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Negotiation has always been one of the most important lawyer’s skills both for commercial deals and for disputes. Now it needs essential honing in the new environment as more disputes are settled or decided by mediation/arbitration and many go to on-line dispute resolution.

What is the lawyer’s role in these new contexts? How best can we keep control of alternative dispute resolution proceedings? How will the ethics of negotiation change after the new Solicitors’ Code of Conduct, revelations in the Leveson hearings and the long term effects of advice to the banks before the crash?

MBL’s highly interactive full day masterclass will cover these points and more. It involves a number of participatory worked exercises as well as sessions covering:

  • Preparing for Negotiation: The Stages
  • The Strategy Skills of Negotiation
  • Mediation, ADR and Electronic deals
  • The Reluctant Negotiator
  • The New Ethics of Negotiation

Book now and see why a previous delegate described this masterclass as “A course unlike other CPD courses – much more engaging!”

For more details on seminar dates and costs please give us a call on 0161 793 0984, or email lucy@mblseminars.com quoting Litigation Futures.




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Law Society: fixed costs will lead to less experienced fee-earners handling work

The Law Society has come out strongly against the introduction of fixed recoverable costs (FRCs) for mesothelioma claims and argued that while a dedicated pre-action protocol (PAP) could be a good idea, the one proposed by the Association of British Insurers and adopted by the government is not.

In a firm response to the government’s consultation on reforming mesothelioma claims, the society said that such cases require the attention of specialist, experienced solicitors on both sides of the claim.

“Introducing fixed recoverable costs is highly likely in practice to lower the grade of fee-earner conducting the work, leading to worse outcomes for the claimant. It is also likely to inhibit the future development of further practitioner specialism in this area.”

It pointed to research conducted by Professor Paul Fenn that concluded all disease cases were inappropriate for the EL/PL protocol and portal, including the fixed-fee regime, because of the wide variance of costs encountered in such cases.”

The society also noted that if the government was confident about the impact of costs management, there should be no need for FRCs in mesothelioma cases.

A better approach to encourage efficient claimant behaviour, it said, was a PAP that provided “substantial and carefully enforced sanctions for non-compliance”.

Chancery Lane said that while “some minor aspects” of the proposed mesothelioma PAP may assist in reducing delay and cost, it does little to address the limitations of the existing disease PAP, while removing key flexibilities in the latter for sufferers swiftly to issue proceedings and take advantage of practice direction 3D (the ‘show cause’ procedure).

The response – drafted by the civil justice committee – also rejected the proposed secure mesothelioma claims gateway, saying that it would be an “additional, unnecessary layer of bureaucracy” – while a portal has benefits in high-volume, low-value areas of litigation, this was not the case here.

There would also be “an enormous conflict of interest” if the gateway was owned and controlled by insurers. If one were to be established despite the society’s objections, it would need to be governed independently or at the very least by a balanced board of all interested parties.

The Law Society rejected the suggestion that the government had done enough to activate the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 that would end recoverability for mesothelioma claims. The Act requires the a review of the likely effect of doing so and the society said this required “comprehensive analysis of the role and prevalence of success fees in mesothelioma claims, detailed consideration on the levels of risk associated with bringing such claims, and forecasting of how this is likely to change over time”.




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QOCS: exaggerated claims need proven dishonesty

The rule committee needs to draft a tight definition of qualified one-way costs-shifting (QOCS), rather than grant wide judicial discretion as originally envisaged by Lord Justice Jackson, the Civil Justice Council (CJC) has recommended.

In its newly published advice to the Ministry of Justice (MoJ) on QOCS – which informed the government’s announcement on the issue last week – the CJC said it is “striking” how far the policy on QOCS has moved since Jackson LJ’s final report in December 2009.

He proposed that the basic test for QOCS should broadly follow the well-established formulation used to define costs protection for legally-aided clients. This would means that costs awarded against a claimant “shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances including the financial resources of all the parties to the proceedings and their conduct in connection with the dispute to which the proceedings relate”.

Now, however, there is no financial test for QOCS, while the circumstances in which conduct issues should lead to loss of cost protection have been carefully and precisely defined, always with a view to minimising uncertainty and the risk of challenge, the CJC observed.

“The view of the working group [that produced the report] is that the original overall test of reasonableness proposed in the final report is no longer the best vehicle to deliver the final detailed policy on QOCS. It would be strange indeed if the rules stated that the test was what was reasonable, and then defined exactly what was or was not to be treated as reasonable.

“In our view, it would be preferable for the rules to specify directly when a claimant may be liable for costs. Any other approach risks opening the door to a further and unspecified discretion to award costs, the extent of which would inevitably be the subject of satellite litigation.”

Further, it said the two-stage approach as originally envisaged by Sir Rupert – namely special QOCS rules to determine first whether any award of costs should be made against the claimant and secondly to determine how much it is reasonable for the claimant to pay – may not be necessary.

“Instead in the rare circumstances where QOCS protection is lost under the above tests, it is lost entirely and existing costs principles can apply to determine quantification of those costs.”

It is clear that the announcement last week was heavily influenced by the CJC report, such as adopting its recommendation that claims should not lose QOCS protection merely because they have been struck out, but only where the claim discloses no reasonable cause of action or where it is otherwise an abuse of the court’s process.

It also warned against trying to remove QOCS protection from exaggerated claims where there is no proven dishonesty.

The MoJ said it is “considering further” the practicality of QOCS protection not applying to subrogated non-injury elements of a claim, which the CJC report discussed in detail without coming up with a clear solution.

It said: “The fundamental problem… is that drafting a principled test or rule which limits the scope of QOCS is not only a difficult and complex exercise but also that it in so doing there is a real risk of providers (not only of credit hire) immediately changing behaviours and business models in an attempt to bring matters back within the scope of protection.”

The full advice can be found here (links to PDF).




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Pleadings: flouted all the principles in the Commercial Court Guide

Pleadings: flouted all the principles in the Commercial Court Guide

A High Court judge has handed out a tongue-lashing and a costs penalty over a party’s failure to stick to the rules governing the length and content of statements of claim laid down in the Commercial Court Guide.

In the latest of a series of court rulings bemoaning overly long pleadings, Mr Justice Leggatt said that unless adverse costs orders are made “in cases of flagrant non-compliance, practitioners who are well aware of the principles of pleading and the provisions of the Commercial Court Guide will continue to overlook them, as happened here”.

He was ruling in Tchenguiz & Ors v Thornton UK LLP & Ors [2015] EWHC 405 (Comm), which involves allegations that the defendants conspired to induce the Serious Fraud Office to investigate the claimants on a false basis by the unlawful means of making statements which the defendants did not believe to be true.

The issue of ever lengthier pleadings was considered by the Commercial Court long trials working party, which reported in 2007 and led to changes to the Commercial Court Guide that statements of case should not exceed 25 pages unless the court was presented with a very good reason to allow a longer one, along with guidance on what they should include.

Leggatt J said: “The particulars of claim which have been served in the present case flout all these principles. They are 94 pages in length. They include background facts, evidence and polemic in a way which makes it hard to identify the material facts and complicates, instead of simplifying, the issues.

“The phrasing is often not just contentious but tendentious. For example, the defined term used to refer to three of the defendants is ‘the conspirators’. Nor can headings such as ‘the plot’ and ‘the plot evolves’ be supposed to be ‘in a form that will enable them to be adopted without issue by the other party’ [as per the Guide].”

On top of this, the claimants did not seek the court’s permission to serve a statement of case longer than 25 pages; a retrospective application was made two months after it was settled following the defendants’ objection.

The particulars were signed by four counsel and the judge required them each to explain whether they were aware of the requirements of the Commercial Court Guide.

He recorded: “From their answers, it appears that the two most junior counsel (one of whom is a criminal practitioner) were not aware of the relevant requirements of the Commercial Court Guide when they assisted in drafting the particulars of claim.

“The two senior counsel, Mr Romie Tager QC and Mr Jonathan Crystal, have said that they were conscious of the relevant provisions of the Guide when they embarked on drafting the particulars of claim but that, by the time they completed this task which took place over a period of more than three months, they were no longer conscious of the need for an application to be made for permission to serve particulars of claim longer than 25 pages.”

For his explanation, Hardeep Nahal, a partner at the claimants’ firm, McGuireWoods, told the court: “The length of the document was considered necessary to make sufficiently clear to the defendants (and ultimately the court) the extremely serious allegations being raised by the claimants against the defendants.”

The judge responded: “It must be abundantly clear to anyone who is accused in a statement of case of fraudulent conduct that extremely serious allegations are being made against them. It is unnecessary to repeat the assertion that the person has been fraudulent again and again on page after page in order to convey this fact.”

He rejected arguments that the particulars did not have to be re-pleaded, ordering that the they be struck out and the costs of drafting them disallowed, and that fresh particulars no longer than 45 pages should be served within 21 days.

Leggatt J concluded: “I have shown this judgment in draft to the judge in charge of the Commercial List [Mr Justice Flaux], who endorses the principle that flagrant disregard of the guidance applicable to statements of case may lead to adverse costs orders.”




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CFA clients welcome greater transparency

Posted by Malcolm Roberts, managing director of Litigation Futures sponsor Beechwood Solutions Ltd

It’s now two months since ‘J Day’ and life as a CFA sign up agency has in fact changed much less than we expected. Accidents are still happening, solicitors and claims management companies are still marketing and we are still receiving instructions.

