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Eclipse Legal Systems, the legal sector’s largest independent software solutions provider, has announced the release of an email marketing solution utilising dotMailer.

dotMailer is one of the UK’s leading email marketing and automation tools, providing a browser-based interface that enables law firms to create and distribute HTML content.  Eclipse’s new dotMailer connector enables users of the firm’s Proclaim Case and Practice Management solutions to broadcast rich content to their clients and prospects.

Using the connector, contact data held within the Proclaim solution can be shared with the dotMailer system, enabling the creation of personalised target lists.  This data can be utilised to create intelligent content within, for example, a dotMailer created newsletter template, and the results of marketing campaigns can be shared back in to the Proclaim client / prospect management system.

The new connector utilises Web Services communications to share data in real-time between Proclaim and dotMailer.

Eclipse’s Marketing Director, Darren Gower, comments on the development:

“This latest development opens up another layer of CRM functionality for Proclaim users.  By sharing data seamlessly between the systems, we are unifying a law firm’s communications efforts within one integrated desktop solution.

“A huge amount of relevant, valuable client and prospect data is held within Proclaim – so it makes sense to utilise this for marketing purposes rather than having to rely on a separate system and data store to maintain marketing communications.”




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Neuberger: bloggers are poor substitute for court reporters

Judges should give shorter, more concise, rulings and should refrain from issuing concurring or dissenting judgments except when absolutely necessary, the president of the Supreme Court has urged.

Court judgments should also be able to be understood by the growing number of self-represented litigants and the judiciary should take action to reduce trial bundles, Lord Neuberger suggested.

He lamented the decline of newspaper-led legal reporting and commented that bloggers are no substitute for media court reporters.

Giving the first annual British and Irish Legal Information Institute (BAILII) lecture, the judge praised the institute for providing access to judgments. But he warned that in future, the public “audience” for legal rulings would need to understand the thrust of each case.

Meanwhile, he observed that while BAILII is a resource that “provides an essential service to the public”, it is also partly responsible for “the enormous increase in the size of bundles of authorities at court hearings”.

The judiciary should discourage “the extensive citation of cases arising from the fact that virtually every UK court and tribunal decision, and indeed every Luxembourg and Strasbourg court decision, is available at the touch of a button or the click of a mouse”.

Judges’ approach to judgments “has historically tended to be one where our contemplated readership consisted solely of professional and academic lawyers and fellow judges”, he said. However: “The fact that it crucially includes the parties to the litigation and future litigants (who will often be self-represented) and (when they are not) their advisers, emphasises the need for courts at all levels to explain as clearly and as shortly as possible, the facts, issues, outcome and reasons.”

He concluded: “Judgments must speak now not just to a professional audience, but they must also be capable of speaking clearly to a lay audience, prospective self-represented litigants and citizens generally. The rule of law requires it.”

He suggested that each judgment should be accompanied by a short summary “sufficient to enable a non-lawyer to know the facts, the issues, and how and why they were resolved”. Also, judges should “take a more rigorous approach to cutting the length of their judgments” by weeding out the otiose and by removing “unnecessary displays of learning”.

Dissenting and concurring judgments should be issued only when they add something important to the ruling, Lord Neuberger said, although he acknowledged the proposal “may be seen by some to impinge on judicial independence”.

The judge said both the dissemination of judgments – such as by BAILII – and the official law reports were “fundamentally important” and “support the rule of law”. He regretted that “it is one of the weaknesses of our time that newspapers no longer report legal proceedings as fully or extensively as they once did”. The growth of legal blogging and tweeting was a poor substitute for “the decline of the media court reporter”.




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Grant: balance needs to be restored

Justice minister Helen Grant acknowledged yesterday that the civil justice reforms will bring “some pain initially and uncertainty for a while”. But with change comes tremendous opportunity, she argued.

She praised those exploring alternative business structures – a concept she described as “wonderful” – for seeking to make the most of that opportunity.

Ms Grant also revealed that the government’s response to the whiplash consultation will not be published until the autumn.

Speaking in London, Ms Grant emphasised her 23 years of experience as a solicitor conducting family and civil litigation work, including both serious and straightforward road traffic claims, prior to her election in 2010.

Though she enjoyed the work “immensely”, she said: “During that time I also saw a huge increase in the number of claims, I saw a huge increase in the cost of dealing with those claims, I saw the growth of risk-free litigation and I also saw the worrying growth of the compensation culture…

“Meritorious claims will always be allowed but balance needs to be restored. We need to make sure we do everything we possibly can to protect claimants’ damages and we need to tackle the compensation culture. Ultimately we also want to see the insurance industry pass on the savings to consumers through much lower insurance premiums.”

Ms Grant said that underlying both the Jackson report and the government’s reforms this year was the principle that “access to justice for all depends on costs being proportionate and unnecessary cases being kept away from the courtroom”.

On whiplash, she said the government was “committed to tackling fraudulent and exaggerated whiplash claims whilst of course ensuring that those suffering genuine neck injuries get appropriate and sufficient compensation”.

She concluded: “Ultimately it will be the consumer who wins, with greater competition in the sector, transparent customer-orientated services and, very importantly, better value for money.

“Putting the consumer first is a worthy principle… But the legal sector is a very, very worthy profession and it too needs our support. I can tell you that I will never forget that.”

Responding the speech, Craig Budsworth, chairman of the Motor Accident Solicitors Society, said: “We welcome today’s announcement that the government will be taking stock of proposals for further reform to the whiplash claims process and not make any decisions until the autumn. This will give Parliament the opportunity to give the proposal to raise the small claims limit to £5,000 the detailed scrutiny it deserves.”

The speech came on the day that the RTA portal fee fell from £1,200 to £500, in response to which justice secretary Chris Grayling said: “We are turning the tide on the compensation culture. It’s pushing up the cost of insurance, and making it more expensive to drive a car or organise an event. It’s time the whole system was rebalanced.”




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Niemczewski: scope for improvement

The draft pre-action protocol for the RTA portal extension to cover employers’ and public liability (EL/PL) claims is a significant step towards a streamlined personal injury process but is in danger of becoming too complex to be workable according, it was claimed yesterday.

Artur Niemczewski, CEO of leading liability adjuster Garwyn, said there is “scope for improvement” upon the current draft, which was published last week. “We also await details of the proposed fixed costs tariffs, which will be key to the success of the new protocol.”

Peter Wilson, regional and technical director of Garwyn, added: “Clearly, considerable time has been spent reviewing responses to the initial consultation to formulate the draft protocol… we welcome the recognition that EL and PL claims have distinct challenges and the acceptance that certain types of injury claim are inherently unsuitable for the process. We also welcome the emphasis placed on ensuring that the claim notification has adequate detail.

“However, the protocol has elements that are too Draconian, for example the strict 24-hour acknowledgement deadline, which is likely to compel insurers to impose unprecedentedly stringent notification conditions, and offering defendants no facility to address questions to the claimant’s medical expert.

“The rules are also unduly complex in some respects, and we are concerned that defendants will face a minefield of deadlines which will trap the unwary and places too much reliance on process rather than expertise”.

Mr Niemczewski continued: “Every organisation with any involvement in EL and PL claims will be affected by what will be a profound shift in the process. The stated aim of the protocol is to accelerate outcomes and reduce costs. Those who invest in preparation should benefit, as they take advantage of the fixed costs that are the ‘carrot’ of the reforms. However, those who lack the resources or get lost in the complexities risk their insurance costs escalating, particularly if claim volumes rise to test defences.”

 




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Dyson: fixed cost figures may be controversial

Dyson: fixed cost figures may be controversial

The senior judiciary agrees with Lord Justice Jackson that fixed recoverable costs should not be introduced in clinical negligence cases in isolation, but as part of their extension across the entire fast-track and ‘lower’ end of the multi-track, it has emerged.

