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Leveson Inquiry: called for low-cost access to justice

A voluntary newspaper regulator yesterday launched a dispute resolution scheme that requires members of the public to make an up-front payment of just £50 to kick off a legal claim, with a further £50 payable only if the case goes to final ruling.

The scheme was set up by IPSO, the Independent Press Standards Organisation, which was created in the wake of Lord Justice Leveson’s  inquiry to replace the Press Complaints Commission.

IPSO is not recognised by the body set up to approve applications under the Royal Charter on Self-Regulation of the Press – the Press Recognition Panel.

However, it represents most national newspapers as well as the Press Association and Conde Nast UK magazines, but not The Guardian and Observer, the Financial Times, or the Independent titles.

IPSO said the arbitration scheme, which will be for media law claims and administered by the Centre for Effective Dispute Resolution (CEDR), offered low-cost access to justice as envisaged by Leveson LJ.

The new scheme replaces a year-long pilot – also run by CEDR, in which both parties agreed to binding arbitration overseen by specialist barristers – and slashes the cost of a claim from £300 to a maximum of £100, split into two halves. Publishers will fund the remaining administration costs and all of the arbitrators’ fees.

Under the scheme, losing claimants will not be required to pay the other side’s costs, unless an arbitrator judged the claim was wholly without merit or vexatious.

Publishers could be ordered to pay winning claimants up to £50,000 in damages and claimants up to £10,000 in costs; or up to £1,000 for claimants representing themselves.

The scheme will be run in parallel with IPSO’s free regulatory complaints process, with both tracks hearing claims under the code of practice IPSO-regulated publications have signed up to – the Editors’ Code.

IPSO’s chief executive, Matt Tee, said: “A key theme of the Leveson report was access to justice for those that can’t afford to go to court…

“Access to low-cost arbitration is an important part of the service we offer to the public and I’m pleased that we have been able to reduce the up-front cost of arbitration for a claimant to just £50.

“In fact, even if the hearing proceeds to final ruling, the maximum it will cost a member of the public is £100, thus making the IPSO scheme fully Leveson-compliant.”




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High Court: overriding objective supports approach to summary assessment

High Court: overriding objective supports approach to summary assessment

A judge can summarily assess the costs of hearings even if he or she did not make the relevant costs orders, the High Court has ruled.

Mr Justice Coulson said that not only was there nothing in the rules (part 44.6) or practice direction (PD 44, paragraph 9.7) which prevents a different judge from summarily assessing the costs of a hearing conducted (or an order made) by a different judge, “but such a blanket prohibition would make no practical sense”.

Ruling in Transformers And Rectifiers Ltd v Needs Ltd [2015] EWHC 1687 (TCC), he continued: “Obviously, in the majority of cases, it will be appropriate, even necessary, for the same judge to conduct the summary assessment. If, for example, there was a contested hearing, and the detail of any summary assessment exercise carried out thereafter depended on the views formed by the judge about the parties’ submissions, or the witnesses, or their conduct generally, then it would be inappropriate for any other judge to attempt the exercise.

“But an inflexible rule that the same judge must, in every case, conduct the summary assessment, cannot be derived from the CPR.”

The claimant sought a summary assessment of three sets of costs of interlocutory matters, two ordered earlier in the case by Mr Justice Edwards-Stuart and the third by Coulson J. The defendant argued that only the judge who had made the orders could undertake that summary assessment.

Coulson J said that paragraph 9.7 was couched in permissive terms, and added that a blanket ban could not be in accordance with the overriding objective.

“It is often the case that a summary assessment is the only just and proportionate way to deal with costs. It would be absurd if such an exercise could not be undertaken because of, say, the death or indisposition of the judge who conducted the original hearing or made the original order, or because he or she is on circuit and is unable to deal with the matter when it arises. Some degree of flexibility must be permissible.

“That is particularly so where, as here, the two orders made by Edwards-Stuart J… were made, not on the basis of and following a contested hearing, but as a result of a paper application supported by written evidence.

“In circumstances where there was no hearing, and the order was made on the basis of the papers, the summary assessment of costs can just as easily be undertaken by another judge, because precisely the same material is available to him or her as was available to the judge who made the original order.”




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Jackson: government needs to be persuaded

Lord Justice Jackson this week called for an end to the indemnity principle and for lawyers to lobby the government on the need for hybrid damages-based agreements (DBAs).

In a speech to the Law Society’s civil justice section, the architect of the LASPO costs reforms said the near-zero take-up of DBAs was due to fear of technical challenges arising from the indemnity principle and of hybrid arrangements falling foul of the current DBA regulations.

“It would be immensely helpful if the indemnity principle were abrogated,” he said, noting that he had recommended as such in his final report. “This is a rule of common law, to which there are now numerous exceptions. It no longer serves any useful purpose. It has given rise to a host of problems, as well as much futile satellite litigation.”

On hybrid DBAs – under which the client pays its lawyers a low fee if they lose and a percentage of the winnings if they win – Jackson LJ said he understood that the government “will need to be persuaded that there is a need” for them.

He listed eight reasons why he believed there was such a need, including that it was illogical to allow ‘no win, low fee’ conditional fee agreements but not DBAs, and also to allow third-party funding (TPF) to operate on a hybrid basis where they meet some or all of the litigation costs if the case fails, and receive a share of the winnings if they succeed.

“Indeed, it is worse than illogical. DBAs are a more efficient form of funding than TPF, because only two entities (rather than three) have a stake in the litigation. Therefore the law should not be sidelining DBAs in favour of TPF.”

His final reason was that hybrid DBAs would promote access to justice. “Following the abolition of recoverable success fees, it is important to open up as many other options for funding as possible.”

The judge suggested that opposition to hybrid DBAs is coming from those who dislike DBAs in principle – those on the receiving end of claims. He called for “those in authority” to stand up to “powerful vested interests within the ‘big business’ camp”.

He concluded: “If commercial lawyers wish to see the DBA regulations reformed and such reforms to include provision for hybrid DBAs, it would be sensible to form a working group to analyse the numerous matters of detail on which there is concern, and to assemble the evidence and make out a case for hybrid DBAs.”

Jackson LJ also touched on Denton and warned that “in the euphoria with which some have greeted” the ruling, it was important not to slip back into the “old” culture of non-compliance.




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West: government must not create change for changes sake

Specialist defendant law firms have responded cautiously to yesterday’s whiplash consultation paper amid fury from claimant lawyers and groups.

The Ministry of Justice is considering raising the small claims limit for whiplash or all road traffic injury claims to £5,000 and introducing independent medical panels.

The Association of British Insurers and Insurance Fraud Bureau strongly backed the proposals, with the former saying it was “pleased that the government recognises that tough action is needed to protect honest motorists from the UK’s whiplash epidemic”.

While welcoming the direction of travel, defendant lawyers raised concerns over their timing and detail. Steve Thomas, director of market and public affairs at Keoghs, said that if the small claims rise is limited to whiplash only, “then we have little doubt that soft tissue injuries will manifest themselves in another guise which will take them out of scope and back into recoverable costs. We also believe that a £5,000 small claims track would spawn a prevalence of lawyers operating under damages-based agreements, which in turn may promote damages inflation.

“This consultation at first blush appears an attractive proposition but as ever, it is the unintended consequences that need to be thought through as the industry sets out its position with government.”

Mr Thomas said his initial concern over medical evidence is that “we do not simply move to neither re-badge the current process and practice nor layer additional cost when the ambition here is exactly the opposite”.

He explained: “It will also be important to incorporate the scope of appropriate medical evidence for simple whiplash claims. We are increasingly seeing psychologist’s reports as the norm. Many of these reports add little to the overall picture but seek to drive damages and layer in expensive disbursements. To paraphrase Jackson, are such reports both ‘necessary and proportionate’?”

