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Mark Jones

Jones: “No reason to think” changes would be limited to whiplash cases

A group of seven personal injury firms, including Express Solicitors and Quindell Legal Services and joined by the QualitySolicitors network, is preparing a judicial review to challenge the government’s overhaul of medical reporting in whiplash cases, it has emerged.

The other firms involved are JMW, Jefferies Solicitors, Winn Solicitors, Savas and Savage Solicitors, and Thorneycroft Solicitors. Five medical reporting agencies are also backing the judicial review.

Mark Jones, partner at JMW and the lawyer acting for the group, said today there were concerns that the plans would “ultimately result in people pursuing any personal injury action being denied justice”.

He went on: “There is no reason to think that these changes would not just affect whiplash cases but would subsequently be applied to all personal injury and other civil claims. That is a prospect which simply needs to be challenged.”

Mr Jones also described ministers’ use of a randomly-allocated panel of experts as “irrational and anti-competitive”.

He argued: “On the one hand, government has been telling us that it wants to support entrepreneurial business and yet, at the same time, it would be preventing many law firms and medical agencies from conducting and expanding their current enterprises which could lead to serious adverse consequences, including selling or closing parts of their operations and making staff redundant.

“We feel that this is one of a number of points which show the reforms to be ill-conceived and underlines why we believe they should be challenged in the courts.”

Mr Jones said the government’s desire to clamp down on the number of fraudulent claims should not be at the cost of the legitimate claimant. He said the proposed changes amounted to “a quantum leap by the government” and an attack on justice.

“We would move from an adversarial system to a more inquisitorial one and reduce the process of making a claim to a form-filling exercise.

“It could prevent more than 900,000 people forced to make legitimate whiplash claims each year full access to justice.

“It cannot be right that a claimant is refused the right to carefully select a properly qualified and accredited expert and is told instead they must choose someone from a more limited list made available to them.”

Mr Jones added the move infringed accident victims’ human rights, in that it impeded their ability to prepare claims.

He called on other personal injury lawyers, either as individual firms or through representative bodies such as the Association of Personal Injury Lawyers (APIL), the Law Society and the Personal Injury Bar Association, to join the campaign to halt the reforms.

 

 




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Eclipse200Law Society endorsed legal software supplier, Eclipse Legal Systems, has announced new J-Code functionality in its market-leading Proclaim solution.

Following the announcement of the approved J-Codes in late 2014 by the LEDES oversight committee (LOC), Eclipse has confirmed that the J-Codes set synchronises with Proclaim’s existing costs budgeting categories as set out in the Precedent H.

Production of the Precedent H form is a standard feature of the Proclaim Case and Practice Management Software systems. This existing costs budgeting functionality will enable lawyers to produce bills and budgets utilising the J-Codes set, even before such usage becomes mandatory.

In addition, Eclipse is currently awaiting the outcome of the consultation by LOC to reach completion regarding bill layouts and will be adding these new layouts to Proclaim’s updated Costs Drafting module. The module is due for release imminently (Q2 2015) and will provide ‘redline bill’ production for costs teams.

Eclipse’s business solutions director, Tracy Blencowe, comments:

“Eclipse’s product development ethos means that we are constantly enhancing the feature-set offered by Proclaim. In short, if there is a marketplace challenge – or an opportunity – for our clients, then we aim to provide the appropriate tools for them to derive maximum benefit.

“This latest implementation of the J-Codes set will enable our clients to comply immediately with ongoing legislation, and to share data in a consistent and readily usable format.”




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Jackson: academics say recommendations will reduce the availability of legal services to injured people

The Jackson proposals to abolish recoverability are fundamentally inconsistent with justice, skewed towards defendants, and likely to hurt serious 70-410 dumps injury victims the most, an influential group of law academics has said.

In a hard-hitting report by a working group of 11 academics, headed by Ken Oliphant, professor of tort law at Bristol University, Lord Justice Jackson’s blueprint is attacked for presenting “a misleading and partial account of the problem… [which] systematically prefers the evidence of the defence lobby” over that favouring injury victims.

Significantly, the academic report, On a slippery slope – a  passrapid  response to the Jackson Report, rejects a key plank underpinning the Jackson reforms: that excessive costs in the present system can be attributed largely to the use of conditional fee agreements (CFAs).

It says: “The evidence presented [by Jackson] fails to substantiate the claim that the primary source of the problem of high costs is rent-seeking by claimant lawyers acting under CFAs.” Rent-seeking is a term applied to those who extract uncompensated value from others without making any contribution to productivity.

The group’s report will be music to the ears of the increasingly vocal opponents of the Jackson reforms. The reforms include scrapping recoverability of success fees and after-the-event insurance premiums in CFAs, along with a 10% increase in general damages to cover this, as well as one-way costs shifting.

It comes ahead of the consultation on the government’s green paper on implementing Jackson, closing on Monday. The consultation proposes various “refinements”, including to recoverability, which Lord Justice Jackson has rejected.

The working group’s report includes chapters by law academics at King’s College, London, and the universities of Cambridge, Cardiff and Birmingham – the Cambridge author is David Howarth, who was the Liberal Democrats’ shadow justice secretary until retiring at the last elec

tion. It was supported, financially and logistically, by national law firm Thompsons, although the academics make it clear that Thompsons had no editorial control.

The report makes two recommendations:

  • That the government reject the core Jackson proposal to take the lawyer’s success fee out of the injured person’s damages; and
  • That the government should appoint a commission of inquiry to gather and assess evidence about the costs of civil litigation. Insurers would provide “unimpeded access” to anonymised case files.

The working group says it set out to submit the Jackson report to “critical analysis” by neutral academics who would “stand up for both the interests of claimants and the general public interest rather than the narrow commercial interests of insurers, personal injury firms, or others with a direct financial stake”.

Its main conclusions were that:

  • The Jackson proposals are “inconsistent” with “the fundamental principle of civil justice” of full compensation for wrongful injury because they entail “raiding” damages. This would be a “slippery slope towards ever greater inroads into compensation to which injured persons are legally entitled”;
  • The “evidential base for such radical reform is entirely inadequate”. The Jackson report “presents a misleading and partial account of the problems” by treating opinion as fact and “systematically prefers the evidence of the defence lobby”;
  • The proposals would “have an adverse impact upon access to justice because they favour the financial interests of defendants over the interests of claimants”;
  • Limits on what lawyers can charge will “reduce the availability of legal services” to injury victims;
  • The proposals will “benefit defendants at the expense of injured persons”, with seriously injured persons “likely to be the biggest losers”;
  • Health and safety will suffer because of the “reduced legal sanction for dangerous practices”;
  • The Jackson report “uses a sledgehammer to crack a nut” and pays too little attention to alternative, proportionate costs-saving measures, such as “a mandatory before-the-event component of motor insurance”; and
  • If adopted, the reforms would make “major changes in the civil litigation system by a process of questionable legitimacy”, because Lord Justice Jackson had determined the issues “on the basis of evidence very largely supplied by one party to a long-running and polarized debate – namely, the defence lobby, consisting largely of liability insurers – with insufficient independent verification”.

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Parliament: legislation should not merely send a message

A bid by a former Law Lord to deny the controversial Social Action, Responsibility and Heroism Bill – the so-called SARAH Bill – a second reading in the House of Lords failed yesterday after the Labour Party chose to abstain.

Though supporting the sentiment behind the amendment laid by Lord Lloyd of Berwick, Labour frontbench spokesman Lord Beecham said the House is usually “cautious” about defeating a bill so early in its parliamentary progress, adding that such a move would give “a trivial bill far too high a profile for its contents”.

Already approved by the House of Commons, despite criticism, the bill is just five clauses long and applies when the court, in considering a claim that a person was negligent or in breach of statutory duty, determines the steps the person was required to take to meet the standard of care.

Under the bill, the judge will need to have regard to whether the negligence or breach occurred when the person: was acting for the benefit of society or any of its members; demonstrated a generally responsible approach towards protecting the safety or other interests of others; or was acting heroically by intervening in an emergency to assist an individual in danger and without regard to their own safety or other interest.

Led by Lord Lloyd, opponents argued yesterday that the bill does not advance the law beyond the position already stated in section 1 of the 2006 Compensation Act, and that it was not the purpose of legislation merely to send a message.

Former Supreme Court justice Lord Brown of Eaton-under-Heywood said: “I find it difficult to see how a court could find, in any of these clauses, anything which would lead it to a different conclusion on the facts of a case. I await an explanation of how that could arise.

“However, if it is intended to change the law, I respectfully submit that that should be made altogether clearer than it is at present. Just what change is it intended to bring about?”

Former Conservative home secretary Lord Hurd said: “If you are contemplating a brave action which may carry some risk, such as diving into a pool or rescuing somebody from a dangerous situation, you are almost certainly taking a quick decision on the spur of the moment. You are not going to creep away and find a book to memorise the course of a debate in your Lordships’ House. So this is a bad way of sending a message.”

However, other peers backed the bill, expressing concern about the impact of the so-called compensation culture and growth of health and safety restrictions.

Baroness Hodgson of Abinger said: “The effect of the bill will be to encourage our fellow citizens to step forward to participate and to become more active members of their community. It will contribute to inspiring them to help others and to pay something back to society, while at the same time offering them reassurance and a degree of protection when things do not go entirely to plan or, as is inevitably the case, accidents happen.”

Justice minister Lord Faulks said the bill’s core aim was “to provide reassurance to people who act in socially beneficial ways, behave in a generally responsible manner, or act selflessly to protect someone in danger by ensuring that the courts recognise their actions and always take that context into account in the event that something goes wrong and they are sued”.

He insisted that it will change the law: “Clause 3 of the bill requires the court to have regard to whether a person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

“This represents a change to the law, as case law does not currently require a court to do this. Clause 3 will oblige the court to weigh that factor in the balance when considering a person’s liability for negligence, or breach of a relevant statutory duty. This will reassure organisations, individuals and small businesses who have taken a generally responsible approach to the safety of others during an activity that the law is on their side.”

And while the minister accepted that “one should be very cautious indeed before legislating simply to send a message… on the other hand, I suggest that it would be idle to pretend that part of what we do is not conveying an important message”.

In light of Labour’s position, Lord Lloyd did not press his amendment to a vote. The bill will now go into committee, where Lord Lloyd said he will seek to have the three operative clauses removed, while Lord Beecham promised to try and make some “modest improvements”.




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Mesothelioma: insurance industry's reforms rejected after outcry

The government has responded to widespread pressure and scrapped plans to impose an insurance industry-devised mesothelioma pre-action protocol (PAP) and the fixed recoverable costs regime (FRC) that underpinned it.

But the return to the drawing board on asbestos cancer will also see claims aligned with other PI claims by ending recoverability.

