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Lord Dyson

Lord Dyson: To rule on failure to pay court fees

One of the three Mitchell cases to be heard by the Master of the Rolls next week centres on whether a solicitor should have put a cheque in the post shortly before Christmas to pay for the hearing fee.

The deadline for payment under an unless order was 19 December 2013, and Judge Jarman QC, sitting as a High Court judge in Cardiff, said the cheque did not arrive and the fee was eventually paid by card on 9 January 2014. He ruled that the failure to comply with the timetable was “not trivial” and struck out the claim.

Judge Jarman said it was “not acceptable at all” for the solicitor involved to “seek to rely on what he may or may not have been told by members of staff in the court office when it comes to compliance with a judicial order”.

The case, Decadent Vapours v Joseph Bevan and others (case no. 3CF30143), is one of the three cases involving ‘trivial’ breaches to be heard next week by the Court of Appeal, starting on Monday.

Cardiff District Registry heard that Decadent Vapours, which makes vapours for electronic cigarettes, wanted to obtain an injunction against an employee who, it was alleged, was developing a rival product.

At a hearing on 12 December 2013, the court ordered that unless the claimant filed a pre-trial checklist and paid the hearing and application fee by 4pm on 19 December 2013, the claim would be struck out. The pre-trial checklist was filed on time.

The solicitor at Clarke Wilmott in Southampton, acting for Decadent Vapours, told the court that he spoke to a court listing officer, who indicated that the fee could be paid by card or cheque, but not by bank transfer.

The solicitor said that Clarke Wilmott did not have a credit or debit card in its Southampton office which could be used to pay court fees, nor did it have an office in Cardiff, and it was disproportionate to send a fee-earner from the Bristol office.

He said he asked the listing officer if payment could be made by cheque and arrive after the pre-trial order, and the officer said it could. The solicitor said he called the court again on 19 December, to confirm that the application had been filed by e-mail.

Judge Jarman said that shortly after that call, the solicitor started drafting the covering letter to send the cheque to the court and although “he was not involved in the physical process of posting that letter”, it appeared that the usual procedures for office post were carried out.

The judge said that “no further check was made on whether the cheque had been cashed” and it emerged at the pre-trial review on 7 January that it had not been. Payment was made on 9 January, followed by an application for relief from sanctions.

Judge Jarman said it was clear from the solicitor’s witness statement that he regarded the indications given by the listing officer as “somehow justifying or excusing” his behaviour.

“I make it clear in this judgment that I disagree. He is an officer of the court. He does not know to whom he spoke, other than it was a male on one occasion and a female on the other occasion.

“He does not know the position of the member of staff at the listing office. He does not know the grade of the staff. He was well aware of a clear order: that unless a payment was made by 4pm on 19 December, the case of his clients would be struck out.”

Judge Jarman dismissed the claimant’s application for relief from sanctions. He went on to refuse permission to appeal, saying that there was “no realistic prospect of success”.

The other cases to be heard by the Court of Appeal next week are Denton and others v TH White and Utilise TDS v Davies and others [2014] EWHC 834 (Ch), which involved two acts of non-compliance.

 

 

 




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Whiplash: evidence on an industrial scale

A leading barrister has called for a study to examine whether anecdotal evidence of abuse and misconduct by expert witnesses is on the “industrial scale” alleged by some, as funding arrangements increase the risk of malpractice.

Tim Dutton QC, a professional discipline specialist at London’s Fountain Court, who took part in a Panorama documentary exposing misconduct by expert witnesses, said in his experience “charlatan forms of behaviour” by expert witnesses is rare.

But he told the Bond Solon expert witness conference in London that anecdotal evidence from circuit judges, who routinely deal with volume low-level personal injury cases, criticised the “industrial scale” on which “so-called expert evidence” was given by doctors for claimants where there was no evidence of injury, particularly in whiplash cases.

This suggested that an expert was being repeatedly used by one side as a “hired gun” in cases that were expected to settle before trial because of costs. “In other words the expert is free to report again and again in the hope that most cases will settle,” Mr Dutton said.

He added that the problems are not likely to arise in well-financed cases, but are more likely to occur in publicly funded cases or where lawyers are working under a conditional fee agreement (CFA) or damages-based agreement. “Under-resourcing” creates risks, he said.

“Where the lawyer is working under a CFA or DBA the risks that lawyer will not discharge his duties – viz a viz the expert – are greater as the lawyer needs to win the case to be paid and may therefore be under greater pressure than in a traditionally paid case not to comply with the rules,’ said Mr Dutton.