City firm Kennedys said it supported the drive to reduce inappropriate claims, arguing that both claimant lawyers and insurers will be better off as a result.

But it said any new legislation must be properly thought through, maintain access to justice for innocent victims and create a proportionate framework of new rules and sanctions. It was particularly concerned about the timing, given the other civil justice reforms being implemented in April.

Partner Richard West said: “It’s important that the Ministry of Justice does not create change for changes sake. There are many good reforms to the legal landscape fast approaching which should have a substantial impact on whiplash claims. The government must resist the temptation to push too much through too quickly or they risk undermining the undoubtedly good intentions underpinning this consultation.”

Alistair Kinley, head of policy development at Berrymans Lace Mawer, said: “These proposals are close to the agenda set out by insurers, which will cause some reaction from industry bodies. To some extent, APIL [the Association of Personal Injury Lawyers] was smart in getting its retaliation in first two or three weeks ago with its own 10-point plan on whiplash fraud.

“There are wider costs reforms already afoot. [Early] questions which occur are: how many cases would go via the RTA scheme/portal if the small claims limit goes up to say above £3,000? What is the risk of damages creep if that happens? Does the news bolster APIL in their attempt to judicially review the extension of the RTA scheme? Time will tell.”

There was unanimous condemnation from claimant lawyers, who argued that many people would be put off pursuing legitimate claims if they had to do it without legal assistance. But they had a range of other criticisms as well.

Craig Budsworth, chairman of the Motor Accident Solicitors Society, said: “It is irresponsible to even consider more changes to our civil justice system at the moment. Implementing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the proposed changes to the RTA portal mean that we are already in a period of unprecedented reform and uncertainty which could fundamentally alter the balance between defendant and claimant.”

Irwin Mitchell partner Matt Currie said that if the government is serious about tackling the problems in the current system, “then they should continue to focus their attention on the multitude of claims management companies who add little or no value, rather than making genuine victims suffer further. They could start by banning text messaging and cold calling right now.

“Of course, no one should receive any compensation without proper medical assessment so we welcome the chance to work with the government on that but forcing genuine victims to use the small claims track would be a misguided attack on access to justice. Small claims may be effective for disputes over washing machines but it isn’t suitable for more complex injury cases.”

Mark Grover, chief executive of north-west claimant firm Antony Hodari, said: “Claimant law firms use increasingly sophisticated anti-fraud systems, but they would be far more effective if insurers co-operated by giving us access to their own databases. Why would they refuse this? And, if they are so keen to combat fraud, why do insurers continue to offer settlements to claimants before they have seen a solicitor and before they have undergone a medical examination?…

“The government has not considered the economic impact of these proposals. It currently recovers £140m a year in social security benefits paid as a result of an accident where a compensation payment has been made – this will fall dramatically if people are put off making a claim in the first place. And thousands of people in the legal industry could be put out of work by cutting out their legitimate role in helping injured people pursue their legal rights.”

Iain Stark, chairman of the Association of Costs Lawyers, said: “These proposals could spell disaster for both consumers and the legal profession. Access to justice will be the ultimate victim. I foresee a whole new unregulated industry being created to handle claims below £5,000. Furthermore, the courts will be flooded with litigants in person, which will put huge strain on their already limited resources…

“The lack of joined-up thinking is also breathtaking. The government is already consulting on a 60% cut to legal fees for [the RTA portal]. These new proposals will remove most cases from that system, leaving just the higher value, more complex ones at unfairly low fee levels. The government needs to pause for breath and think through its approach before piling on yet more reform.”

 




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The Court of Appeal laid down the interpretation of the CPR in respect of relief from sanctions and stated that the idea was to eliminate satellite litigation. But these cases still come before the courts and the interpretations vary from circumstance to circumstance.

MBL’s 1 hour webinar will review the approaches that the courts have taken over the last 6 months to consider what will happen in different circumstances. It will provide the information necessary to identify the issues that are relevant to the courts decision on relief; what arguments needed to be addressed to obtain relief in different circumstances and how to oppose applications for relief.

Without the information there is a serious danger of a client making a complaint or alleging negligence for disadvantaging their case.

This pre-recorded webinar will be streamed at 12.30pm on Wednesday 4 June and will be presented by Gary Barker. For more information on webinar costs or to make a booking please click the above link or email lucy@mblseminars.com quoting Litigation Futures.




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Taussig: Broadhurst provided the answer

Taussig: Broadhurst provided the answer

A successful part 36 offer in a provisional assessment removes the £1,500 costs cap, the High Court has ruled.

Overturning a decision of Master Whalan in the Senior Courts Costs Office, Mrs Justice Laing followed the reasoning of the Court of Appeal earlier this year in Broadhurst v Tan, when it ruled that a party who beat a part 36 offer in a case where fixed fees applied was eligible for indemnity costs,

The thus-far unreported case of Lowin considered whether CPR 36.17(4) – indemnity costs on beating an offer – dislodged the £1,500 cap set out in rule 47.15(5) for the costs of a detailed assessment that concluded at provisional assessment stage.

According to a blog by Gurion Taussig, a barrister at 9 Gough Square who acted for the successful party, the master agreed that her costs should be assessed on the indemnity basis, but ruled that the cap remained intact. He drew a distinction the Broadhurst case.

Mr Taussig, who was instructed by Boyes Turner, said that on appeal, Mrs Justice Laing held that there was a conflict between rules 36.17 and 47.15(5), because the latter derogated from the entitlement to costs on the indemnity basis conferred by part 36.

“In resolving the conflict, the scheme of reasoning contained in Broadhurst provided the answer. If the draftsman of the rule committee had wished part 36 to be modified so that the cap would remain, then that would have been stated. The court further stated that the dislodging of the cap would incentivise parties to accept reasonable costs offers because, if they did not, they would be at risk of adverse cost orders pursuant to part 36.”

The matter was remitted to Master Whalan to re-assess the appellant’s costs of the detailed assessment on an indemnity basis.

Mr Taussig added: “The decision represents an important extension of the Broadhurst principle, and one that potentially affects all cases that proceed to provisional assessment of costs in part 47 proceedings.

“Parties should indeed be incentivised to make reasonable cost offers, but equally they must be aware that a failure to accept a reasonable part 36 offer is likely to have cost consequences if the offeror achieves a better result on provisional assessment.”




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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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Lord Dyson

Lord Dyson: “uncertain and testing conditions” lie ahead

The Master of the Rolls has called for an “institutional response” to unfair criticism of judges by politicians and the media.

Lord Dyson said there were “a number of hazards” in judges responding personally to attacks either by issuing press releases or “far more riskily” holding a media interview.

He said unfair criticism was liable, in rare cases, to produce “intemperate responses” from judges and had the potential to “imperil the professionalism of the judicial office as a whole”.

Delivering the annual BAILII lecture, Lord Dyson said the convention against criticism of judges’ decisions by politicians “has been eroded, even if it remains in place, albeit sometimes precariously, for government ministers”.

He went on: “Uncertain and testing conditions therefore lie ahead. In my opinion, it is time for judges (if they have not already done so) to accept these changes that have been brought about by shifts in our culture, our constitution, and our technology.

“In my view it is right that judges’ reasoned decisions should be open to public debate and scrutiny. Our courts are open and free, and the media perform a valuable job in our democracy of reporting the courts and the justice system to the wider public.

“What I hope is that the debate should be reasoned and based on the evidence. And what is not fair or reasonable is to impugn the motives of judges, or ascribe them to prejudices.

“Judges must expect criticism and, where appropriate, they must offer a robust response. This response should take the form of a well-organised, measured, institutional reply.”