The turnaround followed a consultation that ended on 2 October and to which more than 100 responses were received. The reason given by the Ministry of Justice was that “there is not a strong enough case” that the reforms “will meet the government’s declared aim of ensuring that… claims are settled quickly – where necessary – and fairly”.

From July 2014, reforms to conditional fee agreements in part 2 of LASPO that end the recoverability of success fees and ATE premiums will apply to mesothelioma claims, which were initially exempted until a review had taken place.

Explaining the decision, the MoJ said: “The government does not believe that the case has been made for mesothelioma cases to continue to be treated differently, in particular by comparison to other personal injuries, which can also have profound consequences for the sufferer.”

At the same time, a compulsory payment scheme is due to come into force, assuming the Mesothelioma Bill, which was introduced in May, receives royal assent. Victims who cannot trace their employer or its insurer will be able to draw on a £350m fund. Each year, the disease kills around 2,200 people.

The government said the insurance industry “will wish to reconsider” whether to go ahead with a consultation proposal to set up an electronic claims gateway for mesothelioma claims.

The PAP and the FRC had the backing of the Association of British Insurers (ABI) and sought to speed claims, after research showed half of mesothelioma cases took more than a year to settle, despite victims living only seven to nine months on average after diagnosis.

The FRC was fiercely opposed by the Law Society, which said it would lower the quality of fee-earner engaged in the claim and prevent the development of practitioner specialism in the area. It said it supported a PAP in principle but not the one proposed.

Also, the Asbestos Victims Support Groups Forum accused the MoJ of striking a deal with the ABI to enact its proposals for the PAP, secure mesothelioma claims gateway and fixed costs, in return for a levy to pay for claims.

As recently as last month, the Civil Justice Council questioned the need for reforms to mesothelioma claims and said it was “unfortunate” that the ABI proposals had been put to consultation “without apparent amendment”.

At the time the protocol was proposed, the then Association of Personal Injury Lawyers president Karl Tonks said “it sounds like a great idea in principle. But taking cases to the specialist mesothelioma court is usually the only way to persuade defendants and their insurers to admit liability for causing the disease, and to get the claim settled quickly.”

Responding to yesterday's decision, Mr Tonks welcomed it and said: “Recognition that the consultation proposals would not help to settle cases quickly… shows that the government has listened to impassioned arguments of victims, their families and their representatives.”

But he objected to the end of the LASPO exemption. “We argued from the outset that the cost implications of the changes could mean that some mesothelioma claims may never be brought to court at all. In those cases which do go ahead, sufferers may have to make deductions from their damages to pay their costs, which they can ill afford to do.

“We understand the government has conducted a review of this issue and we await justification for this decision.”

Courts minister Shailesh Vara said: “We will be working closely with victims, their representatives, insurers and others over the next few months to establish the best way to get claims settled fairly and quickly.”




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James Heath

Heath: A “simple, but quite nebulous, concept”

The new rule on fundamental dishonesty in personal injury actions, which comes into force today under section 57 of the Criminal Justice and Courts Act 2015, brings with it “a lot of potential for satellite litigation”, a leading defence lawyer has warned.

James Heath, director of counter-fraud strategy at Keoghs, described fundamental dishonesty as a “simple, but quite nebulous concept”.

The concept was first introduced two years ago in CPR 44.16, meaning that claimants found to be ‘fundamentally dishonest’ lose the protection of qualified one-way costs shifting (QOCS).

Under the new rule, which comes into force today, where a court finds that a claimant has been fundamentally dishonest in relation to “the primary claim or a related claim”, the court “must dismiss the primary claim, unless it is satisfied that the claimant would suffer substantial injustice”.

Mr Heath said section 57 was “quite a different remedy” from CPR 44.16. “Clients will need to understand the difference between the two regimes that rely on the same concept. The challenge for the defendant is to pick the right one and fight it accordingly. The costs consequences are very different for both.”

Under section 57, courts dismissing a claim on the grounds of fundamental dishonesty must record in their order the amount of damages they would have awarded to the claimant “in respect of the primary claim”. This amount must be deducted from the costs the claimant is ordered to pay.

Mr Heath said the result was that if the defendant’s costs were less than the notional damages, the defendant recovered nothing. “The only rationale I can think of for this to prevent the claimant from having an otherwise legitimate damages claim denied and being penalised on costs.”

He said it was unclear whether defendant insurers would have to “pin their colours to the mast”, and say whether they were going for section 57 or CPR 44.16, or just mention fundamental dishonesty.

Meanwhile, he said there was still no leading authority from the High Court or above on CPR 44.16. “They’ve all been local, county court decisions so far,” Mr Heath said. “We’ve had around a dozen.

‘It’s too early to tell what the impact of the original rule will be, as the bank of cases and the publicity is only starting to build. It has not had a deterrent effect yet.”

Mr Heath added that the firm had not seen any spike in claims yet, as lawyers rushed to beat the implementation date for section 57. “The section applies to claims issued on or after 13 April, so claimants may have issued but not yet served proceedings.”




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money

JAC and NOMS also under pressure to make money

The Judicial College, which trains UK judges, has said that it intends to “introduce a charging scheme for the delivery of international training”.

In its strategy for 2015-2017 the college, which reports to the Lord Chief Justice, said the fees would apply where appropriate, and “in any event” all international training would be delivered on a “cost neutral basis”.

The Judicial College said it wanted to expand its international training activities by running programmes and producing materials “specifically for international use, particularly in judicial conduct and ethics, judicial skills and training the trainers”.

Just Solutions International (JSi), the commercial arm of the National Offender Management Service, was reported recently to be bidding for a £5.9m contract to advise the prisons service in Saudi Arabia.

On its website, JSi said it offered “tried and tested products and services from one of the largest and most integrated offender management systems in the world”.

A government review suggested earlier this month that the Judicial Appointments Commission should charge regulators like the General Medical Council and Solicitors Regulation Authority fees for making “quasi-judicial” appointments.

The JAC was praised for slashing its budget by almost a third since 2010, but the triennial Ministry of Justice review said the commission should move to a “more commercial” model.

Elsewhere in its 2015-17 strategy the Judicial College said it planned to set up faculty to help design and deliver training programmes to the required standard, a broader range of cross-jurisdictional training and further e-learning programmes.

The new faculty would be established, the college said, by “redistributing (not increasing)” the time currently available for judicial training.

The college added that it wanted to “ensure effective cross-border co-operation” on the training of judges across the UK, while it developing its international training activities.




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Stock exchange: Burford looking to raise more money

Stock exchange: Burford looking to raise more money

Litigation funder Burford Capital has unveiled a big rise in income and profit for 2015, even though its after-the-event (ATE) insurance business saw its turnover halve as other insurers undercut it.

The AIM-listed business also revealed that it has provided £71m ($100m) in capital for an unnamed global law firm, in its largest transaction ever.

Buford saw income rise 26% to £73m, mainly thanks to several litigation investments maturing, along with a 27% increase in operating profit to £54m.

Last year also saw Burford commit a record £145m in new investments, and its current portfolio stands at £442m in commitments, across 54 different litigation investments. It is operating in 40 countries and US states, and working with more than 40 law firms.

Sir Peter Middleton, chairman of Burford, said: “We have experienced rapid growth over our six year history and 2015 was no exception. Our results continue to demonstrate the fundamentally uncorrelated nature of Burford’s business and our ability to generate cash from litigation finance investments without regard to economic or market conditions.”

The company’s annual report explained how it was evolving in line with the legal market’s changing attitude towards outside capital. From having originally just funded individual cases, only 13% of its new investments in 2015 were single matters, with the rest “a variety of other forms of capital provision to the legal market”.

“This transmutation is very significant, as it expands our potential market dramatically while enabling us to reduce volatility and retain our historical return profile,” it said.

Last year Burford provided US class action firm Hausfeld with at least £21m of financing to fund competition claims in Germany through a new office in Berlin, and £30m in litigation financing for an unnamed FTSE 20 company.

The annual report said it has since also provided £71m in capital to a “major global law firm early in 2016 in our largest transaction ever, arrayed against a wide variety of legal assets”.

Such is the demand for capital, it continued, that Burford is now investigating a second bond offering so as to expand its balance sheet

In 2015, ATE income nearly halved to £9m as fewer existing cases concluded than expected. “It was just a pretty quiet year – and in the insurance business, given that our premium potential rises as lawyers spend money in the absence of a resolution, a quiet year is not a bad thing even though it caused a drop in income.”

The report said: “What is happening today is that legacy insurance providers have seen, as we have, a decline in their business volumes post-Jackson. Some of those providers do not have Burford’s diversified sources of income and thus they are desperate to write new insurance business, even if they do so at premium levels we consider uneconomic.

“We are thus today ceding business to those providers by declining to match their prices, although we do not believe that is sustainable for them in the long term (at least at margins we find interesting)… We do not yet know if this year’s decline in new business reflects us maintaining market share in a still smaller market or if we have lost market share to other players who have further discounted their prices (and if the latter, there will at some point presumably be a correction).

“Nonetheless, as we have said before, we should be clear that we do not think we are likely to see a return to the halcyon pre-Jackson days and, it is in our view unlikely to provide anything approaching the level of contribution it did in the past.”

Burford acquired its ATE business, FirstAssist, in 2012 and said it was “nevertheless thrilled with having entered the insurance business”. It paid an effective cash price of £13m and has since generated £52m in income and £38m in profit, “with tens of millions more to come”.

The company has also recently been granted an alternative business structure licence but has been coy about what it will do with this. The report said: “Through this vehicle, Burford can both operate its own law firm and take equity interests in other law firms. This is an early step for Burford to expand the ways in which it can provide capital to law firms and the benefits of external capital to clients. We expect to have more to say about these initiatives in 2016.”




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Roth: no fundamental obstacle on human rights or EU law grounds

The Competition Appeal Tribunal (CAT) has rejected strenuous attempts to dismiss the first application to certify an opt-out class action under the new collective proceedings procedure.

However, it has not yet granted the collective proceedings order (CPO), as it is formally known, having adjourned the case to allow the claimant to reconsider issues raised during the hearing about the proposed methodology to assess damages.

Providing pointers for future CPO applications, the tribunal, led by CAT president Mr Justice Roth, also said the fact that the impetus for the action came from the claimant’s solicitors, Leigh Day, was not objectionable

Leigh Day represents Dot Gibson, the general secretary of the National Pensioners Convention, over the action against Pride Mobility Products, the largest supplier of mobility scooters in the UK.

She is looking to bring the class action to recover compensation for around 30,000 consumers whom she alleges were overcharged for a Pride scooter as a result of Pride’s breaches of competition law between February 2010 and February 2012.

