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wayne-bviThe Government of the British Virgin Islands is implementing the Proclaim Case Management Software Solution from Eclipse Legal Systems, the Law Society’s sole endorsed provider.

The Office of the Director of Public Prosecutions (ODPP), a constitutionally independent office, handles all aspects of Criminal Law and prosecution for the Territory, including Magisterial, High Court, Appeals, and Privy Council.

A bespoke Proclaim solution will be utilised throughout the ODPP, providing staff with instant desktop access and ensuring a secure, consistent and efficient approach. Proclaim will also allow staff to track all case information – from the initial log through to conviction – ensuring a complete onscreen case summary is available for authorised personnel.

In addition, Proclaim’s integrated reporting suite will allow the ODPP to conduct an in-depth analysis of data including file status and case durations, ensuring the highest levels of ongoing analysis and efficiency throughout the department.

Wayne Rajbansie, director of public prosecutions, comments:

“Eclipse’s Proclaim solution stood out to us because of its inherent flexibility – crucial for us in order to shape our services around our local statutes and criminal procedures. Additionally, with Proclaim we can enhance our efficiency by greatly streamlining the administrative tasks that are an integral part of what we do, ensuring that all case information is centralised.”

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Clinical negligence: notice of some sort needs to be given

Clinical negligence: notice of some sort needs to be given

A law firm legitimately switched its client from legal aid to a conditional fee agreement (CFA) even though a notice of discontinuation was not served on the Legal Services Commission (LSC), a costs judge has ruled.

Master Rowley also said that where it is clear that public funding will not cover the entirety of a case, a decision to change to another option “must be a reasonable step to take”.

Hyde v Milton Keynes Hospital NHS Foundation Trust [2015] EWHC B17 (Costs) was a clinical negligence case where liability was agreed but a dispute over quantum continued for a further 18 months, during which time the LSC refused to increase the funding limitation on the claimant’s certificate. As a result, the claimant and her solicitors, Ashton KCJ, entered into a CFA and took out after-the-event insurance.

The solicitors did not apply to discharge the certificate. They did serve an N251 on the defendant, however.

The defendant argued that this failure meant the claimant could not recover the costs generated under the CFA, but Master Rowley disagreed. This was not, he found, a ‘topping-up’ case where the legally aided party’s solicitor seeks to recover more money than he is entitled from the public purse, while a solicitor should not be expected to act knowing that, if unsuccessful, all future work would be irrecoverable as against either the defendant or the LSC.

He continued: “Where a party has exhausted the costs that can be claimed under a certificate so that it is ‘spent’, they can in principle establish a discharge by conduct in the same manner as certificates in which all of the work up to a limitation of scope has been carried out. The effect of that discharge is to end the services funded by the LSC and enable a private retainer to fund the remainder of the proceedings.

“The notification of the new funding arrangement in form N251 satisfies the need for formality in notifying the opponent of the ending of costs protection. Mr Mallalieu [for the claimant] sought to persuade me that notification was not necessary in any event but I take the view that it was required to deal with the costs protection aspect.”

He moved on to decide that it was reasonable to move on to the CFA. “It is no doubt the case that claims are often successfully concluded in a way which renders the overspend as against the certificate irrelevant.

“But I do not think this means that a claimant and her solicitor who keep an eye on the costs being incurred and so are aware of the limitation problem should be obliged to continue to use the certificate come what may. Parties are encouraged to consider their legal spend prospectively and, where it is clear that the available public funding is going to be insufficient, a decision to change to another option must be a reasonable step to take.”

Though the case straddled implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Master Rowley found that the reform were not a feature of the solicitors’ decision. However, it was relevant in the other recently reported ruling of his on a solicitor who moved her client to a CFA.

Litigation Futures understands that Hyde is being appealed.

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Court of Appeal: claimants hoping for “best of both worlds”

Claimants cannot “blow hot and cold” with qualified one-way costs shifting (QOCS) by terminating one conditional fee agreement (CFA) and signing a new one just to get the benefit of costs protection, the Court of Appeal has ruled.

Lord Justice Longmore said the “right construction” of the transitional rules was to apply them to any “funding arrangement” made before 1 April 2013, whether terminated or not.

He said that if they were applied only to “un-terminated” agreements, the claimant could “have the best of both worlds”.

He went on: “A claimant could make an agreement providing for a success fee and purchase ATE insurance and wait until shortly before trial to re-assess his or her prospects.

“If they appeared to be high, such a claimant could continue and claim the cost of the ATE premium and the success fee as costs from the defendants; if they appeared to be low, he or she could cancel the original CFA, make a second CFA and then discontinue the claim a day later and escape the costs consequences.

“The framers of the rules could not have intended that a claimant should be able to blow hot and cold in that way.”

Delivering the judgment of the court in Catalano v Espley-Tyas Development Group [2017] EWCA Civ 1132, Longmore LJ said Ms Catalano entered into a CFA in June 2012 to bring a personal injury claim for the noise-induced hearing loss she had suffered as a textile worker.

Her application for after-the-event (ATE) insurance was rejected, but she obtained expert evidence in October 2012. The judge said there was no dispute between the parties that her CFA was a “funding arrangement” for the purposes of the transitional rules set out in CPR 44.17 and CPR 48.2.

However, Longmore LJ said Ms Catalano entered into a new CFA in July 2013, which “is said to have replaced” the prior arrangement.

The trial was due to take place in January 2015, but the claimant served a notice of discontinuance. The defendants served a bill of costs on Ms Catalano amounting to over £21,600 excluding interest.

Longmore LJ went on: “A dispute arose as to whether the QOCS regime was applicable to this case.

“Ms Catalano argued that the litigation services provided by her solicitors were provided pursuant to a funding arrangement made after 1st April 2013 and that QOCS (the new regime) applied so that she could not be liable for costs after discontinuance.”

Sitting at Manchester County Court, Deputy District Judge Harris found that the new regime was not applicable, following the approach taken by Master Haworth in Landau v The Big Bus Company.

Ms Catalano argued that DDJ Harris should have followed the approach taken by District Judge Phillips in a case at Cardiff County Court, Casseldine v the Diocese of Llandaff, although in that case the second CFA was made after 1 April 2013 with a new firm of solicitors.

Longmore LJ ruled that the concept of a “pre-commencement funding arrangement” under CPR 48.2 was “remarkably wide”, including not just agreements where services had been provided but also agreements made before 1 April 2013 for services in the future.

“It is clear that on the facts of this case, Ms Catalano’s solicitors did provide services to her before 1st April 2013 since proposals for ATE insurance were made (although in the event those proposals were declined) and experts were retained, one of whom had even submitted a report before 1st April 2013.

“Those services were noted and a charge of £5,375 was included in Ms Catalano’s solicitors’ costs budget.”

The Court of Appeal said it preferred not to express a “concluded view” on what should happen if no work had been done under the first CFA, as this situation would be “comparatively rare”.

However, on the situation in Casseldine where one solicitor terminated the retainer before 1 April 2013 and another firm made a new CFA after it, Longmore LJ said appeal judges “were doubtful” that the approach taken by District Judge Phillips could be supported.

He dismissed Ms Catalano’s claim. Lord Justices Beatson and David Richards contributed to the judgment. Senior Costs Judge Gordon-Saker sat as an assessor.

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Hallett LJ

Hallett: programme will give candidates “tools they need to compete”

The Judicial Office has launched a pilot programme to improve the diversity of the High Court bench and encourage more applications from senior lawyers and legal academics.

Places on the programme, which includes work shadowing and mentoring with a High Court judge, will be limited to women and those from BAME or “less advantaged social or educational” backgrounds.

A spokesman said the programme would run from the end of this month to June and conclude with a one-day applications workshop, giving advice on how to prepare for a selection exercise run by the Judicial Appointments Commission (JAC).

A JAC selection exercise in July this year will, for the first time, allow those with no previous judicial experience to apply to be deputy High Court judges.

Launching the diversity programme, Lady Justice Hallett said involvement was limited to women and those from minority or disadvantaged backgrounds because those were the areas where the judiciary was “significantly less representative” of society.

“Taking part in the support programme will not guarantee appointment by the Judicial Appointments Commission as a deputy High Court judge or success in a subsequent High Court exercise,” she said.

“Appointment is on merit – and rightly so. But hopefully, it will encourage candidates to apply and provide them with the tools they need to compete.

“The judiciary of England and Wales is the envy of the world for its skill, fairness and integrity. Sitting as a High Court judge is one of the toughest legal jobs there is; but it is also one of the most satisfying and intellectually rewarding.”