In addition, from conversations with judges who do criminal work, he said there is a concern about “experts for hire” in cases including those involving handwriting, facial mapping, or forensics.

But he was cautious about the need for increased regulation. What is needed, he suggested, is a study under the aegis of the Ministry of Justice to discover how serious the problem is.

If after two years a study reveals that abuse is continuing and is widespread the next step, he suggested, might be to make it an offence to “knowingly to fail to comply” with the duties set out in either the Criminal or Civil Procedure Rules.

Mr Dutton also suggested the regulators of those professions from which the experts come be involved and reminded of their duties to uphold standards.

Most experts are already regulated by their professional bodies – doctors, accountants, nurses, surveyors and so on – and they have a duty to behave with integrity and uphold the dignity of their professions, he said.

“Lawyers have a duty to uphold the administration of justice. So a lawyer who gives expert evidence not in compliance with his duties under the CPR or under the Criminal Justice Act 1988 and the Criminal Procedure Rules may well be in breach of his professional duties under the SRA Code of Conduct 2011. Likewise a doctor or an accountant,” he said.

Mr Dutton suggested regulators are not seeing referrals about experts who have given bad evidence. The judges who complained to him about expert reports, he said, had not made complaints to the GMC.

He accepted there may be problems in relation to those experts who are not in regulated professions, but to regulate expert witnesses as a “separate cadre” was difficult.

Rather, he said, look to lawyers to maintain standards. “In every case where a lawyer is involved, the lawyer is bound to spell out the duties to the expert, and not to put an expert into the witness box if he/she believes the duty of the expert has not been complied with.”

Other remedies to address the problem could include proceeding against an expert for contempt of court, attempting to pervert the course of public justice or conspiracy to pervert the course of justice, he said.

“It may only take one or two prosecutions for a salutary effect to be brought to the system as a whole.”




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In response to a record £28m fine for Lloyds Bank, FCA director Tracey McDermott said last month: “Customers have a right to expect better from our leading financial institutions and we expect firms to put customers first”.

Many businesses and individuals have found that they have been mis-sold products by the banks, and unfortunately obtaining compensation has been far from straightforward. Cases of financial mis-selling have been widely covered in the news in the last year especially, and it is more important than ever that you remain up to date.

MBL’s one day conference offers you the opportunity to catch up with the latest strategies on how to pursue a mis-selling claim effectively. This conference will appeal to all those litigators who need to reinforce their knowledge in relation to such issues as mortgage mis-selling, IRHPs and how to approach settlement.

Join a panel of expert speakers on 30 January in London and explore topics such as: understanding the documents and products; the implications of the latest cases; calculating your (recoverable) loss;  mortgage mis-selling; alternative avenues such as the FOS, the FSCS and the Redress Scheme.

For the full conference agenda and details of how to book please click here.




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Supreme Court

Supreme Court: Dismissed National Grid’s appeal

The Supreme Court has extended protection for victims of asbestos-related diseases, by ruling that the Asbestos Industry Regulations 1931 applied to all workers in factories where asbestos was being processed.

Lord Kerr said any worker in a factory where asbestos processing took place within the scope of the regulations was protected, even if they were not involved in mixing asbestos or directly employed by the occupiers of the building.

“It would be remarkable if the group to be protected was confined to those who were carrying out the process but those who were at risk from exposure because of their proximity to it should remain unprotected,” Lord Kerr said.

“Where the risk of injury arises from inhalation of dust or fumes (and, of their nature, processes which generate these do not discriminate as to who inhales them), there does not appear to me to be any logical reason to exclude those employees who are liable to be affected by exposure solely because they do not actively work on the processes.”

The Supreme Court heard in McDonald v The National Grid Electricity Transmission plc [2014] UKSC 53, that Percy McDonald died of mesothelioma at the beginning of this year. The case was continued by his widow.

Mr McDonald visited Battersea power station in the 1950s as a lorry driver, regularly going into areas where asbestos dust was generated by lagging work.

The trial judge dismissed his claims for negligence, which were later dropped, and his claims under the Asbestos Industry Regulations 1931 and Factories Act 1937. The Court of Appeal upheld his claim under the regulations.

Lord Kerr, Lady Hale and Lord Clarke dismissed National Grid’s appeal against this ruling. Lords Neuberger and Lord Reed disagreed.

However, by a majority of four to one, with Lady Hale dissenting, the justices also dismissed Mr McDonald’s cross-appeal on the Factories Act.