The claim follows on from a 2014 decision of the Office of Fair Trading that Pride breached competition law by banning retailers from advertising prices online below Pride’s recommended retail prices for its scooters. Ms Gibson claims this made it harder for consumers to shop around for the best price and caused them to be overcharged.

The average loss, depending on the model purchased, is said to be either £40 or £195 before interest.

There are two statutory conditions which must be satisfied for the CAT to make a CPO: the claims must raise the same, similar or related issues of fact or law and be suitable to be brought in collective proceedings; and the proposed class representative must be authorised on the basis that it is just and reasonable for that person so to act in the proceedings.

Pride challenged the application on several grounds, including that it would infringe the company’s human rights and/or EU law, with the key argument being that, at the time of the infringements, the collection actions procedure was not law.

The CAT rejected this: “While such new procedures or mechanisms generally apply only from a specified date, the cause of action forming the basis of the claim subject to that procedure or mechanism could have arisen prior to the legislative or procedural innovation coming into force. These developments therefore involved no retrospective imposition of liability…

“It follows that there is no fundamental obstacle on human rights or EU law grounds to the making of an opt-out CPO in this case.

The tribunal was clear that the CPO application was “not a mini-trial”, and at this stage of the proceedings it was not its role to choose between the approaches of each side’s expert economists.

However, with a potentially more complex economic analysis to be undertaken by the claimant, the CAT said the question of suitability of the case for a CPO had to be deferred.

“The costs of pursuing the proceedings may increase; and in limiting the claim to the losses resulting from the infringements, the aggregate damages estimate may decrease.

“Rule 79(2)(b) of the CAT Rules 2015 provides that in determining whether claims are suitable to be brought in collective proceedings, one consideration to be applied is ‘the costs and benefits of continuing the collective proceedings’…

“Until a revised approach to assessment is carried out, it is impossible to assess what the total damages might be. We therefore only observe that the question of suitability may need further consideration.”

Though Ms Gibson herself was not a claimant, the CAT found her to be a suitable person to lead the claim, saying she would “act fairly and adequately in the interests of the represented class”.

She was an experienced campaigner and spokesperson supported by staff at the National Pensioners Convention,; Leigh Day has extensive experience of group litigation and had brought in counsel with competition law expertise, along with a US company, Signal Interactive Media, that has “extensive experience of class action administration”.

The CAT added: “Finally, in this regard, we do not regard the fact that the impetus for the collective proceedings came from Leigh Day as objectionable. This seems to us almost inevitable with collective proceedings in particular for consumers, most of whom would be unaware that it was practicable to bring proceedings of which the cost vastly exceeds the individual loss they suffered.

“The relevant question is whether the class representative is able to ensure that the proceedings are then conducted in the interests of the class and not of the lawyers.”

There was also a question about the ability to cover Pride’s costs. Ms Gibson has arranged, through Burford Capital, after-the event insurance underwritten by Great Lakes Reinsurance, for Pride’s costs up to £1.08m and her own disbursements in the event that the claim is unsuccessful.

Leigh Day confirmed that in the event that the indemnity in the policy was exceeded, it would give priority to payment of Pride’s costs over recovery of its own disbursements.

Pride has filed two detailed costs budgets: the first, for the CPO application, totals £477,000 (excluding a provision for costs of an appeal); the second, from the grant of a CPO to trial, totals £951,000. It argued that the fact this exceeded the ATE cover meant the CPO requirements were not met.

An application for costs management has been made and, without prejudging that, the CAT noted that Ms Gibson’s budget amounted to just under £1m. “It is not evident why the costs of Pride should exceed those of the applicant, particularly when Pride’s lawyers have already done a great deal of work in gathering documentation and responding to the inquiries made in the course of the OFT’s investigation, and the applicant’s solicitors are in London whereas Pride’s solicitors are based in Coventry where rates should be lower.

“Pride itself observes that at this stage there is ‘a high degree of uncertainty’ as to how the proceedings will develop. The applicant’s solicitor states that the chief risk officer of Burford has told him that Burford/Great Lakes are able to increase the insurance indemnity, depending on their assessment of the value and merits of the claim.

“Most immediately, the cost budgets are likely to be affected by any orders for costs that may be made following this judgment.

“Taking all this into account, we do not at this stage consider that the question of her ability to pay Pride’s recoverable costs is a basis for refusing to authorise Ms Gibson to act as class representative. This particular aspect can, if necessary, be considered further at the renewed application for a CPO.”




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Vijay Rathour, a vice-president in the London office of digital risk management and investigations company Stroz Friedberg, considers the implications for e-disclosure of a recent High Court ruling

E-disclosure: emerging technologies facilitate rapid initial analysis of documentation

The criticism meted out by Mr Justice Ramsey, following what has been described as multiple failures in the e-disclosure process in the case involving the West African Gas Pipeline Company (WAPCo), may have caught some practitioners by surprise.

But with the complexity and sheer volume of data involved in a growing number of cases, sometimes reaching hundreds of millions of documents that require detailed analysis, what is the role of emerging technologies in addressing some of these concerns?

Courts increasingly expect that the best technology will be used, and used well, to keep cases within reasonable time and cost limits. This was highlighted as a key issue in West African Gas Pipeline Company Limited v Willbros Global Holdings Inc [2012] EWHC 396 (TCC) by Mr Justice Ramsey, who criticised the ineffective use of technology in processing the disclosure, which ultimately caused expensive delays.

Failings in the de-duplication process resulted in a doubling up of judgements made on identical documentation and inconsistent redaction of potentially privileged material. While clients have a key role to play in deciding the scope of this process, such as whether all duplicates should be removed or whether multiple individual copies should be retained to show specifically who read what, in this particular case the process was found to be inconsistent and confusing. This caused further failures, as multiple reviewers had made differing subjective judgements on the same documents.

Practice direction 31B, which has been in force since 2010, has allowed a further tightening of guidance relating to electronic disclosure. In parallel, the courts are increasingly aware of the technologies available and of how they can transform the practice of disclosure.

A fundamental catalyst to change is technology and, in particular, keyword recognition. Established and emerging technologies – such as early case assessment and auto-coding – facilitate rapid initial analysis of documentation to filter what is important, before undergoing scrutiny by human reviewers.

Early case assessment, an effective but still fairly underused technology, allows fee-earners an insight into the categories of documents making up the whole of the potentially disclosable population, well ahead of such information being passed to opposing parties. This significantly enhances the effectiveness of the review process, as the technology can be applied to a pool of millions of documents to radically reduce what needs to be subsequently subjectively analysed by humans.

Improved artificial intelligence in the auto-coding of documents is also making headway. This allows intelligent scanning to identify key forms of language, phrases and combinations of words that suggest important content, including privileged material or documents that demonstrate that litigation was being contemplated at a particular point in time. Such key technologies leverage the skills of human reviewers to focus on the most valuable and critical areas of the document review exercise.

While there has been a greater appetite to embrace such technologies in some other jurisdictions, notably in the US, there are growing signs that we could shortly see these become a regular feature in the UK. Once available and accepted, there is little doubt judges will start to query any case where they are not used effectively to help achieve the overriding objectives of justice and the CPR.

Early consultation with e-disclosure experts can help to ensure that the exercise is carried out as cost-effectively, accurately and consistency as possible, preventing embarrassing and costly judgements against instructing parties.

An area of continued debate is the role of outsourcing and offshore documentary review. As WAPCo has highlighted, offshore reviews can be difficult to manage, while the burden of ensuring that the review achieves the high standards required by the English legal system can be left open to chance.

Subtleties perhaps lost in translation and failings in the use of the technology underpinning the review, led to overseas reviewers missing large volumes of potentially relevant material in that case, drawing substantial criticism from opposing parties and the court.

The challenge in document reviews is finding the defensible balance between cost and effectiveness and the findings in WAPCo highlighted the necessity to ensure that the document review exercise is planned early and effectively. The substantial cost of legal expertise means that time wasted in improperly planned and executed review exercises will rapidly inflate costs and judges are unlikely to sympathise when these could easily have been avoided, with appropriate assistance from document review experts.

Highly effective technical solutions and review strategies can be put in place to ensure that a review can be conducted in an effective and cost-efficient manner. Experience shows that this will go a significant way in preventing some of the complications that sometimes arise in offshore reviews and the problems that led to the judge’s criticisms in the wake of this particular case.




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Neuberger: litigants-in-person changing role of judges

If a career on the bench is not made more attractive financially, the rule of law could be undermined, and with it lucrative industries vital to post-Brexit economic prosperity, the departing president of the Supreme Court has warned.

He also reported that the rise of litigants-in-person (LiPs) in civil and family cases was pushing judges to adopt an ever-more “inquisitorial, civil law function”, leading to longer hearings and delays.

Lord Neuberger, who is due to retire from the bench in the autumn, sounded the alarm during a speech earlier this month reflecting on his two decades as a judge – the Neill Lecture 2017.

He said the number of barristers who shunned a career as a judge was growing. While appointment to the senior judiciary was still “immensely rewarding”, the heavy workload together with “the increasing gap between judicial pay and the reward of successful private practice means that appointment to the High Court is significantly less attractive than it was”.

Figures released recently by the Bar Council – first highlighted by Legal Futures – showed that more than 2,500 of the nearly 16,000 practising barristers earn more than £240,000 a year gross. High Court judges take home an annual salary of around £180,000.

Lord Neuberger continued: “The proportion of refuseniks is increasing, and while it is not yet, it could become a real problem if it continues.

“The concern is not only that it will undermine one of the two fundamental pillars of our society, the rule of law, if we do not have a first-class judiciary.

“It is also because a first-class judiciary underpins the whole financial and professional services industries which are so vital to the fortunes of this country, perhaps particularly in the post-Brexit world.”

He recommended the judiciary should look beyond the independent Bar and recruit from among “solicitors, employed lawyers, academics and any other group where one could realistically expect to find potential judges”.

However, while “the serving judiciary should be encouraging members of under-represented groups… to apply”, merit should remain the “ultimate standard” for selection as judges. He added: “To dilute the quality of our judiciary would be to erect a milestone on the road to perdition.”

Lord Neuberger warned that the rise in LiPs in civil and family cases, as a result of shrinking legal aid and high litigation costs, presented a “real risk of this reducing access to justice, the quality of justice, judicial well-being and court efficiency”.

He went on: “It remains to be seen what the long-term effect of the increase in [LiPs] will be, but it has already started drawing judges into assisting or at least focusing on [LiPs], but this involves getting off the umpire’s chair and stepping onto the court.

“This leads to longer hearings, which in turn leads to more delays in other hearings.

“Furthermore, with the Woolf and Jackson reforms and their equivalents in the Family Division, judges in this country may be developing an ever-increasing inquisitorial, civil law, function.”

