb, sitting as a regional costs judge, expressly disagreed with this position.

RNB was due to be heard this Friday, but Sam Hayman, senior associate in the costs team at London firm Bolt Burdon Kemp, which acted for the claimant, told Litigation Futures that it has just settled.

“The defendant made an offer significantly in excess of the sums in issue in the appeal. While it was important that the principle be clarified by a higher court, the claimant rightly accepted the generous offer.”

However, today Master Nagalingam in the Senior Courts Costs Office has handed down judgment in another Bolt Burdon Kemp case which dealt with the issue, Nash v MOD Approved Judgment.

According to Mr Hayman, he held that an adjustment to the non-budgeted hourly rates was not a good reason to depart from the approved or agreed costs budget.

Master Nagalingam earlier in the detailed assessment had reduced the hourly rates in respect of incurred costs.

But asked by the defendant to do so in relation to the budgeting costs, he said: “Hourly rates hold no special status and are not to be given any elevated status on an assessment of costs with regards to estimated costs subject to a costs management order.”

The master referred to the proportionate total allowed at a case management conference being based upon “a variety of factors, including the incurred costs. A party therefore proceeds with certainty as to what is a proportionate future sum to spend per phase.

“That certainty is entirely eroded if hourly rates are then given a form of special status which requires rates to be assessed in the estimated phases of a bill of costs.”

Mr Hayman said: “This judgment provides a thorough consideration of the relevant law and has given clarity to what is a highly contentious issue of detailed assessment.

“Whilst this is a first-instance decision, the well-reasoned judgment is likely to prove useful for parties on detailed and summary assessment where costs budgeting has previously taken place.”

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Holland: cash-hungry investing area with a long-term turnaround

Posted by Zoe Holland, managing director of Litigation Futures sponsor Zebra Legal Consulting

In response to the post 1 April 2013 world, the personal injury sector has seen a surge in the number of law firms looking to clinical negligence as a new area of work.

Since the beginning of the year, enquiries about setting up or expanding clinical negligence departments have seen a tenfold increase. From a survey we carried out via contacts in the market, this trend has also been noted by key industry stakeholders such as banks, medical agencies and insurers.

A specialised area of work

Firms need to understand the specialism required to manage this work, not only in terms of case management, but also in financial management.

Understanding the risk profile of clinical negligence is critical to cash flow and profitability. In the post Jackson era, managing and monitoring this work effectively will be critical to a law firm’s ability to generate cash and profit.

As this work can have a three-year lead in, the firm may not feel the real pain of its lack of expertise until year three or four. By this time WIP and disbursement write- offs can be significant. Having worked on two recent projects in firms where this has been a learning curve, other firms need to think carefully before embarking on setting up clinical negligence departments without fully assessing the resource, funding and staff requirements.

Risk assessment

Assessing risk from the start of a clinical negligence case is critical. This is where new entrants into the market may find that they have a skill gap. Risk assessing comes with experience in litigating these cases, and is not a skill that can easily be transferred.

The temptation of some firms is to consider placing their experienced personal injury solicitors into the role of clinical negligence risk assessor. Unless the assessor has significant experience in this field, or has a medical background, this scenario is set to fail.

Financial risk profiling

Given the nature of clinical negligence litigation, firms may carry caseloads with a very small percentage of admissions. Unlike personal injury work, this can make it difficult to assess ‘safe’ work in progress. It is critical therefore to risk profile the caseload as it progresses. This can involve having an overview or case prospects, case complexity and quantum.

For new firms entering the market, it will be critical for any financial modelling/forecasting, for the firm to understand the key indicators of case value and risk. Further, they will need to have a basic overview of a caseload settlement profile.

Seeing it through

If firms view clinical negligence as a way to generate cash quickly, then they are in for a financial shock.

It is a cash-hungry investing area with a long-term turnaround. They must be prepared to play the ‘waiting game’.

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RBS: pioneering litigation

A number of third-party funders have stepped in to back RBS shareholders in a “David and Goliath” claim against the bank.