A spokesman for the Judicial Office said taking part in the programme was completely separate from the JAC and no “guarantee of success” in its selection exercises, but it would provide candidates with support to help them apply.

As well as coming from the three specified groups, applicants for the 30 places on the programme should have the qualifications required to apply to be a High Court judge and must have no previous judicial experience.

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Bogart: clear leader

Bogart: clear leader

Burford Capital, the world’s largest listed litigation funder, has today moved to consolidate its position by spending $160m (£126m) to buy its main competitor, US-based Gerchen Keller Capital (GKC).

Together, the firms have committed more than $2bn to investments since their respective inceptions, and their current portfolios will, combined, total more than $1.2bn in investment assets and commitments.

GKC is also an investment manager and its estimated income in 2016 is $15.4m, with an operating profit of $9.1m, through investment management fees.

It adds 20 Chicago-based staff to Burford, taking the enlarged business to 86 staff, including 40 lawyers.

GKC has generally been US-focused, but has started branching out, and is currently financing the £14bn collective action against MasterCard, the largest legal action pending in the UK.

To date Burford has raised equity and debt capital, but GKC currently has $1.3bn in assets under management in private investment vehicles, raised from public pensions, financial institutions, university endowments, foundations and family offices.

In a statement to the stock exchange, AIM-listed Burford said the enlarged business “expects to capture benefits of scale”.

It explained: “In litigation finance, scale is important for portfolio diversification, market coverage and a deep bench. The scale and resources of the combined firm are expected to provide expanded geographic coverage in the US and globally, resulting in increased capital deployment for both public and private investors.”

Burford also saw the enlarged group benefitting from increased revenue diversification through the contribution of recurring private capital manager fees alongside investment income.

“The addition of GKC’s substantial business immediately launches Burford as a significant manager of private capital, with significant ongoing management and performance fee revenue, while also allowing Burford to continue to grow its lucrative on-balance sheet investing activity.”

GKC is involved in other areas of legal finance, in particular providing capital to clients and law firms after cases have settled but before the damages are actually paid.

“While this lower-risk and lower-return activity is traditionally profitable, it has been inconsistent with Burford’s on-balance sheet return aspirations but is ideal for a private fund structure,” the statement said.

Burford’s CEO, Christopher Bogart, said: “Burford and Gerchen Keller are widely regarded as the world’s two leading litigation finance providers. We know each other well and we approach the legal market in similar ways.

“The opportunity to combine the largest public player and the largest private capital manager is unique and will create the clear leader in this rapidly growing and evolving industry.

“Burford’s public shareholders will benefit from a larger, high-quality team generating a broader array of investment opportunities and the addition of a significant flow of predictable management and performance fee income.”

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ARAG200Legal expenses insurer ARAG has launched a comprehensive policy for commercial landlords in response to significant demand from brokers. Commercial Property Owners’ Legal Solutions combines the core elements of Landlords’ Legal Solutions – which protects against legal costs arising from residential letting disputes – with ARAG’s highly regarded Essential Business Legal policy. Additional cover has been included for commercial lease disputes and the letting of holiday accommodation.

The policy allows up to £50,000 for legal costs for disputes arising from commercial and residential property disputes and up to £50,000 for other disputes within the business itself. The newly created cover is for disputes over properties in the UK.

“It was our own business partners who alerted us to the potential for commercial property owners’ cover”, comments ARAG Head of Sales, Andy Talbot. “We then sought to enhance and refine the two existing policies into something that went even further. The new product squarely meets the concerns of commercial landlords in addition to providing a seamless join between familiar business and landlord legal expenses insurances”.

Access to five helplines – legal, tax, counselling, redundancy and crisis communications – and an online document resource, rounds off the new Commercial Property Owners’ Legal Solutions. It is available for rating on an individual scheme basis by the BTE Underwriting Unit via ARAG’s business development executives nationwide.

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Debbie Murphy, Director at St Helens Law, tells us how Proclaim enables superior customer service.

About St Helens Law

  • Multi-disciplinary law firm
  • 50 staff providing a full private client and commercial service
  • Core ethos is providing a great service experience


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Haynes: reward-based approach to insurance

Legal expenses insurance provider ARAG has announced a partnership with specialist telematics based Insurethebox and will be providing legal cover for around 250,000 of its policyholders.

Mandatory legal expenses insurance is now incorporated in the standard car policy for all customers and can be supplemented with an enhanced package which includes replacement vehicle cover for at fault, fire and theft claims, together with car cloning cover, motor prosecution defence and legal services assistance such as legal, tax and counselling helplines.

It is possible to provide such significant policy benefits to drivers as young as 17 because they have shown their commitment to safer car ownership when agreeing to have their driving style monitored by the in-car ‘black box’.

Up to 21 days’ insured car hire is available following total loss arising from a fault accident, fire, theft or vandalism so that the policyholder can remain mobile in the event of a claim.

“Those who have opted for safer driving rewards may still become involved in accidents through their own inexperience,” said David Haynes, head of underwriting and marketing at ARAG.

“We can provide the benefits that many will not even know they need until such time as they have a claim. Adding all these safeguards early in their driving experience complements a reward-based approach to insurance and hopefully influences their buying choices for the future.”

Car cloning cover has a particular significance as increased automatic number plate recognition (ANPR) surveillance reveals previously undetected cloned vehicles on the roads, with fixed penalty notices or notice of intended prosecution arriving through the letterbox.

Typical claims involve appeals against parking fines or allegations of a criminal offence having been committed. ARAG cover helps defend, mitigate and resolve difficulties that ensue and is twinned with ID theft protection as well as helplines to advise and support victims.

ARAG predicts this innovative cover is the precursor to a new generation of specialist policies that, over time, will become far more mainstream.

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Disputes involving larger businesses should be the only category of case not subject to a cap when contingency fees are introduced, a Civil Justice Council working party has said as one of 18 recommendations on how the new scheme should operate

A report issued today also said that lawyers working on contingency fees – formally called damages-based agreements (DBAs) – in personal injury cases should be able to calculate their fee from the total damages figure, including future loss

This runs contrary to the government’s intention, which is to limit it to the sum recovered for past losses and general damages

DBAs – which are being introduced next April as part of the Jackson reforms – will still involve cost-shifting, with the losing party paying costs in the normal way and the client topping up the contingency fee from their damages as required, subject in most cases to a cap

The working party said the cap in personal injury cases should be 25%, excluding disbursements and after-the-event insurance premium

Commercial cases are “likely to involve sophisticated purchasers of legal services entering into contractual arrangements where freedom of bargaining should not be inhibited”

However, the working party was split on whether there should be a cap on cases involving consumers and micro-enterprises (fewer than 10 employees and a balance sheet that is less than €2m); if there is to be one, it should be 50%

The working party recommended retaining the 35% cap for employment tribunal cases

Its report said a particularly difficult issue was whether recovered costs should be take

n into account when calculating the contingency fee, and ultimately decided that they should

This is in line with how DBAs work in Ontario, Canada, upon which much of the new scheme is based

The working party called for measures to protect lawyers operating a DBA from liability to adverse costs in line with case law, but third-party funders would be liable for such costs in line with the Arkin rule for conditional fee agreements – that is, up to the value of their investment

Other recommendations included that the professional regulatory bodies should review their current guidance on conflicts of interest in the light of DBAs; there should be a consistent approach in the regulation of DBAs and conditional fee agreements to avoid the risk of any further ‘costs wars’; professional bodies and specialist litigation associations should prepare model DBAs; and there should be no obligation to notify an opposing party that lawyers have entered into a DBA

The working party also described as “misguided” the Department of Business, Innovation and Skills’ proposal that contingency fees not be allowed in ‘opt out’ collective actions in competition cases

“The collective action is precisely the type of civil claim that will be benefit from the introduction of DBAs to ensure access to justice

Michael Napier, who chaired the working party, said: “The introduction of DBAs will be an important addition to the menu of options for funding civil cases when the new costs regime is introduced in April 2013

But it is not an easy subject and this was a tough piece of work for the working party which had little time to cover  much complex, and at times contentious, ground

“I am confident that we have produced a report that will help guide or at the least better inform those charged with making the final decisions on how DBAs are to be implemented

The findings have been presented to the Ministry of Justice and the regulatory bodies, who will be taking implementation forward

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Acasta Europe

Andrew Williams, Acasta Europe

With the recent withdrawal of The Prisons and Courts Bill as a result of the dissolution of Parliament due to June’s upcoming general election, this is a welcome respite for Claimant Personal Injury Lawyers, who were opposed to the changes.