He questioned the value of disclosure of documents and cross-examination of witnesses to the final result of cases, given how much they added to the cost of litigation. But he admitted his scepticism was founded on “impression and experience”, and expressed the hope that “statistically reliable analysis” might support the proposition if a “practically feasible experiment” could be devised.

In a wide-ranging speech beginning with recollections of his earliest days after elevation the bench, Lord Neuberger said that while he found the transition from “poacher to gamekeeper” straightforward, it was lonelier than being a barrister in chambers.

Running a trial required qualities such as “grip, authority, politeness, fairness, and an ability to simplify and an ability to express yourself”. He added: “In many ways, running a trial is like chairing a rather tense and rather formal meeting.”

He stressed that the Supreme Court had been careful to maintain “an appropriate balance between judicial intervention and judicial restraint”. In particular, in the recent Miller case on Brexit, among other cases, it had been “at pains to emphasise the fundamental importance of parliamentary sovereignty in the UK’s constitutional arrangements”.

He also highlighted the value to the Supreme Court of legal arguments between judges out of court, even suggesting that where all the judges appeared to agree on a case, it may be worth appointing a judge as devil’s advocate to produce a draft dissenting judgment – “for the purpose of maximising the quality of the ultimate judgment of the court.”




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Spencer: part 36 now even more important

Posted by John Spencer, director of Litigation Futures sponsor Spencers Solicitors

This has been anything but a stable year for personal injury law. The Jackson reforms, including the referral fee ban and qualified one-way costs-shifting, are but a few of the many changes to which practitioners have had to adapt.

On 31 July, amendments to part 36 offers began to take effect, and John Spencer and John McQuater have examined the new protocols in relation to their interaction with part 36, and how its incentives to operate through the protocols, and in a fixed costs regime. Their assessment appears in the article below which was published in this month’s edition of APIL PI Focus.

Introduction

This article examines changes to the operation of part 36 introduced with the extension to the RTA protocol and the introduction of a new EL/PL protocol. It also touches on the principles of part 36 more generally to place the changes in context.

Background

Since 2010, when the RTA protocol was introduced, part 36 has been divided into section I, for non-RTA protocol offers, and section II, for RTA protocol offers.

Section I provides for costs consequences on acceptance of a part 36 offer whether that is within or after the expiry of the relevant period identified by the offer.

  • Where a part 36 offer is accepted within the relevant period, the claimant is entitled to the costs of proceedings up to the date on which notice of acceptance was served, to be assessed on a standard basis if the amount of costs if not agreed.
  • Where a part 36 offer is accepted after expiry of the relevant period, the claimant will be entitled to the costs of proceedings up to the date on which the relevant period expired. However, unless the court otherwise orders, the offeree (whether the claimant or defendant) will be liable for the offeror’s costs from the date of expiry of the relevant period to the date of acceptance.

Section II deals with costs consequences specific to the RTA protocol and, now, EL/PL protocol.

Within the protocols: section II part 36

The terms of section II remain those that originally applied to the RTA protocol before its extension, save that they are amended to cover the extended protocol and EL/PL cases in the separate protocol.

Part 36.17 confirms an offer under section II is called a protocol offer. That offer must be set out in the court proceedings pack (part B) form.

Whilst part A of the pack will contain the best pleaded case of the parties, together with the statement of any agreed damages, part B, which is not disclosed to the judge until a decision has been made, represents, at a stage 3 hearing, the section I part 36 offers that parties would produce to the court, when dealing with costs, after a trial.

Under part 36.21, there are three scenarios for the costs consequences of a protocol offer following a stage 3 hearing.

  • Where the court determines damages at a figure less than or equal to the defendant’s protocol offer, the claimant will be ordered to pay the defendant’s stage 3 costs (and of course the claimant cannot recover stage 3 costs from the defendant).
  • Where the court makes an award of damages more than the defendant’s protocol offer, but less than the claimant’s protocol offer, the court will order the defendant to pay the claimant’s stage 3 costs.
  • Where the court makes an award of damages equal to or more than the claimant’s protocol offer, the defendant will be ordered to pay the claimant’s stage 3 costs as well as:
    • Interest on the whole of the damages awarded at a rate not exceeding 10% above the base rate for some or all of the period starting with the date specified in part 36.18, that is the first business day after the court proceedings pack (part A & part B) form is sent to the defendant.
    • Interest on stage 3 costs at a rate not exceeding 10% above base rate.
    • An additional amount calculated in accordance with part 36.14(3)(d), for cases of the value that go to a stage 3 hearing that will inevitably be 10% of the damages awarded.

Outside the Protocols: section I part 36

Section I remains in force for non-protocol cases but also applies to cases which have not continued under the RTA protocol or the EL/PL protocol and hence are potentially subject to fixed costs under part 45.

Where part 45.29 applies, the claimant will be entitled to fixed costs. These are set out in table 6B (RTA fixed costs), table 6C (EL fixed costs) or table 6D (PL fixed costs).

RTA costs are the lowest, followed by PL costs, with EL costs the highest. Unlike protocol costs, a proportion of costs are comprised of a percentage of damages, ranging between 10% and 20% in RTA cases, 10% and 30% in EL cases and 10% and 27.5% in PL cases. Higher rates attach to lower damages. Higher rates apply at trial, with the obvious policy intention of dis-incentivising the use of court hearing time.

The stages of fixed costs for ex-protocol claims (that is claims which have exited a protocol) are:

  • Prior to issuing proceedings under part 7; and
  • After issuing proceedings under part 7:
    • On / after issue, but prior to allocation;
    • On / after allocation, but prior to the date of listing;
    • On / after listing, but prior to trial; and
    • Finally, at trial.

Offers made under section I of part 36 may have costs consequences either on acceptance or judgment. To some extent the rules have been modified, to reflect the introduction of fixed costs, in both these situations.

Acceptance

A new part 36.10A has been introduced to deal with the cost consequences on acceptance.

Where a part 36 offer is accepted within the relevant period, the defendant will pay the claimant’s costs, in accordance with part 45, up to the stage at which the offer is accepted.

Where a defendant’s part 36 offer is accepted after the relevant period, the claimant will be entitled to fixed costs applicable for the claim type, under the relevant table, for the stage applicable at the date on which the relevant period expired. The claimant will be liable for the defendant’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

Where the claimant accepts the defendant’s protocol offer after the date on which a claim has exited the protocol, the claimant will still be entitled to the applicable stage 1 and stage 2 fixed costs under tables 6 in RTA claims or table 6A for EL/PL claims; however, the claimant will be liable for the defendant’s costs for the period from the date of expiry of the relevant period to the date of acceptance.

Part 36.10A(6) provides that for the purposes of that rule, the defendant’s protocol offer is either an offer as defined by part 36.17 or, if the claim leaves the protocol before the court proceedings pack form is sent to the defendant, as the last offer made by the defendant before the claim leaves the protocol (which will be deemed as having been made on the first business day after the claim leaves the protocol).

Part 36.10A does not expressly deal with acceptance of a claimant’s part 36 offer by the defendant after the relevant period has expired. In the absence of any modification to part 36.10, that rule may, therefore, apply in this situation. Moreover, if judgment is entered, in terms at least as advantageous as the claimant’s offer, the provisions of part 36.14(3) should apply.

Judgment

A new part 36.14A has been introduced to deal with the cost consequences of part 36 offers following judgment.

Where a claimant fails to obtain a judgment more advantageous than a defendant’s part 36 offer, then, unless the court considers it unjust to do so, the defendant is entitled to the consequences set out in part 36.14(2), namely:

(a)      his costs from the date on which the relevant period expired; and

(b)      interest on those costs.

Where part 36.14(2) applies, then the provisions of the new part 36.14A will be relevant. In these circumstances the claimant will be entitled to fixed costs according to the relevant table in section IIIA of part 45 and in respect of the stage applicable at the date on which the relevant period expired. The claimant will be liable for the defendant’s costs from the date on which the relevant period expired to the date of judgment.

Where the claimant fails to obtain a judgment more advantageous to the defendant’s protocol offer, the claimant will be entitled to stage 1 and stage 2 fixed protocol costs. The claimant, however, will be liable for the defendant’s costs from the date on which the protocol offer is deemed to be made to the date of the judgment. For these purposes, part 36.14A adopts the same definition of defendant’s protocol offer as part 36.10A.

The amount of the judgment will be less than the protocol offer, where the judgment is less than the offer once deductible amounts identified in the judgment are deducted.

Where judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s part 36 offer, then part 36.14(3), again unless the court considers it unjust to do so, provides that this will result in an order that the claimant is entitled to:

(a)           interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date on which the relevant period expired;

(b)      costs on the indemnity basis from the date on which the relevant period expired;

(c)      interest on those costs at a rate not exceeding 10% above base rate; and

(d)      an additional amount, which shall not exceed £75,000, calculated by applying the prescribed percentage set out below to an amount which is–

(i)             where the claim is or includes a money claim, the sum awarded to the claimant by the court; or

(ii)      where the claim is only a non-monetary claim, the sum awarded to the claimant by the court in respect of costs –

Amount awarded by the courtPrescribed percentage
Up to £500,00010% of the amount awarded;
Above £500,000 up to £1,000,00010% of the first £500,000 and 5% of any amount above that figure

It is worth noting that part 36.14(1A) confirms that, in relation to any money claim or money element of a claim, the term “more advantageous” means better in money terms by any amount, however small and “at least as advantageous” shall be construed in the same way.

Nothing in part 36.14A removes the right of the claimant to all these benefits. Moreover, indemnity costs are plainly not fixed costs and hence will need to be assessed (and for these purposes assessed without regard to the test of proportionality).

Defendant’s costs

The claimant may become liable for the defendant’s costs under the terms of either part 36.10/10A or part 36.14/14A. If, however, the claim has left either the RTA protocol or EL/PL protocol, then parts 36.10A and 36.14A will cap, but not fix, the defendant’s costs.

These rules provide that where the court makes an order for costs in favour of the defendant, the court will have regard to, and the amount of costs ordered shall not exceed, fixed costs in tables 6B, 6C or 6D in section IIIA part 36 applicable at the relevant date.

It should be noted that claimants should pursue arguments along the following lines in respect of the defendant’s capped costs. The defendant’s costs should normally be less than the claimants. This has always been argued by the Forum of Insurance Lawyers, the Association of British Insurers and insurers. This is also the experience of the judiciary.

The only reason defendant’s costs were capped and not fixed at a lower level was the absence of clear empirical evidence to fix these costs at, say, one-half or two-thirds of the claimant’s costs. The concept of fixed costs and capped costs in this context is predicated on average costs incurred rather than those incurred in a particular case. Proportionality will normally necessitate the defendant’s costs being significantly below those of the claimant.