Lord Dyson praised the “excellent work” of the judicial press office in distributing faster and greater quantities of accurate information, such as transcripts of judgments, “ahead of the next news cycle”.

He said the Lord Chief Justice, Lord Thomas, was “also well-placed to offer an institutional response to criticism”, while noting that the LCJ had recently regretted that his ability to do this was compromised lack of a seat in the House of Lords.

Lord Dyson added: “I hope that, if the noise of criticism from ministers and the press becomes louder, the judicial press office and the Lord Chief Justice will continue to serve as important correctives to unfair comment and misinformation about judges.”




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Nash: costs lawyers have a range of abilities

The introduction of budgeting has significantly increased the demand for costs lawyers, the annual survey of members by the Association of Costs Lawyers (ACL) has indicated.

The results also indicated that the impact of the Jackson reforms on access to justice has not been as bad as feared.

Nearly six in 10 respondents to the survey (59%) said the reforms have expanded their practices – more than double the number who predicted that would happen in last year’s survey – with half taking on new staff as a result.

Almost three-quarters of the 102 respondents (72%) said the demand for costs budgeting had increased ‘significantly’ in the past year, with 52% expecting more of the same over the next 12 months. Nearly half expected the number of costs lawyers to have increased in three years’ time.

Asked how the budgeting regime was working, two-thirds said it had brought costs lawyers’ skills to the fore. Some 45% replied that it depended which judge they were before, while 43% found that solicitors remain in denial or unaware of the demands.

Unsurprisingly, the reforms are changing the make-up of costs lawyers’ practices, with a greater focus on multi-track cases over the fast-track. Some 40% of costs lawyers have diversified into other areas, while a fifth are looking for mergers and/or acquisitions.

ACL chairman Sue Nash said: “The results vindicate what we have been saying for some time – that the skills of costs lawyers are a vital part of the mix if solicitors want to make the best of the budgeting regime. Our range of abilities makes us an integral part of the litigation team as solicitors, barristers and costs lawyers work together to progress proceedings in an efficient and proportionate manner.”

In 2013, 71% of costs lawyers predicted that the Jackson reforms would discourage solicitors from taking on less straightforward cases, and this year some 30% said it had actually happened.

Nearly half of respondents last year expected the reforms to discourage claimants from bringing claims and to tilt the playing field in favour of defendants, but the 2014 poll found that only 18% and 23% of costs lawyers respectively said they had had that effect.

Ms Nash added: “While the results show that the Jackson reforms have not damaged civil litigants’ access to justice as much as had been feared, they also emphasise that there is no room for complacency. It is clear that some claimants are being turned away from seeking justice, and it is the responsibility of all of us to ensure that the system adapts to ensure that all of those with a valid claim have the support to bring it.”




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Costs cap: Different from fixed costs

An award of indemnity costs after a successful part 36 offer in a provisional assessment does not remove the £1,500 costs cap, the Court of Appeal has ruled in overturning the High Court.

The Association of Costs Lawyers has called the outcome “harsh” for its members and called on the Civil Procedure Rule Committee to review the decision.

In W Portsmouth and Company Ltd v Lowin [2017] EWCA Civ 2172, the substantive mesothelioma claim settled for £70,200.

On 3 March 2015, Ms Lowin made a part 36 offer of £32,000 in respect of her costs. A month later, the detailed assessment process began with her claiming £55,086.

On 8 December 2015, Master Whalan provisionally assessed her costs at £32,255. Having beaten the offer, he made the usual part 36 order.

Ms Lowin claimed £6,091 for the costs of the assessment proceedings. Though ordering the company to pay the costs on the indemnity basis, Master Whalan decided that they should be capped pursuant to CPR 47.15(5). This led to a total of £2,805 – £1,500 in costs plus VAT and the £1,005 court fee.

On appeal, Mrs Justice Laing reversed him after following the Court of Appeal’s ruling in Broadhurst v Tan, which decided that a party who beat a part 36 offer in a case where fixed fees applied was eligible for indemnity costs as there was tension between the two concepts.

But giving the ruling, Lady Justice Asplin said Broadhurst was not relevant and that Master Whalan had taken the correct approach.

Unlike with fixed costs, a cap did not prevent costs being assessed on the indemnity basis “or affect the quantum of the costs which are being assessed under that rule”, she said.

“It merely inhibits the amount which can be awarded, the assessment of the party’s costs having taken place on the indemnity basis as required by CPR rule 36.17(4)(b). If the party’s costs assessed on the indemnity basis were less than the cap, the full sum would be awarded…

“It follows that, with great respect, I do not consider that the judge was right to conclude… that there is a material conflict between costs assessed on the indemnity basis and costs assessed on that basis subject to a cap.”

There was, Asplin LJ continued, nothing in the CPR to suggest that the cap should be disapplied.

“Such a construction is also consistent with the policy behind both CPR rule 47.15 and part 36.

“It does not undermine the intention to encourage the quick and cheap resolution of the assessment of costs in cases in which the costs claimed are £75,000 or below.

“Nor does it deprive the successful party of the not inconsiderable benefits in CPR rule 36.17(4)(a)-(d) albeit that the costs under (b) [indemnity costs] are subject to the cap.”

A spokesman for the Association of Costs Lawyers said: “While the clarity provided by the ruling was needed, the outcome is very harsh for costs lawyers.

“There will be plenty of cases where the paying party does not accept a part 36 offer and instead causes the other side to spend significantly more than £1,500 in dealing with costs issues.

“But on beating their own offer at assessment, the receiving party enjoys all the usual benefits, except in relation to this one aspect of their case. And it will be their costs lawyer who suffers through no fault of their own.

“We call on the Civil Procedure Rule Committee to consider the impact and fairness of this ruling – making this exception seems at odds with the thrust of the whole part 36 scheme.”




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Houses of Parliament

Lord Lang said access to justice review should not be “unduly restrained”

The government’s plan to introduce a stricter test on judicial review outcomes “risks undermining the rule of law”, the House of Lords constitution committee has warned.

In their report on the Criminal Justice and Courts Bill, which will enter its committee stage in the Lords later this month, the peers said judicial review was central to the rule of law.

The current test gives the courts a discretion to reject judicial review applications where they are satisfied that it was inevitable that the decision involved made no difference to the result.

The new test, set out in clause 64 of the bill, would require courts to reject applications where the outcome would not have been “substantially different”.

Peers said the new test changed “the current test of inevitability to a new test of high likelihood”, raising an issue of “both of principle and practical concern”. They said lowering the threshold risked “unlawful administrative action going unremedied”.

Peers quoted from a statement made by Lord Neuberger, the president of the Supreme Court, in his evidence to the committee.

Lord Neuberger said that although some “hopeless applications” got through, because judicial review was so important, people should accept that “inevitably that there will be some applications that are unmeritorious but nonetheless get pursued and hold things up.

“But provided it does not get out of hand—I have no reason to think that it has got out of hand—it is a small price to pay for a healthy judicial review system.”

The constitution committee added that clause 64 could turn the permission stage of a judicial review hearing into a “full dress rehearsal of the substantive hearing”.

Peers also attacked clauses 67 to 70 of the bill, which would impose tougher costs rules on interveners and restrict the ability of the courts to make protective costs orders (PCOs) in judicial review cases.

The committee said that peers may wish to consider, as the bill progressed through the House of Lords, “whether the restrictions in clauses 67 to 70 impose too great a limit on effective access to justice”.

Lord Lang of Monkton, the committee chairman and a Conservative peer, said: “The Criminal Justice and Courts Bill will clearly have a significant impact on judicial review.

“Judicial review is an important means for citizens to challenge the legality of decisions by the state, so access to the process should not be unduly restrained.”