A group of 21 claimants issued proceedings last week seeking compensation in a “pioneering” multi-million pound claim over the bank’s 2008 cash call.

Their case, alleging investors in a rights issue of new shares were “misled”, is being run by Stewarts Law head of commercial litigation Clive Zietman.

However, in order to bring the case, the claimants – including several pension funds – have been bankrolled by litigation funders.

The claim is the first to be filed in the UK over RBS’s record £12bn cash call just before the credit crisis in 2008. It alleges the bank published a defective prospectus littered with “mis-statements and omissions”.

Argentum is the majority third-party funder of the case, which is testing section 90 of the Financial Services and Markets Act 2000. Other funders are providing financial support but their details have not been disclosed.

Those bringing the claim allege the bank was portrayed as being in good health, but that the reality was different and the take-up of shares would have been limited or non-existent had the ‘truth’ been known. Among the claimants are the Coal Staff Superannuation Scheme, the Mineworkers’ Pension Scheme, pension schemes for electricity workers in the UK, a number of ING funds and the teachers’ retirement system of the US state of Illinois.

Matthew Reach, solicitor and head of legal review at Argentum, said the funder has had to take “bold steps” to make its mark in the litigation funding sector, but believes the case is not high risk because of the merits.

He said: “This is truly a case of David and Goliath. Without litigation funding from Argentum these shareholders might never have had access to justice.

“It is important that these shareholders, who lost substantial sums, have their day in court and the bank is held accountable for its actions. This is a pioneering piece of litigation, but we feel it is compelling and are proud to be supporting such a cause.”

Mr Reach said that usually, third-party funders only provide capital for claims involving well-established areas of law in order to limit the risk of losses. But he said without the third-party funding, the claim would not have happened.

He explained: “These institutions already had losses many years ago that their boards had probably written off and would not have been happy to take the risk of further costs to take on RBS.

“This is a risk-free litigation option for them. They will give away a share of any reward, but don’t have the financial exposure.”

Mr Reach said the presence of third-party funders often strengthens a case in the eyes of the defendants and, as happens in the US market, can help prompt the banks to settle.

He added: “My view is this case is not high risk, based on its merits. However it is pioneering because it is not professional negligence or breach of contract, it is untested legislation, looking at the avenue for redress against a financial institution that it is claimed didn’t play by the book.

“It is the first high-level piece of shareholder litigation to come out of the Financial Services and Markets Act and there is no authority to say how the courts will interpret and apply the law.”

Significantly, Argentum is also looking to benefit from bankrolling the claim to gain itself “traction” in an increasingly crowded litigation funding market.

Mr Reach said: “Litigation funding is relatively new to the UK, only in the last five years has it gained momentum and funders have always gone for the safe ground.

“More funders are emerging in the market. We are one of few with direct access to capital, but there is now more competition.

“We are not as well known as some others, but want to break the mould and take bold steps to look at alternative ways to get traction and invest our capital.”

In a separate claim, the RBS Shareholders Action Group yesterday launched a case based on the same principles against the bank, reported to be worth a potential £4bn. Led by Steven Baker, co-head of dispute resolution at City firm Bird & Bird, he is believed to have spent the past four years building the case. The action group represents 12,000 ordinary shareholders and 100 institutions also alleging they were misled by RBS.

There is speculation in the sector that the two claims could even be joined by the court.

RBS has instructed Herbert Smith Freehills to defend the claims.

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Polycarpou: new issue fee is heavy burden to bear

Polycarpou: new issue fee is heavy burden to bear

The rise in court fees this week has removed one of the standard objections to arbitration – that it costs more than litigation – and is likely to drive the take-up of this form of ADR, a City lawyer has argued.

While claimants face paying 5% of the value of their claim as a court fee, up to a cap of £10,000, the registration fee payable to the London Court of International Arbitration for starting an arbitration is £1,750, said Eleni Polycarpou, head of arbitration at Withers.

“Of course, there are other costs associated with arbitrations, most notably the fact that arbitrators charge an hourly rate whereas judges do not. Even so, the new issue fee is a heavy burden to bear so early in the proceedings, in circumstances where only around 3% of claims issued get to trial.”