If implemented, the Bill would have radically changed the personal injury market by introducing a tariff system for whiplash damages and a ban on pre-medical offers.

ATE Insurance is a key element in many Personal Injury cases and on most Claimant Injury Lawyers shopping lists in the Post LASPO world, but there are still many Law Firms in the market who struggle with the concept of ATE Insurance and what the benefits actually are to insure their clients’ cases for adverse costs and own disbursements as early as possible rather than waiting until proceedings are about to be issued.

ATE Insurance

Acasta Europe Ltd offer a range of market leading ATE Insurance products to Claimant Lawyers on a delegated authority basis covering claim types such as RTA, EL, PL, OL and Employment which all provide cover for the clients’ disbursements and their opponents’ costs and disbursements. All of these products work on a flat rated delegated authority offering meaning that the Claimant Lawyer has the underwriting capability to insure their client’s cases up to an agreed level of indemnity (LOI) via an on-line Portal. All premiums are fully deferred and contingent upon the success of the case as well as being fully self-insured.

Making sure that your client is clear about how an ATE Insurance policy can protect them from adverse costs and own disbursements on their case should ideally be best practice. Not only that though, it is actually a regulatory requirement which could help to reduce your firm’s risk of a future professional negligence claim.

The Prisons and Courts Bill will no doubt be resurrected at some point in the future due to the amount of noise that the Motor Insurers will once again make by lobbying the new Government to get the Bill back onto their agenda, but it is unlikely to be implemented from October 2018 as was planned and will no doubt fall into a new date somewhere in 2019.


For further information or to contact Acasta Europe Ltd to discuss your ATE Insurance requirements before the Prisons and Courts Bill is implemented, please call 0800 668 1350 or visit

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Nash: costs lawyers play a crucial role

Nash: costs lawyers play a crucial role

Costs lawyers and others with rights of audience who are not currently eligible for appointment as Queen’s Counsel should have the right to apply for silk, the Association of Costs Lawyers (ACL) has said.

Responding to a consultation by QC Appointments (QCA) – the body that organises the annual silk round – the association argued that “recognition of those at the pinnacle of their branch of the profession should apply equally to costs lawyers, who often will be recognised as the expert in respect of costs in their particular area or more widely”.

It said the benefit of recognition of expertise in the area of costs law was that litigants and their representatives would be able to rely upon the mark of quality conferred by the rank of QC within the specialist field of costs law, in the same way that expertise is presently assured by the achievement of the qualification of becoming a costs lawyer.

The call echoes that of the Legal Services Consumer Panel, which told QCA that QC status should be available to all advocates appearing in the higher courts, whether or not they are barristers or solicitors.

The QCA consultation paper asked whether it should be necessary to hold rights of audience for all civil or all criminal proceedings to be eligible for QC status; whether any higher rights at all should be sufficient to found eligibility; or whether there was a suitable middle position between those two options.

The ACL supported a middle option of permitting lawyers specialising in a particular area of law to be eligible for appointment as QC in particular designated areas.

It said: “The restriction of the rank of Queen’s Counsel to those specialist barristers and solicitors in their particular fields at the expense of other branches of the profession to whom that mark of excellence can likewise be applied is unjustifiable and risks the relegation of a recognised branch of the profession, containing numerous experts who would otherwise be candidates for silk, to a lesser role.

“It is therefore suggested that the category of costs lawyer be eligible for appointment to the position of Queen’s Counsel, to recognise the potential for excellence in this branch of the profession, and the rank be opened up to those qualified as costs lawyers, subject to the satisfactory demonstration of suitable expertise and experience in accordance with the established criteria.”

ACL chairman Sue Nash said: “Expert costs lawyers play a crucial role in keeping the courts and wider litigation system working, and we see no reason why this should not be recognised in the same way as the contribution of others.”

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The rapidly-changing landscape of ATE insurance and the introduction of QOCS has led independent ATE insurance specialists Parker Colby to undertake a comprehensive rebranding exercise which sees the firm renamed ‘Amberis’ in order to re-affirm their position alongside their peers in the personal injury industry.

Having traded as Parker Colby for over 12 years, organic growth has seen them established as a high volume player in the ATE market working with some of the UK’s largest law firms and with a reputation for quality products and service.

As independent brokers, Amberis will analyse the market place and work to tailor the best solution for a firm’s specific needs. This means that the client is provided the regulatory assurance that an informed decision has been made.

The firm has a completely new identity and has launched a website specifically targeted at the ATE sector.

Amberis have also strengthened their team with the recent recruitment of Rory Wilson who joins the company as business development manager and the firm claims that this appointment shows their commitment and intention to push for increased market share in a new look ATE market place.

Wilson said, “Our customers have been very vocal in the support of our work, in no small part attributed to the quality of product and the high level of service they receive. However, we are conscious that the brand ‘Parker Colby’ might not be in everyone’s conscious thought. It is a chance to re-invigorate what we do and push a brand which will be recognised for unique, attractive, solid and reliable protection. We think that the properties of Amber reflect these qualities and provide us with the perfect metaphor.

“Our new website is being developed as a central verification point for clients and prospects alike. We will be adding content regularly in order to reflect the ever changing P.I. landscape and provide the visitor with valuable insight from the Amberis team. We work hard to establish a clear understanding of each individual client’s case mix and do this through our own process-driven profiling model. The site gives an overview of this process and, to see it in action, clients can request a one-to-one consultation.”


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Aviva: reform could slice £60 off premiums
Pic: VisMedia


Personal injury (PI) claimants should be legally obliged to contact the ‘at fault’ insurer directly rather than going through solicitors and claims management companies (CMCs), Aviva demanded today.

In a major escalation of the rhetoric and lobbying over whiplash reform, the insurance giant said this would strip £1.5bn of “excess cost” from motor insurance premiums by halving the current cost of handling whiplash claims.

“This cost reduction could lead to premium falls of around £60 a year for the average driver,” it said, arguing that the value solicitors can offer motorists with minor PI claims is “questionable” (92% of Aviva’s PI claims settled during 2012 involved a lawyer).

Claimant lawyers hit back, saying Aviva had identified some of the problems, but come to the wrong solutions.

Aviva’s report, Road to reform: Reducing motor premiums by reforming the personal injury claims process, strongly backs the proposals in the government’s whiplash consultation, which closes next month, to raise the small claims limit for PI to £5,000 and introduce independent medical panels.

Aviva said its figures showed that there is no difference in the compensation awarded to the injured party if handled directly or via third parties, although a supporting opinion poll of 2,437 motorists found that 51% believed using a lawyer would result in more compensation than dealing directly with an insurer. Some 40% of the 383 drivers who had made a PI claim felt that third-party services would offer easier 0B0-103 access to legal advice – Aviva said legal expenses insurance in motor polices made this unnecessary.

The company outlined the “excessive cost of challenging a whiplash claim in court”, saying its average was £11,500 against £5,500 for simply paying out on the same case at once.

While Aviva largely blamed solicitors and CMCs for encouraging people to make claims, its own survey showed that of those drivers who were encouraged or advised to make their claim, this was mainly by friends and family (58%) – a CMC or PI lawyer came in at 13% and a ‘no win, no fee’ advert was cited by 9% of respondents.

Claims director Dominic Clayden said: “Our primary concerns are that injured parties receive care and compensation as quickly as possible and that all motorists benefit from a reduction in the excessive costs that have built up in claims over the past few years. We are campaigning for a more efficient system that removes the ‘interested parties’ and requires people to deal directly with the insurer of the at-fault party.”

On medical panels, Aviva said there should be a greater focus upon targeted rehabilitation rather than compensation that many of those surveyed thought was sought to spend on whatever claimants chose.

Of the 383 respondents who had actually made a claim, only 33% spent their compensation on medical treatment or physiotherapy, others said it was used to pay off household debt (29%), to buy luxury items such as TVs (12%) or to go on holiday (9%). Other uses admitted to include buying a car, putting it into savings and paying for university.

The poll identified a “strong link” between rising PI claims and rising premiums, with 95% saying unnecessary claims are behind premium increases. It found strong support for an end to cash compensation for minor motor accidents where no-one was injured – there should simply be the insurance cover for the cost of repairing the vehicle – and a preference for care above cash. Around two-thirds backed a ban on “excessive legal fees” and the unnecessary involvement of lawyers or CMCs.

There was overwhelming support for tighter regulation on how CMCs and solicitors market their services.

Craig Budsworth, chairman of the Motor Accident Solicitors Society (MASS), responded: “Aviva has identified parts of the problem but not come to the right solution. Claimants must have access to independent legal advice.”