So what can we report from the sofas and firesides of the claimants we have been visiting since the new regime came in? By and large clients’ reaction to seeing part of their compensation being retained by their solicitors has been a collective shrug of the shoulders, whiplash permitting.

The thing is that, in our experience, clients always thought that they would pay in the end; they just didn’t know how much and where the bill would come from, despite everything they had been told. Now the deal, as they see it, is much more transparent and more palatable because of that. A case of better the devil you can see than the devil you can’t. We, of course, understand that the client’s position is now vastly inferior to before; however, as in most aspects of life, perception overrules reality.

The subject that may still be regarded as far from settled is that of after-the-event (ATE) insurance. Initially there were different schools of thought regarding whether clients should pay for this, or the cost should be absorbed within the 25% of damages to be retained. Both sides of the debate vigorously argued their stance, but the prevailing wisdom now is that this is a disbursement for which the client is responsible.

The question that remains is whether the benefit provided justifies the cost. I’m very glad that it’s not within my remit to advise clients on this, or to decide how much it should be. My feeling, though, is that if it were cheap enough, then the vast majority of clients would simply tick the ‘yes’ box to enjoy the security of complete protection. If that were the case, then the many would be contributing to assist the few who needed to rely on the cover, as is the normal basis on which insurance works.

On the other hand, if the cost of ATE is comparable to the sort of purchase that most clients would have a good long think about, then only those with very weak claims may take it up, resulting in an ever decreasing spiral of decline for ATE providers.

Prior to J Day there were many voicing doom and gloom predictions, but one thing is abundantly clear: the demand from the public for accident compensation is a juggernaut that is gaining speed. Some 600,000 people a year are successfully claiming and if each one of those tells just five others of their experience, the gap between those who could claim and those who do will inevitably narrow.

That provides an enviable platform for this business sector. The future challenge lies in being able to satisfy that demand profitably.




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Bar: excluding barristers will have negative effects

The Ministry of Justice (MoJ) is storing up even more trouble in portal and fast-track cases by cutting out barristers, the Bar Council and Personal Injuries Bar Association have said.

The pair argued that instead of abolishing the disbursement basis for paying the Bar – which it said was being done without consultation and contrary to Lord Justice Jackson’s recommendations – the MoJ should introduce a low fixed-fee system for instructing barristers that would cover advice on liability, quantum and particulars of claim.

They put forward figures ranging from £125 for handling the allocation questionnaire for RTA cases worth £1,000 to £3,000, to £350 for particulars of claims in employers’ and public liability cases worth £10,000 to £25,000.

The MoJ consultation on the proposed fixed recoverable costs makes no provision for counsel at all, and also ignores Lord Justice Jackson’s proposal that a lump sum should be added to the costs in every fast-track case to cover the average cost of solicitors instructing the Bar: £110 in RTA, £225 in employers’ liability and £300 in public liability.

In their response to the consultation, the two bodies said: “Any suggestion that solicitors will share their (very low) fixed fee with the Bar is misguided. They will not do so on the fast-track (or indeed any expanded portal) any more than they currently do under the existing portal system.”

They argued that excluding claimants from access to the Bar will have “a negative effect upon access to justice, will place excessive burdens upon the court system, will result in under-settlement of claims, will cause a rise in professional negligence claims against solicitors and will place further strains upon the Courts Service, the National Health Service and the welfare system.

“It has been the government’s stated objective to reduce the cost to insurers by capping or reducing legal fees. This objective is best achieved by involving the Bar (at fixed cost). This will prevent unmeritorious, unfocussed and exaggerated claims from proceeding.”

The response argued that the low level of the MoJ’s proposed costs “will obviously mean that solicitors will either reduce their standard of service or utilise the lowest grade of fee-earner to conduct litigation”, but having a “low fixed-fee system for instruction of the Bar” would militate against these problems.

More broadly the two bodies argued against the proposed costs, saying they will deny access to justice for injured people. “The principle behind the proposals is commoditisation of work which imposes fixed prices and abolishes hourly rates. The Bar Council and PIBA accept this principle, but it can only work if the fixed process allows the lawyers involved to provide a reasonable professional service to the injured person taking into account the issues raised by insurers and the procedure for achieving resolution.

“The MoJ’s proposed fixed fees are being imposed without any substantive evidence of the average number of hours of work needed to complete each type of commoditised case or of the proposed reasonable average hourly rate.”

They called for a fuller review of the present portal, which they described as “unfit for purpose”.




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ARAGLike the solicitors at our partner firms, everyone at ARAG recognises the importance of staying up-to-date with the latest legal developments in those practice areas in which our after-the-event policies are used. But such expertise often extends beyond the realms of purely legal knowledge.

Just one example is the progress over recent years in using immunotherapy treatments for mesothelioma, which offer unprecedented and realistic hope for asbestos victims, but at a considerable price.

Trying to include the cost of such treatments in a settlement requires knowledge, not just of the current legal position, but also the latest clinical trials and decisions with regard to NHS funding of such drugs.

Even today, when medical miracles abound, the prognosis for mesothelioma patients is bleak and the standard treatments brutal. A combination of surgery, chemotherapy and radiotherapy may extend life for some terminally ill patients, but the reprieve is likely to be measured in months, not years.

Relatively new “immunotherapy” drugs, such as nivolumab and pembrolizumab, have been approved for NHS use in treating some cancers under certain circumstances, but trials are still ongoing for mesothelioma patients, so many would have to pay for them personally, to benefit.

The cost, even for a short course of such drugs, currently runs to tens of thousands of pounds which, if they do their job, could turn into an annual bill well into six figures.

Such sums, especially given the uncertainty surrounding both the treatment’s success and for how long it might be needed, inevitably make things very difficult when trying to reach a settlement in this sort of claim.

Nonetheless, I’m very pleased to say that we have had some recent successes with partner firms working on this sort of industrial disease case. Through their diligence and expertise, clients who have been dealt a cruel hand now have the hope afforded by the latest in medical advances.

Such successes demonstrate the importance of all the homework that we and our solicitor firms do to stay in touch with the latest developments in relevant practice areas. They also reflect ARAG’s mission, for more than 80 years, to provide equal access to justice for all citizens, regardless of their means.

In these cases, access to justice might also be the difference between life and death.




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Ritchie: problem is far from a technical one

Ritchie: problem is far from a technical one

The government has been asked to look at changing the Civil Procedure Rules to prevent solicitors from employing unregistered barristers as agents to represent clients in court.

The move to clamp down on allowing those without rights of audience to appear at hearings has also won the support of the Association of Costs Lawyers (ACL).

Recently published papers from the February meeting of the Civil Procedure Rule Committee (CPRC) show that the Personal Injuries Bar Association (PIBA), with the support of the Bar Council, wrote to the CPRC over its concerns that solicitor’s agents – usually unregistered barristers – were increasingly being used to conduct advocacy in open court at stage 3 quantum-only hearings under the various personal injury pre-action protocols.

The letter – co-signed by PIBA chairman Andrew Ritchie QC and Derek Sweeting QC, chair of the Bar Council’s legal services committee – said the exemption in the Legal Services Act 2007 from needing rights of audience was plainly drafted to confine it “to hearings which are held in private”, although the Act uses the now out-dated phrase “in chambers”.

However, there have been difficulties in determining exactly when the exemption applied, they said.

The letter said: “The problem is far from a technical one since section 14 of the LSA provides that it is a criminal offence for a person to carry on a reserved legal activity unless she/he is entitled to do so…

“It strikes us as inherently anomalous that a right of audience can be exercised in these circumstances by a non-qualified advocate and we are aware that the issue is causing difficulties both for practitioners and the lower courts as well as exposing unregistered barristers to a potential criminal liability.”

The minutes of the meeting said: “The committee considered the correspondence from PIBA, but felt that it was not their function to interpret the 2007 Act to resolve legal ambiguity. District Judge Lethem noted that in practical terms, where an agent attends a hearing and no notice of acting is required it is very difficult to establish their rights of audience.

“The committee were not unsympathetic to the problem and asked the MoJ [Ministry of Justice] representative to draw the matter to the attention of the appropriate policy area with the MoJ.”

The ACL said it was concerned that courts were continuing to hear unregulated and unqualified persons and failing to recognise the importance of a regulated profession, with a particular emphasis on unregulated costs draftsmen.

Chairman Iain Stark said: “Before costs lawyers, the courts utilised the legal myth of a so-called solicitor’s agent, notwithstanding that arguably these individuals had no rights of audience. But the law and the profession have been modernised in recent years, and it is clear that there is a push towards the need to be a practising lawyer with independent rights of audience to appear in open court.

“Having worked so hard to get where we are, some members will find it disappointing that the courts have not recognised this change and urge the Ministry of Justice to take action to ensure the integrity of the advocacy regime.”




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Courts: £411,000 paid to get out of lease

The civil courts recorded a surplus of more than £100m in 2016-17, their biggest profit to date, according to the annual report of HM Courts and Tribunals Service (HMCTS).

It is only the second year where the civil courts have been in surplus, a still new concept.

The civil court brought in a surplus of £116m in the year to 31 March 2017 – up from £95m – although a £14m deficit from the family courts meant that the overall profit from civil business was nearly £102m.

All tribunals saw a deficit of £162m in total, of which £96m came from the asylum and immigration tribunals.

In all, HMCTS collected £742m in fee income across all the jurisdictions over the year, leading to an overall deficit of £60m. This is down from £110m the previous year and £232m the year before that, when fee income was £673m and £586m respectively.