Newly released minutes of the February meeting of the Civil Procedure Rule Committee (CPRC) recorded that the Master of the Rolls, Lord Dyson, told members “that the senior judiciary, through the CJC, and Lord Justice Jackson in his costs reforms, have continued to press for the introduction of FRC for the fast-track and lower reaches of the multi-track. The principle of FRC was not at issue but the fixed cost figures may be controversial”.

It continued: “The Master of the Rolls felt that it is the wrong approach to cherry pick selected areas for reform and a FRC scheme should apply to all areas of litigation. The views of the judiciary have been made clear to the Government, but whatever our views… when the government reaches a decision, the committee’s obligation is make sure the rules implement the policy.”

Earlier this year, Jackson LJ spoke out against what he described as the “Balkanisation” of fixed costs.

Lord Dyson added that the government, “which is under-resourced”, has asked the CJC to assist with a consultation paper on FRC in clinical negligence.

The minutes said that member Amanda Stevens – a one-time president of the Association of Personal Injury Lawyers – took the CPRC through a number of issues a sub-committee on the issue had considered.

These included: limiting witness reports and experts at the pre-action stage; use of guideline hourly rates; transitional arrangements; procedure for cases that fall out of the FRC regime; insolvency of private providers of services; group litigation orders; mixed claims; disclosure and provision of health records.

The minutes continued: “District Judge Hovington expanded on his thoughts on the application of parts 26-29 [of the CPR, dealing with preliminary case management and the three litigation tracks] and deemed allocation of cases to the multi-track. There was discussion on how the cases could be streamlined once in the court process, including docketing, shared jurisdiction, reduction of steps and use of standard directions.”

A draft protocol produced by the sub-committee is to be passed to the Department of Health for inclusion in its consultation on FRC in clinical negligence, which is expected to be published quite shortly after the EU referendum – although the plan to introduce them in October 2016 now looks almost impossible to achieve.




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Arguments over incurred costs can wait

Arguments over incurred costs can wait

The cost budgeting rules are to be amended to make it clear that the case management hearing is not the forum to debate incurred costs.

The Civil Procedure Rule Committee (CPRC) agreed the change at its meeting this month in the wake of uncertainty caused by the Court of Appeal’s ruling earlier this year in SARPD Oil International Limited v Addax Energy SA and another [2016] EWCA Civ 120.

In this, Lord Justice Sales said that the first case management conference was the time to contest incurred costs, as well as estimated future costs.

In a paper to this month’s meeting of the CPRC, Master Richard Roberts, chair of its SARPD sub-committee, wrote: “The judgment is widely interpreted as preventing a paying party from challenging the costs incurred if they have agreed a budget at the case management stage.

“Further, it is seen as an incentive to challenge all parts of the costs incurred at the case management stage. Whether or not this interpretation is correct, the effect of the decision has been to undermine the efforts of the CPRC to simplify costs management, to promote agreement and to thus reduce hearing time.”

He said the case showed an inherent tension in the rules: “At present the court limits its costs management function to approval or management of the costs to be incurred. However, the court’s approval relates to each phase of the budget which is an amalgam of the incurred costs and the budgeted future costs.

“As SARPD highlights, the approval of a phase of the budget may be seen to indicate approval of both the incurred costs and future costs and thus deprive a party of raising points relating to the incurred costs on a later assessment of costs.

“Such an interpretation would create significant issues beyond costs management. The assessment of costs requires the judge to take into account the factors outlined at CPR 44.4. It can be seen that many of these factors will not be known at the case management conference (e.g. the conduct of the parties and the efforts made to settle the case).

“Thus there is a question as to how an assessing judge can properly take into account these factors if the judge simply ‘rubber stamps’ the decision made at case management stage.”

The CPRC accepted a series of changes to rules 3.15, 3.18, 44.1 and practice direction 3E with the aim of:

  • Decoupling the costs incurred from the budgeted costs, making it clear that the court’s budgeting will only relate to the costs to be incurred;
  • Ensuring that the court on detailed assessment can properly apply CPR 44.4;
  • Retaining the power of the court to comment on the incurred costs so as to provide clarity as to the interrelationship between the budgeted costs and the costs to be incurred and provide a steer which may promote agreement of the costs incurred; and
  • Retaining the power of the parties to agree the incurred costs and the budgeted costs.

The sub-committee decided that no consultation was needed. “The professions and judiciary proceeded on the basis that an assessing court could assess the incurred element of the budget. To this extent we are merely restoring the status quo ante,” said Master Roberts.

The CPRC was agreed to make a minor amendment to reflect the Court of Appeal’s recent decision in Qader, where it ruled that cases which exited the RTA and EL/PL protocols and then proceeded on the multi-track were not subject to fixed recoverable costs.

Lord Justice Briggs essentially rewrote the CPR to correct what he considered to be an oversight in the drafting of part 45.29B by the CPRC, and the committee agreed with this. As a result, in parts 45.29B and D, after the reference to 45.29J, the words “and for so long as the claim is not allocated to the multi-track” are to be added.

The timing of the amendments is not yet known.




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Kain Knight’s global acquisition

Kain Knight, one of the UK’s largest firms of costs lawyers, has acquired costs and debt management company SettleFirst, based in Dubai.

SettleFirst specialises in advising insurance companies, banks and other institutions on debt recovery and collections, and also works closely with the legal community in the United Arab Emirates.

Mitesh Modha, Kain Knight’s head of technical and special projects, is managing SettleFirst in the short term and is in the process of developing an enhanced business plan with the current SettleFirst team.

Kain Knight intends to develop SettleFirst’s existing income streams and also use the business as a platform to provide Kain Knight’s services to firms based in the UAE and throughout the rest of the GCC region.

To support this, a Kain Knight team, together with costs expert Nicholas Bacon QC from 4 New Square, is visiting law firms in the GCC during the week commencing 21 September to promote traditional costs services, as well as new services targeted at the alternative dispute resolution market including costs arbitration, costs mediation and pricing advisory services.

Peter Petyt, Kain Knight’s chief executive officer, said:
“The acquisition of SettleFirst is an important step in our growth programme, providing valuable geographical and service line diversification. There are compelling synergies between SettleFirst’s existing client relationships and Kain Knight’s target clients in the GCC region, and we intend to grow SettleFirst’s existing services alongside the provision of existing and new legal costs services.”

 




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Established in 2013, Bolton based Total Medical Solutions is a growing provider of medical  reports and services to the legal profession and insurance industry, with a national network of medical experts.

As a new start-up committed to continuous improvement, TMS needed a solution that was future-proof and scalable. The solution needed to grow with the firm and efficiently handle large volumes of work, whilst being flexible enough to accommodate newly introduced services in the future. TMS also required the new system to be a hosted, cloud-based platform with the ability to offer a paperless working environment.

A hosted Proclaim Medico-legal Case Management Software solution was chosen providing an efficient and consistent approach to each case. The Proclaim system stood out with a solid track record of helping new businesses to grow and could be easily tailored to suit the firm’s bespoke workflows and file management practises.

Proclaim has delivered a high level of automation throughout the whole medical reporting process, from initial instruction to the sending of the final report, saving hours of manual administrative tasks per case. Consistent personalised documents are sent directly from Proclaim to medical experts and law firm clients. All correspondence is digitally stored in the correct case on the secure, centralised solution for easy information sharing within the team.

All appointments are booked centrally in the Proclaim diary, making selecting an available medical expert simple. Automated reminders and updates sent to all parties via both email and text message result in a fast and accurate service.

Yasin Aslam, Operations Director, Total Medical Solutions says, “We are great believers in superb client service and strive to achieve the highest standards. Without investing in Proclaim we could not have achieved our goal of providing second-to-none client service.”

 

 




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Nash: commercial benefits

Nash: commercial benefits

The Association of Costs Lawyers (ACL) has launched an alternative dispute resolution panel which it said aims to give solicitors and their clients another option when dealing with costs disputes.

The former Senior Costs Judge, Peter Hurst, and three costs lawyers are among the group of eight mediators to offer what is believed to be the first dedicated costs ADR service.

The service initially offers telephone and face-to-face mediation and will be expanded to include early neutral evaluation, arbitration, and multi-case mediation.