He said MASS agreed with many of the issues and findings highlighted by Aviva: “Premiums are too high and fraudulent whiplash claims are having a negative impact on hard hit motorists. [But] we must not forget the needs and rights of the innocent accident victims. The Association of British Insurers estimates that 7% of claims are fraudulent. It is vital that whatever reforms may be made to the system, the 93% of innocent claimants are not prevented from seeking justice and compensation for their injuries.

“There is opportunity for fraud in the system and MASS agrees with Aviva that CMCs must be more heavily regulated and also that no claimant should receive any compensation without a fully independent medical – no medical, no damages.”

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Miners: £3m paid out last year

Compensation payouts to miners suffering from noise-induced hearing loss (NIHL) are rising sharply, government figures have shown.

Responding to a freedom of information request, the Department of Energy & Climate Change – which is responsible for the liabilities of the former nationalised coal industry – said that in 2013/14 it paid out just over £3m in respect of 1,393 claims.

This compares with £2.2m paid out on 953 claims in 2012/13, and £827,065 on 366 claims the year before that.

The first four months of the 2014/15 financial year had seen £961,005 paid out on 435 claims.

The figures show the average payout to be around the £2,200 mark.

The number of claims paid is considerably less than the number received – 3,147 of the 11,230 received in the three and a bit years reported – but the department does not say whether the remaining claims have been rejected or are still being processed.

Though the number of paid claims increased by 46% between 2012/13 and 2013/14, the number of claims received fell 12% between those two years.

NIHL claims are becoming the new personal injury battleground. The Association of British Insurers last month argued that industrial deafness claims are “fast becoming the new cash cow for claimant lawyers” and their fees need to be curbed.

Bridget Collier, head of industrial disease at Fentons and a member of the Association of Personal Injury Lawyers’ executive committee, wrote on the association’s blog last week that “in the last three years more information about the right to claim for hearing loss has become widely available”.

She said: “I myself am driven mad listening to the radio advertisements and on social media that tell me what the symptoms are and that there might be a claim. But all this amounts to education. Without it, you might just carry on thinking that deafness is something that’s crept up and you cannot do anything about it. But on learning that it might be someone’s fault and not an unfortunate consequence of age, of course it’s fair to make enquiries.”

She said audiogram tests and an examination by an ear, nose and throat consultant can work out what is caused by excessive noise and what is caused by age or health issues. “With a test procedure with such specific results, a fraudster is obvious in several ways. We can surely rely upon on the evidence.”

As a result, Ms Collier said “the insurers’ accusations make us wonder if they are simply trying to avoid paying out by shaming people out of claiming”.

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Wallis: challenging landscape

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

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

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

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

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

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

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

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


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Pickering: task was a difficult one

Costs protection in defamation and privacy cases could be achieved by a form of qualified one-way costs shifting for which both claimants and defendants could apply, a Civil Justice Council (CJC) working group has recommended.

However, this so-called ‘variable costs protection’ (VCP) could be removed by the judge if a party was deemed to have sufficient means to litigate without it.

The CJC was asked to investigate costs protection by justice minister Lord McNally during passage of the Defamation Bill during Parliament, and the working group – chaired by Irwin Mitchell chief executive John Pickering – did not have time to consider the impact of the recommendations by Lord Justice Leveson.

Its report did not come down firmly either way on whether VCP should apply by default. If so, it should only be to claimants, the group said, subject to an application by the defendant for it to be disapplied.

That application would be made on the basis that the claimant was ‘of sufficient means’ to be able to litigate without protection against the defendant’s costs being enforced in full against them.

Defendants seeking VCP would have to prove they have insufficient means to be able to litigate based on the potential costs consequences that could follow.

The report said the mechanism should be sufficiently flexible so that it does not require an ‘all or nothing’ type application. “Whilst parties should be encouraged to apply as early as possible for costs protection (if appropriate to do so), provision should still be made for such protection to be applied for at any stage in the proceedings.

Provision should also be made within the drafting of any costs protection mechanism for the assigned judges to have the power to order costs protection only in respect of a certain stage of the proceedings and/or for it to apply only above a certain level of costs.” The continuing need for costs protection should also be regularly reviewed throughout the proceedings, the working group said.

However, a minority of members of the working group were completely opposed to the introduction of any type of costs protection system at all, “because they believed the risk of facing a costs liability to be an extremely important part of civil litigation”, the report said.

Other key recommendations included:

  • Greater judicial case management, with specialist judges allocated to ensure proceedings are dealt with swiftly and at minimal cost, with early intervention, approval of costs budgets and overseeing progress;
  • Agreeing in which circumstances parties might lose their cost protection – for example if a claim is found to have been fundamentally dishonest, or has been struck out (eg, as being an abuse of the court process);
  • Applying costs budgeting measures, as adopted in other areas of law, so that parties draw up realistic budgets for cases and adhere to them under judicial supervision; and
  • Allowing the courts to continue to use their cost-capping powers to supplement VCP.

Mr Pickering said: “Our task was a difficult one. Defamation and privacy law is fast-changing and complex, not least because of the advent of social media and online publication. Ideally we would have had much more time (for example not all members were able to sign off the report), than the ministerial timetable permitted, to both consider the issues and consult widely.

“Our deliberations were also hampered by examining the issues without knowing what model of arbitration would develop in response to the Leveson inquiry.

“Nonetheless, we have done our best to weigh up the pros and cons of various methods for protecting parties from major adverse costs in bringing or defending a defamation or privacy claim, as without such protection there is a real risk of people not receiving access to justice.”

Members of the working group included media law specialists such as Desmond Browne QC (5 Raymond Buildings), Keith Mathieson (partner, Reynolds Porter Chamberlain), Lucy Moorman (partner, Simons Muirhead & Burton), Zoe Norden (in-house lawyer, The Guardian), Marcus Partington (group legal director, Trinity Mirror), and Alasdair Pepper (partner, Carter-Ruck).

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Radiology: expert had trained defendant

A medical expert who failed to disclose that he had trained the defendant on whose behalf he was giving evidence and that they had “worked together closely for a substantial period” has been criticised by the Court of Appeal.

Lord Justice Irwin said the “close connection” between expert witness Dr Andrew Molyneux and Dr Charles Barker, both radiologists, emerged only through cross-examination at the trial.

Irwin LJ said: “Our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict.

“Dr Molyneux failed to do so here, despite an express direction to that effect. Indeed, the omission of mention of papers co-authored with Dr Barker points in the other direction.”

Irwin LJ said the trial judge, Mr Justice Kenneth Parker, was “fully entitled” to take the view that, given the connection between the two men, the weight given to Dr Molyneux’s views should be “considerably diminished”.

Kenneth Parker J described himself as being “taken aback” that in an “unguarded moment”, Dr Molyneux referred to Dr Barker as “Simon”, the doctor’s middle name which he was usually known by.

The Court of Appeal heard in EXP v Barker [2017] EWCA Civ 63 that a district judge, referred to as EXP, collapsed at home after suffering a brain haemorrhage in 2011, leaving her with a range of serious disabilities.

EXP had undergone an MRI scan of her brain in 1999, when she was a barrister and after experiencing “an episode of visual disturbance” in court.

Dr Barker, a consultant neuroradiologist, reviewed the brain scan. Following this, EXP’s was told by her consultant orthopaedic surgeon that “her brain scan was entirely normal”.

EXP argued that the scan was not normal, and there was an aneurysm, or bulge in the blood vessel, on a cerebral artery which should have been identified. Dr Barker argued that there was no aneurysm.

Irwin LJ said Kenneth Parker J held at the High Court in May 2015 that the 1999 scan indicated the presence of an aneurysm which a “reasonably competent” radiologist should have identified and reported.

Dr Barker appealed, arguing that the trial judge, having decided to admit the evidence of Dr Molyneux, failed to evaluate it on its merits and was wrong to hold that the expert had an “interest or bias in the outcome of the case”.

However, Irwin LJ said there was a “close connection” between Mr Barker and his principal expert witness, as the trial judge had made clear.

He quoted Kenneth Parker J, who described the connection as “lengthy and extensive”, and said Dr Molyneux had trained Dr Barker during his seven years of specialist radiology training, and in “particular had trained him for two and a half years as a registrar and senior registrar in neuroradiology, including the particular area of interventional radiology in which Dr Molyneux specialised and in which Dr Barker had a special interest”.

Irwin LJ went on: “It is clear that they had worked together closely over a substantial period”.