Justice minister Lord Faulks told the House of Lords earlier this year that ministers “firmly reject” the accusation that changes to the rules for payment of legal aid in judicial review cases would undermine access to justice.




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Eclipse2014 200x200By partnering with Eclipse to create this system, we have shaped the software to perfectly suit our business needs. Throughout the entire process, we found Eclipse to be extremely supportive and hands-on, enabling us to build a comprehensive Practice Management system that has quickly become an integral part of our firm.

“Put simply, we could not carry out Mediation work in this volume – nor to this quality – without Proclaim.”

Based in Leeds, Consilia Legal is an expanding niche law firm specialising in Mediation, Family and Employment services. The practice, which recently celebrated its 1st birthday, offers an upfront, fixed fee approach to its work, ensuring clients are supplied with manageable costs from the outset.

This ethos coupled with the personal and tailored service offered by staff, explains the rapidly increasing client base and outstanding reputation already earned by the young practice.

 The areas of law covered by Consilia – specifically Mediation – are extremely document heavy. Having previously used a basic and disparate system, the firm needed a software provider to help create a bespoke solution able to handle the complicated rates and structures inherent within Mediation work.

A bespoke Proclaim Mediation Practice Management Software solution was created as a joint project between Eclipse and Consilia. Both firms worked together to develop workflows and documents required for the new case type, guaranteeing a completely adaptable system.

Furthermore, the firm opted for Eclipse’s fully integrated out-of-the-box Family and Employment systems to allow the entire team desktop access to productivity-enhancing workflow and task management tools.

Since implementing Proclaim, Consilia now possesses the ability to operate as a virtually paperless office, an invaluable benefit given the volume of documentation linked to Mediation.

The firm can also regularly modify its standard case structure to suit Legal Aid/Private Client work. All time is recorded automatically and can be easily uploaded to the LAA, eliminating duplicate data entry and the risk of human error.

Additionally, Consilia is currently in the process of developing another bespoke system with Eclipse – this time for workplace Mediation.




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Regan: 20 potential reforms under consideration

Regan: 20 potential reforms under consideration

Posted by Professor Dominic Regan, a senior consultant with and on the advisory boards of Validatum and Litigation Futures sponsor Burcher Jennings

Amidst the welter of 2013 reforms, the legitimisation of contingency fees stood out. For centuries we had been told that a lawyer could not run litigation in return for a cut of the damages recovered. This would invite corruption, as the representative would have an overwhelming temptation to do whatever was necessary to win.

No more. It is now legitimate to do just that. The maximum take, inclusive of VAT, is 50% of the monies recovered. Special and less generous provisions apply to injury. Unfortunately, the law insists that the lawyer cannot charge the client in such a way that no risk is borne by the client. This feature has meant that barely anyone has used the damages-based agreement (DBA).

The good news is that some 20 potential reforms are under active consideration. Whilst the government has refused to amend the ‘no charging of the client’ principle, there are some sensible, encouraging concepts on the table.

Currently, only a claimant can avail themselves of a DBA, since their payment is derived from damages recovered. One proposal is to open up the market to defendants. In essence, they could be rewarded by reference to the amount they save their client. Consider a defendant being pursued for say, £1m. It would be feasible for them to agree to give their lawyer a percentage of any reduction secured. This would be the mirror image of the DBA for a claimant except that it would always be the client here who would pay the lawyer.

In Ontario, the birthplace of the model we have adopted, lawyers are entitled to be paid on a quantum meruit basis if the agreement fails for whatever reason. Here it is presently all or nothing. This too is under review.

Another current oddity is the operation of the indemnity principle. Suppose that one takes on a claim for £2m, having agreed a 30% fee. The firm litigates the matter and runs up a bill of £750,000 against the defendant. The most the firm can recover from them though is £600,000 as that is what the firm’s remuneration would be under the DBA.

And, of course, every pound in costs recovered goes to the credit of the client. The firm does not receive costs on top of my agreed percentage.

Lord Justice Jackson was and is a keen supporter of the DBA for it creates another avenue of funding the litigation process. Let us hope that second time around the Ministry of Justice gets it right.

My thanks to Professor Rachel Mulherron whose recent talk in Birmingham inspired and informed this note




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Tonks: government should stop, review and take stock

The judicial review over the government’s proposed cut in RTA portal fees will be heard on 1 March, it emerged yesterday amid a flurry of developments.

As reported on Tuesday, the High Court has ordered a ‘rolled-up’ hearing of the action brought by the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society.

This means that both the permission hearing and the substantive hearing will be held together, which some are interpreting as a signal that the court will grant permission. At the same time, the court frequently takes this approach in high-profile judicial reviews.

There is speculation that the government will announce its plans for portal extension and the final portal fee by the end of this month, and so before the hearing.

Speaking yesterday at the APIL president’s annual luncheon, current incumbent Karl Tonks called on the government to “stop, review and take stock” of what it is doing with its reforms – including what he called the “lazy and reckless” move in the Enterprise and Regulatory Reform Bill currently before Parliament to abolish a worker’s right to compensation for breach of health and safety regulations; instead employees will have to prove that negligence has occurred.

“The government has already shown that it can listen and respond to concerns in relation to reform of the GCSE exam, and it needs to show the same willingness to listen in relation to civil justice,” Mr Tonks said. “It would be irresponsible and wrong to reform and change in haste and then force injured victims to repent at leisure.”

Following the Civil Procedure Rule Committee meeting last Friday, the government has now laid a statutory instrument, containing the revised CPR, before Parliament – no revised practice directions have been published yet, however. Download the rules here: Civil Procedure (Amendment) Rules 2013.

The new rules finally give lawyers and insurers sight of the provisions on qualified one-way costs-shifting at rules 44.13-17. They make it clear that any order against a claimant can only be up to the amount of the damages awarded, and lay out when the court’s permission to enforce an order will be needed and when it will not. Permission will be required where “the claim is found on the balance of probabilities to be fundamentally dishonest”.

Uncertainty as to what constitutes fundamental dishonesty is seen as likely to lead to satellite litigation – for example, would a claimant who is found to have exaggerated one aspect of his claim be caught?

Finally, the Ministry of Justice published the second part of its consultation on whether to change the discount rate. Having last year consulted on the methodology for setting the rate, it is now seeking views on the legal framework.

It focuses on whether the legal parameters defining how the rate is set “produce a rate this is as ‘right’ as it ought reasonable to be so that the person injured is fully compensated but not over-compensated or under-compensated”, and whether there is a case for encouraging the use of periodical payment orders instead of lump sum payments.

The rate is currently set by reference to the expected rates of return of index-linked government stock as a safe investment, but the consultation paper said initial evidence indicates that instead claimants invest in mixed portfolios, including higher-risk investments.

“This may be the result of a number of factors, but it might suggest that the current legal parameters for setting the rate may produce a rate that is too low.”

The consultation closes on 7 May and can be found here.




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Smith: demand for one-stop shop

Burford Capital, the world’s largest litigation funder, has announced three new senior hires in its UK after-the-event (ATE) insurance arm and Litigation Futures sponsor Firstassist Legal Expenses, including a former partner at Nottingham law firm Freeth Cartwright.

Mark Thomson joins from Freeths, where he was a commercial dispute resolution partner, to become a litigation funding manager. He is noted for his expertise in commercial litigation, professional negligence and insurance work.

The new head of operational underwriting is Mike Payne, who has over 20 years’ experience in the London insurance market and has a particularly strong background in the legal sector, having worked as head of business development for a large national law firm for some years.

Louise Smith has joined as product development manager. She trained as a solicitor and worked in private practice as a civil and criminal litigator after qualifying. She has since undertaken roles in both claims management and product development, and has extensive experience across all areas of the legal expenses market.