This reflected further fee changes and rising case volumes in family and civil, the report said. But it added that its ‘Help with Fees’ service has “slashed” the number of applications that need to be sent back and filled in again, saving £1m a year.

The report also recorded some “fruitless” payments, particularly a £411,000 premium to exit a building lease.

HMCTS employs approximately 15,750 full-time equivalent staff, a drop of 20% over five years, although the number of temporary staff has more than doubled in that time to 1,480.

The report said: “As part of our workforce, we have a number of capable agency and contract staff, equivalent to 1,480 FTEs, fulfilling both frontline roles and specialist corporate roles to support the Change Portfolio.

“As we continue on our journey of transforming HMCTS, we have deliberately recruited staff to roles on a temporary basis to minimise the risk of redundancy to our permanent workforce, and to minimise long-term redundancy costs incurred by employing staff now who we know we cannot offer a long-term role to.”

Women made up a majority of senior managers (28 out of 52) and other staff (72%), although among the service’s 12 executive and non-executive board members, seven are men.

Staff had an average of eight days sick a year.

The annual report also showed that, in all, HMCTS handled over 4.1m criminal, civil, family and tribunal cases in 2016-17.




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McKenzie: unfinished business

Compensation payments under the new Mesothelioma Act will increase over time to give victims 100% of what they are due, the Labour peer who led his party’s response to the legislation has predicted.

Attendees at a roundtable on reforming mesothelioma claims, organised last week by insurance law firm Kennedys, also heard that there is likely to be political support for extending the scheme to other types of disease.

Under the Act – which received Royal Assent on Thursday – an annual 3% levy on the insurance industry will be used to compensate an estimated 300 mesothelioma victims a year who cannot identify an employer liability policy for the period when they contracted the disease.

Under the scheme, they will receive 75% of the compensation amount they would have been awarded by a court, which was opposed by claimant lawyers and became a major point of contention during passage of the legislation through Parliament.

Lord McKenzie of Luton, who led on the Bill for Labour in the House of Lords, told the roundtable that after the scheme’s early years, as it settles down and the number of claims levels off, the levy “should enable 100% compensation”.

The peer praised the government for taking the Act forward “in a robust way”. Despite the debates about the scope of the scheme, “most important was getting it on the statute book as quickly and efficiently as possible”, he said. At the same time, he described it as “unfinished business” as the scheme could be extended in the future to include other types of diseases.

Also at the roundtable, Lee Eplett, the official at the Department of Work and Pensions who oversaw the legislation, emphasised that the levy was set at a level insurers had said they could absorb without having to pass on the costs to businesses. He warned that if there was evidence that insurance premiums were in fact rising as a result of the levy, the government would revisit the issue.

He acknowledged the difficulty that has arisen in relation to HM Revenue & Customs releasing deceased persons’ employment histories to their legal representatives; HMRC will now only do so once a court application is made. Mr Eplett said the government was looking at the problem, while a coroner was bringing a judicial review against HMRC.

Mr Eplett also drew attention to what he described as an important but sometimes overlooked aspect of the Act that provides for the creation of a technical committee that would make binding decisions on whether an insurer was on cover at the time of the claimant’s exposure to asbestos, saving the time and cost of having a court determine the question.

Mr Eplett confirmed that once it had received Royal Assent – which happened subsequent to the roundtable – the government would confirm the successful bidder for delivery of the scheme.

Kennedys partner Philippa Craven, who chaired the event, said: “We welcome the cross-party consensus that formed around establishing the scheme and the balance the legislation has achieved between its different stakeholders.

“Lord McKenzie also spoke of the importance of stakeholders getting involved in the legislative process from the start and fortified our determination to play an active and constructive role in the development of policy that affects our clients and help ensure effective legislation is passed by Parliament.”




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RCJ

Judge Seymour: “No estoppel without communication”

After-the-event (ATE) insurer Temple Legal Protection was not estopped from avoiding payment on a policy after a fraudulent misrepresentation, the High Court has ruled.

Judge Richard Seymour QC, sitting as a High Court judge, described the case brought against Temple by two firms of insurance brokers as “pure Alice in Wonderland”.

Making an interim payment and increasing the limit of indemnity were not acts that, by themselves, indicated that Temple would pay out at the end notwithstanding its customer’s misrepresentation, he said.

In IHC and another v Amtrust Europe [2015] EWHC 257 (QB), the court heard that Temple had provided ATE insurance to Consortium Hotels & Inns Business Services for its claim against two firms of insurance brokers, and another insurer, over alleged secret commissions. Some of the claims were dismissed at summary judgment – at which point a £10,000 interim payment was made – and the rest were rejected by the High Court in December 2012 after it held that Consortium’s director knew about the commissions.

The court issued a default costs certificate in favour of the brokers for £361,400 in February 2013, but the following month Consortium went into liquidation without paying any of the costs.

The insurance brokers then sued Temple under the Third Parties (Rights against Insurers) Act 1930, claiming payment of the outstanding £180,000 of Consortium’s £190,000 cover.

Though it was common ground that Temple was entitled to repudiate the contract of insurance because of the misrepresentation, the brokers argued that it was estopped from doing so because of the interim payment and subsequent increase in cover, saying these acts were “fundamentally inconsistent” with declining to pay out.

Judge Seymour said that their claim depended entirely “not upon anything actually said… but upon what each of the acts identified, treated as a representation, carried with it as ‘some apparent awareness of the right upon which the representor will not insist’”.

He said that on the facts it did not follow from the successful application for summary judgment that the director had lied – the defence had been put no higher than that Consortium, as an experienced commercial party, should have known commission was being paid in the circumstances. Further, at the time of making the interim payment, neither Temple nor Amtrust had seen the particulars of claim or defence in the original action.

Judge Seymour said the essence of estoppel was communication between the parties and “without a communication there can be no estoppel”.

He said that although a representation giving rise to waiver by estoppel could be either by words or conduct, it must result in a “clear and unequivocal message from the insurer to the insured that the insurer will not exercise the relevant rights” and the insured must rely on that message “in a manner making it inequitable for the insurer to go back on it”.

The judge went on: “As it seems to me, it is impossible to found a waiver by estoppel without each of the insurer and the insured being aware, at very least, of the facts which give rise to some relevant right of the insurer. There can be no estoppel unless both parties share at least that level of knowledge.”

The judge said the alleged representations did not carry with them “some apparent awareness of the right upon which the representor will not insist” and there was no evidence of “actual reliance” by the consortium on them.

Dismissing the brokers’ claim, he concluded: “Never in the field of equity has assistance been lent to a crook to the disadvantage of an innocent party defrauded by the crook. It could not possibly be equitable to allow a party who knew the true position to say that it was entitled to rely upon some indication of ‘apparent awareness of the right upon which the representor will not insist’ as against the deluded opposite party.”

 




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High Court: no jurisdiction to make case management directions for proceedings in the CAT

High Court: no jurisdiction to make case management directions for proceedings in the CAT

A High Court judge has made it clear that the court is not required to go along with parties who agree to dispense with costs management.

Though the ruling by Mr Justice Roth was in the Competition Appeal Tribunal (CAT) – of which he is president – he was applying the CPR’s costs management rules, which are being used in the tribunal for the first time in this case.

His decision in Agents’ Mutual Ltd v Gascoigne Halman Ltd (t/a Gascoigne Halman) (Costs management II) [2016] CAT 20 is one of a number of interesting costs-related rulings coming out of this dispute.

The case concerns the terms of membership of online property portal OnTheMarket, which the claimant says the defendant has contravened; there is a parallel case brought by the claimant against another member, Morginie James, which is being heard with this one.

Though the actions were brought in the Chancery Division, Sir Kenneth Parker ordered, by consent, that both cases be assigned to a judge who is also a designated chairman of the CAT and that the competition issues in both actions be transferred to the CAT.

He also ordered that the requirements for costs management be dispensed with in relation to the Gascoigne Halman claim.

The defendant argued that this applied to the CAT part of the claim too, or alternatively that the parties had agreed to have no costs management at all. The claimant disputed this.

As to the first ground, Roth J said: “The High Court clearly has no jurisdiction to make case management directions for proceedings in the CAT. Moreover, I have no doubt that Sir Kenneth Parker was well aware of this: that emerges, if support were needed, from several of his observations during the hearing before him and it is unnecessary to lengthen this judgment by quotations from the transcript to illustrate such a basic and obvious point.”

He went on to find that on the evidence there was no discussion between the parties about costs management in the CAT or agreement that it would be dispensed with.

“Finally, I should make clear that even if, contrary to the above, I had found that the parties had agreed to dispense with costs management in the CAT, that would not preclude the CAT’s power to make such costs management orders as it considered appropriate.

“Although I accept that any such agreement between the parties would be a very relevant factor to take into account, for the reasons set out above that situation does not arise in this case.”

In a subsequent hearing ([2016] CAT 21), Roth J scrutinised six future phases of Gascoigne Halman’s budget – the claimant’s having been agreed – and sliced 37% off them, from nearly £1.5m to £922,000. The company’s budget, including incurred costs, was a little over £2.8m, compared to £1.8m for the claimant.

In his preliminary comments, Roth J emphasised that the costs management exercise was “not concerned with what Gascoigne Halman’s solicitors and counsel may actually charge their client”, but with what the company’s recoverable costs would be on the standard basis should it win in the CAT. Proportionality was “fundamental” to this.