He said that since the connection only emerged during cross-examination at trial, it was too late for any alternative expert to be called. Following “argument and careful consideration”, the trial judge declined to completely exclude Dr Molyneux’s evidence.

“An important part of his reasoning was that if he did so, the appellant’s case must immediately fail.”

Irwin LJ went on: “In circumstances such as those arising here, the scrupulous expert in Dr Molyneux’s position should be pointing out the problem to the legal team well ahead of trial.

“No doubt that will usually be done in privileged communication. In many instances, a court will be cautious in drawing inferences for that reason. However, on the facts of this case, the judge found that Dr Molyneux ‘did nothing’.”

Lord Justice Irwin ruled that the trial judge was “fully entitled” to reject Dr Molyneux’s evidence as to the existence of the aneurysm and whether any “responsible, properly qualified” radiologist should have referred EXP for further investigation.

He dismissed Dr Barker’s appeal. Lady Justice Black and Lord Justice Henderson agreed.

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Oral CMCs “not something to be feared”

Lawyers who make late requests for paper case management conferences (CMCs) without good reason “run the risk of sanctions”, the High Court has warned.

Mr Justice Walker said: “An oral case management conference is not something to be feared, nor is it something so unimportant as to be no more than a nuisance.

“It is a valuable opportunity in which the parties have the benefit of a judge giving the case a constructive look, working through the practicalities of what the parties have in mind, and seeking to ensure that the case is on track to proceed in a way which will be efficient, which will be fair to both sides, and will accord with the interests of justice.

“Save in the most exceptional circumstances, the appropriate course for anyone who is thinking that costs might be saved by an out-of-time request for a paper case management conference is to think again.

“The best working assumption is that the benefits of an oral case management conference will more than justify the costs involved.”

Walker J said “the moral” for anyone contemplating a late request for a paper CMC was that if the parties had not been able to agree and prepare the documents within time, the case “is likely to be one in which an oral case management conference will be of particular benefit”.

Ruling in Richardson v Glencore UK [2014] EWHC 3990 (Comm), the judge said a letter e-mailed to the court listing officer by the parties the day before the CMC, asking whether their attendance would be required, “demonstrated a failure to appreciate the role and importance” of a CMC.

It also demonstrated a failure to comply with the special provision made for case management in the Commercial Court by CPR 58.13 and the Admiralty and Commercial Court Guide.

Walker J said the general rule was that there must be an oral CMC at court, and only in “rare and exceptional” cases would it be possible to dispense with them – where the issues were straightforward and costs of a hearing could not be justified.

However, the judge said that despite what was said in the guide, he had recently dealt with several cases where lawyers had reached a “hurried agreement” at a late stage as to the orders to be made at a CMC.

“This has then been followed by an out-of-time request to the court to vacate the scheduled hearing.”

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Hannah Aziz

Hannah Aziz, In House Solicitor

In December 2016, Lord Hodgson submitted a written request to the MoJ asking the government whether it planned to introduce regulations to ensure that litigation funders are subject to the same statutory duties and obligations as law firms. Lord Hodgson expressed concerns over what he perceived to be the secret nature of the way in which third party litigation funding (“TPFL”) operates and he raised ethical concerns including the risk that because funders have the means to control the litigation they fund, this may operate to a claimant’s disadvantage.

Lord Keen responded in January 2017:

“The government does not believe that the case has been made out for moving away from voluntary regulation, as agreed by Parliament during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The market for TPLF remains at a relatively early stage in its development in this jurisdiction and we are not aware of specific concerns about the activities of litigation funders. The government has not therefore undertaken a formal assessment of the effectiveness of the voluntary code of conduct or the membership of the Association of Litigation Funders. The last government gave parliament an assurance that it will keep TPLF under review and this government is ready to investigate matters further should the need arise.”

The response from the government comes as welcome news to us and other third party funders. We believe that rather than hindering access to justice, TPLF offers litigants greater access to justice as meritorious claims can now be pursued where previously they had to be abandoned due to lack of funds to support the litigation.

Acasta is able to offer funding for a variety of commercial disputes in conjunction with Sparkle Capital. Our in house legal team is actively involved in assessing and considering the merits of any funding proposal. We also offer a funding facility that has been specially designed to provide assistance for lower value claims as we understand that such claims cannot often be pursued due to lack of finance.

Hannah Aziz, In House Solicitor
Acasta Europe Limited

T:  0800 668 1350

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Road traffic accidents: claimant solicitors should be able to make a fair and reasonable profit

The Association of British Insurers (ABI) may call for the fixed fees payable under the RTA portal to be slashed by nearly 90% to £150 as part of its negotiation strategy, a leaked e-mail has revealed.

The e-mail sent out by the ABI on 20 April – and seen by Legal Futures – sought to canvass views on whether it should propose that the current fee of £1,200 should fall to £150 or £350.

It said the ABI has commissioned costs consultants to examine the work involved by a claimant law firm in processing a low-value RTA claim through the portal so that it can submit a “robust and evidence-based response” to the Ministry of Justice’s (MoJ) consultation on the level of fees, which closes on 25 May.

It comes in the wake of the prospective ban on referral fees, Jackson reforms and plans to extend the portal to bigger road traffic claims and other kinds of personal injury actions.

The consultants are factoring in the averages of the salaries of the staff involved, their efficiency rates and allowing for overheads in an efficiently run claimant law firm, the ABI said.

While the work is incomplete, the e-mail said preliminary analysis suggests these claims can be processed profitably for £150 as the direct staff cost. “If we adopt an approach that uses salaries at the higher end of the fee-earner scale or more senior staff involvement, the analysis would suggest that a figure of £350 is more appropriate.”

The e-mail sought “a tactical steer”. It explained: “If we were to advance a figure of £150, it could increase cost savings to insurers from reducing the fixed fee but it runs the risk of the industry being seen to be unreasonable, with the potential for us to lose credibility in the debate with the final fee decided by the ministry being substantially increased.

“If we advance a figure of £350, this could limit the cost savings to insurers of the reduced fee but increase our credibility in the debate and the ministry may undertake a deeper analysis of the evidence we advance rather than potentially dismissing it.

“In considering the competing factors [on 19 April], the personal injury high level group was of the view that this was a decision that should be made by GIC [General Insurance Council] and their view, although finely balanced, was that we should advance the £150 figure, recognising that the ministry will inevitably set a number higher than that, ie the £150 should be advanced as a negotiating tactic.”

The e-mail’s author, James Dalton, assistant director, head of motor and liability at the ABI, told Legal Futures that these are “just options amongst a range of others we are considering before we finalise our response and provide it to the MoJ. Our preliminary analysis suggests that claims can be processed by claimant lawyers who can make a fair and reasonable profit at each of the figures we are considering. No final decisions have been taken on our preferred option”.

Andrew Dismore, who runs the Access to Justice Action Group, said the e-mail revealed insurers’ “cynical drive to the bottom”. He accused insurers of trying to price solicitors out of doing this work so as to boost their push for third-party capture and before-the-event insurance to take over.

He acknowledged that claimant groups would be also seeking to take a tactical negotiating position at the other end of the spectrum. While there is “no doubt that the portal has enabled people to make some savings”, they did not justify cutting fees to the levels being considered by the ABI, Mr Dismore argued.

The MoJ has held one meeting for all stakeholders about the portal changes, and will this week hold a series of smaller meetings with groups of stakeholders. Claimant groups are having their meeting today with justice minister Jonathan Djanogly, with insurers in on Thursday.


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Etherton: Effective disclosure a key attraction of English law

A “wholesale cultural change” in the approach to disclosure in the Business and Property Courts is needed, a judiciary-led working group has said, which will be brought about by a completely new rule and guidelines applying to the majority of cases.

The group, chaired by Lady Justice Gloster, has put forward a pilot which will include a duty to disclose known adverse documents, irrespective of whether an order to do so is made.

The plan is for a two-year pilot across the Business and Property Courts in the Rolls Building and in the centres of Bristol, Cardiff, Birmingham, Manchester, Leeds, Newcastle and Liverpool.

The proposed scheme should be submitted to the Civil Procedure Rules Committee for approval in March/April 2018, to commence “as soon as reasonably practicable thereafter”. There will be further consultation with judges, lawyers and users between now and then.

The review was commissioned in May 2016 by Sir Terence Etherton when he was Chancellor of the High Court in response to widespread concerns about the perceived excessive costs, scale and complexity of disclosure.

The working group has concluded that the standard disclosure test introduced in the CPR to reduce the volume of disclosure, and its cost, has not been fulfilled; rather, volume of data that might disclosed has reached “unmanageable proportions” in many cases.