For lower-value disputes, the service offers two-hour telephone mediations. The mediator ‘shuttles’ between the parties, making private calls, and can also host a joint teleconference as and when appropriate. Face-to-face mediation – lasting either three hours or the whole day – is suitable for higher-value cases and all solicitor and own client disputes.

The panel has been put together with the help of well-known mediators Philip Hesketh and Tim Wallis. They are on the panel along with Mr Hurst, costs lawyers Claire Green, Alison Speight and Donal Moran, Brian Dawson – senior partner of solicitors Walker Smith & Way – and Frances McCarthy, former president of the Association of Personal Injury Lawyers.

ACL chairman Sue Nash said: “Despite the steady growth of ADR in recent years, its application to costs disputes has generally been overlooked. As an organisation and a profession we strive to reduce the pain of costs disputes as much as we can, and ADR can play a central role in that. We are pleased to have put together such an expert panel to launch this initiative, and hope that many more Costs Lawyers will feature on it in time as they go through the training programmes we are organising.”

She stressed that there are many positive reasons to engage in costs ADR: “There is, of course, the stick of costs sanctions for failing to engage in ADR, which is becoming more and more prevalent. More positively, though, there are commercial benefits to using mediation and other forms of ADR to settle costs claims.

“It can improve key performance indicators such as reducing claim life cycles and the legal costs of settlement. It can free time to spend on routine matters to help meet performance standards. It can improve cash flow by earlier conversion of work in progress to cash.”

Mr Hesketh added: “I have long been an advocate of mediating costs disputes. At the end of nearly every mediation I do, we mediate the costs successfully. There is no reason why costs lawyers and their clients should not make more use of mediation.”

Other services planned for the future include mediation observerships – allowing newly qualified mediators or mediators seeking to meet CPD requirements – to observe costs mediations, and mediation information and assessment meetings – a telephone conference hosted by a panel mediator at which the parties’ representatives discuss the suitability of a costs dispute for any of the available ADR services.




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Rowley: in post from 2 April

The Senior Courts Costs Office will be back up to its full complement of judges from April after well-known solicitor Jason Rowley was appointed as a taxing master.

Mr Rowley, president of the Forum of Insurance Lawyers a decade ago, has been a deputy costs judge since 2006, as well as a High Court costs assessor.

The 45-year-old, who was admitted as a solicitor in 1991, worked in personal injury, briefly for claimants, before turning to defendant work and eventually becoming managing partner of Vizards Wyeth.

After more than five years at the helm of the firm – which subsequently merged into Weightmans – in 2009 he became chief executive of 12 King’s Bench Walk. Last year he joined Temple Legal Protection as senior underwriting manager.

Mr Rowley has been heavily involved in costs issues for many years. He was formerly a member of the Law Society’s new model CFA working party and the SCCO’s costs practitioners group. He is an editor of Kemp & Kemp: Personal Injury Law, Practice and Procedure, including the chapters on costs and funding, and is also on the editorial board of the Journal of Personal Injury Law.

One of his notable cases as a deputy costs judge was A v Chief Constable of South Yorkshire Police, in which he found that a Sheffield man who instructed specialist London solicitors for his action against the police should have instructed a solicitor in Sheffield. The High Court upheld his ruling on appeal ([2008] EWHC 1658 (QB)).

Speaking at the 2011 Association of Costs Lawyers National Conference, Mr Rowley highlighted some tips on “how to patronise a deputy costs judge”:

  • Say “I don’t normally have to do that in this corridor”.
  • Refer to a decision the judge has made, give him a copy of it and tell him how great it was.
  • Look at part 52 before seeking permission to appeal. He recalled one representative who just said: “Permission to appeal.” That’s “not a compelling reason”, Mr Rowley said.
  • “Don’t pinch my calculator.”
  • If you are going to quote an authority, have a transcript to hand.
  • Try and avoid settling at the doors of the court. Having done all the preparatory reading, “I’m the only one not excited by it”.



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Zoe HollandZebra LC, trusted advisor and due diligence specialist within the UK legal sector, has achieved certificated approval for its quality management system under ISO 9001: 2008.

Zebra is unique, delivering client projects with a distinct market leading approach and known for advising in some of highest profile deals in the legal services market. Clients include leading law firms, banks, insurers, investors, funders and new entrants such as Fairpoint Group PLC and North Edge Capital.

The business has a specialist role, enabling a deeper understanding of law firms’ risk, value and opportunity profile by placing technical due diligence and independent review at the core of its value proposition. This includes using technical legal specialists across a multi-discipline of lawyers, costs, financial and risk and compliance experts.

Zoe Holland, managing director, “Zebra works within a highly regulated environment and as such quality and risk procedures are critical to both our business and our clients. Achieving a quality mark with ISO 9001 supports our mission to provide outstanding quality, innovation and technical brilliance in the delivery of our clients’ requirements.”

“The team within Zebra has worked hard under the helm of our head of risk, Hazel Ryan, to achieve the accreditation. We work to a bespoke Project Assurance Plan. Our clients take comfort in our risk based and measured approach to projects whether they be consultancy based, bank focused WIP profiling, diagnostic audits or M&A due diligence within the legal sector. I am delighted with this result.”

 




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Deadman: the future Mr Bullock?

Posted by Christopher Deadman, sales director at Litigation Futures sponsor Augusta Ventures

This is my valedictory blog for 2014. I am grateful to my loyal reader for enduring the polluted flushings of my diseased mind. It has been fun to write and I hope I have given him/her an insight into the life of a suave, metropolitan sophisticate like what I am.

Before I bid you happy holidays, I would like to share with you my two wishes for Christmas. For the avoidance of doubt, these relate to litigation finance and not my personal desires – which include a solid gold house, Sandra Bullock, rocket shoes and the power to become invisible at will.

My first wish is that lawyers finally understand how litigation finance operates and how it can help to build a litigation practice in these increasingly competitive times. I have already reviewed the Law Society’s Litigation Funding Handbook and found it to be worth many times its cover price.

Of equal utility is Third Party Funding by Burford’s Nick Rowles-Davies, although I have yet to receive my promised reviewer’s copy. I can only presume that its failure to arrive is due to the fact that my copy is being drafted by hand, like one of those mediaeval illuminated manuscripts by Sibilla Von Bondorf depicting the life of St Francis. Either that or Nick has forgotten to post me a copy.

The serious point I am making, however, is that good-quality guidance on external funding is readily available so there really is no excuse for not being familiar with what is a pretty straightforward concept.

My second and final wish is for there to be a greater number of cases financed in 2015. I have no doubt that we are seeing but a small percentage of the total pool of eligible cases. I cannot help thinking that there are many decent cases lurking in law firms across the country that would benefit from external finance.

More than that, I bet there are many meritorious cases that never get as far as a solicitor because of the claimant’s perception that litigation is simply too expensive and uncertain.

These are the types of cases that I will be working hard to identify in 2015 – success in which will render me irresistible to Ms Bullock. And on that hopelessly optimistic note, I wish you and yours a happy Christmas and a healthy and prosperous New Year.




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When: Tuesday 6 November; 13.30-16.00

Where: Cloth Hall Court, Corduroy Room, Leeds, LS1 2HA

Have you considered the best way to litigate with costs in mind?  Have you lost track of the way Court have handled the multitude of uncertainties arising from the Jackson Reforms.  Are you short of time but needing answers?

This Autumn,  join us as we embark on a national tour of cities hosting a series of seminars dedicated to inter partes costs and the recovery thereof.  Our first seminar will consider the impact of the Jackson Reforms,  five years on with a view to assisting Solicitors to litigate with costs in mind.  Amongst other things we will discuss CFA assignments/novation, fixed costs, Part 36, QOCS, electronic billing, costs budgeting and the costs assessment process.

Delegates will each receive a very special free gift to make life simpler and take the stress out of all fixed costs calculations!  The seminar is FREE and will also provide a networking opportunity but places are limited.