The judge continued: “Although comments were made about and comparing the hourly rates and number of hours set out in the budgets, a costs management order is not concerned with a determination of rates or hours. However, the details set out in Precedent H can be scrutinised to understand the constituent basis of the overall figures and in order to assist with the evaluation, but no further.

“I accept that these are complex proceedings in that they involve a specialist area of law and therefore involve higher costs. Both sides are using City of London solicitors and I do not regard that as disproportionate.

“I accept also that the issues are of great importance for both parties although, it seems to me, they are still more important for the claimant than for Gascoigne Halman: the claimant contends that its future in the online portal market may depend on the determination of the competition issues.”

With the claimant’s budget agreed and thus not subject to review by the CAT, he said that “it would not be fair to revise costs in Gascoigne Halman’s costs budget for the same phase of the action to a lesser amount, unless there was a material difference between the two sides in terms of the work involved”.

In reducing the figures for all of the significant phases, Roth J sliced £100,000 off the budget for expert witnesses (to £146,000) because too much of the work was allocated to partners rather than more junior staff, and more than halved the amount for the pre-trial review because it made provision additional applications at the review that at the moment were just “speculative eventualities”.

He also took nearly £300,000 of the trial budget of £842,195 because of the amount of partner time allocated and the apparently high cost of counsel when compared to the claimant’s team. “It may be that the fees charged by counsel acting for Gascoigne Halman represent the market rate for their services but that does not make them reasonable or proportionate,” he said.

In an earlier decision in this litigation, Roth J ruled that a party seeking an order for security for costs does not have to provide a costs budget in the precise form of Precedent H, but the court should expect a full schedule “showing how the sub-totals under the various specified heads were arrived at, including the rates being charged and hours estimated”.




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stethoscope

All experts must be accredited by the new year.

MedCo, the new system for sourcing medical reports in whiplash cases, has announced that Bond Solon and Docslot have been chosen as the first two companies to accredit experts.

All medical experts writing initial reports for “low value soft tissue injuries” will have to be accredited from I January 2016, although there is talk that this is being moved to 1 February. MedCo estimated that the training would take 30-35 hours.

Bond Solon is a legal training and information company based in London, owned by Wilmington, which specialises in the legal, financial and compliance sectors. Bond Solon specialises in the training of expert witnesses.

Docslot is an IT company which provides technology and training to doctors, physiotherapists and nurses. Products include an online appointment-booking system.

A spokesman for Docslot said the company was a wholly-owned subsidiary of an IT company called Smart Online Ltd, a private company with two shareholders – Dr Bippon Vinayak, chairman and chief executive of the Doctors Chambers Group, and Dr Anne King, the group’s chief medical officer.

However, the spokesman said Docslot and Smart Online were not owned by Doctors Chambers, which was owned by STM Fidecs, although Doctors Chambers, Smart Online and Docslot “do share some directors”.

He added that Doctors Chambers had been a customer of Docslot for over five years.

A spokeswoman for MedCo told LegalFutures that there was no limit on the number of accreditation providers, and any new company wishing to apply should get in contact.

The spokeswoman said there were also no restrictions on the ownership of accreditation providers.

“MedCo has never defined that ownership of other entities would constitute a conflict for training providers. As such MedCo is not in a position to comment on the business structure of individual companies.”

The spokeswoman added that Bond Solon and Docslot were selected “following an independent pre-qualification evaluation”, and “both providers cover the same course content and offer the same level of accreditation”.




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Brennan: strong investment approach Photo: Steve Nimmons

Third-party funder Juridica has made a £23m profit on four separate cases that have partially settled, it announced yesterday.

In a statement, the AIM-listed company said the cash, which it emphasised is a realised gain rather than a return on capital, was in line with expectations for these cases as previously reflected in its unrealised profits. It will receive the vast majority of the proceeds at its year-end.

Juridica expects to release its half-year results in mid-September. The statement said: “As it moves further into the year and has more visibility on expected year-end results in the portfolio, the board will consider at its 6 September meeting the announcement of an interim dividend to be paid to shareholders at or prior to the year-end. It is the Board's intention to pay-out a significant part of these proceeds as dividends, as and when received.”

Juridica initially raised £115m of capital in two tranches. With the latest settlements, it has now generated £53m in gross proceeds and returned £16m to shareholders in the form of £11m in dividends and £6m when it acquired company shares in its September 2010 buy-back programme.

Lord Brennan, Juridica’s chairman, said: “I am pleased to report that we are starting to see the benefits of some of our investments in larger cases, which often have a longer time to completion but also can generate larger returns.

“The cash results announced today demonstrate the strength of our investment approach and are equivalent to 20% of the total capital raised by the company. The board and its investment manager are really pleased about this opportunity to return significant dividends to shareholders in the near term.”

Richard Fields, chairman and chief executive of Juridica Capital Management, the investment manager, said: “When we first developed this market, we committed Juridica to invest in bigger cases with a desire to generate significant returns for our investors over the long term. We are thrilled to see the results and truly hope the investors who have been with us throughout this process feel the same way.”

Meanwhile, Australian funder IMF is backing an A$223m (£150m) unfair fees action being brought by Maurice Blackburn Lawyers against eight banks in the country. With 170,000 claims, it is the biggest series of class actions brought in Australia.

The class actions are being funded by IMF on a no-win, no-fee basis for participants.




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Court of Appeal: costs award was within judge’s discretion

A High Court judge was entitled to penalise a firm of Russian stockbrokers for conduct that “fell below acceptable standards of conducting litigation” by ordering it to pay 75% of the other side’s costs, even though it had successfully resisted a bid to strike out its claim, the Court of Appeal has ruled.

The appeal judges agreed with the court below that Otkritie Capital’s poor behaviour was not an abuse of process and an application by Threadneedle Asset Management for a strike-out should be rejected.

Lady Justice Arden said the “plain fact” was that Otkritie was in breach of the guidelines laid down by the Court of Appeal in Aldi Stores v WSP Group.

Otkritie brought one action successfully against a number of individuals, including an employee of Threadneedle, but not Threadneedle itself. It was now seeking to make Threadneedle liable on the basis of vicarious liability in a second action.

The Aldi guidelines require a party to seek directions from the court in the first action about the possibility that the second action may be brought in respect of the same facts against another person, who may not have been a party to action 1. Otkritie did not do this.

At first instance, Mr Justice Knowles found that the second action was not an abuse of process. However, he said Otkritie’s reasons for not joining Threadneedle were that its solicitors would have had to resign because of a conflict of interest.

He held that, while there was no question of lack of honesty on Otkritie’s part, or harassment of Threadneedle, Otkritie’s conduct fell “well below” the standard of conduct which the court was entitled to expect and made the order that it pay 75% of Threadneedle’s costs of the strike-out application.

In Otkritie Capital International Ltd & Anor v Threadneedle Asset Management Ltd & Anor [2017] EWCA Civ 274, Arden LJ first upheld the decision not to strike out the claim, and then on the costs order said counsel for Otkritie argued that it breached “a fundamental principle, namely that the winner should get his costs”.

She went on: “He submits that it would create a perverse incentive if this court as a rule decided that a party who could establish a breach of the Aldi guidelines but not abuse of process could recover its costs. It would have a free ride to use the court’s resources for an abortive application.”

However, Arden LJ concluded: “The plain fact is that Otkritie was in breach of the Aldi guidelines, and the judge found that its conduct fell below acceptable standards of conducting litigation.

“In those circumstances, it was in my judgment well within the margin of his discretion to make an order which marked the court’s disapproval of that conduct. He was entitled to hold that Otkritie should not recover any of the costs of its successful defence to the application.

“It also meant that in addition he was entitled to require Otkritie to pay costs to Threadneedle. He then assessed the appropriate percentage at 75%. This was obviously substantial but it cannot be said that it was outside the margin within which reasonable minds may differ.”

Agreeing with Arden LJ, Sir Christopher Clarke, a lord justice of appeal until last month, added: “I am bound to say that I think that the judge’s order on costs was closer to the margin of his discretion than my Lady would place it. But I am not persuaded that it was beyond the boundary.”

Lord Justice Henderson also agreed.




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Court of Appeal: client, not firm, terminated retainer

The Court of Appeal has upheld a London law firm’s lien over a client’s files because of an unpaid bill after the relationship between the two broke down.

The court rejected the client’s suggestion that Carter Lemon Camerons had terminated the retainer, in breach of contract, by refusing to continue to act for her in litigation against an insurance company, amounting to a repudiation of the retainer.

It was argued that under the ‘entire contract’ doctrine, this meant the solicitors were not entitled to be paid any fees and so could not assert any lien.

The alternative argument, also rejected by the court, was that because the solicitors had discharged themselves from the case, they were not entitled to assert a lien so as to prevent the papers being passed to new solicitors or even the client herself to act as a litigant in person.

The firm had succeeded in establishing its lien in the lower courts.

The case turned on a meeting between the client, Heather French, and the firm’s senior partner, Seamus Smyth, following a complaint by Ms French about the conduct of her case. Despite suggestions during the meeting from Mr Smyth – former president of the London Solicitors Litigation Association – that the firm could not continue to act as trust between solicitor and client had broken down, Ms French made it clear that she was not withdrawing her instructions.

Mr Justice Morgan, sitting in the Court of Appeal with Lord Justices Lloyd and Stanley Burnton, said: “I do not consider that there ever came a point during the meeting when the original retainer was terminated.” Nor did he find that Mr Smyth’s comments amounted to notice to terminate the retainer at a fixed time in the future.