Firstassist managing director Peter Smith said:  “We are delighted to welcome Mike, Louise and Mark to the team. These are extremely talented individuals who will, doubtless, make a real difference to our business and our clients.

“The UK litigation landscape is changing fast but there is no doubt that the need for greater certainty on costs is here to stay. The demand for a one-stop shop to assist with all aspects of legal expenses insurance and funding is greater than ever and we look forward to helping solicitors and their clients in these exciting and challenging times.”




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Supreme Court: competence decision

The Supreme Court has been asked to decide whether the Welsh Assembly can introduce legislation that allows the NHS to recover the cost of treating asbestos victims from negligent employers or their insurers.

It is estimated that the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill, a private member’s bill introduced by former Thompsons partner and now Assembly member Mick Antoniw, will raise around £1m a year.

However, the competence of the Welsh Assembly to pass the bill – which it did in November – has been repeatedly questioned by insurers, and this week Theodore Huckle QC, the Counsel General for Wales, announced his reasons for referring it to the Supreme Court to decide.

“Before the Supreme Court I will contend strongly that the bill is within the Assembly’s legislative competence,” he said.

“However, making a reference before it receives Royal Assent enables the matter of the bill’s competence to be determined without awaiting what I consider would be the inevitable challenge in potentially far more expensive court proceedings in due course, perhaps when substantial amounts of money had been recouped under the bill’s provisions and would quite likely be subject to repayment were the decision of the courts to be adverse.

“The litigation costs of a reference being made during the intimation period are likely to be less than the costs of any challenge brought once the bill is enacted under the usual judicial review procedure, as Supreme Court rules provide that orders for costs will not normally be made either in favour of or against interveners [such as the Association of British Insurers].

“It is in my view in the public interest for me to take the initiative in seeking the Supreme Court’s decision on the bill as it stands.”

The Welsh initiative has raised questions as to why the Westminster Parliament does not introduce a similar measure for England.

See blog: Justice for asbestos victims moves forward




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McCann: deterrent

McCann: deterrent

A man who brought a fraudulent personal injury claim, and then tried to blame his solicitor for bringing the action without his knowledge, has been jailed for eight months for contempt of court.

Lord Justice Elias and Mr Justice Hickinbottom found Kevin Hooper, 48 of St Mellons, Cardiff, guilty after he claimed that he was involved in a motor accident in March 2014 after a council vehicle had collided with a VW Transporter. There was no question about liability, and the resulting insurance claims were settled.

However, six months later Zurich received personal injury claims from four men – including Mr Hooper – stating that they too had been passengers in the VW. After Zurich revisited the statements provided by the council’s employee and the driver of the VW, there was no possibility that the four men had been involved in the incident.

Mr Hooper was the only one who had brought proceedings, but, when evidence was put to him, he quickly discontinued his claim.

Horwich Farrelly applied to the court for permission to commence committal proceedings. In response, Mr Hooper sought to blame his solicitor for submitting the claim without his knowledge or authorisation.

However, the solicitor produced a witness statement that the claimant had signed as well as a telephone recording of Mr Hooper talking about the claim in detail and the alleged injuries sustained. Mr Hooper disputed the evidence by saying that it was an imposter on the call recording, that he was illiterate, and had believed the statement that he had signed related to another accident which had taken place on the same day at the same location.

Medical records provided no suggestion of illiteracy and he was unable to produce any evidence from the driver of the vehicle to confirm that he was a passenger. He also failed to provide details of one of his co-claimants to back up his case, saying he had lost contact and had even hired a private investigator to track him down, but without success.

Investigations by Horwich Farrelly then revealed that the co-claimant was, in fact, his long-term partner’s nephew.

Elias LJ said: “In the circumstances, you have not helped yourself. I have regard to the fact of the aggravating feature that you have failed to admit anything and have sought to blame your previous legal representatives…

“You have failed to face your dishonesty and instead have been dodging and weaving. You have sought to embroider your account as the evidence has strengthened. Fraudulent claims are very widespread. They are very damaging to the insurance industry. They are very difficult to detect. They affect the insurance premiums of honest motorists. The court has to accordingly take a strong line.”

Ronan McCann, counter-fraud partner at Horwich Farrelly, said: “A custodial sentence was inevitable in this case and it needs to be seen as a deterrent for anyone who is looking to make false allegations.”




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RTA claims: battle over fixed recoverable costs

The Association of Personal Injury Lawyers (APIL) and the Motor Accident Solicitors Society (MASS) have this afternoon issued a judicial review of the government’s proposal to cut the basic RTA portal fee from £1,200 to £500.

The government’s proposals – announced in November, with the consultation ending on 4 January – have been strongly criticised for not providing an evidence base to justify the fee cuts, and also the new levels for the extended portal to higher-value road traffic claims, and also employer’s and public liability cases worth up to £25,000.

As a result of the threat of judicial review from APIL and MASS, the government is already ‘reconsidering’ the date of the introduction of the extended portals, but appears to be pressing ahead with cutting the fees for those RTA cases worth £1,000 to £10,000 already in the portal.

In a statement, the pair said they were “concerned that the decision was made at an insurance summit held by the Prime Minister where the government consulted insurers but not those representing the interests of victims and claimants.

“We also challenge the fact that the government appears to have accepted the insurance industry’s analysis that, if referral fees are banned, solicitors will make an unacceptable level of profit from cases run through the scheme.

“Fees in the current scheme were not calculated on the basis of referral fees. So, by consulting only with insurers, the government’s proposal to make these cuts is both unfair, and based on a misinterpretation of the facts.”

They said that underpinning the judicial review is the shared concern of both organisations that the proposed cuts will make running cases through the scheme unaffordable. “Victims will find it difficult to obtain independent legal advice and will in turn be forced to negotiate with insurers for the compensation they need. With the vast majority of injured people having no knowledge of what their injuries are ‘worth’ in terms of damages, such negotiations will be biased in favour of the insurers and their shareholders.”

In response to the judicial review application, a Ministry of Justice spokesman said: “We have consulted on changes intended to ensure claims are handled quickly and efficiently and accident victims with genuine cases can be compensated as soon as possible.

“These changes, along with our wider reforms, are intended to bring more balance to the system, make lawyers’ costs proportionate and in turn create an environment where insurers can pass on savings to their customers through lower premiums. We will publish our response to the consultation in due course.”




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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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Jackson: unfinished business

Lord Justice Jackson has today put forward his vision for extending fixed recoverable costs (FRC), but said he has not gone as far as originally envisaged because of improvements made in costs management, particularly over the last 18 months.

He proposed “finishing the job” of introducing FRC for all fast-track cases, as well as a new fixed-cost ‘intermediate’ track for certain claims up to £100,000, and a voluntary pilot of a ‘capped costs’ regime for business and property cases up to £250,000, with streamlined procedures and capped recoverable costs up to £80,000.

“In my view it is now right to extend FRC above the fast track, but we must proceed with caution in order to protect access to justice,” he said.

In what he described as a “supplement” to his original 2009 report, Sir Rupert said the “holy grail” pursued by every civil justice reformer was a system in which the actual costs of each party “are a modest fraction of the sum in issue, and the winner recovers those modest costs from the loser”. Germany came closer to the ideal than England and Wales, he said, because it has a civil justice system “fundamentally different from our own”, with little disclosure and oral evidence.

“In the context of a common law jurisdiction, however, there are limits on what can be achieved. Adversarial litigation is an inherently expensive process.”

Nonetheless, the judge – who retires next year – said: “I have sought to balance the many competing interests in terms of access to justice and proportionality of costs. I have made my recommendations and set out what I believe to be reasonable costs and proposals.

“It will now fall to the government to consider this report, and no doubt subject their own proposals for reform to public consultation.”