Register for this free seminar here




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Rowles-Davies: ALF membership a good signal

The ability to demonstrate that funds are readily available and strong personal relationships are the most important factors for solicitors when choosing a third-party litigation funder, a poll by funder Vannin Capital has found.

The snapshot survey of commercial litigators also found unrealistic terms and general inflexibility the hardest aspects of dealing with funders and the reason some are put off seeking funding at all.

But around half predicted that the Jackson reforms – and particularly the end of recoverability for success fees and after-the-event insurance premiums – will make litigation funding more attractive, with those who have yet to use it more likely to think so than those with experience of funding. More than eight in ten solicitors are likely to consider using funding in the next 12 months.

Of those who had used funding in the past two years, general commercial litigation (39%), professional negligence (28%), breach of contract (17%) and arbitration (11%) were the main areas. The results showed the contrasting standards in the market, with more than half (56%) complaining that the process of obtaining funding took too long, but 28% saying the speed of decision-making was excellent.

Respondents cited the need to know the funds were there and strong personal relationships as the most important factors when choosing a funder (29% each), followed by the ability to provide an answer at speed (18%). The main difficulties encountered when using funding were unrealistic terms/difficult negotiation (cited by 67%) and the inflexibility of the funder to respond to changes in the case (47%).

Almost three-quarters (72%) of solicitors were required to sign up to a conditional fee agreement, most commonly on a ‘no win, some fee’ basis that saw them paid between 25% and 50% of their usual fee come what may. After-the-event insurance was taken out in 56% of cases.

‘More favourable terms’ was, perhaps unsurprisingly, the one factor that would make solicitors increase their use of funding, or make those who have not used it to date embrace the concept. The existence of the Association of Litigation Funders’ code of conduct was widely welcomed – although many recognised that it was too early to judge the impact of the code. Solicitors were split on whether there needed to be statutory regulation of funding.

“The litigation funding market is split between those that have funds and those that claim to have but don’t,” said Vannin Capital consultant Nick Rowles-Davies. “By making some solicitors wary of the whole market, the latter group is holding back its development just at the time when, due to the Jackson reforms, funding is more important than ever.

“It is no surprise that such companies are inflexible and not good at communication given that even if they can eventually secure money from another source, they are constrained in what they can do with it.

“A good funder will be able to show they have the money ready to go, will make rapid decisions, and will develop a genuine partnership with the solicitor and their client. Membership of the Association of Litigation Funders, with its capital adequacy requirements, acts as a good indicator that you are dealing with a proper funder.”




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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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Gummer: implementation as soon as possible

Gummer: implementation as soon as possible

The government has admitted that it will not be able to introduce fixed recoverable costs for clinical negligence cases on 1 October as planned.

A letter from health minister Ben Gummer to the Association of Personal Injury Lawyers (APIL) acknowledged that the delay in publication of its consultation meant the implementation timetable was not achievable.

The consultation was first scheduled for last autumn but has been repeatedly delayed to the point where there was simply not enough time for a consultation and then amendments to the CPR to be made in time.

Mr Gummer said implementation would happen “as soon as possible following the consultation, in line with Civil Procedure Rules”. APIL would not release any more information from the letter.

An APIL spokeswoman said: “This will be a considerable relief to our members who will need time to prepare their businesses and provide clarity and certainty for clients about changes to how cases are to be costed and conducted.

“In the meantime, we will continue ongoing talks with the Department of Health about how the NHS can save money without compromising on access to justice for injured patients.”

One of the great unknowns is the upper limit of the proposed regime, with the government having mooted claims up to a value of £100,000 or even £250,000. The consultation will not be published before the EU referendum on 23 June.

Legal Futures understands that the Law Society, APIL, the Society of Clinical Injury Lawyers, and Action against Medical Accidents are in talks to resurrect a scheme first discussed with the NHS Litigation Authority four years ago for a fixed costs scheme for claims worth up to £25,000.

We reported last week that the senior judiciary has agreed with Lord Justice Jackson that fixed recoverable costs should not be introduced in clinical negligence cases in isolation, but as part of their extension across the entire fast-track and ‘lower’ end of the multi-track.

Julie Say, a partner and head of clinical negligence at Hodge Jones & Allen, said: “Ever since the October deadline was announced, it was obvious that any implementation was going to be too tight. I hope that the government will now allow a proper consideration of how clinical negligence cases are actually run before releasing any consultation.

“It would be very ill advised, if not downright irresponsible, for the government to introduce a fixed costs regime without adequate consultation, particularly given that the impact of the Jackson reforms is still to be assessed. As a consequence of the Jackson reforms, lawyers’ fees are already tightly controlled, capped and limited…

“The government should be looking at remedying underlying causes of negligence by, for example, providing proper, more regular training, if they want to reduce the negligence bill.”

The Forum of Insurance Lawyers has expressed regret at the news, however. Mike McKenna, a member of its clinical negligence sector focus team and partner at Hill Dickinson, said: “It’s a pity that other issues appear to have delayed the consultation but it’s obviously a topic still very high on the government’s agenda and we look forward to debating this important issue later this year.”




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Sir Ernest Ryder (l) and Lord Thomas: dedicated work

The senior judiciary is “very concerned” about the slow recruitment of judges from a black, Asian or minority ethnic (BAME) background, and the downward trend of new judges who are not barristers, new figures have shown.

In his introduction to the judicial diversity figures for the courts and tribunals at 1 April 2017, Lord Chief Justice Lord Thomas said: “Despite the leadership that has been demonstrated over the last year, progress is not as fast as we would wish.”

The report showed that in the three years to April 2017, the percentage of female judges increased from 18% to 24% (nine out of 38) in the Court of Appeal; 18% to 22% in the High Court (21 out of 97) and 24% to 28% in the courts judiciary.

The percentage of BAME judges increased from 6% to 7%, but for non-barristers, it has decreased from 37% to 34%.

Non-barristers made up nearly three-quarters of district judges, but hardly any higher court judges, except for posts like masters and registrars. As of 1 April 2017, there were no non-barrister High Court judges.

Non-barristers were in the majority in every category of tribunal judge except Upper Tribunal judge.

In the last four years the proportion of female judges in the tribunals has increased from 43% to 45%, and the percentage of BAME judges has increased from 9% to 10%.

The figures indicated, however, that the demographic changes in the legal profession were starting to have an effect on the make-up of the judiciary: 49% of court judges and 62% of tribunal judges aged under 40 were female.

Similarly, BAME representation was highest among those aged under 40, at 10% for courts and 14% for tribunal judges.

There were also regional variations – while 36% of court judges were women in the South East, it was just 21% in the South West.

Women were best represented in the lower courts, making up 38% of district judges in the county court.

Speaking also for Sir Ernest Ryder, Senior President of Tribunals, Lord Thomas wrote: “We remain very concerned about the slow recruitment of BAME judges and the downward trend of new non-barrister (solicitors and legal executives) judges, despite the dedicated work undertaken by the judicial diversity committee.

“The committee, formed in 2013 and chaired by Lady Justice Hallett, has each year pursued more initiatives to explore what might be done to accelerate progress. It has been strongly supported by judges from all backgrounds across the courts and tribunals in England and Wales.”

These include outreach events and application workshops; to attract more solicitors and legal academics to the senior judiciary, eligibility for the High Court application programme was extended this year to those without litigation experience.

There has been a continuing reduction in the number of magistrates, falling 36% from 25,104 to 16,129 over the five years to April 2017. Some 54% of magistrates were female, and 11% declared themselves as BAME.




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Courts: differences between disciplining judges and appointing new ones

A solicitor who was denied appointment at a district judge because he had seven points on his driving licence has failed in his challenge to the decision of the Judicial Appointments Commission (JAC).

Giving the judgment of the Divisional Court, Sir Brian Leveson said JAC guidance that having more than six points on a licence will normally prevent applicants from succeeding was lawful.

The unusual judicial review was brought by Graham Jones, a partner at Swansea firm Smith Llewelyn and a sitting deputy district judge.