It was common ground that the retainer had come to an end a fortnight later, when Ms French wrote to the master dealing with the litigation to say that she was now acting in person. A few days before that she had written an e-mail outlining her grievances to the former partner appointed by the firm to deal with the complaint, which Mr Justice Morgan said amounted to a “sufficiently clear termination of the solicitors’ retainer”.

He explained: “There are parts of that e-mail which appear clearly to state that Ms French is terminating the solicitors’ retainer. I have in mind the severity of her criticisms of the solicitors, her statement that the solicitors left her with no choice and her suggestion that the solicitors send the files to her so that she could continue on her own…

“In those circumstances, in accordance with the established authorities as to a solicitor’s retaining lien, the solicitors were entitled to assert such a lien over Ms French’s documents in relation to their unpaid fees.”




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Trucks: compensation of £6,000 per vehicle sought

Third-party litigation funder Therium Capital Management is backing a £4bn opt-in collection action being brought by the Road Haulage Association (RHA) against truck manufacturers found guilty of illegal price fixing.

The RHA said it has also secured “the largest tranche of after-the-event insurance that’s ever been underwritten”, although it has not revealed the size or provider.

Last July, the European Commission fined MAN, Volvo Group (which includes Volvo Trucks and Renault Truck), Mercedes-Benz parent company Daimler, Iveco and DAF nearly €3bn (£2.6bn) for price fixing and other cartel activities between 1997 and 2011.

The RHA action before the Competition Appeal Tribunal will seek compensation for haulage and logistics companies that were bought or leased vehicles at inflated prices.

The association said “early indications” were that compensation could be in the region of £6,000 per truck and that 650,000 new trucks were sold during the 14-year period – this would be £3.9bn in total.

Therium will be paid either three times (or less, if the case settles early) of what it has cost to bring the claim, or a percentage of the money that the group wins, if that is more than the first option plus the return to the funder of the funder’s outlay.

Potential claimants have been told: “The percentage starts at 30% and reduces to 5% at higher overall compensation levels. There is also a third reduction in the funder’s fee if the case settles early.

“Based on conservative estimates of the level of damages and the number of trucks that will form part of the RHA’s claim, you should receive between 91% and 95% of any award or settlement. If the case settles early, you would receive an even higher portion of your award or settlement. To some extent, the RHA’s ability to deliver returns at this level will depend on the ultimate size of the claimant group.”

RHA chief executive Richard Burnett said: “UK truck owners affected by the truck cartel have potentially paid too much for their lorries over a 14-year period and we’re determined to get a fair deal for them.

“This is a chance to get their compensation with no risk to their business or finances.”

Specialist transport law firm Backhouse Jones is running the case, along with Exchange Chambers and Brick Court Chambers.

The first stage will be to ask the tribunal to authorise the RHA to act as industry representative and to set out the basis on which operators can opt into the claim. The first hearing is expected to be later this year.

Although the RHA is bringing the action, non-RHA members are able to join.

We reported earlier this month that the first opt-out collective action had been withdrawn due to insufficient damages.




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Injury: RPI increase to damages

Duration of symptoms should not necessarily be the focus when assessing damages for minor personal injury (PI) claims, a High Court judge has said.

The latest (14th) edition of Judicial College Guidelines for the Assessment of Personal Injury Awards recommends increasing damages for PI victims in line with the retail price index – 4.8% over two years.

The new guidelines recommend increased damages for whiplash injuries as well as other kinds of award.

Mr Justice Langstaff, chair of the Judicial College guidelines committee, said in his introduction to the book that an emphasis purely on duration of symptoms “takes insufficient account of the other factors by which quantum of awards for minor injuries falls to be assessed, and may obscure the fact in many cases that recovery may not occur at an even pace over time, but may frequently be much more marked in the very early days of recuperation”.

Langstaff J went on: “Intelligent application of the guidelines, rather than too casual a focus on the length of time for which it is said the injury was suffered – perhaps in the light of a report saying that some minor symptoms are ongoing – is called for”.

City insurance law firm Clyde & Co commented on its website: “This could be good news for insurers in limiting payments in lower-value claims in instances where the claimant largely recovers in the initial prognosis period.

“It should be noted the guidelines are just that and therefore there is room for flexibility from both sides.”

Pete Blackmore, advocacy manager at law firm LPC, described the comment as “a warning to judges against taking an approach where the length of time for which any symptoms are suffered is treated as the critical factor”.

In a further change on minor injuries to the neck, shoulder and lower back, where a full recovery is made within three months, the bracket from a “few hundred pounds to £1,860” has been replaced by “up to £1,950”.

City insurance specialists DAC Beachcroft said: “It is worthy of note that the brackets for minor whiplash injuries, much of which may be rendered redundant if the government implements tariffs for whiplash injuries in accordance with its stated aims, indicate that a number of factors may justify awards in excess of or lower than the brackets, including the intensity of pain, impact of the injuries on work, social activities and day to day living, and the need for medication.”

Steven Snowden QC, a member of the guidelines committee, highlighted the removal of the separate, higher category of damages for female victims of facial scarring.

Mr Snowden, writing on the Crown Office Chambers website, described lower awards for men as “indefensible” and based on an “outdated stereotype”.

He went on: “The consequence has been a widening of the guideline bracket within which awards may fall, though it remains the case that the subjective reaction of the victim (whether male or female) to any scar and the extent, if any, to which scarring has affected them psychologically are of central importance. These will necessarily vary from individual to individual.”

Mr Snowden referred to Langstaff J’s reminder in his introduction that these were “guidelines not tramlines” and that many of the decisions on which the brackets for awards were set were made “many years ago” in the light of existing technology and medicine.

“The pace of technological and medical advance has, however, been quickening. On the one hand, the time during which a chronic or lifetime injury may have effect may be extended by increased life-spans; on the other, technological or medical advances may make injuries less painful, permit return of greater function, or allow for a quicker or more complete degree of recuperation than that which could have been predicted only a handful of years ago.

“There is room to argue that in an individual case such advances may call for an award which falls outside the range previously indicated by the courts.”




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Khan: more diverse judiciary needed

A quota system should be introduced to address the under-representation of women and ethnic minority judges, a major independent report commissioned by the Labour Party has recommended.

The radical recommendations from leading human rights solicitor Sir Geoffrey Bindman QC and Matrix Chambers’ Karon Monaghan QC – who specialises in equality and discrimination law – are aimed at informing the policy of a future Labour government to improve judicial diversity.

Following six months of consultation with the profession, the report also recommended that all judicial posts should be available for part-time or job share unless the need for a full-time appointment can be justified, and that the circuit system be abolished and replaced with regional appointments.

Further, the ability of a candidate to contribute to a diverse judiciary should be taken into account when assessing merit and there should be greater progress towards the concept of a judicial career in which promotion can take place from the lower levels of the judiciary to the High Court.

The report said part-time salaried judges should be allowed to continue in practice subject to rules on conflicts of interest, while retired judges should be able to return to practice.

It also called for a widening of the pool of candidates to include legal academics, and to remove restrictions on the posts for which chartered legal executives can apply unless they can be “strictly justified”.

The authors recognised that quotas would be controversial, but said the advantages outweighed any disadvantages. They pointed to quotas in other areas of public life – such as all-women shortlists for Parliament – and indeed that the Supreme Court has a de facto quota already by requiring at least one judge each from Scotland and Northern Ireland.

Belgium has recently introduced requirements on the number of women in its Constitutional Court, while gender quotas are often used in international tribunals, they said.

“The most compelling argument for quotas is that they work and they work quickly,” they said, adding that EU law is unlikely to prohibit a “proportionate” quota system. “It is entirely possible to introduce a quota system while maintaining a commitment to the highest standards in the judiciary.”

Sir Geoffrey said: “The law cannot command respect if those who administer it do not reflect a diverse population. The senior judiciary is dominated by white males selected from a narrow pool of candidates. It is widely agreed that the efforts so far made to change this and achieve a fair balance of women and ethnic minorities at this level have not been effective. We hope the work we have done and our recommendations will help to make a difference.”

Ms Monaghan added: “Given the slow rate of progress towards a diverse judiciary, firmer measures are now required, including quotas.”

The Labour Party will now consider in detail the recommendations. Shadow justice secretary Sadiq Khan said the report is “a contribution in its own right to the work on judicial diversity”.

He added: “I will be responding, and hope that after May 2015 a Labour government will be in a position to put into practice policies that will deliver a more diverse judiciary.”

Last week, the Black Solicitors Network warned that law firms and chambers need to accelerate the increase in workforce diversity if they are to ward off the “nuclear” option of quotas being imposed, while in July, the Deputy President of the Supreme Court, Baroness Hale, said there was a strong “business case” for diversity.




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Interest: Court says it has to compare like with like

Interest: Court says it has to compare like with like

A claimant who only beat his part 36 offer at trial because of the interest on the damages awarded through to judgment is not entitled to enhanced costs, the High Court has ruled.

HHJ Pelling, sitting as a High Court judge, said that a part 36 offer was deemed to include only the interest to the date when the relevant period for accepting the offer expired.

The substantive ruling in Purrunsing v A’Court & Co (a firm) & Anor [2016] EWHC 1528 (Ch) was a landmark decision in which the conveyancers on both sides of a property fraud were found jointly liable for the £470,000 loss suffered by the buyer.