In any case, the existing rule was “conceptually based on paper disclosure and is not fit for purpose when dealing with electronic data”.

Both lawyers and judges were also to blame, the group said: “Neither the profession, nor the judiciary, has adequately utilised the wide range of alternative orders under CPR 31.5(7). In practice, standard disclosure has remained the default order for most cases.

“Searches are often far wider than is necessary, and disclosure orders are not sufficiently focused on the key issues. This often results in the production of vast quantities of data, only a small proportion of which is in fact referred to at trial.”

There was also “inadequate engagement” between the parties prior to the first case management conference (CMC).

Under the pilot, the “fundamental yardstick for the parties and the court, throughout, should be what is appropriate in order fairly to resolve the issues in the case”, the working party said.

It recommended that what has been termed ‘standard disclosure’ should disappear in its current form; “its replacement should not be ordered in every case and will not be regarded as the default form of disclosure”.

The duties of the parties, and of their lawyers, in relation to disclosure would be expressly set out. These would include a duty to cooperate with each other and assist the court over disclosure, and to disclose known adverse documents, irrespective of whether an order to do so is made.

There would be ‘basic disclosure’ of key/limited documents relied on by the disclosing party and necessary for other parties to understand the case they have to meet, to be given with statements of case. A search should not be required for basic disclosure, although one may be undertaken.

The working party said that, for some cases, basic disclosure may obviate the need for any further disclosure.

“It is not intended to be an onerous process and there are a number of exceptions where the provision of basic disclosure can be dispensed with entirely.”

After close of statements of case, the parties would be required to complete a joint disclosure review document – replacing the existing electronic disclosure questionnaire – that would “provide a mandatory framework for parties and their advisers to co-operate and engage prior to the first CMC with a view to agreeing a proportionate and efficient approach to disclosure”.

Where ‘extended disclosure’ was required, there would be five models for the court to order, ranging from an order for no disclosure in relation to a particular issue, through to the widest form of disclosure, requiring the production of documents which may lead to a train of enquiry.

Precedent H cost budgets in relation to disclosure would be completed after an order for disclosure has been made rather than before. “Parties will, however, be required to give estimates of the likely costs of disclosure when filing the completed DRD in order that the question of proportionality may be considered at the CMC before an order for disclosure is made.”

There would be express sanctions for non-compliance.

Sir Terence, now Master of the Rolls, said: “It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology. Having effective and proportionate rules for disclosure is a key attraction of English law and English dispute resolution in international markets.”

Rosemary Martin, group general counsel and company secretary at Vodafone Group UK and chair of the GC100 lobbying group that pushed for the review, said: “The GC100 members are delighted that the working group has taken the task of revising the disclosure rules so seriously and with a much more radical attitude than many were expecting.

“If, collectively, we can get behaviours to change too – which is the difficult bit – then this initiative will be enormously valuable for the future.”

The subcommittee that drafted the pilot rules comprised Chancery Division Chief Master Marsh, Mr Justice Robin Knowles, Simmons & Simmons partner Ed Crosse, who is president of the London Solicitors Litigation Association, and Vannina Ettori, legal adviser and private secretary to the Chancellor of the High Court.

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Courts: We must maintain what we retain

Courts: We must maintain what we retain

The court reform process will lead to staff cuts and fewer court buildings, the former Senior Presiding Judge has said, but it is not a cost-cutting exercise and the end result should be higher-grade staff and an improved court estate.

Court of Appeal judge Sir Peter Gross said the “stakes are high” with the £700m plan to transform the courts, as “there is no plan B”.

Speaking at the Commonwealth Magistrates’ and Judges’ Association Conference in Guyana last week, Sir Peter emphasised that the HM Courts and Tribunals Service’s (HMCTS) reform programme was not about cost cutting: “Its objective is a modernised and improved justice system. It will deliver savings – but it will do so through efficiencies.

“It is right that it does so; HM Treasury, like any other investor, expects a return on its investment. The savings, however, come as part of a strategy for the future; not as a slash and burn exercise.”

Sir Peter noted that funding for the courts has been cut 25% between 2010 and 2015, meaning staff numbers fell from 22,000 to 17,000, and court buildings from 636 to 471.

“It is simplistic to regard all reductions as “bad” – some are inevitable and some are “good” as I shall suggest – but (to use one example) there has been a painful loss of institutional knowledge flowing from the departure of some very experienced managers and the downgrading of some posts,” he said.

The IT transformation will change a paper-based system into one that is digital by default: “In terms of HMCTS staffing, there is no gainsaying that a good number of jobs will be lost: if there is no paper to shift, you do not need employees to shift it.

“But, importantly, there will also be a need for higher grade staff. If we are to be digital by default, it is essential that the IT works and can be rapidly repaired when, inevitably, there are breakdowns… Moreover, there will be a need for higher grade staff to assist those members of the public who struggle with IT or lack access to it. We cannot exclude anyone, let alone some of the most vulnerable in society, from the justice system.”

On estate rationalisation, the judge said: “The blunt truth is that we have had too many buildings and certainly far more than we can afford to maintain. I am familiar with cities with a number of courts and tribunals buildings, in close proximity to one another, none of them satisfactory.

“Furthermore, courts must command respect; from my own experience, by no means all have been maintained in a condition to do so. We need a smaller estate – but an improved estate.

“We must maintain what we retain. This is not an exercise in squashing judges into less space; we will have to invest in an upgraded estate, fit for purpose in a digital age. We can use the space freed up by losing mountains of paper.

“We can also improve courtroom utilisation – not by suggesting that individual judges work longer hours but by improving our listing practices and recognising that, for some users, courts and tribunals, early morning or evening sittings may be preferable to the customary 10-16.30 or thereabouts.”

The judge stressed, however, that local justice would continue to be an imperative. “There cannot be a justice postcode lottery, excluding remote rural areas. Local justice is therefore a given; what is not a given is how best to deliver local justice.

“It is anything but self-evident that the right course is to spend significant sums on keeping small, under-utilised, poorly maintained courts in service. Instead, we are right to explore alternative options: public buildings which we can use from time to time (so-called ‘pop-up courts’), together with increased use of technology, permitting evidence to be given by way of remote links, saving much unnecessary travel but preserving (and, hopefully, improving) access to justice.”

The third strand of the reforms, he continued, was changed working practices. “Our default position has hitherto involved a presumption in favour of face-to-face hearings. That is not, necessarily, beneficial either to legal professionals or other court users.

“For many a professional, the ability to conduct pre-trial hearings from the office or chambers improves productivity. Court users cannot be assumed to relish a visit to a court, where there are suitable online or remote alternatives. The upshot is that in a digital system we should anticipate less (sic) face-to-face hearings, more work being done on screen and more use made of technology. Naturally, we will need in all this to safeguard the needs of open justice but that is perfectly feasible.”

Sir Peter described the reform programme as a “necessary response” to financial stringency – “the alternative being decline by many salami slices”. He also said it was a chance to put court users at the centre of the system – “hitherto, we have been more producer/supplier oriented”.

He concluded: “But, more importantly, the reform programme is something we should be doing anyway: using the resources available to us, strategically and imaginatively, with a view to devising a user-oriented, modernised and improved justice system, while preserving the brand of trust, confidence, integrity and expertise it has historically enjoyed and continues to enjoy. The stakes are high. There is no Plan B.”

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Vicky Browning

Vicky Browning, Archers Law

Archers Law, an established Teesside based firm, has selected the Proclaim Practice Management Software solution in a six-figure investment with Eclipse Legal Systems, the sole Law Society Endorsed legal software provider.

With longstanding roots in the regional area, Archers Law has grown from humble beginnings on the high street to a modern law firm with a 60 strong team. Providing a full range of services to private clients and business organisations, the practice continues to build upon its foundations to offer a responsive, empathetic and reliable service, ensuring clients receive the highest standards in legal advice.

Archers Law has chosen to implement the Proclaim Practice Management Software solution across the firm including case management modules for conveyancing, debt recovery and probate. The system will serve to provide legal teams with a consistent approach to matter management, whilst the integrated financial platform will enable a seamless approach to billing and overall practice management.

To further enhance client service, Archers Law will implement a number of Eclipse’s additional systems and integrations. The lead management system will provide true end-to-end management of all incoming enquiries, and will incorporate the online document delivery and acceptance tool, SecureDocs – serving to streamline all client inception procedures. Following instruction, Archers Law will use FileView as a further option to keep clients and referrers informed, enabling staff to securely display case information on the firm’s website, therefore reducing the number of ‘update’ calls received.