Moreover, because the claimant’s costs in these circumstances will be fixed it seems clear the indemnity principle will not apply, see Nizami v Butt [2006] 1 WLR 3307. Because, however, the defendant’s costs are not fixed, the indemnity principle will apply.

A very relevant consideration for the court might be the costs to which the defendant’s solicitors are entitled to be paid by the defendant given that so many defendant firms now operate under the ‘no win, reduced fee’ variety of conditional fee agreement.

In such circumstances the claimant, as paying party, may wish for full disclosure of the terms so that the court is aware of, certainly as the Association of British Insurers would describe it, the ‘market rate’ for such work.

Conclusion

Part 36 is likely to be of even greater importance than it has been in the past, for both claimants and defendants, in the new era.

John Spencer is director of Spencers Solicitors, who are specialists in personal injury compensation claims. He is a former chairman of the Motor Accident Solicitors Society (MASS) and a Law Society personal injury panel member.




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London chambers 4 New Square has made a significant statement about its intention to lead the costs Bar after well-known juniors Benjamin Williams and Robert Marven joined the set from Thirty Nine Essex Street

They join a team of three QCs – including one of the costs world’s highest-regarded silks, Nick Bacon – and 11 other juniors, the best known of whom to costs specialists is probably Roger Mallalieu

All four are very prominent names in the costs world and have found themselves up against each other in many cases, with all four involved in the 2008 Tankard case in the Court of Appeal for example

Last year Mr Williams acted for the claimants in the costs part of the Trafigura case, with Mr Bacon for Trafigura, and also represented Glenn Mulcaire, the private investigator at the heart of the phone-hacking scandal, over whether News Group Newspapers had to cover his legal costs

Mr Bacon told Litigation Futures that 4 New Square is now “undoubtedly the leading set” ahead of next year’s costs changes

“We have depth and breadth in a specialist team which leaves others behind

One leading practitioner e-mailed me to

say that this is a polarisation of the costs Bar which will lead to other sets being frozen out

Mr Williams has a commercial practice with a particular focus on insurance, including litigation arising from collapsed claims management schemes such as The Accident Group, as well as the long-running credit hire litigation

He also specialises in the law relating to solicitors, including costs and litigation funding, professional negligence, and regulatory and disciplinary work

He is an editor of Cordery on Legal Services (formerly Cordery on Solicitors), and is recommended as the leading junior on costs by both Chambers & Partners and the Legal 500, having appeared in nearly all of the major costs cases of the last decade

Acknowledged also as an expert on civil procedure and consumer law (including consumer credit), he is an editor of the White Book 2013

Mr Marven is a specialist in all aspects of costs law

His practice includes: costs issues arising from high-value litigation; challenges to conditional fee agreements; collective conditional fee agreements; success fees; legal expenses insurance and after-the-event insurance premiums; litigation funding; fixed costs; costs estimates; costs caps; and wasted and non-party costs orders

He has been involved in a range of high-profile cases in the Court of Appeal, the High Court, the Senior Courts Costs Office and the county courts

He undertakes both detailed assessments and appellate work

He provides commercial advice to insurers, solicitors and claims management companies




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Supreme Court: case leapfrogged

Supreme Court: case leapfrogged

The Supreme Court is to return to the issue of recoverability after granting permission to appeal in a case leapfrogged from the High Court about costs in defamation.

Earlier this year, Mr Justice Mitting said the highest court needed to resolve the tension between earlier rulings of the House of Lords and the European Court of Human Rights on whether success fees should be recoverable in publications proceedings.

However, in Miller v Associated Newspapers Limited [2016] EWHC 397 (QB), he ruled that recoverable after-the-event insurance (ATE) premiums are not incompatible with a publisher’s right to freedom of expression, but that will be under the Supreme Court’s scrutiny too after granting Associated Newspapers’ application to appeal.

Successful claimants can still seek payment of additional liabilities from defendants in publications and privacy proceedings.

The case involved proceedings brought by a businessman on a conditional fee agreement against the Daily Mail arising from an article published about his business relationship with the then Commission of the Metropolitan Police, Sir Ian Blair.

The trial took place in 2012 and Mr Miller was awarded damages of £65,000 and his costs. An appeal to the Court of Appeal was dismissed with costs, and permission to appeal to the Supreme Court was refused.

The claimant’s base costs of trial and the appeal were agreed at £633,006 and paid by the newspaper. The disputed success fee and ATE premium amounted to £835,379.

The Senior Costs Judge, Master Gordon-Saker, referred to the High Court the question of whether the award of the additional liabilities to the claimant would be incompatible with the defendant’s article 10 rights.

On success fees, Mitting J said that although he was bound to follow the House of Lords’ 2005 ruling in Campbell v MGN, this conflicted with the subsequent European Court of Human Rights decision in 2011, MGN v United Kingdom.

However, the judge said the ATE premium should not be treated in the same way. There was a different statutory source and the social considerations which meant it was “possible to envisage an outcome in Strasbourg under which the success fee regime remains condemned but the ATE insurance scheme is not”.

The same issue arose the following month in Eight Representative Claimants and Others v MGN [2016] EWHC (Ch), relating to the Daily Mirror phone hacking cases. Mr Justice Mann said it might be “equally appropriate” as in Miller for him to grant a certificate for a leapfrog appeal. However, at this stage it has not been conjoined.




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Warning: judges should not see relief applications as a chance to display their musculature

The Court of Appeal has returned to the fall-out from the Mitchell ruling, emphasising that it will support “robust and fair” case management decisions made by first instance judges whether they grant relief or not.

But it also warned them against seeing relief from sanctions applications as a chance to display their “judicial musculature”.

Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506 concerns a dispute over an estate agent’s commission, and the failure of both parties to serve witness statements within the time specified by a prior court order, the sanction for which under the CPR is that they could not call the witnesses to give oral evidence without court permission.

The claimant argued that it could not complete its witness statements in the absence of proper disclosure that the defendants contested the need for. Both sides missed the date to serve the statements.

At first instance, Mr Justice Globe ruled that the claimant’s non-compliance was not trivial and was not explained by a good reason, as per Mitchell. However, the default was on both sides.

Deciding that both sides could exchange witness statements almost immediately without prejudicing the trial date, and that there were no significant costs implications, Globe J said a refusal to grant relief would effectively end the action, a consequence he considered “too severe” and unjust in the circumstances.

The Court of Appeal – with Lord Justice Davis, one of the five designated ‘Jackson judges’, giving the ruling – said the fact that refusal to grant relief would in practice mean the end of a claim or defence will “by no means of itself necessarily warrant the grant of relief from sanction”. However, Globe J’s decision to grant relief in all the circumstances here was justified.

“It must not be overlooked that the Court of Appeal in Mitchell did not say that the two factors specified in CPR 3.9 will always prevail, as a matter of weight, over any other circumstances in a case where the default is not trivial and where there is no good justification.

“It is true that it later stated that the expectation is that the two factors mentioned in CPR 3.9 will ‘usually’ trump other circumstances. But it did not say that they always will. That, with respect, must be right. It must be right just because CPR 3.9 has required that all the circumstances are to be taken into account and has required that the application be dealt with justly.”

Davis LJ also highlighted the point emphasised in Mitchell that appellate courts will not lightly interfere with a case management decision. “Robust and fair case management decisions by first instance judges are to be supported… The appellate courts will not interfere if a judge has correctly directed himself, has adopted the correct approach in principle and has taken all the circumstances into account.

“It is also to be emphasised that the courts in considering applications under CPR 3.9 do not have and should not have as their sole objective a display of judicial musculature. The objective under CPR 3.9 is to achieve a just result, having regard not simply to the interests of the parties but also to the wider interests of justice.

“As has been said by the Master of the Rolls (in his 18th lecture), enforcing compliance is not an end in itself. In the well-known words of Lord Justice Bowen: ‘The courts do not exist for the sake of discipline.’ Such sentiments have not been entirely ousted by CPR 3.9, as to be interpreted and applied in the light of Mitchell.

“Accordingly, the enjoinder that the Court of Appeal will not lightly interfere with a case management decision and will support robust and fair case management decisions should not be taken as applying, when CPR 3.9 is in point, only to decisions where relief from sanction has been refused. It does not. It likewise applies to robust and fair case management decisions where relief from sanction has been granted. If parties understand this then at least satellite interlocutory appeals should be avoided and at all events will get no encouragement from the appellate court.”

In a brief comment, Lord Justice Laws said that though he agreed the appeal should be dismissed, he found the case “more finely balanced” than Lord Justices Davis and Sullivan.

“I think it important to emphasise that the result (driven of course by the particular facts) is an unusual one,” he said.

Davis LJ also said that, post Mitchell, the notes to CPR 32.10 in the White Book – which suggest that where a witness statement is served after the specified date, it would be unjust to exclude the party from adducing the evidence at trial “save in very rare circumstances” – may state the position “rather too broadly” and pay insufficient regard to the more rigorous approach now required in the case of non-compliance.




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Bott: odds stacked against the individual

The innovative and award-winning flight compensation practice set up by Cheshire firm Bott & Co has just concluded its 1,000th claim against airlines.

The firm, which only launched the practice in February, has recovered over €1m (£825,000) from 36 different airlines for 2,100 passengers on delayed and cancelled flights.

Passengers whose flights are cancelled or delayed by over three hours, or are denied boarding, are entitled to compensation of up to €600 under EU Regulation 261/2004.

Bott & Co said it has settled cases within five days and from flights dating as far back as October 2007. Of the 1,000 claims, the firm had to issue proceedings in the small claims court 318 times.

It provides a tool on its website so passengers can assess whether they have a claim and offers a free claim letter to send to airlines. But for those who do not want to deal with it personally, or are having trouble with their airlines, Bott & Co will handle it under a conditional fee agreement, taking 27% of the final award. It will take over cases part-way through.

Bott & Co said it has access to “an unrivalled wealth of historical flight data and technical expertise” provided by partner EUclaim – which runs a similar service in the Netherlands – allowing them to put together detailed weather reports and reports to combat airlines’ arguments.

Bott & Co senior partner David Bott said the idea for the practice came from a solicitor at the firm who tried to bring a claim himself and received a 12-page letter in response from the airline. “The odds are stacked quite heavily against the individual,” he explained.

The main difficulty is that the delay has to be for a reason that is “not extraordinary” – though this is narrowly defined, Mr Bott said airlines tried to make it as wide as they could.

The key to making the practice work is volume and a “really good front end” that enables the firm to sort the wheat from the chaff. “We’ve decided to make an investment in this,” Mr Bott said. “Other firms will struggle to pick the good claims from the bad very early on.”