She said the rush to issue claims last week indicated that parties regarded the new fees as a significant outlay.

“Of course, that in itself may cause problems to come: although the benefit of taking advantage of the reduced issuing fees is obvious, there is a danger that, by hastily issuing in such circumstances, solicitors may find themselves liable to costs orders against them where savvy defendants successfully seek an order for strike-out due to the premature issuing of a claim form.

“In the alternative, ill-informed clients unaware of the excessive increase may also seek to bring claims for negligence against their solicitors for not issuing their claim prior to the increase in the issue fee.

“Either way, it will drive potential litigants away from the traditional route of court proceedings and lead them to look to alternative means by which to resolve their disputes,” Ms Polycarpou said.

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Tracy Blencowe

Tracy Blencowe, Business Solutions Director, Eclipse Legal Systems

Eclipse Legal Systems, the Law Society’s endorsed legal IT provider, has announced updated functionality in its Proclaim solution to enable firms to utilise the new Electronic Bill of Costs.

In April 2018 a new format was introduced for the billing of personal injury matters, mandated for completion via the new ‘Precedent S’ electronic bill.  The intention is that electronic bills will provide greater transparency regarding the value of costs being claimed, be easier to compile, and less expensive to prepare by using automated calculations.  It is also intended that costs incurred in a claim will be easier to understand (especially where there has been a costs budget agreed).

Eclipse’s Proclaim case and practice management solutions have been updated to enable the management of these changes to time recording, as well as providing users with the ability to produce the new Precedent S Electronic Bill from the history of the digital file.  All data is arranged into the relevant mandated categories of phase, task and activity.

Tracy Blencowe, business solutions director at Eclipse, comments:

“Mandated changes to existing ways of working are always a challenge for practitioners, and we see our role as enabling them to adapt to change as smoothly and as easily as possible.  Our new Precedent S solution is already rolled out to those clients of ours that have requested it, allowing for a minimum of disruption for them to transition to the new electronic bill.  To make our solution as widely available as possible, we can even provide three different ways of implementing the enhancement in order to suit firms of all shapes, sizes, and complexity of caseload.”

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By John Hudson, electronic consultant at Kroll Ontrack Legal Technologies

Hudson: IRT offers many benefits

Today’s surge of electronically stored information (ESI) has forced companies involved in document-intensive litigation to adopt a different approach to document review. Lawyers need to search and review enormous volumes of ESI in short time periods to assess the merits of their own case and to produce relevant data to opposing parties.

The most expensive part of many cases has become the disclosure exercise, where costs continually sky rocket, even with the assistance of electronic filters to reduce volume. Cost-effective and reliable document review requires lawyers to find key data quickly and accurately and protect privileged and confidential data, without cutting corners.

Where data has outpaced the feasibility of manual review and the capabilities of keyword searching, a new generation of intelligent review technologies (IRT) are now available to help reduce the expense and burden of document review. These technologies automatically identify, prioritise and tag the documents that are most likely to be relevant to a case and help lawyers to identify the important documents faster, reducing human effort and cost.

Used properly, IRT offers many benefits and having piqued the interest of the courts and the public at large, guidance is beginning to emerge about how to use it defensibly.

How does IRT work?

Some of the new technologies that have emerged intelligently prioritise documents as they pass through a workflow. Those documents most likely to be responsive are moved to the front of the queue in the course of a linear review. Other technologies go a step further, and recommend how documents should be categorised, indicating the degree of confidence for these recommendations (intelligent categorisation).

What these technologies have in common is that they learn from a sample set of documents, reviewed by competent reviewers. The observed logic is then applied to the remainder, which can save time and cost, but can also increase accuracy in the review process. There is a growing acknowledgement that human review is flawed by inaccuracies and inconsistencies in decisions and so IRT helps to address that.