Additionally, Proclaim’s integration with the LRBG will allow conveyancing fee earners to access Land Registry services directly from the system, whilst the integration with BigHand will expand the functionality of Proclaim and enhance the current digital dictation solution, including speech recognition, which the firm already uses.

Vicky Browning, practice director at Archers Law, comments:

“Whilst our current technology is already in advance of some other local firms, we saw an opportunity when developing our business plan to invest further in our IT infrastructure, impacting specifically on enhanced client service and improved internal working practices.

“Our primary goal is to have a system that will expand with our commercial objectives and move us towards a paper-light environment internally. After a thorough selection process, it became clear that Eclipse’s Proclaim system will deliver on all accounts, providing us with unrivalled intelligence, detailed reporting, and most importantly, a centralised and consistent solution.”

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Bellamy: part 36 is a very real risk

Claimants and their solicitors will continue to demand after-the-event (ATE) insurance HP2-K37 post-April, meaning an ATE market – “albeit a much leaner one” – will survive, a leading insurer has predicted.

Phil Bellamy, group underwriting, ATE and special risks manager at DAS, also confirmed for the first time that the legal expenses insurer will stay in the ATE market.

He told last Friday’s Motor Accident Solicitors Society conference in Manchester: “With average motor injury disbursements of up to £400 each pre-issue, a case failure or abandonment rate in excess of 13%, and the fact that part 36 trumps QOCS [qualified one-way costs shifting] protection, potentially wiping out all of a successful claimant’s award, we are of the opinion that there is the possibility of an ‘ATE Lite’ type product.”

He added that while not many cases enter stage 3 of the RTA portal, at which point claimants are exposed to a costs risk, “we have had to pay out on a number of occasions, so the risk is certainly higher than zero”.

For those cases that fall out of the portal, the part 36 risk is considerable, Mr Bellamy emphasised. “With historic part 36 claims ranging from £125 right up to £100,000, and an average cost of £8,000, HP2-N29 this is still a very real risk to claimants, and could easily wipe out, all of a claimants damages awarded, post LASPO.”

He also pointed to research by the Access to Justice Action Group which indicated that eight out of 10 potential claimants would not pursue a case without full costs protection.

He said one form of ‘Lite’ product may take the shape of a traditional ATE insurance contract, between the insurer and claimant, but with the lower insurance premiums being paid out of a claimant’s damages in successful cases, following the abolition of recoverability.

Another variation being considered is that of ‘portfolio protection’, whereby law firms provide costs indemnities to their clients – which last year in Sibthorpe the Court of Appeal confirmed they could – and then lay off this costs exposure to an insurer, on a whole account basis each year.

Mr Bellamy said: “The advantage with this model is that it saves on time and administration, as individual insurance policies are not issued. Difficulties could arise with pricing, and accurately estimating a firm’s work load and costs exposure for future annual periods.”

The insurer also warned larger firms about providing Sibthorpe indemnities without any backing: “This ‘speccing’, as it used to be called, is entirely legal and even endorsed by the courts, but with the ever increasing scrutiny on insurers and funders capital adequacy and solvency ratios, in the run up to Solvency II, how long will it be before the Solicitors Regulation Authority starts to take notice of the growing liabilities these firms have committed to, without any form of robust reserving to pay for the eventual claims costs as and when they arise?

“With the Financial Services Authority already looking into this area of potential risk, it may well become compulsory for firms to insure these liabilities through a regulated insurer in the not too distant future.”

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Etherton: Decision remitted back to Senior Costs Judge

The Senior Costs Judge was wrong to apply the new proportionality test to additional liabilities in a case that began before LASPO took effect on 1 April 2013, the Court of Appeal has ruled.

However, it did not offer any hoped-for guidance on the new test, although it is understood that three conjoined cases raising the issue are due to be heard soon.

In BNM v MGN, a privacy case, the defendant media group agreed to pay damages of £20,000 plus costs.

The claimant sought costs of £241,817, including a 60% success fee for her solicitors, Atkins Thomson, 75% for both counsel, and an after-the-event premium of £58,000 plus insurance premium tax of £3,480 from Temple Legal Protection.

At the detailed assessment, Senior Costs Judge Gordon-Saker ruled that, subject to proportionality, all the success fees would be allowed at 33% and the ATE premium allowed as claimed. On the line-by-line assessment, the costs were reduced to £167,389, including base solicitor costs of £46,000 and base counsel fees of £14,000.

Master Gordon-Saker decided that the new proportionality test applied to the additional liabilities and concluded that it demanded that he halve the costs he had allowed.

Giving the judgment of the Court of Appeal, the Master of the Rolls, Sir Terence Etherton, said: “It seems perfectly clear that… subject to specific saving and transitional provisions in the 2012 Act, the recoverability of success fees and ATE insurance premiums in an order for costs was abolished by the 2012 Act and, where they remain recoverable by virtue of those saving and transitional provisions, they are recoverable in accordance with the old costs rules, including those relating to proportionality, reasonableness and assessment”.

He continued: “If it had been intended that the new proportionality test was to apply to funding arrangements to which the statutory saving and transitional provisions applied, that would have been made clear in the statutory provisions or the new costs rules or both and it was not.”

Both the Senior Costs Judge and the parties had referred to the Jackson report in seeking to interpret the new rules, but Sir Terence said the fact that the 2013 reforms did not entirely reflect all the recommendations made the report “an unsound basis for undermining what I consider to be the clear intention of the drafters of those provisions, rules and practice direction”.

The court remitted the case to the Senior Costs Judge to consider the proportionality of the costs again.

It also partially upheld MGN’s cross-appeal over whether it was reasonable for BNM to issue the proceedings without giving prior notice, when the publisher said they could have reached an agreement without the need to issue and increase the costs.

Master Gordon-Saker found it was, but the Court of Appeal said there were certain factors he had not taken into account in reaching that decision.

But Sir Terence said: “The Senior Costs Judge is highly experienced. Notwithstanding the points I have mentioned, I do not consider that it would be right for us to say on the appeal that there is only one answer to the question [of whether BNM acted reasonably].

“I consider that the appropriate course would be to remit the matter to the Senior Costs Judge to re-consider the issue of prematurity, making it explicit that he has taken the matters I have mentioned into account.”

Francis Kendall, vice-chairman of the Association of Costs Lawyers, described the ruling as “sensible”, adding: “Even now, four years on, it is a decision that will impact a significant number of cases.”

But he said it was “disappointing” that the court chose not to give any guidance on the application of the new proportionality test.

“But we understand that three conjoined cases are set to come before the court shortly that will hopefully be a vehicle for such guidance. The disputes caused by the continuing uncertainty are not helpful and we urge the Court of Appeal to give the profession the strong steer it needs.”

In an obiter point of note for costs specialists, the appeal court rejected MGN’s argument that ATE insurance premiums were ‘expenses’ rather than ‘costs’ under the definition of costs in the new CPR 44.1(1).

It said: “They have nothing to do with the cost of issuing and progressing the litigation, any more than the premiums on a householder’s or car owner’s insurance which contains litigation cover.

“Both before-the-event insurance and after-the-event insurance offset the risk of a person’s financial exposure as a result of litigation but they are not expenses of the litigation itself.”

Simon Browne QC and James Laughland of Temple Garden Chambers, instructed by Atkins Thomson, acted for the claimant, with Alexander Hutton QC and Jamie Carpenter of Hailsham Chambers, instructed by Reynolds Porter Chamberlain, for the defendant.

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Dean: ruling provides sufficient authority to challenge fees

A reasonable and proportionate fee to pay a medical agency not signed up to the Medical Reporting Organisation Agreement (MROA) is £200, a regional costs judge in Liverpool has decided.

Ruling in three conjoined cases, District Judge Woodburn at Liverpool County Court said he was aware that “a number of other cases” involving the same issue were awaiting his judgment.

The lead case was Charman v John Reilly (Civil Engineering) Ltd, but each involved a claimant represented by Liverpool law firm Duncan Gibbins, which instructed Tri Star Medicals – the firm’s partners are also directors and shareholders of Tri Star. Each medical report was charged at £350 plus VAT.

The fee payable under the MROA is £200 for a GP report where there is no need for medical records, and the defendant – represented by Nick Bacon QC – argued that this was evidence of a reasonable and proportionate fee.

Both the defendant and judge cited HHJ Cook’s 2002 ruling in Stringer v Copley, in which he allowed the charges of the medical agency incurred in obtaining the report, but only so far as they did not exceed the reasonable and proportionate work if it were carried out by a solicitor. He also said the agency’s invoice should distinguish between the medical fee and their own charges.