Assessed as an “outstanding candidate”, his application last year to be appointed a district judge would have been successful, it was agreed, but for two driving offences: a speeding offence which resulted in a conviction, £650 fine and four penalty points, and failing to obey a traffic signal, for which he received a fixed penalty and three points.

The JAC’s 2013 guidance gave its selection and character committee discretion not to enforce the six-point rule, but it did not choose to exercise it in this case.

Lord Justice Leveson rejected Mr Jones’s challenge to the JAC’s good character policy, saying: “In my judgment, the JAC is entitled to take the view that public confidence in the standards of the judiciary would not be maintained if persons who are appointed to judicial office have committed motoring offences resulting in penalty points at the level identified in the guideline within four years of their appointment.”

He further ruled that the policy was properly applied and that it was a rational decision. That Mr Jones continued to sit as a deputy district judge was not inconsistent as “there are important differences between disciplining those who hold judicial office… and appointing new judges”, Leveson LJ said.

In any event, the Guide to Judicial Conduct requires sitting to judges to report the fact that they have accumulated more than six points to the Lord Chief Justice. It is then a matter for the Lord Chief Justice and Lord Chancellor to decide what action, if any, to take. “In other words, there is a comparable level of offending which, for those who hold judicial office, triggers the requirement of reporting.”

After dismissing the judicial review, Lord Justice Leveson said: “Given the outstanding success that Mr Jones otherwise had in the district judge competition, however, I conclude by hoping that, as the first of his convictions will fall away later this year, he will consider re-applying when the next competition is launched.”




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DAS UK GroupDAS UK Group has become the world’s first legal expenses insurer to launch an innovative new Alexa skill for the Amazon Echo.

DAS customers and the general public will be able to ask Alexa, Amazon’s virtual personal assistant, a variety of questions regarding legal expenses insurance and a range of common legal issues such as disputes with neighbours, employment tribunals and redundancy.

The new DAS Alexa skill will provide a question and answer structure that will be regularly updated throughout the year with new additional content based on popular legal themes and emerging trends such as cyber insurance. The technology will be available to anyone who has an Amazon Echo and will be free to download from the Amazon store.

DAS will also be looking to work with its strategic business partners and brokers to create bespoke white-labelled versions of the Alexa skill, enabling partners to promote their own proposition to their customers.

The launch of the Alexa skill is also part of a wider programme of innovation that has been developed by DAS as a continuation of its award-winning 2017 Customer Understanding Project which analysed the trends and behaviours of thousands of brokers and consumers.

James Henderson, Managing Director Insurance UK & Ireland, DAS UK Group, said: “We have undertaken a great deal of work to understand our customers’ needs and the launch of the Alexa skill is a direct result of that.

Amazon’s Echo products were highly popular gifts over the Christmas period and the Alexa app was actually the most downloaded app for iPhones and Androids on Christmas Day. As more and more people rely on a virtual assistant to help with their daily lives, we wanted to take this important step to help improve people’s understanding of legal expenses insurance and the benefits it offers.

“The legal expenses insurance industry needs to work much harder to help brokers and consumers understand the value of its products. Therefore it is vital that we are at the forefront of technical innovations that will digitise our business and provide us with opportunities to reach potentially vast new audiences. As a company we have begun a process of constant innovation and we have a number of other exciting developments planned for the coming year.”

Kevin Neal, Head of Strategy & Innovation, DAS UK Group, said: “We’re always looking for innovative solutions that benefit our business partners and their customers. Alexa is our first foray into the world of smart voice assistants, and it will be interesting to see how customers use this tool to help understand their cover and how it might be of use to them.

“We’ll be developing further content as we learn more about how customers interact with Alexa and the type of information they’re looking for. In particular, we’ll be educating both brokers and consumers about the emerging cyber insurance market which is set to be a major area for growth in 2018.”




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Doerries: we told you so

Doerries: we told you so

There was a 19% fall in the number of debt judgments against businesses in England and Wales during the first six months of 2016, which the Bar Council says is evidence of the negative impact of rising court fees.

The figures from the Registry Trust, the non-profit organisation which operates the Register of Judgments, Orders and Fines on behalf of the Ministry of Justice, said the fall continued a seven-year downward trend.

There were 42,091 county court judgments (CCJs) recorded against businesses in England and Wales during the first six months of 2016, with a total value of £149m, a decrease of 12%.

Both figures are the lowest since before the financial crisis; the average value rose by 8% to £3,550.

The Ministry of Justice increased court fees in 2015 for money claims to a blanket 5%, capped at £10,000.

Bar Council chairman Chantal-Aimée Doerries QC said: “The courts risk becoming out of bounds for many as the full impact of increased court fees bites.

“Small businesses seeking debt owed to them by customers, who are often other businesses they supply, can turn to CCJs as a last resort to get the money owed to them, but by increasing court fees the government has cut off those small businesses’ only real and last hope of getting that money, which is vital given how important cash-flow is to SMEs They are being priced out of court.

“In January 2015, when the plan to raise the fee for using the courts was first mooted, we warned that a court fee increase would hit small businesses. We take no pleasure in seeing that warning become a reality.”

Registry Trust chairman Malcolm Hurlston said: “Up to Brexit, businesses have been doing consistently well. This has been a long and cautious spell of recovery.”




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Gardening: Claimant created invoices

A personal injury claimant’s dishonest actions must “substantially affect” the presentation of his case if the court is to make a finding of ‘fundamental dishonesty’, the High Court has ruled.

It is the first authoritative guidance from the higher courts on what amounts to fundamental dishonesty in the context of section 57 of the Criminal Justice and Courts Act 2015.

In London Organising Committee for the Olympic and Paralympic Games (in Liquidation) v Sinfield [2018] EWHC 51 (QB), the dishonesty only related to part of the damages sought, but the whole claim was dismissed as a result.

The claim was brought by a company director who was a volunteer at the London Olympic and Paralympic Games and suffered an accident causing long-term disability.

Liability was admitted in full. The claimant said the accident meant that he could no longer look after his two-acre garden and had to employ a gardener as a result.

He provided invoices from the gardener and this part of the claim was for nearly £15,000, 42% of the total claim for special damages.

City firm Kennedys acted for the defendant insurer, Aviva, and said there were reasons to be suspicious of this – it found that the gardener had actually worked for the claimant for many years prior to the accident, and that he did not produce the invoices.

The claimant responded to the allegations by saying his first statement was badly worded. Rather, he had previously employed the gardener out of choice, but now it was out of necessity. He admitted creating the invoices and reduced the gardening claim to £1,650.

At first instance, Mr Recorder Widdup at Oxford County Court ruled that the claimant did have an element of a genuine gardening claim but its presentation was muddled, confused and careless.

He found the claimant had dishonestly created false invoices and had been dishonest in his first statement, but that this dishonesty did not contaminate the entire claim. He awarded the claimant damages of £27,750.

Knowles J overturned the recorder’s ruling, dismissing the entire claim.

He said: “A claimant should be found to be fundamentally dishonest within the meaning of section 57(1)(b) if the defendant proves on a balance of probabilities that the claimant has acted dishonestly in relation to the primary claim and/or a related claim… and that he has thus substantially affected the presentation of his case, either in respects of liability or quantum, in a way which potentially adversely affected the defendant in a significant way, judged in the context of the particular facts and circumstances of the litigation.

“By using the formulation ‘substantially affects’, I am intending to convey the same idea as the expressions ‘going to the root’ or ‘going to the heart’ of the claim.”

Knowles J held that the claimant had knowingly made dishonest misrepresentations in his schedule of loss which could have resulted in the defendant’s insurer paying out far more than it could properly, on honest evidence, have been ordered to pay.

The fact that the greater part of the claim may have been genuine was “neither here nor there” where the court finds fundamental dishonesty, he added.

He went on to say that where an application is made under section 57 and the judge determines that the claimant has been fundamentally dishonest, the entire claim must be dismissed, including any genuine element of the claim, unless the claimant could show he would suffer substantial injustice if his claim was dismissed.