In May 2015, the claimant made a part 36 offer of £516,000 including interest. Following the trial, he recovered £470,000 together with interest of 2.5% above base rate, which to the date of the order (14 April 2016) was £48,983.01. This totalled £518,983.01 and the claimant submitted that he had beaten his offer and was entitled to recover an enhanced costs order under part 36 for the period from the date 21 days after the part 36 offer was made.

HHJ Pelling disagreed. He ruled: “By CPR rule 36.5(4), a part 36 offer to pay money is deemed to include all interest down to the date when the relevant period for acceptance of the offer expires. In order to work out whether a judgment is more advantageous than such an offer, it is necessary to ensure that the offer or the judgment sum is adjusted by eliminating from the comparison the effect of interest that accrues after the date when the relevant offer could have been accepted.

“In my judgment this is the effect of the words ‘better in money terms’ in CPR rule 36.17(2). If that is not done, then comparing the offer with the judgment is not comparing like with like and thus it is not possible to assess whether the judgment is ‘more advantageous’ in money terms than the offer.”

The judge said that as interest compensates for the loss of use of money over a given period, “in theory at least” the interest that accrued for the period between the last date when the offer could have been accepted and the date of judgment was “neutral”.

He continued: “If it was otherwise, then whether an offer from a claiming party should be accepted by a defending party would depend not on an analysis of liability in respect of the claim but what in many cases will be entirely unpredictable, namely the date when a trial takes place and what is perhaps even more unpredictable, when judgment will be handed down.”

Given that an enhanced costs order was “draconian in effect”, HHJ Pelling said it was “in the highest degree unlikely” that it was intended to depend on an “entirely random event such as when judgment would be given following a trial”.




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Temple Legal ProtectionSpecialist legal and professional fees expenses insurer Temple Legal Protection, has become the first provider in the market to offer a claims dispute service as part of its loss adjuster fee insurance cover called Loss Adjust Advantage.

Loss Adjust Advantage provides claimants with cover for the fees of expert loss adjusters to attend and assess losses, to help with the preparation and submission of claims as well as the negotiation and settlement with insurers on the claimant’s behalf. Loss Adjust Advantage responds to material damage and business interruption policies and claims, and is the only product in the market to also cover cyber and key person policies.

As part of the product, where a policyholder has a dispute over policy coverage or quantum with their insurer, Temple Legal Protection is the first to provide access to legal advice in relation to their rights and obligations under their insurance policies and cover for the costs of pursuing a claim against the insurer. Where a claim is pursued, and subject to there being good prospects of success, costs such as counsels’ fees, experts’ and court fees, and the risk of having to pay insurer’s costs are covered.

The claims dispute service is provided in partnership with Fenchurch Law, one of the UK’s leading firms working exclusively for policyholders and brokers on insurance disputes, and Insurance Law Firm of the Year in the 2016.

Commenting on the addition of the claims dispute service, Chris Wait, Managing Director of Temple Legal Protection, said: “This unique offering demonstrates our commitment to supporting brokers and their clients’ throughout the claims journey.

“By combining claims dispute advice and funding with our loss adjuster fees insurance cover means we now provide a comprehensive claims support service that enables claimants to achieve a faster and fairer settlement and directly enhances the level of resources brokers can access to support their clients through the claims process.”




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Houses of Parliament

Lord Faulks denied that the government is abolishing judicial review

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

“There is nothing novel about the principle of expecting providers to work at risk and receive remuneration only where it is established that their case is meritorious,” Lord Faulks said.

“A similar system has existed for some time in immigration and asylum Upper Tribunal appeals, where remuneration for a permission application is not paid where the application for permission is refused.”

The justice minister was speaking in response to a ‘motion of regret’ tabled by crossbencher and practicing barrister Lord Pannick at the passing of legal aid regulations which came into force on 22 April.

The change means that legal aid will only be payable where the court gives permission for judicial review proceedings to go ahead, subject to the Legal Aid Agency’s discretion.

MPs and peers on the Joint Committee on Human Rights (JCHR) attacked government plans to change the rules last month, saying they “lacked supporting evidence”.

Lord Faulks told peers that the government had modified the criteria that the agency would consider and “making it clear that these would be non-exhaustive factors that the Legal Aid Agency would take into account, in particular when considering all the circumstances of the case.

“That is important, as it will enable the agency to take into account the full range of circumstances in which a judicial review case may conclude prior to a permission decision.

“No two cases will be identical and the agency will necessarily need to look at the facts of each individual case in addition to the factors set out in the regulation.

“This provides the agency with greater flexibility to ensure that work on meritorious cases continues to be paid, which I hope all noble Lords will support. However, the corollary of this approach is that it would simply be impractical for guidance to be issued that attempts to cover all possible circumstances.”

The justice minister said that the government would respond in detail to the JCHR report and “most of the questions posed will be answered”.

Lord Faulks added that the rule change “did not abolish judicial review”, but limited, in very specific circumstances, the recoverability of legal aid.

However, Lord Pannick told peers earlier: “The legal aid regulations we are debating tonight are one example of many where the changes which this Lord Chancellor is imposing are far more damaging than any disease which they purport to treat.

“The problem is that, if lawyers know that they have no right to be paid in such cases, even at the low – scandalously low – rates currently thought acceptable by the Lord Chancellor, the inevitable result will be that clients with a strong claim will find it much more difficult to find competent representation.”

 




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Walden: e-disclosure presents all sorts of challenges

Walden: e-disclosure presents all sorts of challenges

LLM students at the school of law at Queen Mary University of London will next month become the first in the UK to be part of a new academic course in e-disclosure.

Teaching will be delivered by leading lawyers and practitioners, and students will undergo hands-on training using KCura’s e-disclosure software, Relativity.

The 11-week module was conceived by Maggi Healey, a former litigator who now specialises in e-disclosure at The Review People.

Ian Walden, professor of information and communications law at the university’s Centre for Commerical Law Studies, said: “E-disclosure is now firmly at the heart of modern legal practice. It is a world-wide application of electronically stored information that will present new challenges for lawyers. For students to receive training by the leading experts in this field, and get hands-on training with Relativity, is a huge opportunity.

“The environment in which our students will work spans the full range of digital and electronic material including e-mails, presentations, voicemail, databases, audio and video files, social media posts, and web sites. It’s critical that law students are able to fully interact with this sort of content from day one in their careers.”

The students will be marked on an essay basis for 80% of the module, with 20% on a practical basis.

Professor Walden added: “This is an area for which the legal profession has had to tool up very quickly. At the broad level, e-disclosure presents all sorts of challenges in terms of using electronic data – this material must be properly understood if it is to be preserved and used as part of a legal case.

“We are also operating in a big-volume environment – the sheer amount of information that needs to be acquired, analysed, and properly accounted for is, in itself, a significant challenge.”

Ms Healey is joined as course co-ordinator by solicitor Simon Manton, regional director of Epiq Systems, and Bevan Brittan partner Marie-Claire O’Hara, and will be supported in the delivery of the course by volunteers from the profession, including top e-disclosure consultant Chris Dale, Clive Freedman QC, and Pinsent Masons senior associate Andrew Herring.




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Grayling: JR should be used for the right reasons

A raft of changes to the costs regime for judicial review (JR) proceedings – including greater use of wasted costs orders and possibly scrapping protective costs orders (PCOs) – has been proposed today by the government.

The “rebalancing” of the financial incentives is part of a series of measures put forward by the Ministry of Justice (MoJ) which it said are “designed to speed up the judicial review process and drive out meritless cases which clog up courts and slow the progress of legitimate applications”.

The number of JRs has more than doubled over the past decade, to 12,400 in 2012, with immigration and asylum cases the driver. Around 40% of applications ended by being withdrawn before consideration of permission by the court while the majority of applications that do reach court are refused permission at the first consideration on the papers. Where an oral hearing was then requested, permission was granted in 12% of cases.

For cases lodged in 2011, around 4% of all applications reached a final hearing, when around 40% of decisions were in favour of the claimant.

In a consultation paper published today, the MoJ has identified five areas of possible costs reform. First, following strong opposition, it has modified an earlier proposal that legally aided claimants should only be paid if permission is granted. It suggests giving the Legal Aid Agency discretion to make a payment in meritorious cases which conclude before a permission decision is made.

Second, at present a claimant who is refused permission to bring a JR is liable only for the defendant’s costs of completing the acknowledgement of service. The consultation asks whether in fact the claimant should usually be liable for the reasonable costs of defending the unsuccessful application.

Between March 2011 and June 2013, only around 50 wasted costs orders were made – at an average value of £400 – all of them in relation to immigration and asylum cases. So third, the MoJ is seeking views on “whether the current approach to wasted costs orders should be modified to enable the making of such an order to be considered in respect of a wider range of conduct”.

It explained: “The legal representative is in the best position to advise their client of the likelihood of success, first prior to the initial application on the papers for permission and then again at the oral renewal hearing. Many claimants will make decisions on the basis of that advice.

“The government considers that a greater incentive might be beneficial for legal representatives to consider the strength of a case prior to submitting and renewing applications for permission, and that legal representatives should have a greater focus on the appropriateness of putting forward points that have already been considered and dismissed by a judge, particularly when there is not a high likelihood of success.”

It has also suggested that legal representatives who contest a wasted costs order and request an oral hearing should be required to pay a fee for the cost of that hearing, and asked whether that fee should be contingent on the case being successful.

The fourth change concerns PCOs, with the MoJ suggesting that the courts have gone beyond the principles set out in the landmark Corner House case so that cases no longer need to be “exceptional” to merit an order, while PCOs have increasingly been granted where there is a private interest at stake. It said it was also concerned with the “inequality” in the current use of cross caps, to the detriment of defendants.