Jackson LJ said he was “bound to accept that improvements in costs management (especially in the last one-and-a-half years) have eliminated any need to develop FRC on the scale canvassed in my lecture of January 2016” – when he talked about FRCs for all cases worth up to £250,000.

“Nevertheless, the possibility remains of substantially extending FRC in the future, if the costs management process either fails to deliver effective control over costs or becomes unduly expensive.”

Arguing that his earlier reforms have “substantially reduced litigation costs”, he described FRC as “the principal piece of unfinished business”.

He put forward a grid of FRC for all fast-track cases (see end of story), much of which was based on data from Peterborough law firm Taylor Rose TTKW, a defendant practice.

Under the proposals, all fast-track cases would be placed into four bands of complexity, band 1 being the least complex and band 4 the most:

  • Band 1: RTA non-personal injury, defended debt cases;
  • Band 2: RTA personal injury (within protocol), holiday sickness claims;
  • Band 3: RTA personal injury (outside protocol), employers’ liability accident, public liability, tracked possession claims, housing disrepair, other money claims; and
  • Band 4: Employers’ liability disease claims (other than noise-induced hearing loss, which is set to have its own dedicated FRC scheme), any particularly complex tracked possession claims or housing disrepair claims, property disputes, professional negligence claims and other claims at the top end of the fast-track.

He said FRCs should be uprated every three years by reference to the services producer price index.

For cases above the fast-track limit of £25,000, he said the case was made out for FRCs for several reasons, including that many cases which are currently in the lower reaches of the multi-track were sufficiently straightforward to be accommodated within such a regime.

Further, in lower-value cases, there was a greater risk that the budgeting process costs themselves were disproportionate, and in any case FRCs brought “a greater level of certainty than costs management can achieve”.

The criteria for the new intermediate track, again broken into four complexity bands, would be:

  • The case is not suitable for the small claims track or the fast-track;
  • The claim is for debt, damages or other monetary relief, no higher than £100,000;
  • If the case is managed proportionately, the trial will not last longer than three days;
  • There will be no more than two expert witnesses giving oral evidence for each party;
  • The case can be justly and proportionately managed under a new expedited procedure;
  • There are no wider factors, such as reputation or public importance, which make the case inappropriate for the intermediate track;
  • The claim is not for mesothelioma or other asbestos-related lung diseases;
  • Alternatively, there are particular reasons to assign the case to the intermediate track.

The FRC grid is set out at the end of the story. He also recommended FRC for applications to approve settlements for children and protected parties and costs-only proceedings, in respect of intermediate track cases.

Jackson LJ recommended that the new track be reviewed after four years and that, if it was working satisfactorily, it could be extended to cover monetary claims above £100,000 and claims for non-monetary relief.

In relation to business and property litigation, he said FRC would promote access to justice in some cases – such as where “a householder of modest means is suing their builder” – but in other instances, costs management would be preferable.

Jackson LJ said that “capped stage costs are the best variant of FRC for this class of litigation”, although recognised that if recoverable costs were capped in that way, “the work to be done must also be controlled… That requires a streamlined procedure and robust case management”.

So, as we reported in April, he has put forward a voluntary pilot to run for two years in a small number of the Business and Property Courts.

There would be no automatic disclosure, witness statements or expert evidence, the trial would take place no more than eight months after the case management conference, and last no longer than two days, while the case would be fully docketed.

If the pilot proved a success, Jackson LJ said the regime should become available for any suitable case in the Business and Property Courts or the business and property lists of the county court up to a value of £250,000.

“It may well become appropriate to extend the regime to cases up to £500,000, but that must be for future consideration.”

Specifically on clinical negligence, Sir Rupert recommended that the Department of Health and the Civil Justice Council set up a working party with both claimant and defendant representatives to develop a bespoke process for handling claims up to £25,000.

“That bespoke process should have a grid of FRC attached. This scheme will capture most clinical negligence claims. Previous experience (for example, with noise induced hearing loss claims) shows that it is possible for the ‘industry’ to come together and develop such schemes.

“There is sufficient good will on both sides to achieve that in the field of clinical negligence. I remain willing to arbitrate informally on any points of disagreement.”

Finally, he put forward measures to limit recoverable costs in judicial review claims, by extending the protective costs rules currently used in environmental cases. “Citizens must be able to challenge the executive without facing crushing costs liabilities if they lose,” he said.

FRC grid for fast-track claims

FRC grid for the intermediate track




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Laird Assessors are pleased to announce that they have teamed up with The SOLICITORS Group to offer you 20% discount off the cost of a 6 hour Personal Injury Conference as a valued customer of Laird Assessors.

the SOLICITORS group are leading providers of high quality, affordable CPD training for the legal profession. Their courses are constantly reviewed to ensure that they cover all of the latest changes and developments in the law. For further details of conferences running click here to visit the website.  The dates and locations we are running this offer on are:

Please note, you will be invoiced the full amount by the SOLICITORS group and you should claim your 20% discount direct from us.  Discount applies to conferences to the following LAW2014 events; Birmingham (27th Feb), London (20th March), Peterborough (2nd April), Gateshead (30th April).

We really hope this offer will be of value to you and your teams.  For more information, please contact Pippa Saunders on 0151 342 0670.




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Spencer: assigned to QBD

The Lord Chief Justice has named the next quartet of presiding judges after the current post-holders’ terms finish at the end of 2017, having named seven new High Court judges earlier this month.

Their number includes the first Bangladesh-origin judge to reach that level, and a solicitor who has been a full-time tribunal judge for 16 years.

Mr Justice Jeremy Baker has been appointed the presiding judge of the Midland Circuit, to succeed Mr Justice Haddon-Cave. On the Northern Circuit, Mr Justice Dove will replace Mr Justice Turner.

Mr Justice Edis will take over the South Eastern Circuit from Mr Justice Spencer. Finally, the Wales Circuit will see Mr Justice Picken succeed Mrs Justice Davies.

The four barristers will each serve for three years. They have between 12 and 18 years’ experience on the bench, having all started as recorders, with Mr Justice Picken the latest to join the High Court bench, in 2015.

Frances Crook, CEO of the Howard League for Penal Reform, tweeted: “Oh. Look. Four white chaps appointed as Presiding Judges, one of whom is replacing a woman. Just saying.”

Akhlaq Ur-Rahman Choudhury QC of 11KBW is to be the first Bangladesh-origin High Court judge, replacing solicitor Sir Gary Hickinbottom, who has been elevated to the Court of Appeal.

Mr Choudhury, who is 50, was called in 1992 and took silk in 2015. He was appointed as a Recorder in 2009 and a deputy High Court judge in 2016. He will be assigned to the Queen’s Bench Division (QBD).

Solicitor Peter Lane is also joining the QBD, following the retirement of Sir Michael Burton. The 64-year-old was admitted as a solicitor in 1985 and became a salaried immigration adjudicator in 2001. Since 2014 he has been president of the General Regulatory Chamber.

His Honour Judge Julian Goose QC will join the bench when Dame Laura Cox retires. Aged 56, the former head of Zenith Chambers in Leeds will also be assigned to the QBD. He was appointed as a senior circuit judge in 2013.

The appointment of Simon Bryan QC of Essex Court Chambers, again to the QBD, will follow the retirement of Sir Alan Wilkie. Aged 51, he became chief justice of the Falkland Islands in 2015.

Upper Tribunal Judge Gwynneth Frances Knowles QC’s appointment to the Family Division comes in the wake of Sir Peter Jackson joining the Court of Appeal.

Formerly of Atlantic Chambers in Liverpool, the 55-year-old became a salaried judge in 2014 with her appointment as judge of the Upper Tribunal, Administrative Appeals Chamber.

Jonathan Cohen QC of 4PB will also be assigned to the Family Division after the retirement of Sir Antony Edwards-Stuart.