Mr Bott – a former president of the Association of Personal Injury Lawyers – said he had also learned lessons from the way the practice operates should the small claims limit for personal injury ever go up.

Managing partner Paul Hinchliffe added: “We will continue to battle until airlines recognise their legal obligations. The regulations are clear and if the airlines pay consumers when they should, then it won’t be necessary to involve a law firm.”




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Putting it right: judges can change transcripts

Putting it right: judges can change transcripts

Judges who give ex tempore oral rulings can make more than typographical changes to the approved transcript, the High Court has decided.

Mr Justice Nicol, sitting with Lord Justice Burnett, said the Recorder in the case under appeal was wrong to think he did not have the power to change the transcript since the judgment had already been given orally and could have been heard by anyone who was in court.

Nicol J said: “There may be a confusion here. The trial and judgment of this road traffic claim all took place in open court. The public were free to attend and such hearings are to be treated as public whether or not anyone was present other than those immediately involved with the case.

“Subject to immaterial statutory exceptions or contrary orders of the court, what takes place in open court can be freely reported. In a sense, therefore, the Recorder was right that this genie could not be put back in the bottle.

“However, it is common practice for a judge who gives an oral ex tempore judgment to refine it when asked to approve a transcript. Ordinarily, this is limited to tidying up the language, but in principle we see no reason why it may not include more significant changes… it is a matter for the judge’s discretion as to what changes are appropriate.

“This is not to say that the judge can behave arbitrarily. Like any discretion, it must be exercised judicially.”

Nicol J was ruling in MRH Solicitors Ltd v The County Court Sitting at Manchester & Ors [2015] EWHC 1795 (Admin), in which a Bolton law firm won a judicial review against the decision of Mr Recorder Osborne in Manchester County Court, who had accused it in his ruling of being party to a ‘crash for cash’ fraud, without giving the solicitors the chance to rebut the allegation. The substance of the case was reported yesterday on Legal Futures.

After the ex tempore decision, the firm had asked the Recorder if it could make submissions as to why he should amend the transcript to remove the finding about MRH.

Nicol J also said that “in the unlikely event that something similar to this should happen in the future”, the right procedural course would be for the third party who believed they had been unfairly criticised in a judgment to apply to be joined as a party; if this was refused or the judge declined to amend the transcript, then they would have an order against which they could appeal, rather than seek a judicial review.

He added: “We emphasise that we are not saying that a third party who is criticised will necessarily be entitled to be joined as a party. There are many cases heard in the civil courts (and also family and criminal courts) where the conduct of an absent person falls to be considered.

“For example, in a conspiracy case not all the alleged conspirators may be before the court as parties or witnesses. In complex commercial frauds it may well be part of the case that an absent person or institution was party to dishonest conduct somewhere in the chain. Everything will depend on the facts of the individual case. The facts of this case are unusual.”




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Coupland: Working with Proclaim will enable us to achieve ‘Top 25 Status’ in 2014

In 2013 Advantage Property Lawyers (APL), with the assistance of Eclipse‘s Proclaim Practice Management Solution, won 3 major awards:

– Large Conveyancer of the Year (silver) – Sunday Times Estate Agency of the Year
– Yorkshire & North East Conveyancing Firm of the Year (gold) and
– Conveyancing Firm of the Year (silver) – LFS conveyancing Awards

The challenge

In 2009, as a new start-up, APL needed a Practice Management solution that focused specifically on residential conveyancing. Software was needed that would allow the firm to offer its clients and introducers an outstanding level of service and customer care, whilst maintaining best practice at all times. The solution would also have to be reliable and offer easy scalability in line with APL’s aspirations to become one of the UK’s biggest and best conveyancers.

The solution

Eclipse’s Proclaim Practice Management solution was implemented at APL’s inception as it provided a centralised, secure desktop toolkit for every property transaction – utilised by all staff. Proclaim was also chosen for its out-of-the box conveyancing focus and ease of integration with third party complementary software – as most work came from large corporates and major estate agents.

The results

Proclaim has proved to be an essential ‘enabler’ for providing a superb client experience and reducing turnaround times. Proclaim facilitated APL to achieve over 4,000 completions and increase turnover by 40% in 2013. The financial and reporting toolset is used to provide instant data retrieval with on-going monitoring and analysis of KPIs assisting with the management of systems, processes and risk calculations.

APL is using Proclaim to automate a vast number of administrative processes including document production and hopes to move towards a paperless office soon.

Since implementing Proclaim, APL has grown rapidly requiring an increase in staff numbers by over 200% from 15 to over 50. The firm is now represented on the management board of The Conveyancing Association and was the first conveyancing firm to receive the ‘Legal Eye’ quality standard.

Stephen Coupland, head of sales & marketing at APL says: “Working with Proclaim will enable us to achieve ‘Top 25 Status’ in 2014.”

 




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Parliament: motion to approve debate

The government needs to deal with range of defects in the new rules for 1Z0-043 conditional fee agreements (CFAs) and damages-based agreements (DBAs), the Bar Council has urged ahead of a debate on them in the House of Lords tomorrow.

As well as describing the draft CFA order and DBA regulations as currently “not fit for purpose”, the Bar Council complained about the “manner and speed” in which the regulations relating to the Jackson reforms are being made.

In a briefing issued to peers for the motion to approve debate, the Bar Council said the drafts in their current form “will seriously undermine Lord Justice Jackson’s recommendations and reduce access to justice”. They will also cause unnecessary satellite litigation and limit the commercial use of DBAs, it argued.

On the CFA order, it recommended excluding VAT from the success fee cap, and allowing lawyers to take the success fee from future losses as well as past losses in larger cases.

“The limit to past losses will mean that the risks of taking on such litigation (which is complex, difficult to predict, time consuming and involves significant disbursement) will not be properly compensated by
00M-651 the level of the CFA. Practitioners will simply not be able to take on such cases; and this will mean that claimants will not get to court at all.

“So the perverse result of the limit is that instead of protecting the damages recoverable by the worst hit claimants, the reform means that those claimants will get no representation and thus no damages at all. It was for this reason that Lord Justice Jackson amended his view, in his speech in February 2012, and said that the 25% should be of all damages (as it in fact had been prior to 2000) in appropriate cases.”

The Bar Council said similar changes should be made in relation to DBAs as well.

It also highlighted an ambiguity in the CFA order as to whether the success fee payable to counsel can be recovered between the parties where a solicitor enters a CFA before 1 April, but counsel enters into one after. If this is not clarified, satellite litigation will result, it predicted.

Echoing concerns first raised by City solicitors Herbert Smith Freehills, the briefing warned that the DBA regulations – unlike with CFAs – do not allow for hybrid agreements where lawyers agree that they should receive some costs even if the case does not succeed. “The current policy of disallowing hybrid agreements for DBAs goes against Jackson LJs original recommendations and will mean that DBAs will be seldom used by commercial firms.”

Dr Mark Friston, vice-chairman of the Bar Council’s remuneration committee, said: “The Ministry of Justice’s approach to the Jackson changes is far too rushed. There are few official announcements regarding policy changes; practitioners are largely relying on rumour when planning for changes which are now less than six weeks away.

“The situation is wholly unsatisfactory; issues of significant public interest require and deserve proper and detailed attention.”




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Bogart: “strong demand driving dramatic growth”

The UK is well ahead of the USA in the litigation finance, a survey of law firms and in-house lawyers has found, with 41% of UK respondents having used, compared to only 32% in the US and 40% in Australia.

UK lawyers and companies were also the most likely to say they had increased their use of litigation finance over the last two years – 70% in the UK, compared to 52% in the USA and 48% in Australia.

A total of 180 lawyers, mainly at larger law firms, together with 151 corporate counsel and finance professionals in the three countries took part in the poll commissioned by Burford Capital.

The company did caution that some of the figures appeared out of kilter with reality, however.

“Some respondents may reflect the well-known research phenomenon of social desirability bias, insofar as they perceive litigation finance as cutting-edge and may therefore have overstated their experience,” it said.

“We offer this caveat given the incongruence between some survey results and external data around capital flows and market size. Nonetheless, we are confident that as a whole, the research provides ample evidence of the ongoing growth and increased relevance of litigation finance to the business of law.”

The most critical business challenges for companies using litigation finance in the UK were managing legal risk and uncertainty, the need to find new ways of financing litigation and other legal costs, and the need for external counsel to show innovation (88%).

Other important reasons were ongoing legal expenses lowering financial results and increased pressure on legal budgets, staff and spending.

For law firms, there were multiple motivations, in particular the pressure to be more competitive in bringing in new business, and increased client pressure on legal budgets, staffing and spending.

The UK had the lowest proportion of respondents saying their organisation had been forced to “forgo claims” because of the impact of legal expenses – only 17%.

The main obstacles to the use of litigation funding identified in the UK were perceived cost, concerns about control of litigation and the time required to obtain litigation finance.

Litigation finance was mainly used in the UK for single-case funding (86%), followed by expense funding (58%). However, use of portfolio funding was significant at 28%, with 16% using finance for judgment enforcement and asset recovery.

In terms of size of investment, the average sought by companies in all three countries was $3.4m, and by law firms $2.8m.

The most important perceived benefits of litigation finance were pursuing claims that brought value to the business, bringing or sustaining proceedings regardless of the organisation’s cash position and preserving capital to pursue other opportunities.

Christopher Bogart, Burford’s CEO, commented: “Burford’s latest research affirms our own experience: More and more often, clients and law firms are turning to litigation finance as a solution to some of the intractable challenges and pressures of managing legal cost and risk, and that strong demand is driving dramatic growth.”




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Landman: support for sufferers looks like it will be in short supply

Around 4,000 people die each year in the UK due to asbestos related diseases, a truly horrendous ordeal for them and their families. Unfortunately things have just got even worse. A new HMRC policy has created an unnecessary legal hoop through which relatives of victims will now be required to jump when seeking justice for their deceased loved ones.

The policy was established in November and has been justified by HMRC as necessary to uphold the provisions of the Data Protection Act.

The policy

HMRC states in the policy that it will no longer release the employment history of a deceased person to their legal representatives, until a court application has been received.

When someone is killed by mesothelioma, their solicitor must provide evidence of the victim’s employment locations, how long they worked at each and the degree to which they may have been exposed to asbestos fibres.

This information-gathering process has always been a challenge. Not only does it involve collecting the appropriate employment history, but also the relevant data for each building in which the victim worked. This all requires very thorough investigation.

For example, think of a construction worker who moves from project to project. If he passed away as a result of mesothelioma, his family’s solicitor would need to contact HMRC and research every job he may have worked on. Rapid, unhindered access to these records is vital.