There was no evidence here to support a finding of substantial injustice.

Roger Jones, the Kennedys partner who acted for Aviva, says: “After various lower court rulings on ‘fundamental dishonesty’, it was important to have a binding decision that enables paying parties to take on those who bring dishonest claims. This is vital in the fight against fraud, but honest claimants have nothing to worry about.

“Mr Justice Julian Knowles has provided clear guidance on how the test works in relation to section 57, and it will also apply to CPR 44.16, where a finding removes a claimant’s costs protection under qualified one-way costs shifting (QOCS).

“Both are helpful for defendants, but section 57 carries the real bite, since the entire claim will be dismissed unless the claimant proves substantial injustice, with the claimant paying the defendant’s costs less the amount the he would otherwise have received in genuine damages.”




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High Court: privacy cases may be on the wane

A drop in the level of libel litigation last year could be down to the phone-hacking scandal and celebrities switching to privacy injunctions, new research has suggested.

Sweet & Maxwell said the number of reported defamation court cases in the UK fell 15%, from 84 to 71, in the year to 31 May 2011. The number of cases where privacy arguments were made by high-profile individuals more than doubled, from nine to 24 in 2011.

“Public scrutiny following the eruption of the phone hacking scandal is leading to a lower appetite for risk for some media outlets,” said Korieh Duodu, a partner at media firm David Price Solicitors and Advocates and the author of Defamation: Law, Procedure and Practice.

“Media companies are concerned that the phone hacking scandal could lead to the imposition of a statutory media standards regulator, and they are have made every effort to put their own houses in order to avoid this. That will mean a more conciliatory, less controversial approach and fewer defamation cases.”

Mr Duodu said privacy injunctions have become “increasingly fashionable” as they can prevent damaging articles from ever seeing the light of day. However, he said tactics are changing as a result of recent rulings such as Giggs and Terry, which showed that it will in future be more difficult to get anonymity orders keeping the identities of parties confidential.

Only seven cases involved celebrities in the year, the lowest for five years, including Big Brother star Imogen Thomas, Welsh singer Charlotte Church, former Smiths frontman, Morrissey, and Nancy Dell’Olio.

Other high profile individuals involved in defamation court cases, including business people and politicians, included Lord Ashcroft, Russian businessman Boris Berezovsky and financier Nat Rothschild.

Sweet & Maxwell said the fall in defamation cases was led by a 36% drop in the number of cases against traditional media companies like newspapers and broadcasters, which reached a five-year low of just 27 cases.

Mr Duodu said another reason why the number of cases might have fallen is that it has become harder for defamation claimants to win. “Two important rulings in the UK’s appeal courts should mean that media companies now find it easier to run defences of ‘responsible journalism’ or ‘comment’. More claimants are being advised that their case may not be strong enough, even though it may well have succeeded previously.”




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ARAG200Legal expenses provider ARAG is offering an innovative Family Prosecution Defence policy to protect individuals accused of criminal offences. The new policy guarantees the right and freedom to have a defence in court.

David Haynes, head of underwriting & marketing noted that “the cost of obtaining justice can be extremely high, even for those who are completely innocent. Family Prosecution Defence provides first class lawyers, protecting innocent family members of someone who is accused of committing a crime against serious financial consequences– such as the need to re-mortgage or sell the family car to fund a proper defence”.

Plugging the defence funding gap caused by a combination of savage cuts to Legal Aid, changes to the rules on recovering costs at crown court trial and cover limitations that generally apply to existing Family legal protection products; the new policy extends to areas such as allegations of dishonesty, violence, uninsured driving and alcohol or drug-related offences. All family members including those studying for further education away from home are covered.

“Mr Haynes continued, “The burden of proof in a criminal trial lies with the prosecutor who is required beyond all reasonable doubt to prove that the accused is guilty of the charge. We’re here to ensure a quality defence is available so there is no miscarriage of justice.

“Where an error of judgement has been made and an individual has been drawn into committing a crime, just as for those who are wrongly accused, individuals still have a legal right to a defence. They have the opportunity to apologise to the court and those affected by their actions. Under these circumstances, when a guilty plea is entered, the court can be lenient when passing sentence, if the judge is convinced of the defendant’s remorse.

Family Prosecution Defence will typically be available to boost Family Legal Protection policies for High Net Worth individuals or for company directors and partners as an extension to commercial products, but the new policy is also suited to affinity groups.

What is covered?

The new policy covers the majority of criminal acts but Class A and Class J offences (see note 4 below) or repeat offences are excluded. Most importantly, assistance can be sought before an arrest or notice of prosecution is received.

In addition to criminal matters cover is available to provide representation for individuals facing a regulatory investigation or disciplinary action by a professional body. Confidential telephone counselling and legal advice is also provided as well as access to an online consumer legal service website, for legal advice and documentation.

Policyholders are urged to add the 24/7 helpline number to their mobile contact list to ensure immediate representation is available for police interviews.

“The number of lawyers prepared to take on legal aid cases has reduced as the rate they are paid makes it unattractive to work in that area”, adds Mr Haynes “and the courts have realised a huge surge in the number of litigants representing themselves. “Our FPD policyholders don’t have to worry about that because they have access to the best people to help them and ARAG will be footing the bill”.

 




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Sam Mercer

Mercer: female and ethnic minority barristers hit harder by cuts

The senior judiciary “may not reflect the communities it seeks to serve” because of a lack of ethnic minority and female QCs, the Bar Council has warned.

In the latest round of QC appointments, announced on Monday, less than a third (28%) of ethnic minority barristers who applied for silk were successful, compared to 43% of men and 52% of women.

Although women were more likely to succeed than men, the proportion of female QCs remains at just over 20%.

Sam Mercer, head of equality and diversity at the Bar Council, said: “We must find out why it is that ethnic minority barristers are less likely to succeed, and we need to work harder to get more women to apply.

“For ethnic minority barristers it is vital that we keep every stage of the QC appointments process under close scrutiny to ensure that all potential for bias is eradicated and that we are doing everything we can to encourage under-represented groups to apply.”

Ms Mercer went on: “A very real concern is how these trends will impact the future of judicial appointments. As most of the higher-ranking judges are also Queen’s Counsel, these figures tell us that tomorrow’s senior judiciary may not reflect the communities it seeks to serve.

“We know that women and ethnic minority barristers have been hit relatively harder by cuts to publicly funded areas of law and that additional economic pressures faced by women and the challenges faced by ethnic minorities mean they are less well represented, particularly at the top end of the profession.”

Last year’s figures for ethnic minority barristers were much better, with a success rate of over 42%. A similar number of women were appointed QC, 25, though the number who applied was slightly lower.

Congratulating the new silks this week, Helen Pitcher, chairman of the QC selection panel, said: “We remain concerned that the number of female applicants remains stubbornly low, but I am pleased that of those women who did apply, 52% were successful. While I was pleased to note a rise in BAME applicants to 14% of applications, it is disappointing that the success rate for BAME applicants was lower than that for applicants as a whole.”

In a separate development, the Bar Standards Board (BSB) launched a survey this week to help it understand women’s experiences of the equality rules in the BSB Handbook, introduced in 2012.

Dr Vanessa Davies, director-general of the BSB, said: “I don’t think any of us should be prepared to tolerate a situation where half of those called to the Bar are female, but women then leave the profession to an extent that they become outnumbered two to one later on.

“It’s in the public interest that regulation encourages a diverse profession and contributes to the ongoing efforts to address gender inequality at the Bar.

“This matters, not least because our judges are recruited largely from the ranks of experienced barristers and we will not achieve the diversity in the judiciary that a fair society demands if we don’t deal with gender inequality at the Bar.

“We took important steps when we introduced our equality rules, but we now need to understand more about how those rules and the associated polices are working.”




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A recently launched funding scheme, equivalent to invoice discounting, will be lending over £1 million every month to law firms by the summer.