Mr Cohen, who is 66, has been a fee-paid tribunal judge since 2000 and was authorised to sit as a deputy High Court judge in 2005.

Finally, Martin Spencer QC of Hailsham Chambers, will be assigned to the QBD following the death of Dame Frances Patterson.

Mr Spencer, who is 61, is president of the Expert Witness Institute and was only authorised to sit as a deputy High Court judge earlier this year.

All the new High Court judges take on their posts on 2 October.




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Banyard: Guidance notes in White Book extremely persuasive

Posted by Marc Banyard, a costs lawyer at Litigation Futures Associate The John M Hayes Partnership

How should you treat costs incurred between the date of an initial costs budget and the date on which an updated costs budget has been prepared? Do they fall as incurred costs for the purpose of the updated budget or remain as future costs?

If such costs were retrospectively reclassified as incurred costs for the purposes of the updated budget, it would be possible to exceed the budgeted figures under the original budget with impunity, knowing that by filing an updated budget, such costs would become reclassified as incurred and, owing to the operation of PD3E 7.4, would now be removed from the purview (and censure) of the judge undertaking the budgeting exercise. The same would then fall for scrutiny on detailed assessment.

Equally, by filing an updated budget as late as possible in the litigation process, it might be possible to render all previous budgeting effectively otiose by shifting the great majority of costs into the incurred section.

On the other hand, it could be argued that PD3E 7.4 requires a reclassification of the costs for the intervening period in this manner by stating: “As part of the costs management process, the court may not approve costs incurred before the date of any costs management hearing.”

The court “may not” approve the costs for the intervening period as they have been “incurred before the date of [the second] costs management hearing”, whatever the undesirable ramifications.

This latter approach was preferred by Mr Justice Warby in Yeo v Times Newspapers Ltd [2015] EWHC 2132 (QB), in which he said: “PD3E 7.6 is not an apt vehicle for obtaining the courts approval for costs incurred before the budget.”

Happily this ambiguity appears to have been largely resolved by subsequent amendments to the CPR introduced under the Civil Procedure (Amendment) Rules 2017 (SI 2017/95) with effect from 6 April 2017. This amended the terminology used at CPR 3.15(1), introducing the term ‘budgeted costs’ in preference for the term “budget” to clarify exactly those costs which are within the judge’s purview during the budgeting exercise.

The notes accompanying CPR 3.12 in the current White Book (at 3.12.3) state that ‘budgeted costs’ refer to the costs parties place in the columns headed incurred costs in the first budget they submit in compliance with rule 3.13(1). ‘Budgeted costs’ should now be understood to refer to the costs the parties place in the columns headed estimated costs in that budget.

Any ambiguity is further addressed as the notes continue: “If after the approval of that budget, the party submits a revised budget seeking an increase in respect of any part of it, the costs previously shown in the incurred costs column should remain the same; unless and until the court approves any revision, the costs previously approved in the estimated columns (the budgeted costs) should remain in the estimated columns even if substantial amounts of them have now been incurred.”

Although not a source of law, the guidance notes in the White Book offer an extremely persuasive provenance for any judge dealing with costs management.

On that basis, it can be surmised that costs incurred between the date of the initial and updated budget should remain in the columns for future costs and not be reclassified as incurred.




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Budget revision: court cannot approve incurred costs

Budget revision: court cannot approve incurred costs

There is a “high premium on swift action” when revisiting costs budgets, a High Court judge has warned, questioning why a revised budget was not prepared quicker than four days after the issue that caused it arose.

In Mr Justice Warby’s latest ruling on the budget of Conservative MP Tim Yeo in his libel action against The Sunday Times, the main revision in dispute was a £36,120 contingency to considering the impact of parliamentary privilege on the case as a result of a change in the law. Of this, nearly £21,000 had already been incurred.

Warby J rejected the submission that he could and should approve the variation pursuant to PD3E 7.6, saying this only allowed the approval of future costs.

He was pointed towards his own statement in his initial ruling on the parties’ budgets that “if work identified as a contingency is included in a budget but not considered probable by the court, no budget for it should be approved. If the improbable occurs, in the form of an unexpected interim application, the costs will be added to the budget pursuant to PD3E 7.9, unless the matter involves a ‘significant development’ within para 7.6 in which case, if time permits, a revised budget should be prepared and agreed or approved.”

Warby J said: “I still take that view, but I do not think it supports [the claimant’s] position. The key words in that passage are ‘if time permits’. If the unexpected happens, and time does not allow for a revised budget to be approved before costs are incurred, then there will often, perhaps usually, be an unexpected interim application and PD3E 7.9 will apply. The fall-back position is CPR 3.18(b).

“Mr Browne [for Mr Yeo] points out that this puts a high premium on swift action to prepare a revised budget. That must be right, but I do not see it as a good reason to adopt a different interpretation.

“Take this case. The issue is said to have arisen on 6 July. It has not been made clear to me why a revised budget could not have been prepared sooner than 10 July. There is some force in Mr Browne’s submission that the analysis I have set out is unsatisfactory for an individual paying privately, such as Mr Yeo. It leaves him in undesirable uncertainty about the recoverability of a large slice of cost until after the assessment stage.

“But I do not think that leads to a different conclusion. As I have said, such a litigant will normally have an unexpected interim application on which to peg reliance on PD3E 7.9. In any event the wording of the practice direction is too clear to allow me to accept that incurred costs can be approved in this way.”

In any event, the judge said he was not persuaded that there has yet been a “significant development in the litigation” within the meaning of PD3E 7.6 which would justify the approval of any additional costs.




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PrintOur latest free costs seminar on Friday 10 April is now fully booked but you can still add your name to the waiting list and hopefully secure a last minute space.

We are delighted to announce that this year Roger Mallalieu, Barrister from 4 New Square, will be joining us at The Law Society, London as a speaker.  Our Senior Partner Matthew Harman will provide a budget update followed by Roger who will give a case law update.

We will be holding two sessions: 9.15am-10.30am and 10.45am-midday. Please note: both sessions are now full but there may be some last minute availability. Each session carries 1 CPD point.

Our seminar is free and open to all but is limited to 35 attendees per session. Please email vikki.knight@harmanscosts.com for latest availability.

 




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Deaf clients: rocky road ahead from next month

640-864 dumps

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 will have a “negative effect” on the deaf and hard of hearing, according to the only law firm in the country 700-505 with a practice dedicated to this part of the population.

Joseph Frasier Solicitors, based in Blackburn, Lancashire, launched a campaign in 2011 to make legal services more accessible to deaf people and has invested more than £200,000 in state-of-the-art technology to make its communications and services more deaf aware.

The firm has facilities such as webcams, text relay, MSN, text, Skype, Twitter and onsite interpreters to better understand clients. Fee-earners are British Sign Language trained and the cost of an interpreter is included in fixed price fees.

Chief executive Saimina Virmani said the 1 April reforms mean many deaf and hard of hearing claimants have “a rocky road ahead”.

She explained: “When deaf people need legal advice, they either go to a charity or a community group and get referred on through word of mouth to a solicitors’ firm.

“But with legal aid being cut, more and more prospective clients don’t qualify and because Jackson is putting such pressure on firms’ profits, many won’t pay for an interpreter.”

Ms Virmani cited a bleak picture in the north-west, with several firms going bust in recent months.

But she said her concern is not for her firm – turnover is up 77% in the past five years despite no external funding or major investment – but for the clients they have to turn away.

She added: “We’ve been quite successful because we’ve focused on a certain niche. My focus now is on lobbying for change. The Solicitors Regulation Authority (SRA) needs to properly regulate firms so that they only give advice to deaf clients if they have BSL-trained staff, the government needs to change the legislation on the control of noise at work and the state should consider serious provision for interpreters.