DJ Woodburn noted that Stringer “has remain undisturbed for a period in excess of 10 years”, and also expressed frustration that such an invoice had not been provided.

He said the defendant was “entitled to ask reasonable questions as to how the costs they are asked to pay, are arrived at”. But he continued: “I do not believe that the fixed-price agreement reached by the signatories to the [MROA] is the appropriate measure of a reasonable and proportionate charge. The parties chose to be signatories of the agreement; there is no good reason for those terms to be imposed on non-parties.”

He said: “Doing the best I can in relation to fairly straightforward low-value claims where medical records are not required, where there is a ready panel of willing medical specialists available, where standard letters may be used to notify the claimant and the solicitor of the medical appointment and having regard to the use of a standard process for high-volume work, I would assess the cost of a reasonably experienced and competent medical agency to carry out the work to obtain the medical report at £50 plus VAT, where applicable.

“In the absence of any information to assist me, I would further assess the cost payable by the agency to the medical expert [in such circumstances] at £150.”

Howard Dean, director of costs at Keoghs – which represented the defendant in Charman – commended the decision and said it should provide “sufficient authority to successfully oppose claims in excess of MROA rates on fairly straightforward low-value claims”.

He was also pleased by the emphasis on the claimant and their solicitor providing a breakdown of the invoice. “We shall continue to challenge claims where the medical agency fees are in excess of MROA fees,” Mr Dean said.

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Whiplash medicals: random choice of doctor

The government is set to give claimants and their solicitors a random selection of medical experts to choose from as part of the next stage of whiplash reform, it has emerged.

The government consultation in August asked for views on whether claimants should be allocated an expert or given a choice – through the new MedCo portal – while the Ministry of Justice has also been considering whether a choice should be random or through search filters.

Though no official decisions have been announced, newly released papers from the October meeting of the Civil Procedure Rule Committee indicate that a random selection will be provided.

A paper presented to the committee by the Ministry of Justice said amendments to paragraphs 7.1A and 7.32A of the RTA Protocol will require claimant representatives “to select an expert from a list randomly provided by MedCo”.

It added: “There will be a choice as to whether to instruct an expert direct or via a medical reporting organisation and the choice offered will take account of the claimant’s geographical location and ability to travel.

“MedCo will, however, filter out those experts or reporting organisations with direct financial links to the claimant representative. The MedCo system is expected to be available from early in 2015, following a programme of user testing during the autumn.”

The revised protocol as consulted on talked about experts being “allocated” via the MedCo Portal, but the amendments seen by the committee replaced this with the word “selected”.

A note attached to the change said: “The phrase ‘selected via’ is intended to cover the allocation to the claimant of a limited choice of experts or MROs and then the instruction of an accredited expert either directly or via one of the MROs.

Last week, the head of one of the largest providers of medical reports, Capital Medical Reporting, described random allocation as “barking mad”.

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Commenting on the MOJ response to the injury consultation released today, Kathryn Mortimer, DAS Group Head of Legal and Managing Director of DAS Law said: “We had serious concerns that a rise in the small claims court limit, and the non-recoverability of legal costs within it, would have led to an environment where genuine claimants would have severe difficulty in finding a solicitor to take on their case.

“We are delighted that the Government has heeded the advice of the Transport Select Committee and decided not to raise the limit. DAS Group is committed to assisting people with their legitimate legal claims through their legal expenses insurance and as clients of DAS Law. This news removes the uncertainty for all parties, in a rapidly changing legal environment, following the introduction of LASPO earlier in the year.

“Whilst the details of the medical panels are still to be determined, we are in favour of measures to tackle fraud and reduce motor premiums that ensure genuinely injured people continue to be able to seek the compensation they need.”

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Cameron: kill off the health and safety culture for good

The government is to extend the upper limit of the road traffic accident (RTA) portal to £25,000, while similar fixed-fee schemes are to be introduced into  70-410 exam other, as yet unspecified, areas of personal injury, Prime Minister David Cameron has announced.

In a speech on health and safety to small businesses and entrepreneurs in Maidenhead yesterday, Mr Cameron said the moves would tackle the compensation  CompTIA sy0-301 dumps culture and address businesses’ fear of being sued for trivial or excessive claims.

“This coalition has a clear New Year’s resolution: to kill off the health and safety culture for good,” he said.

However, there is little flesh on the announcement, which is the first sign of the government’s response to the Solving disputes in the county court consultation that closed last June.

All that is definite right now is the extension of the RTA portal limit from the current £10,000 and that the model will be used for other areas of personal injury work.

Litigation Futures understands that this is very likely to include both employer’s and public liability, but more work is still needed before deciding whether industrial disease and clinical negligence cases will be caught too.

It is unknown at the moment whether the new regimes will be for cases worth up to £10,000 or £25,000. Extending the portal to £25,000 also brings the Jackson reforms into play as the judge wanted to see fixed fees across the fast-track.

The detail will be revealed when the consultation response is finally published. Ori

ginally slated for October, the Ministry of Justice said yesterday that it will be made public “soon”. Minister Jonathan Djanogly told Parliament last month that it was postponed “due to ongoing discussions within government”.

Other reforms to health and safety more broadly include changing the law on strict liability for civil claims so that businesses are no longer automatically at fault if something goes wrong, rationalisation of the law in the area, while from 6 April businesses will no longer have to report accidents in the workplace unless an employee is off work for seven days or more.

David Bott, president of the Association of Personal Injury Lawyers, said: “We have grave concerns that the government is pushing through too many swathing changes to the system at once without proper consideration as to the implications for injured people.

“The danger is that workers could be exposed to an unnecessary risk of injury and then be left with a civil justice system which cuts them off from their right to full and fair redress.”

He added that “it is far too early” to consider extending the portal “as it still has teething problems and remains far from being the finished article”.

Andrew Dismore, who co-ordinates the Access to Justice Action Group (AJAG), said it would oppose the changes as its own research showed that 48% of people suffering accidents at work do not make a claim even when they know someone else is to blame. “Cutting ‘red tape’ will only endanger workers,” he argued.

Mr Dismore predicted that people with claims under £25,000 will struggle to find a solicitor under a fixed-fee scheme.

“It is suggested the fixed fee for running an employer’s liability case or public liability case could be as low as £400. This very low fee makes running these types of cases completely unviable. There is an irreducible minimum of work which must be done which must be reflected in the fee,” he said.

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Marshall: opportunities are significant

Newly launched third-party funder Bentham Europe – a joint venture between leading listed Australian funder Bentham IMF and US hedge funds – has hired a leading litigator from Irwin Mitchell as its chief investment officer.

Jeremy Marshall was formerly Irwin’s London head of litigation and dispute resolution and joins as Bentham opens its London office, having first announced its plans in March.

Bentham Europe’s stated aim is to become Europe’s leading litigation funder “by investing in a broad range of high-value commercial litigation and international arbitration claims”. It will particularly focus on cartel cases, multi-party actions and securities litigation with a claim value of £5m plus in single-party cases and more than £30m in multi-party cases.

IMF has agreed co-funding arrangements and joint venture arrangements with subsidiary entities of funds managed by Elliott Management Corporation. IMF said these funds have billions of US dollars under management globally.

The pair are splitting equally the funding costs and operational expenses of Bentham Ventures BV, and in return will share in the profits and losses on an equal basis. They will jointly guarantee the business’s funding obligations to litigants, including adverse cost exposure.

Bentham Europe Ltd is a wholly owned subsidiary of Bentham Ventures, and will identify, evaluate and recommend funding opportunities to the joint venture. IMF will provide “certain consultancy services” for a fee.

John Walker, managing director of Bentham Europe and one of IMF’s founders, said: “We are looking to reinvent the market for third-party litigation funding with a streamlined approach to choosing cases and the financial ability to fund the largest multi-party claims. Having an experienced litigator, like Jeremy, with significant experience of the UK market will be a direct benefit to the law firms and the in-house community we will be working closely with.”

Mr Marshall added: “The opportunities are significant and I look forward to developing the European market as we fund major commercial litigation and arbitration claims.”

Bentham IMF’s annual results to 30 June 2014, published last month, showed that it recovered £42m from investments that completed in the year, of which £14.4 was net gain. Overall the company’s profit in 2013-14 was £5.5m. Over the 159 cases it has completed in its history, IMF has generated a gross return on every Australian dollar invested of 2.73 times.

Of the 159 cases, there were 104 settlements, 14 wins, six losses and 35 withdrawals. IMF is currently invested in 30 active cases with a combined claim value of £1.15bn.