Set up late last year by Just Costs Solicitors and Novitas Loans, the costs advance scheme does not require any personal guarantees and helps firms bridge the gap between applying for and receiving their case fees.

Latest figures show that over £2 million has been advanced since the scheme was set up and Just Costs says it will be advancing in excess of £1 million every month by the summer.

The scheme allows law firms to draw down up to 70% of their likely recoverable costs once they have successfully settled personal injury, clinical negligence and industrial disease cases.

Operated online, it works by Just Costs assessing a case and then advising Novitas Loans on what it considers to be a reasonably recoverable amount.  Novitas then makes funds available to draw down within 48 hours.  The loan is then repaid to Novitas once Just Costs has received funds from the defendant.

As firms receive their money upfront of costs being settled, this provides more  time to push the third parties harder and to hold out for better offers which in turn improves overall recovery profitability for the law firms.

Mark Hartigan, Client Services Director at Just Costs, said:

“This scheme has been extremely well received by law firms throughout the country.

“One of the reasons firms are finding themselves under pressure is that they are fundamentally profitable but are not turning unbilled WIP and debtors into cash quickly enough.  Our costs advance scheme emphatically addresses this issue. The benefits are numerous – improved cash flow, simple administration and fast payment.”





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steven-jones-spotlite

Steven Jones, Operations Director, Spotlite Claims

Specialist loss adjuster, Spotlite Claims, is implementing the Proclaim Case Management Software solution from Eclipse Legal Systems, the Law Society Endorsed legal software provider.

Based in Hertfordshire, Spotlite Claims specialises in providing loss adjusting services to the entertainment industry internationally. Its core services cover film and television claims, contingency, adverse weather, advertising, and cancellations of musical, sporting and leisure events. With over 35 years’ experience, the team combines strong, technical industry and adjusting skills with consistent and efficient customer service.

Due to the nature of work carried out at the firm, it required a configurable case management system to ensure all files, claims and documents could be dealt with consistently and in keeping with Spotlite Claims’ standards.

The company has selected Eclipse’s Proclaim Case Management Software solution thanks to its inherent flexibility and user-friendliness. Utilising Proclaim’s wide range of market-leading toolsets, the management team will be able to tailor any element of the system to fit in line with requirements – including screens, data fields, reports, workflows and documents.

In addition, Proclaim’s Task Server tool will provide the firm with a solution to administrative hurdles, automating regular tasks and carrying out labour-intensive duties such as creating and distributing reports.

Steven Jones, Spotlite Claims’ Operations Director, comments:

“With such specific requirements, the search for a robust yet flexible case management system has been somewhat challenging. After meeting with Eclipse however, it became clear that its Proclaim solution could – and will – provide complete customisation, ensuring my team can progress cases efficiently, and in the manner our clients have become accustomed to.”

Eclipse Legal Systems




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Holland: naivety will be costly

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

Within the context of the tornado of legal reform, the impact of the funding changes within clinical negligence, together with the impact of LASPO on the personal injury sector, has the potential to be both dramatic and sobering.

Most clinical negligence lawyers agree that the claimant’s access to justice is now at risk. Debate has been centred upon the difficulty a claimant might face in locating a specialist solicitor with the willingness to run a more complex but less valuable case, including a neonatal death or loss of a loved one. As a specialist sector audit firm, this is increasingly the harsh reality of what we are now seeing within some firms a year on from LASPO.

In addition, the wider personal injury sector changes have seen a swathe of cash-rich new entrants entering clinical negligence, at a time when a number of niche practices are under increasing cash flow pressure with the removal of legal aid (and thus interim costs payments). Firms have been bombarded from every which way possible.

Zebra’s instructions have seen a tangible increase in both established firms (looking for additional funding) and also new entrant firms requiring guidance on department set-up. In a Zebra market survey this month, out of 35 established personal injury firms with turnover in excess of £5m, 23 of these have either considered setting up clinical negligence departments or have already done so.

Our defendant contacts inform us that they have also seen a significant increase in clinical negligence claims from new firms. A pre-medical letter of claim in complex cases is often the first giveaway of an inexperienced firm.

Whichever way we come at it, the road ahead is potentially fraught. It won’t simply be a skip, hop and dance along a dazzling Yellow Brick Road, and not all of those that engage in the sector will find their reward at the end.

‘Home’ as we used to know it and how we conducted business no longer exists. A click of the heels won’t get us back to where we began.

The challenge

Clinical negligence is a challenging area of litigation, and that same challenge translates into law firms’ financial profiling and cash flow forecasting. More than ever before, the changes mean that having a forensic understanding (financial, technical and operational) of this work is critical.

Risk profiling individual fee-earner caseloads and departmental caseloads to identify where resources are best employed are increasingly important. Proper and realistic costs forecasting will be required to assist with cash flow and budgeting.

The reality is that with the exception of a few cases funded by legal aid, a firm will need to significantly invest before seeing a cash flow. Investment in specialist costs drafting (internal or external) to realise those costs is more important than ever.

Entering into clinical negligence at this time is not for the faint hearted.

SQM and sharing knowledge

Historically, firms with a contract for public funding had to meet minimum requirements in respect of quality, training and supervision and provision of clinical negligence work. It might be a fair comment from the sector that the Specialist Quality Mark (SQM) offered a level of quality assurance to the public that the firm had skill and expertise in this complex area of law.

However, over recent years, a growing number of specialist departments/firms have made a deliberate choice not to proceed with a public funding franchise and these have maintained an excellent niche offering. There are a plethora of good firms carrying out clinical negligence work as well as a growing abundance of those with little experience; the challenge is how a potential claimant chooses a quality offering.

I spent 15 years in private practice as a clinical negligence specialist at leading firms Irwin Mitchell and Alexander Harris. A claimant focus has always been where my heart lies. Going forward, if we are to put the claimant at the centre, it will require the clinical negligence sector to share knowledge, expertise and skill outside of their firm and to a much greater extent.

There is the potential (and certainly a need) for organisations such as AvMA, the Association of Personal Injury Lawyers and the Society of Clinical Injury Lawyers to disseminate specialist knowledge and collaborate with each other. This is not a time for clinical negligence lawyers to be isolationist, aloof or protectionist (which sometimes we are accused of) if we are to put the claimant at the heart of why we chose to do this work in the first place.

Cash flow impact for law firms

Certificates provided firms with some (reducing) security of cash flow with end-of-stage payments, albeit that the introduction of codified rates for experts, in some cases, resulted in the erosion of the firm’s profit costs to supplement the hourly rate charged by the experts involved.

The expectation that the firm will assist clients by carrying disbursements for the client until the end of the case can have a significant impact upon the firm’s finances.

Some clients with higher risk cases (primary limitation expired or shortly to expire) who would otherwise have obtained a certificate may find it more difficult to find firms to take their cases. The cash pull and indemnity risk is too great from the outset.

On a positive, some firms used to using the Legal Aid Agency checklist procedures and costs budgeting have already acquired significant skill in risk profiling and costs forecasting and can apply those skills to alternative funding by conditional fee agreement (CFA).

Risk assessment and case selection

Case selection is now of paramount importance to any firm. Firms can no longer rely upon the success fee from cases post 1 April 2013 to fund unsuccessful claims. Every case must count. Unsuccessful claims must be discontinued at the earliest opportunity.

At the outset, far more in-depth assessment of risk/reward must be made before taking a case on CFA. This will include:

  • Merits of the case and prospects of success, including careful analysis of the medical issues;
  • Risk factors – number of defendants, number of experts, proximity to limitation;
  • Value of the case – including a detailed valuation of general damages and recoverable past losses to determine the impact on the recoverable success fee;
  • Potential base costs at conclusion (taking into account issues of recoverability);
  • Availability and desirability of ATE taking into account risks of the case and recoverability of the premium; and
  • Disbursement funding.

To be profitable, firms must look closely at their expense of time costs and hourly rates in relation to each particular case. Guideline hourly rates are only that – guidelines – and variable hourly rates justifiable by expense of time and nature of case may be more appropriate than a one-size-fits-all grade A or Grade B rate for clinical negligence work.