“[Last year] the SRA and Legal Services Consumer Panel published a report and came in to see what we were all about. But nothing’s been done to follow it up. There is less access than ever.”

At an event last week Joseph Frasier Solicitors was presented with its Lexcel accreditation and a Department for Work and Pensions ‘Positive About Disability’ award.

The only dedicated legal resource for deaf people is the RAD Deaf Legal Centre (part of the Royal Association for Deaf People). Last month it launched a call-centre style webcam portal to allow deaf people to get in contact in BSL online.




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Burcher Jennings200Amidst an environment where the legal industry has been subject to much change and transformation, Burcher Jennings hosted a Catastrophic Injury Conference on 10 November to provide legal practitioners with an update of past and future developments in this area.

Burcher Jennings provides a comprehensive portfolio of specialist costs, pricing and funding services designed to enable law firms to boost efficiency, profitability and cash flow in a new and innovative way.

The firm brought together leading experts and practitioners who shared their personal experiences, insight and guidance, with everything from marketing law firms, insuring, pricing and funding cases, to achieving the best possible results and maximum reward for their firm and clients.

Topics of discussion at the conference included Litigating Serious Head Injury Claims; the NHSLA Annual Report 2014 – 2015; ATE Insurance; Funding; Predicted reforms in Clinical Negligence for 2016-2017; Condition and Prognosis in Catastrophic Brain Injury Cases, and insight into pricing strategy for law firms.

Speakers included Dr Jay Jayamohan, Consultant Paediatric Neurosurgeon (of BBC’s ‘Brain Doctors’ fame); Grahame Aldous QC of 9 Gough Square; Professor Dominic Regan, Joanne Powell, Burcher Jennings and Professor David Chalk, Winchester University, Steve Din, Burcher Jennings ‘Funding for Growth’; Richard Burcher, Burcher Jennings and Viv Williams, 360 Legal Group.

Notable items covered included J Codes and Precedent Q by Joanne Powell while Dominic Regan discussed the likely advent of fixed costs in Clinical Negligence.

Both Dr Jay Jayamohan & Grahame Aldous QC highlighted the importance of speaking not only to the patient/claimant in depth when trying to ascertain condition and prognosis, but also the family/carers.

The event, which took place at the Holborn Bars, was well attended by legal practitioners in this area.




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ISO200With case-handling efficiency and lifecycle management now among the top priorities for many insurance companies, ISO has strengthened its business development team with the appointment of industry veteran David Blakemore.

Blakemore brings more than 40 years’ experience in the insurance industry, including senior management and business development roles at Marsh, Aon, Groupama, Axa, and Dominion. In his new role, Blakemore will be responsible for driving continued market adoption of ISO Claims Outcome Advisor (COA), a personal injury claims valuation tool, and ISO’s MoJ A2A Case Management solution, which provides major improvements in case management efficiency for insurers and solicitors.

The appointment comes at an important time in the market. Joe Pendle, managing director at ISO, explains: ‘Sophisticated claims handling systems, which offer advanced analytic capabilities and access to actionable data, have become an important part of the modern insurance market.’

‘With the benefits of tools such as COA now clear for insurers, demand continues to increase and we’re continuing to develop new products and services to feed this appetite,’ adds Pendle. ‘David has decades of industry experience in developing new sales and new business. With his experience and great understanding of client needs, he will be a strong member of our business development team and is well positioned to help drive our UK sales.’

For more information, visit www.uk.iso.com. If you would like more information about ISO services, please contact David Blakemore, on 01252 365478 or at dblakemore@iso.com




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Coding: lawyers unsure about innovative technology

A lack of understanding among lawyers about what e-disclosure technology can do, along with nervousness about using the more innovative tools – such as predictive coding – mean that the market has only been on a shallow growth curve, a new report has found.

The white paper by APT Search, which says it is the UK’s first recruitment company dedicated to e-disclosure and litigation support, described the UK’s e-disclosure market as “a bit of an enigma”.

It said market conditions look “almost perfect for explosive growth” as the economic downturn gives rise to more litigation and regulators become more aggressive in the wake of various banking scandals. “Meanwhile, the volume and diversity of the search exercises required in litigation or by regulators continue to grow exponentially, while the tools provided by search technology to cope have improved enormously.”

Yet while the courts and regulators are beginning to accommodate the use of cutting-edge search technologies, firm precedents remain thin on the ground, APT said.

This tentativeness also translates into business relationships. “There is relatively little appetite amongst clients to chop and change e-disclosure providers when the technology is not fully understood. Trust and personal relationships are the key drivers of purchasing decisions rather than a desire for bleeding-edge technological solutions.”

However, many e-disclosure providers still believe that conditions are ripe for growth to accelerate and are trying to position themselves to take full advantage when it does, the white paper said, with new entrants to the market, mainly from the US, and smaller players are being absorbed into the larger providers.

“At the same time, some law firms and companies – especially banks – are waking up to the growing importance of e-disclosure (and information governance generally). Many are responding by developing their own in-house capability to complement the services available from vendors. The effect of this is that the market for e-disclosure is both consolidating and becoming more diverse at the same time. It promises to be an interesting few years ahead.”

Amit Pandit, managing director at APT Search, said: “Organisations are looking to prepare themselves for better times ahead, whilst defending existing market share and managing potential risks.

“Consequently, the demand for e-disclosure professionals is strong in the UK, with salary levels continuing to rise. Furthermore, these changes in the market are creating new opportunities for people not only in traditional positions, but also creating roles that did not exist before.”




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Sharpe: Many claimants will easily be put off by this scheme

Posted by Simon Sharpe, a law costs draftsman at Litigation Futures Associate Just Costs

The travel industry is urging holidaymakers with sickness claims to use its own settlement scheme rather the instruct lawyers.

The Association of British Travel Agents (ABTA) has unveiled a new and independent alternative dispute resolution scheme for personal injury claims worth up to £10,000.

Whilst I support ABTA’s attempts to seek a more streamlined remedy for sickness claims, I can’t help but think that the lack of involvement of solicitors would result in under-settlement. Even with the existence of the ABTA scheme, defendant insurers will still likely raise issues with regard to breach of duty or causation, and these will be no less difficult to prove than in litigation.

In the recent case of Wood v TUI, claimants were given given a firm reminder that they still bear the burden of proof, even if the contractual term is a strict one, and cases will continue to be fought – and won or lost – on the question of medical causation, with experts of different disciplines assuming even greater importance than before.

The absence of professionals to address these issues will result in a higher rate of failure of potential claims that would most likely have been capable of settlement had they been more robustly pursued.

Many claimants will easily be put off by this scheme. If they are told by a seemingly impartial body that their claim is doomed to failure, then they will drop it.

Furthermore, I have doubts as to the ‘impartiality’ of any parties involved. This scheme is being advocated by ABTA and therefore this leads me to suspect that there will inevitably be some bias.

Of course, if claimants continue to instruct solicitors to pursue the claims for them, then they can be confident that their interests will be at the forefront of the solicitors’ minds when their claims are being brought.


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Avoiding the trap of fixed costs in high-value claims

David Disney

Have you been caught out by fixed costs on a high-value RTA or EL/PL claim that settled prior to allocation to the multi-track? Over the past couple of months, we have seen this issue arise on a number of occasions. So, in what circumstances do fixed recoverable costs (FRC) under part IIIA of CPR 45 apply to high-value claims? They apply if a claim was submitted through the portal but no longer continues under the relevant protocol and the matter is not allocated to the multi-track. This is the scenario we are finding to be quite common in practice and something which practitioners should become familiar with in order to avoid the pitfalls of fixed costs.

February 23rd, 2018