Now, before that process can even begin, a court application that has the potential to be an equally lengthy affair, must be made.

Why the change?

HMRC claims that change is required “because the records are stored in accordance with the Data Protection Act”. However, it has been argued by some that this is simply incorrect and that rights to privacy ‘die’ with the individual, just like our rights to sue for defamation. Even if this is not the case, surely access to an individual’s employment history should be exclusive to the deceased’s loved ones? And they should in turn be free to share the records with their legal representative.

Blocking this immediate access will only stall the claims process and therefore increase the cost of legal fees and expenses.

Further concern for claimants

In addition, the entire claims process for asbestos exposure compensation is set to become even more difficult, following the introduction of a new Mesothelioma Bill.

Under this piece of legislation, only those who have been diagnosed since 25 July 2012 will be able to file a claim.

Also, those who can’t find a responsible insurer from which to claim will be compensated at a discounted rate – 75% of what the claimant should be entitled to – funded by a levy on active employers’ liability insurers.

The only positive for claimants to take from this is that at least some sort of justice will be available even where a definitive guilty party cannot be traced. Still, vice-chairman of the Association of Personal injury Lawyers, John Spencer, has his concerns about the delay of the Mesothelioma Bill’s implementation.

He says: “It is of paramount importance that the bill is introduced as early as possible and implemented speedily in order for inflicted victims to be given the compensation they urgently need.

“The sad reality is that any delay to implementing the legislation might mean that many of those applying to the fund might die before they receive any award.”

Asbestos in UK schools

John is also the chair of my law firm, Spencers Solicitors, and in March, we joined the ongoing campaign to remove asbestos from British schools. It is clear from the available data that asbestos in our schools remains a serious issue. The management and removal of asbestos in schools has been poor at best and non-existent in many, many cases.

Rather than push this issue up their agenda and allocate greater resources to tackling it effectively, it has been revealed more recently by The Guardian that the government’s funding for asbestos removal may even be cut. It said: “Ministers have considered scaling back the Department for Education’s work addressing the issue of asbestos in schools because of budget cuts.”

The mere suggestion of cuts is shocking, especially as we continue to read horror stories of asbestos residing in schools. Within the last couple of weeks, a Birmingham academy was hit with a £10,000 court demand and a £20,000 decontamination bill, after contractors disturbed life-threatening asbestos fibres during the school holiday.

Conclusion

Based on current data, the mesothelioma death rate is expected to peak in 2016 and reduce thereafter. However, we will only see the longer-term eradication (the deadly effects of exposure can take up to 50 years to manifest) of asbestos-related cancer in the UK, on the introduction of an extensive removal operation.

Until then sufferers deserve the full support of all concerned; but the HMRC policy, the delayed Mesothelioma Bill and the suggested cuts to funding only leave us with the feeling that such support is likely to be in short supply.

How can this be right? Have your say in the comments.

Robert Landman is CEO of Spencers Solicitors and a qualified accountant with over eight years experience in the legal industry. Robert provides effective leadership of the business, overseeing and determining business strategy whilst ensuring optimisation of day-to-day operations




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Robson: little academic research into what makes an effective advocate

Nottingham Law School is to launch the first LLB with Advocacy next year as it creates the UK’s first centre devoted to academic study of advocacy.

Nottingham was the first university in the UK to award an LLM in Advocacy Skills and the LLB “will give students a unique chance to experience how the theory of law works in the courtroom and perfect their analytical and presentational skills”.

Led by senior lecturer and barrister Jeremy Robson, the Centre for Advocacy will examine what makes for effective advocacy and how lawyers can be trained to ensure that they present their cases accurately, ethically and persuasively.

Mr Robson said: “It is the duty of the advocate to ensure that their client’s interests are protected robustly. Despite the importance of this role there has been very little academic research conducted into what makes an effective advocate.

“Drawing on the expertise of many of the experienced advocates who teach at Nottingham Law School, and working in conjunction with our colleagues in the School of Psychology and School of Forensic Science we aim to change that.”

Mr Robson was called to the Bar in 1999 and practised in the Midlands until joining Nottingham in 2008.

Since that time he has taught and designed a number of different advocacy programmes, including leading the LLM in advocacy skills, a bespoke programme commissioned by the Attorney General of Malaysia.

He said: “The legal system is currently in a state of significant change and one of the consequences of this is that more and more bodies are able to offer advocacy services. It is vital for the preservation of the rule of law that the standard of advocacy is maintained.

“It is also a skill which, if students can demonstrate they can do well, opens up a whole host of opportunities in the jobs market.

“If they are good advocates, it means they can analyse a complicated set of facts, identify what is relevant and present an argument in a way which is engaging and persuasive. We will be exploring ways of ensuring that all our graduates possess these skills.”




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Tonks: proper consideration was sacrificed

In a dramatic climbdown, the Lord Chancellor Chris Grayling has agreed that extension of the RTA portal to higher-value motor and employer’s and public claims will now not happen in April 2013.

The decision, which emerged late on Friday, follows the judicial review process begun last month by the Association of Personal Injury Lawyers (APIL) and Motor Accident Solicitors Society (MASS).

MASS said Mr Grayling had acknowledged it would be unlawful to implement the extension of portal because the full evaluation of the existing portal that was promised when this change was announced has not been carried out.

A Ministry of Justice spokesman said: “Earlier this year, the government announced proposals to extend the road traffic accident scheme for personal injury claims to £25,000. ‪

“Following a legal challenge the Justice Secretary is now considering afresh the timing for implementation of the extended scheme. Further details will be announced in the New Year.”

However, he said the controversial consultation that proposes slashing portal fees by 60%, closing on 4 January, is unaffected by this decision.

MASS chairman Craig Budsworth said: “MASS is pleased at the decision, which will give all parties the opportunity to take a more reasoned and considered approach to this and avoid the headlong rush to the radical changes to the landscape that were all proposed for April 2013.

“This highlights the need to ensure that a full impact assessment of all the proposed changes should be undertaken and not introduced piecemeal. We will continue to work with all stakeholders in ensuring that changes do not prejudice accident victims whilst at the same time continuing to work to eradicate the small percentage of fraudulent claims that are doing so much to detract from the interests of genuinely injured victims.”

APIL president Karl Tonks said: “We have said from the outset that we do not object in principle to the introduction of changes which speed up and improve the civil justice system for the benefit of all parties.

“Our concern in this instance, however, is that proper consideration of key issues was being sacrificed in favour of an impractical ambition to introduce extensions to the RTA portal by next April. We look forward now to offering further input on what the implementation date may be.”

The Ministry of Justice did commission Professor Paul Fenn to conduct an evaluation into the operation of the RTA portal, which was published after much delay in July. This only covered the first year of the portal’s operation and the academic recommended that another year’s worth of data should be collected before taking forward plans to extend it.

It has also been clear early on that it would be challenging for the company that runs the electronic portal to have the extensions in place for April, a point emphasised last week when it expressed concerns about the problems that could flow from the Civil Procedure Rule Committee’s failure to approve the underlying protocols and rules.

 




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Ben Moody

Moody: court has sent a “very clear message”

Southport injury firm Fletchers claims to have secured the first judgment ordering defendants to make an interim costs payment based on the new version of the rules which came into force in April 2013.

District Judge Baldwin said the firm complained, in its submissions at Liverpool County Court, of frustration that defendants sought to “throw any obstacle in the way of any early payment of any part” of an admitted costs liability.

DJ Baldwin said counsel for the claimants argued with “clarity and force” that CPR 44.2(8) provided a “positive obligation for the court to consider making an order for the payment of a reasonable amount on account of costs”, unless there was good reason not to do so.

The district judge said counsel stressed that the change to the old interim payment rule “changed the emphasis markedly from a discretionary ‘may order’ to a qualified mandatory ‘will order unless’” and this should lie behind the court’s approach.

Delivering judgment in Travers v Poole Hospital NHS Foundation Trust (case no. C00LV184), DJ Baldwin, a regional costs judge, said the medical negligence claim was settled for £1,500 in October 2015, on the basis that the defendant paid reasonable costs and disbursements.

He said the claimant sent an informal bill for £14,164 the following month, but agreement was not reached. The firm made an application for an interim costs payment of £7,780 in December, amounting to just under 55% of the final bill.

DJ Baldwin said the NHS Litigation Authority (NHSLA) argued that the application was “misconceived and premature” and it was only after a provisional assessment that such an application should be entertained.

However, the district judge said he disagreed and that CPR 44.2(8) was engaged. “I am satisfied on the information before me that £7,780 is prima facie no more than a reasonable amount, not being an excessive or unrealistic proportion of the bill as claimed.”

DJ Baldwin said neither the defendant’s skeleton argument or submissions “sought to raise any positive reasons arising out of fundamental objections to the costs sought on an interim basis”, beyond procedural matters.

He concluded that there was no good reason not to exercise the court’s power under CPR 44.2(8) and made an order for the defendant to pay the interim costs sought by the claimant.

The firm described the ruling as a “major victory” and would be used throughout the personal injury sector by claimants seeking interim payments – it provided “clear guidance” that it was for defendants to present valid reasons as to why a request was unreasonable.

Benjamin Moody, advocacy manager at Fletchers’ in-house costs firm, Ultimate Costs, said: “For too long, defendants have strenuously objected to providing interim payments, putting off that dreaded day when costs must be paid.

“The court has now sent a very clear message that the rule change is to be interpreted in the claimant’s favour. The defendants should now have to prove that there is a genuine reason not to provide an interim payment at an early stage, which will no doubt prove difficult in the majority of cases.”




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Briggs LJ: CPR makes no “specific or separate” provision for litigants in person

The fact that an individual or a company is a litigant in person is not a reason for the “disapplication” of court orders, rules and directions, appeal judges have ruled.

However, in determining applications for relief from sanctions, there may be cases in which the lack of representation has “some consequences”, though this is “likely to operate at the margins”.

The Court of Appeal was ruling on a claim for trespass and interference with a right of way relating to a development in East London.

Delivering the leading judgment, Lord Justice Briggs said he wanted to “make it clear at the outset” that the fact one party was a litigant in person was “not itself not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants”.

Briggs LJ went on: “In short, the CPR do not, at least at present, make specific or separate provision for litigants in person.

“There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.”

The court heard in Nata Lee v Abid and Another [2014] EWCA Civ 1652, that the claimants, Mr and Mrs Abid, were represented by leading and junior counsel, while Nata Lee Limited appeared “via one of its directors” in a case “in which legal complexity makes effective self-representation even harder than it usually is”.

Briggs LJ said that at the heart of the issues between the parties was a boundary dispute, in which Mr and Mrs Abid claimed they had acquired a “small but significant” slice of a yard, allowing it to accommodate a parked car.