Bank funding and investing in clinical negligence

Increasingly, banks are looking more closely at firms’ WIP profile and indemnity risk, and clinical negligence is certainly in the spotlight.

In the last six weeks, Zebra has carried out four due diligence projects for ‘new to bank’ and additional funding projects in mainstream banking.

Firms must have a real grasp on their WIP risk profile and be able to demonstrate technical capability and low indemnity risk, if the are to achieve funding from their banks.

Banks now want a more granular view of what is within the firm’s filing cabinets, and this is set to stay.

Are you a Dorothy?

Whatever a firm’s approach, the challenge ahead for both claimant and lawyer is not going to be an easy one. It’s not just a case of ‘follow the Yellow Brick Road’. Firms will need to be prepared to adapt and evolve to the rocky terrain ahead. A pair of red sparkly shoes will simply not be enough. Naivety will be costly.

Managing clinical negligence profitably, and with a low indemnity risk profile, requires close financial management as well as technical expertise, and operational excellence.




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Djanogly: small claims limit for PI is cisco 640-816 out of date

The “eyes of government” and of MPs will be on the insurance industry to see that it delivers lower premiums following the civil justice reforms, according to the man who piloted the Legal Aid, Sentencing and Punishment of Offenders Act 2012 through Parliament. 642-444 exam

In his first interview since returning to the backbenches last September, former justice minister Jonathan Djanogly told Litigation Futures that he had no regrets about the reforms he introduced.

Mr Djanogly said that “when I became a minister, I spent most of my time arguing that there was a compensation culture”. He added that “10 Downing Street were very keen that insurance premiums should be brought down and they saw that the compensation culture was part of that”.

Pointing to statistics such as accidents falling by a quarter as claims rose by a third, he insisted that it is now “a rare lawyer who argues there’s not been a compensation culture”.

The acceptance of this led to a series of “incremental reforms”, starting with ending the recoverability of success fees and after-the-event insurance premiums, and moving on to the referral fee ban, the “criminal aspects of whiplash”, spam texting and finally the civil aspects of whiplash.

Despite recent warnings from the likes of Direct Line that the reforms in total may not make a difference to premiums, Mr Djanogly said: “The eyes of government are going to be on the insurance industry. Government expects them to respond and I think that’s the general feeling among MPs. We are looking for changes.”

While he was “convinced” that a large proportion of the RTA portal fee related to referral fees, Mr Djanogly said it should be kept under review. “If firms can make a good case that their marketing costs are such that a higher level is going to be needed in the future, then I don’t think that should be overlooked.”

The MP for Huntingdon also brushed aside the attacks he faced over his personal interests during the passage of LASPO, which led to some changes in ministerial responsibilities. “It didn’t bother me at all,” he said. “When people switch towards attacking you personally, you’re generally winning the policy argument. I took a lot of comfort in that.”

He said: “In retrospect the provisions of the Access to Justice Act were a disaster and created an unreal market place… and just detached the client from the advocate. Once you had a situation where the client did not care what his representative was earning, the situation was always going to get out of control.

“We are the only country in the world so far as I know where there were people arguing that a lawyer shouldn’t take a fair fee from his or her client for fair work done. I was very pleased to go to a conference recently and see the Law Society now recognise that. Lawyers should be proud of the work they and should expect to be paid a fair price for the work that they do. And lawyers in every other country work on that basis too.”

Mr Djanogly acknowledged that the issues around whiplash are more often criminal rather than civil – “it’s not realistic to assume that amending the civil law is going to cure whiplash”. At the same time, “there are aspects of whiplash where there are marginal claims being made that should not be made under a fairer system and will not be made” after the impending changes.

The government consultation suggested that only 7% of whiplash claims were fraudulent, but Mr Djanogly said his “personal instincts” were that it is much more.

He argued that the £1,000 small claims limit for personal injury cases is “out of date”, saying: “I think most people rationally say that is too low a figure… There must be a level at which it is wrong to be using lawyers.”

One benefit of the small claims track is the assumption of mediation, Mr Djanogly added.

While some of the details have been slow to emerge, and the implementation timetable was “always going to be tough”, the solicitor noted that practitioners have now had a year since LASPO was passed. “This has not come out of the blue,” he said. “Practitioners have to understand that and respond to the new environment that now exists.”




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Omnia200x200Stewarts Law LLP, the UK’s largest litigation only law firm, has decided to adopt web-based costs management solution, Omnia, to deal with the increasing number of budgeted cases they are handling.

Partner Julian Chamberlayne, head of KM at Stewarts (and the firm’s COLP) said, ‘Whilst in the run up to the implementation of LASPO it was assumed that most law firms already had software that would enable them to cost budget, the reality is that even now there are very few systems on the market that can really address this challenge. We concluded that Omnia was the best system through a combination of its intuitive interface, powerful monitoring tools and the agile approach of the Omnia team”.

Omnia Software’s MD, costs lawyer Sue Nash, said, “We are delighted to welcome Stewarts Law to our growing number of users.  We were able to show the firm that Omnia can handle the large and complex matters that they specialize in as it has already produced budgets for multi-million pound group actions.  In addition its comprehensive and flexible budget monitoring capabilities mean that users can always be kept up to date with spend against budget”.  Agreeing that this was one of the main drivers behind the firm’s decision, Julian Chamberlayne added, “The monitoring functionality was absolutely crucial for us; in complex and high value litigation it is inevitable that some cases will go over budget and we need to be able to spot them early and take steps to apply to revise the budget in time.”

Last month, another Omnia user firm, 20 office McMillan Williams, announced the injection of £5M of private equity to fund its expansion plans.  Whist most clients export their work from their own CMS/PMS systems, Macmillan Williams fee earners, who have been using Omnia since April 2013, directly time-record their work into the program in multi-track cases.

Omnia now also functions as a costs drafting program following the roll-out of its bill of costs functionality last month.  The core program already enables the production of Statements of Costs for summary assessment; with the introduction of bills of costs, available as an optional  add-on, Sue Nash commented that, “Omnia is well on the way to being the one-stop solution envisaged by Lord Justice Jackson when he said that, “Software should be developed which will (a) be used for time recording and capturing relevant information and (b) automatically generate schedules for summary assessment or bills for detailed assessment as and when required. The long term aim must be to harmonise the procedures and systems which will be used for costs budgeting, costs management, summary assessment and detailed assessment.”  

She added, “When the J-Codes and new format bill of costs are formally introduced later this year Omnia will be ready for them.  Firms will be able to comply with the regime without necessarily having to upgrade their full case management systems”.

 

 




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In support of the Jackson reforms, the Court of Appeal has recently developed a robust approach to dealing with litigators falling foul of the CPR, exemplified by Mitchell v News Group Newspapers Ltd (2013).

Along with providing an overview of trends and updates on areas such as costs budgets, applications for relief from sanctions, pre-action applications, disclosure, Part 36 offers and interim injunctions, MBL’s full day course will also include an afternoon workshop session in which delegates will be able to use and discuss the tools and ideas from the morning session.

Points covered by speaker Andrew Goodman throughout the day will include:

  • The Court’s approach to relief from sanctions and robust policy decisions supporting the Jackson reforms
  • Pre-action strategy, including Part 36 offers
  • Part 18 requests and strike out/summary judgment applications on part or all of the claim
  • Disclosure, including specific disclosure requests and applications
  • Interim injunctions, including freezing orders

This course is taking place in London this April – for more details and costs please give us a call on 0161 793 0984, or email lucy@mblseminars.com quoting Litigation Futures.

 


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QOCS and multiple defendants – why both sides need to be wary

Chris McClure

The recent case of Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654 represents a very interesting development in the interpretation of rule 44.14. The question before the Court of Appeal was this: where, in a matter to which QOCS applies, a claimant has brought an action against multiple defendants, is a successful defendant entitled to enforce a costs award in its favour against damages recovered by the claimant from an unsuccessful defendant?

August 16th, 2018