The consultation indicates a preference to remove the right to a PCO for claimants with a private interest in a JR claim. “Further, and if ‘political’ and ‘campaigning’ judicial review claims continue to be brought where there is no claimant with a private interest, the government seeks views as to whether these sorts of claims ought to be given cost protection and whether it is right to remove the use of PCOs in non-environmental claims.”

As an alternative to removing PCOs, the MoJ asks if the principles as set down in Corner House “strike the right balance” or whether they should be modified. It also suggests that when applying for a PCO, it should be mandatory for the claimant to provide details of who is funding the case and a statement of assets, including any third-party funding.

The government is also proposing that there should be a presumption when making a PCO that the court considers setting a cross-cap for a defendant’s liability for the claimant’s costs.

The final issue is costs arising from the involvement of third-party interveners and non-parties. The MoJ’s provisional view is that where a party seeks to intervene in a case, the rebuttable presumption should be that it should bear its own costs of doing so, whatever the result of the claim.

Further, where an intervening party has raised issues that have resulted in either party incurring legal costs to a significant degree over and above what would otherwise have been required, the intervening party ought to be liable for them.

The other non-costs proposals put forward by the MoJ today include that only those with a direct interest should be able to bring a JR – “so that the process cannot be exploited for campaigning or publicity purposes, at the expense of others” – and strengthening the court’s powers where a rectification of a claimed flaw would be likely to have made ‘no difference’ to the original outcome.

Justice Secretary Chris Grayling said: “We want to make sure judicial review continues its crucial role in holding authorities and others to account, but also that it is used for the right reasons and is not abused by people to cause vexatious delays or to generate publicity for themselves at the expense of ordinary tax-payers.”

The new proposals follow changes implemented in July, including stopping people from having a ‘second chance’ hearing if their initial written application is ruled totally without merit by a judge.




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Barclay: discount rate mechanism has grown outdated

The new government has made clear that significant reform of the discount rate remains firmly on the agenda after the election.

In a speech this week to the Association of British Insurers, City minister Steve Barclay said the change in the rate earlier this year “concerns me, and I know it will concern many of colleagues in Parliament”.

Mr Barclay, also economic secretary to the Treasury, continued: “We are currently considering the responses to the consultation we’ve received… We want to make sure that the way the rate is set is put on the firmest possible footing in future, so that we have a better and fairer system for claimants and defendants.

“In doing so, we will keep true to the 100% principle: that a claimant is paid no less than they should be, and no more.

“In short, we have been consulting on moving away from a mechanism that has grown outdated and, with negative returns on interest-linked gilts, lost its connection with the way people invest in the real world.”

It is still not known if the Ministry of Justice will look to use the Civil Liability Bill – ostensibly about reform to small injury claims – as the vehicle for any legislative change required after the discount rate consultation.

Meanwhile, a recent High Court ruling shows that a negative discount rate can have negative consequences for claimants, according to Andrew Parker, head of strategic litigation at defendant firm DAC Beachcroft.

He said that in JR v Sheffield Teaching Hospitals last month, Mr Justice Davis held that the correct award for the cost of purchasing alternative accommodation suitable for the claimant’s needs was nil.

In an article about the case, in which DAC Beachcroft acted for the defendant, Mr Parker explained: “JR’s current accommodation was not suitable; the parties agreed that a new property should be purchased and adapted.

“If JR were awarded the full capital cost, he would be left with an asset that would appreciate in value and be realised by his estate on death, generating a windfall and over-compensating him.

“The correct approach to avoid over-compensation was provided by the Court of Appeal in Roberts v Johnstone, which awarded a sum equivalent to the loss of income that would be achieved if the capital used to purchase the property were invested in risk-free investments. In Wells v Wells in 1998, the House of Lords endorsed the use of the discount rate as the appropriate rate.

“The claimant in JR argued that a positive rate had to be used and suggested 2.5% (equalling more than the capital cost of the property), but the judge rejected that.

“He accepted that the logic of the discount rate being set at -0.75% was that the claimant could not obtain a real return above inflation from risk-free investment of his award, therefore the appropriate award for the loss of income from capital was nil.”

The claimant has been granted permission to appeal. He also commented that he had no evidence before him to consider any other approach. “Legal teams in other cases are no doubt considering whether to seek permission for such evidence,” Mr Parker said.

“However, the logic of Roberts v Johnstone still fits with the full compensation principle and should be upheld. Ultimately, legislation may be the only answer for those who seek a different approach.”

Mr Parker noted that responses from claimant bodies to the Ministry of Justice’s recent consultation supported a negative rate, but in JR the claimant argued that for other purposes the rate has to be positive.

“This is just one of the logic gaps surrounding [former Lord Chancellor Liz Truss’s] decision,” he said.

Meanwhile, car insurance premiums are set to rise by up to 29% by January 2018, according to ERS, the UK’s largest specialist motor insurer, with the lower discount rate a “key factor” in this.

It attributed £21 of the extra £60 it forecast standard car drivers would pay for their insurance to the discount rate change – taking the average premium to £360 – and £330 of the £720 extra a taxi driver can expect to pay, taking their premium to over £3,000.

Finally, a survey of 131 claimant personal injury solicitors found they were “resigned” to the discount rate moving back up, with the majority believing it will be adjusted to between 1% and 1.5%. Just 10% expect it to stay where it is now.

Commissioned by Bill Braithwaite QC, the research indicated that just 28% of respondents had settled future loss personal injury claims since the discount rate changed to -0.75%.

Mr Braithwaite said: “Claimant personal injury solicitors are pragmatic. Under pressure from the powerful insurance lobby, they believe the government will roll over and backtrack on its decision earlier this year.

“An adjustment to between 1% and 1.5% would be a compromise, face-saving position for the government to adopt – but it would be a backward step for justice.

“Claimants should not be expected to run investment risks with money which a judge has declared is essential to their future health and well-being – yet this will be the reality of their situation if the government moves the discount rate back up.”

Mr Braithwaite said the low level of settlements was a further cause for concern.

“Are insurers delaying settlement meetings in anticipation of the discount rate moving upwards when the government acts on the second consultation?”

He said that claimant solicitors were achieving successes under the new rate, however, with 80% of claims proceeding under the -0.75% rate.




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medical negligence

Clinical negligence: NHS trust failed to get judgment set aside

The rulings in Denton and Mitchell on relief from sanctions have “profound importance” when applications to set aside default judgments are considered, a High Court judge has ruled.

Judge Jeremy Richardson QC, sitting as a High Court judge at Hull Civil Appeal Centre, also ruled that telephone hearings were not suitable for “difficult cases” unless there was no alternative.

The judge said the three-stage approach set out in Denton had “considerable relevance” when courts considered the issue of what amounted to a “good reason” for a default.

Delivering judgment in Hockley v North Lincolnshire NHS Foundation Trust, Judge Richardson said courts must “embrace scrutiny of the seriousness of the default and why it occurred”.

He went on: “Plainly, the court would wish to consider all the circumstances of the case. The discipline of the three-stage approach is entirely apposite to an application to set aside a default judgment when considering whether there are good reasons for doing so.”

In Hockley, which involved a clinical negligence action, Judge Richardson said the defendant had been at default for failing to file an acknowledgement of service until 13 days after the expiry of the deadline.

The claimants secured a judgment in default, which the defendants successfully overturned at a telephone hearing.

“Difficult cases should not be undertaken by telephone unless there is no alternative,” Judge Richardson said. “Such hearings are amenable to short decision-making cases and matters which are truly procedural rather than requiring the fully-reasoned exercise of a judgment.

“A party is entitled to a telephone hearing of any application which is under an hour. In assessing that time, allowance must be made for a judgment to be delivered and even some time for reflection.

“A case of this kind where there is demand for the exercise of judgment in a difficult factual matrix, where the consequences are likely to be very significant, should not be conducted by telephone hearing. It is recipe for rushed judgment and that does not produce justice. It is certainly comprehensively unfair to the judge.”

Judge Richardson ruled that the defendant was “the author of its own misfortune” and the default judgment should not be set aside. He described the acknowledgement of service as “not a mere procedural formality”, and said there were “no good reasons” to set aside the judgment in default.




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Neuberger: statistical evidence concerns

The use of single joint experts could render the judge purely a “figure head” in proceedings, the president of the Supreme Court has warned.

Delivering the keynote address at the Bond Solon expert witness conference on Friday, Lord Neuberger questioned whether the present system of cross-examination of experts is the best way to proceed.

“It can be fun for the advocates and good theatre, but is artificial and gladiatorial and not the best way of getting to the truth,” he said.

But at the same time he said he was “nervous” about the idea of having a single joint expert.

Where the expert’s opinion evidence is not tested by cross-examination, he said, the expert may be tempted to “over-egg” their evidence.

Lord Neuberger described the notion of a dispassionate disinterested expert as a “myth”. Experts will naturally be biased, through commitment to particular theories or principles, or because they are being paid by one party. Where you have a party-appointed expert, he said, you can test where any bias may be.

A joint single expert, he said, has the advantage over a party appointed one in that they are less likely to be biased in favour of the client, but any bias will be “hidden” and it will be hard to “tease out” without cross-examination.

He added: “I worry that if you have a single joint expert, their evidence is normally the decision that decides the case. Is the judge just a figure head who adopts what the expert says?”

Lord Neuberger accepted that in cases where “not much is at stake” and where the expert evidence goes to a small issue, proportionality would justify a joint expert.