The judge said this was central to the dispute because access to the residential part of the new, mixed use development was by a door which “opened onto the disputed land”.

Briggs LJ said the trial judge, District Judge Langley, concluded that the “new development encroached into the yard”, based on her preference for the Abids’ expert.

The judge had earlier dismissed an application by Nata Lee to replace its expert, on the grounds, among other things, that it was “too late” and “no good explanation had been given for its lateness”.

Briggs LJ said that this was not a case “in which the relevant requirements with which Nata Lee failed to comply were dressed up in legal jargon of a kind it simply did not understand”.

However, he considered that the judge’s refusal to admit the company’s expert witness “on what was undoubtedly a very late application” was “seriously flawed”.

Lord Justice Briggs allowed Nata Lee’s appeal in relation to the boundary dispute and ordered a retrial of the extent to which the new building and its foundations encroached into their part of the yard.

The appeal was also allowed in relation to “all other aspects” of the claim in trespass and part of the claim in respect of rights of way. Lord Justices Underhill and Moore-Bick agreed.




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Royal Courts of Justice

Court of Appeal: invited submissions from the Law Society and Bar Council

A barrister who has led the way in analysing the impact of the Mitchell case has predicted that this week’s hearing of three ‘trivial breach’ cases at the Court of Appeal could pave the way for ‘Mitchell-lite’.

Gordon Exall, a member of Zenith Chambers in Leeds and author of the Civil Litigation Brief blog, said that not only did the Master of the Rolls, Lord Justice Jackson and Lord Justice Vos invite submissions from the Law Society and the Bar Council, but they asked counsel to say what they thought the Mitchell test should be.

“They don’t want the situation to go back to what it was before, but they do want to allow the parties to agree extensions of time,” Mr Exall said – the so-called buffer direction came into force earlier this month.

The Court of Appeal was considering three High Court cases, all of which involved ‘trivial’ breaches of court timetables: Decadent Vapours v Bevan and others, Denton and others v TH White and Utilise TDS v Davies and others [2014] EWHC 834 (Ch), which involved more than one breach. Judgment was reserved.

Mr Exall said the solution might lie in bringing back a distinction between “peremptory and non-peremptory” orders, just as there had been with unless orders.

Mitchell says that if you breach any order you have to apply for relief from sanctions and the whole Mitchell ruling and its criteria, apply. The question for the judges is how do they fix this? How do they square the circle?”

Mr Exall added that judges had been “tearing their hair out” at the number of applications they were receiving as a result of Mitchell.

Maura McIntosh, a professional support consultant at City firm Herbert Smith Freehills, said the Court of Appeal appeared to accept that the lower courts had taken an “overly mechanistic” approach in some cases.

“It also recognised the difficulties caused by a decrease in co-operation between litigating parties, who may stand to gain a huge prize from holding their opponents to account for failures in compliance.

“The court is, however, clearly concerned at how to promote greater flexibility and discourage parties taking opportunistic points, without a return to the problem the rule change was meant to address in the first place – a culture of non-compliance where parties felt they could breach rules and court orders with impunity.”




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stethoscope

The government also plans to cap fees for expert reports

The Association of Personal Injury Lawyers (APIL) has said it can “see the rationale” for fixing medical negligence fees for claimants in cases worth up to £25,000, where the NHS Litigation Authority (NHSLA) admitted liability.

The upper limit being considered by the Department of Health (DoH) for fixed fees is £250,000.

APIL said other personal injury claims already had fixed costs for claims up to £25,000, the fast-track civil claims limit was £25,000 and the limit would cover those injuries “most likely to resolve within 12 months of the incident”.

Responding to a DoH pre-consultation letter, the association said: “Even within the cohort of claims up to £25,000 in value, certain cases should be exceptions to the fixed costs regime: fatal claims, still-births, claimants lacking mental or legal capacity, claims where the claimant has a very short life expectancy.

“APIL has always been prepared to discuss fixed costs for minor claims. Indeed, we worked with the NHSLA in 2013 on a proposed low-value clinical negligence claim scheme until the NHSLA refused to negotiate further.

“Claims valued at more than £25,000 involve life-changing injuries and putting fixed costs on those cases reduces the quality of the access to justice for those injured people, by limiting the amount of work the claimant representative can afford to do to prove liability and/or causation, for example.

“This can be avoided by ensuring the fixed costs regime applies only to cases where the defendant admits liability in accordance with the pre-action protocol.”

APIL said that in existing low-value fixed fee regimes for road traffic, employer’s liability and public liability cases, ‘low value’ meant £25,000 – a figure “dwarfed” by the £250,000 top limit suggested by the DoH.

The association argued that claims valued at between £25,000 and £50,000 were “often complex, requiring several experts”.

The DoH also recommended that experts’ fees should be capped in lower value cases.

“If there is to be capping of expert fees, then they should be capped for both claimant and defendant,” APIL said. “There should be a level playing field with both sides of the litigation process equally restrained on the number and cost of their experts.”

The association concluded: “If a claim is properly investigated by both sides in the pre-issue stage, more often than not it should be possible to avoid litigation and keep costs down.

“As it is, the scheme proposed here by the DoH offers no incentive to the NHSLA to engage in constructive pre-issue negotiations and to settle early and instead creates an artificial incentive for the claimant to issue proceedings.

“Parties will become polarised and the benefits of the new clinical negligence pre-action protocol will be lost. We predict that there will be a substantial increase in the numbers of litigants in person, as firms turn away low-value claims. It is doubtful that any money will be saved.”

APIL added that the government had allowed no time for changes such as the new clinical negligence pre-action protocol, the LASPO limits on recoverability and costs budgeting to take effect.

“We question why, in the light of those changes, these proposals are being brought forward now. An opportunity has been missed to wait for the effects of changes already implemented to bear fruit.”




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Thomas: sustainable infrastructure for the future

The government has announced an investment of up to £375m to modernise HM Courts & Tribunals Service over the second half of the decade.

It is central to a “programme of reform” that will deliver savings in excess of £100m per year by 2019/20.

Acknowledging that “the system is currently configured in a way that perpetuates delays and costs as staff time is wasted on manual data entry and paper-based processes”, the Treasury has agreed a one-off package of investment averaging up to £75m per annum over the five years from 2015/16.

The current range of “outdated” computer systems will be replaced with a single integrated system which will allow electronic case management, while there will be an online self-service system, which will allow legal professionals and other users to complete court and tribunal forms and make payments digitally for court fees or to initiate claims for debt repayment, personal injury or housing disputes.

There will also be an increased use of videolinks, digital presentation of documentation in court and WiFi for legal practitioners.

The announcement said the estate of 500 court and tribunal buildings would be modernised to improve facilities and reduce costs, for example by enabling hearings from different jurisdictions to occur in the same building.

There will be “more effective use of courtrooms to ensure that all cases that are scheduled to be heard are not delayed when other hearings overrun”, an upgrade of facilities for victims and witnesses, and a refurbishment of advocates’ rooms.

“Once more services are made available online, users and the legal profession should only need to attend a court or tribunal when it is absolutely necessary,” it said.

Justice secretary Chris Grayling said: “Technology will be updated and replaced in courts and tribunals across the country, working practices will be speeded up and modernised, and the court and tribunal estate will be significantly refurbished, making better use of buildings, reducing the ongoing cost of maintenance and providing improved services for court and tribunal users, particularly vulnerable victims and witnesses. Justice will continue to be delivered locally, and access to justice maintained.”

In a joint statement, the Lord Chief Justice, Lord Thomas, and Senior President of Tribunals, Sir Jeremy Sullivan, said: “Individuals and businesses, domestically and internationally, rely upon our justice system to enforce their rights in a timely manner and to uphold the rule of law. This investment in our courts and tribunals administration, with a programme of reforms to IT, working practices and estates, will uphold this most fundamental function of the state and maintain the international reputation of our justice system.

“The reform programme will provide the administration of justice with a sustainable infrastructure for the future, meeting the needs of the public, legal profession and justice agencies.”




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

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

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

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

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

 




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VW: private hearing over lead solicitor role

Two law firms are in the High Court this week, battling it out to be named the lead solicitors in the group action being taken over the Volkswagen emissions scandal, Litigation Futures can reveal.

The face-off comes ahead of a hearing next month on whether to grant a group litigation order (GLO) in the case.

London firm Harcus Sinclair brought the claim against Chesterfield-based Your Lawyers, and the pair were scheduled to be facing off in a private hearing before a deputy High Court judge for the last of three days today.

Neither firm commented on the dispute when contacted by Litigation Futures, but we have seen an order emanating from another private hearing held last month, in which Mr E Johnson QC, himself a deputy High Court judge, ordered an expedited trial.

While the firms may have hoped that their disagreement would have stayed between them, the judge said his order should be copied to all the other firms of solicitors representing both the claimants and defendants in the case.

A hearing in January first considered Harcus’s application whether to grant a GLO. The dedicated Your Lawyers website for VW claims records that at the hearing, “[we] informed the court that we were very well placed to take on the role of lead solicitors, and to take a leading role in the conduct of this litigation.

“We expected a little encounter with Harcus Sinclair, the firm that made the application and another couple of law firms but on the day of the hearing, there was a consensus that the application should not proceed. The High Court agreed and the application was adjourned until October 2017.”

Harcus Sinclair has enjoyed a high profile over its pursuit of the case, working with national giant Slater & Gordon to represent tens of thousands of car owners in the group. Some 1.2m cars built by VW, Audi, SEAT and Skoda – all part of the VW Group – are affected.

We reported at the start of the year that Harcus Sinclair was operating under a damages-based agreement and has secured third-party funding from Therium Capital Management.

The key allegation is that the affected cars should not have been certified as fit for sale because they produced higher levels of harmful emissions than the rules allowed. It is also alleged that the affected vehicles only passed official emissions tests because their engines were fitted with a ‘defeat device’ which reduces the emissions under test conditions.

Harcus Sinclair said it would make a claim for exemplary damages if it could show that VW deliberately fitted the defeat device to increase its profits.

Your Lawyers specialises in consumer action claims and group litigation, and says on its website that it too has thousands of clients under ‘no win, no fee’ agreements.


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A golden opportunity for the ATE market to innovate

Enrique Gomez Head of ATE DAS UK Group

With the key judgement in the BNM v MGN case not expected until the end of the year, and decisions in the fixed recoverable costs arena not due until 2019, the after-the-event (ATE) insurance sector – already burdened by ever-changing regulation – is playing something of a waiting game. But this could be a golden opportunity for the ATE sector – the chance to take advantage of what might otherwise be a relative lull in activity period to set in motion a time of self-analysis and transformation, to develop plans for what the future of ATE insurance will look like.

July 16th, 2018