The distinguishing characteristics of IRT are:

  • Workflow automation, which minimises human work and inconsistencies in the distribution and routing of documents to members of a review team at different stages in the review process.
  • Supervised learning, which learns from a sample set of manually reviewed documents and automatically produces statistical models for the prioritisation and categorisation of the remaining documents in a large document collection.
  • Statistical quality control, particularly the use of sampling, which is used to monitor the progress and effectiveness of the prioritisation, categorisation and review decisions. This can also be used to support and defend decisions to stop reviewing.

Past v present

The huge amount of data now encountered in disclosure, even after traditional filtering technologies such as date and keyword filters have been applied, makes a linear document-by-document review economically untenable. Keyword searching is recognised as something of a blunt instrument: it can produce false hits and yield either too many or too few documents. It is also time consuming to conduct the iterations needed to get accurate results. Bridging the gap between searching and human review, IRT helps lawyers and companies to work productively and reach the same goals.

What do the courts think?

In the high-profile US case of Da Silva Moore v Publicis Groupe & MSL Group 11 Civ 1279, Judge Peck approved the use of predictive coding technology in e-discovery for the first time. The plaintiffs objected and appealed, stating that it lacked generally accepted reliability standards.

The appeal judge held that it would be extremely difficult to definitively ascertain whether predictive coding was less reliable than traditional keyword searching and stated that “there is simply no review tool that guarantees perfection”. Discovery is currently stayed pending the outcome of various other decisions which may impact on it.

In April, in Global Aerospace Inc v Landow Aviation, a court in Virginia approved the defendant’s use of predictive coding subject to objections by the plaintiffs. After traditional data filtering methods such as de-duplication and keyword searches, the defendants had two million documents which they estimated would take approximately 20,000 hours and $2m to review. In a detailed protocol which no doubt aided their cause, they outlined how they would train the system and use statistical sampling to identify their technology’s recall.

In both of these cases, the court has placed emphasis on methodology rather than the inner workings of the technology, unlike in Kleen Products. The judge in this anti-trust case, ongoing in the Northern District of Illinois, has requested formal expert reports and evidence on the adequacy and sufficiency of keyword searching and predictive coding.

The Civil Procedure Rules in England and Wales encourage the use of technology to ensure efficient document management and to help reduce the burden of going through large quantities of data. In Goodale v Ministry of Justice [2009] EWHC B41 (QB), Senior Master Whitaker said he was aware of prioritisation technology. It appears from recent public comments made that the judiciary in the UK are likely to endorse the use of technology like this and predictive coding because it offers a pragmatic and proportional approach to edisclosure.

Promising results

In a recent project conducted by Kroll Ontrack’s Ontrack Inview, two lawyers ‘trained’ the system to intelligently prioritise and then categorise a set of 92,000 documents. They reviewed 33,000 documents using intelligent prioritisation and then intelligent categorisation until they were satisfied that the system was producing accurate results.

When it came to reviewing the remaining 59,000 documents, the lawyers sampled the categorisations determined by Ontrack Inview, expecting there to be an error rate comparable to human review (8%). The results were very positive: using this method (which has arguable parallels to managing a team of temporary reviewers), the error rate was shown to be 0.8 %, suggesting greater accuracy by a factor of 10 when compared to a standard team of human reviewers.

Clearly the technology must not be judged by the results of one project (whether positive or negative), but cases like this one show that IRT offers much to be excited about.

Future best practice

IRT helps litigants to contain the cost of disclosure, strengthen the defensibility of their approach to document review and assess the merits of a case early on, all of which helps keep the overall cost of litigation in check. This is the future and clearly an area where lawyers and technical experts will need to work together to develop an effective but defensible approach and the scientific evidence to justify the approach taken.


An analogue decision? Google defeats attempt at consumer ‘class action’

Claire Stockford

In an eagerly awaited judgment, the High Court handed down its ruling in Richard Lloyd v Google LLC on 8 October. It seems clear that there is a degree of reluctance to permit group litigation which will not materially benefit consumers. That being said, it is hard to ignore the increased possibilities of group litigation in the context of corporate data breaches, particularly following the implementation of GDPR earlier this year.

October 18th, 2018