However, he indicated that ‘hot-tubbing’ – where lawyers and experts discuss the evidence round a table – might be better in other cases.

But he said it would be wrong to form a view until there is more evidence about the merit of the two systems.

Elsewhere in his speech, Lord Neuberger warned of the dangers of lawyers, judges and the general public not understanding statistical evidence and therefore not treating such evidence appropriately.

“One problem of the modern age is the unsatisfactory way figures are used and understood by the majority of people,” he said.

Statistical evidence can be “powerful and conclusive”, but he warned that it can also be “full of pitfalls”. Figures that have a “beguiling attraction” can be misleading.

The failure to understand figures was at the root of the problem in the case involving Professor Sir Roy Meadows who gave evidence in the case of Sally Clarke – the solicitor whose conviction for murdering two of her children was eventually overturned after his evidence about the unlikelihood of two cot deaths occurring in the same family was discredited.

Judges and arbitrators can be “too impressed” and “give too much respectability” to figures, Lord Neuberger said. All practitioners and judges need to understand statistical evidence better than they do.




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High Court: row triggered by redacted insurance certificate

The High Court has overturned a cost judge’s ruling that a redacted after-the-event (ATE) insurance certificate did not comply with the Costs Practice Direction (CPD) because it did not show what premiums would have been payable had the case concluded earlier than it did.

Mrs Justice Slade also set aside Master Haworth’s decisions not to grant relief from sanctions and to reduce the success fees payable to solicitor and counsel.

Light On Line Ltd and Anor v Zumtobel Lighting Ltd [2012] EWHC 3376 (QB) followed a claim that arose from the costs of remedial work alleged to have been carried out by the claimants following the supply by the defendant of defective lights. The claim for nearly £240,000 was settled with the defendant agreeing to pay £120,000 plus costs.

At the detailed assessment, Master Haworth struck down the £60,375 ATE premium from Temple Legal Protection (from £100,000 cover) because the redacted insurance certificate served on the defendant failed to comply with CPD 32.5(2)(c), which requires the certificate to show “the amount of the premium paid or payable”.

It was a three-stage policy and the costs judge said it was important for the paying party to know what the premium would have been at the first two stages so they could come to a conclusion as to what was a reasonable premium.

After the unredacted certificate had been provided, he then denied an application for relief from sanctions because the it had not been supplied with the bill of costs; in fact, Mrs Justice Slade said no certificate of any kind was supplied with the bill several months earlier as it should have been under CPD 32.5(2). Master Haworth decided the absence of the information in the certificate had been disruptive and prejudicial to the defendant.

Mrs Justice Slade – sitting with Master Campbell and solicitor Graham Humby as assessors – said the costs judge was wrong to say that the certificate should show what would have been paid had the case settled at an earlier stage.

She said: “In my judgment there is a distinction between the mandatory requirement on the receiving party claiming an additional liability of an insurance premium to provide a copy of the insurance certificate showing the amount of the premium paid or payable, and evidence, which may include amounts payable if proceedings had concluded at earlier stages, which would enable a paying party to assess the reasonableness of the premium claimed as an additional liability.”

On relief from sanctions, she found that the first error had contributed to the refusal of relief and so set the decision aside. However, given that the certificate was served late in breach of the CPR and CPD, she considered whether relief should still be granted. The judge concluded that the prejudice suffered by the defendant by the late disclosure of the certificate could be “reduced or eliminated by case management measures”, while the prejudice to the claimants would be substantial.

“In my judgment, properly directing himself or herself, on the law and the relevant facts, a costs judge would conclude that relief from sanctions for failing to serve the insurance certificate on the due date, the default in this case, should be granted,” Mrs Justice Slade said.

She also struck down Master Haworth’s reductions of the success fees because he wrongly based his decision on the premise that what was at issue in the case was quantum only.

 




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Steel: Workers bring claims

The High Court has rejected a Watford law firm’s attempt to join Irwin Mitchell (IM) and Hugh James (HJ) as lead solicitors in a piece of group litigation, saying it would likely lead to “a long-running forensic Punch and Judy show” between them all.

Mr Justice Turner said the risk of Collins Solicitors’ involvement increasing costs, duplicating effort and leading to delays, misunderstandings and disagreements was “not merely theoretical”.

The firm was seeking to add itself as one of the lead solicitors to group litigation brought on behalf of British Steel workers who claim their exposure to harmful fumes and dust resulted in various industrial diseases.

The judge said Collins’ application was “strongly resisted” by IM and HJ.

He observed that “even with the most conscientious re-distribution of duties between an expanded cohort of lead solicitors, there is likely in most cases to be an increase in the aggregate claimants’ costs bill.

“This may not present much of a disincentive for any firm making such an application but enhancing the costs revenue of solicitors is not, of itself, a free-standing component of the overriding objective.”

Turner J also found that having a considerable number of eligible claimants “may well give rise to an enhanced claim to the role of lead solicitor but it is a factor which falls far short of amounting to an entitlement. In this regard, each case must be judged on its own merits”.

He said: “The selection of lead solicitors is not an exercise in proportional representation.”

The risk of complicating the litigation with Collins’ involvement was already apparent, said Turner J. “For example, it so happens that Collins have been applying a significantly different and less stringent test of eligibility than IM and HJ in respect of those whom they consider to have sufficient prospects of success to be entered on the register.

“In his witness statement of 12 October 2017, Mr Collins has sought to contend that ‘this and a number of directly related issues should be disposed of at an adjourned hearing before a separate High Court Judge with the defendants being excluded’.

“Furthermore, Collins have instructed two experts to provide reports or commentaries on the expert evidence already collated by the existing lead solicitors the substance of which they claim should be relied upon by the claimants.

“IM and HJ are implacably opposed to the suggestion that the evidence of one of these experts should be deployed and there is thus a serious and ongoing disagreement as to that expert’s future role, if any.”

Further, the judge found, the disagreement between the firms “has already begun to deteriorate from a mere divergence of objective professional opinion to the stage of personal recrimination”.

He stressed that the group litigation order framework required “firm and consistent organisation”.

“Internal clashes between lead solicitors on significant matters of case management and control and flavoured by personal animosity are antipathetic to the orderly progress of the litigation as a whole.

“Judging by the areas of dispute so emphatically ventilated by the existing lead solicitors and Collins before me, the granting of this application would be more likely to produce a long-running forensic Punch and Judy show than a focused and coherent pathway to a just resolution of the claims to be achieved at proportionate cost.”

Turner J also took into account the “long and successful history” of IM and HJ working together efficiently in the very similar British Coal coke oven workers litigation.

He also said “it might be thought brave of Mr Collins” to rely on his firm’s work as lead solicitors in the Corby group litigation, which lasted 12 weeks, given that “the managing judge in that case had ruled that, but for shortcomings in the presentation of the claimants’ case and the organisation of their witnesses, it would have been distinctly shorter”.

Turner J concluded: “I am entirely satisfied that it would be wrong to permit Collins to be appointed as lead solicitors in this GLO.

“The GLO structure, combined with the involvement of the existing lead solicitors, ensures that the parties are on an equal footing. Expense will be increased rather than saved by expanding the number of lead solicitors.

“Matters are likely to proceed with greater expedition without impairing the demands of fairness by maintaining the status quo. An increase in the number of lead solicitors would also be likely to increase the demands on the court’s own resources.

“I am of the view that the concerns raised on behalf of Collins as to the future direction of the litigation can adequately be dealt with on an issue by issue basis by the exercise of the court’s broad case management powers.”

This is the second dispute of its type to be before the courts in recent weeks. We revealed last month that two law firms were battling it out to be named the lead solicitors in the group action being taken over the Volkswagen emissions scandal.




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Spencer: enormous effect on NHSLA in short term

The 1 April Jackson reforms start date is creating a “hump” of conditional fee agreement (CFA) cases that will take years to clear the courts, a leading clinical negligence barrister has predicted.

Martin Spencer QC of Hailsham Chambers said claimant firms have been frantically signing up CFAs to beat the end of recoverability of after-the-event insurance (ATE) premiums and success fees.

Speaking last week at a forum on costs and children’s claims held at Pattinson & Brewer, Mr Spencer said that in his experience “in their fear and indeed concern about the future many claimant firms have been signing up to CFAs by the dozen or the hundreds”.

He added: “That also involve signing up to ATE insurance premiums and all the ducks being in a row before 1 April.”

The QC, who specialises in professional negligence, particularly in respect of nurses and doctors, predicted that it would take years for the effects of the rush to clear. “There is going to be a hump of cases which are going to be seen through over the next two or three years.”

In the short term it would have an “enormous effect” on the NHSLA and the amounts it would have to pay out, he said. In the longer term: “We will see eventually the new regime coming through and the impact that has on the amounts paid out by the NHSLA and the insurance companies.”

Mr Spencer described the absence of detailed information on costs until just weeks from the 1 April start date as “really outrageous”. He continued: “It’s only when you look at the detailed provisions and you get into the detail that you are able to start planning for the future properly. The very recent publication of the regulations for a regime which is only just a month away makes it really very difficult for everybody.”

Also speaking at the forum, law costs draftsman Paul Kay of R Costings predicted that after 1 April “bullish” defendants would make “early competitive offers” and lawyers would “have to get a handle on quantum” earlier in the case than they were used to. Cost budgeting represented a “sea change” in the way practitioners work and would necessitate lawyers talking to their opponents about the budget.


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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