Alida Coates, partner in the asbestos-related disease team at Irwin Mitchell, acted for the McDonald family. “This is a victory for all victims of asbestos-related diseases who have been exposed to the deadly dust while visiting factory premises as part of their day-to-day job,” she said.

“It makes perfectly clear that the occupiers of the factory building have responsibility for protecting people engaged in processes on their site, not just their direct employees.

“This case is the latest in a long line of challenges over the past few years as insurers have sought to limit access to justice for victims of asbestos diseases. This judgment will give all people who work on factory sites additional protection in their working environment.”




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Howard Dean

Dean: Irwin Mitchell “omitted to advise on a fundamental issue”

Irwin Mitchell has lost the right to recover success fees and insurance premiums from defendants for a third time after failing to advise on the 10% uplift in general damages, it has emerged.

The three cases all involve medical negligence victims who were switched from legal aid to conditional fees shortly before 1 April 2013, when LASPO restricted the right to recover success fees and ATE insurance premiums.

Master Rowley ruled in September last year that Irwin Mitchell should lose its right to recover because a client was not told about the 10% uplift to general damages introduced by Simmons v Castle before the switch took place. The uplift is not available to claimants who recover their success fees and ATE premiums.

The master concluded in Surrey v Barnet and Chase Farm Hospital NHS Trust [2015] EWHC B16 (Costs) that failure to advise on the post-LASPO landscape and Simmons damages was “insufficient on which to found any proper or reasonable conclusion”.

In Yesil v Doncaster & Bassetlaw Hospitals NHS Foundation Trust, District Judge Besford ruled that the “additional liabilities flowing from the switch of funding” were “unreasonably incurred and are irrecoverable from the defendants”.

The case involved a boy who was severely physically and mentally disabled after being born by emergency Caesarean section. The boy, by his litigation friend, accepted the defendant’s part 36 offer of £2.5m, together with staged periodical payments for life, starting at £89,000.

Irwin Mitchell sought to recover a success fee of £55,500 and insurance premium of £50,680, as part of an overall costs claim for just over £350,000.

The parties agreed that the success fee, originally claimed at 80%, should reduce to 20%. DJ Besford described the 10% uplift on damages the claimant would have received if he had remained on legal aid, in this case worth “an additional £20,000 plus”, as a “significant piece of information”.

DJ Besford went on: “In my judgment it is inconceivable that a client would not consider the option of an additional 10% uplift on general damages a material factor.

“The omission to raise this factor, even if the claimant immediately rejected it, seriously calls into question the adequacy of the advice given.

“Irwin Mitchell would appear to have been not been so much ‘leaning’ one way, as giving advice tailored to a decision they had already made.”

The judge concluded: “In my judgment, I find myself entirely in agreement with Master Rowley in Surrey. It is for the claimant on a standard basis to show that the decision to switch funding at the time it was made was a reasonable decision to take.”

Finally, in AH v Lewisham Hospital NHS Trust, heard by Deputy Master Campbell at the Senior Courts Costs Office, the claimant became seriously ill after day surgery, and was taken to intensive care, where she suffered a series of strokes and irreversible brain damage.

She later accepted a defendant’s part 36 offer of £325,000 plus a payment to the Compensation Recovery Unit of £26,400.

Irwin Mitchell claimed £32,350 for the success fee, £4,380 for counsel’s success fee plus and £18,900 for the insurance premium.

Deputy Master Campbell said the advice the claimant received from Irwin Mitchell was not merely incomplete, but a “very significant component” was missing.

“What the client should have been told was that ‘if you move to a CFA you will forfeit immediately the right to an additional 10% of the general damages you recover, which we estimate could be £175,000, so as much as £17,500’. It was therefore advice that was unreasonable.”

The deputy master went on: “By way of example, had the extra 10% been £175 and not £17,500 it would have had no bearing on the client’s decision because it was de minimis, but where, as here, it could have been as much as £17,500, it is likely to have been a factor, if not the factor, critical in persuading the claimant whether or not to move from legal aid to a CFA.”

He concluded: “It follows that the claimant’s decision, based as it was upon advice that was flawed in a material way, was not objectively reasonable and the claims for the success fees and ATE premium therefore fail.”

A spokesman for the NHS Litigation Authority said: “It is disappointing that we continue to receive substantial bills for additional liabilities in these circumstances which means that it is necessary for us to challenge those bills at court.’’

A spokesman for Irwin Mitchell said: “In a short time frame we acted in the best interests of a specific group of clients in order to ensure they were able to pursue their claims to trial fully protected from any costs liabilities under a ‘no cost’ pre-LASPO CFA backed by ATE insurance.

“This protected them from changes arising from LASPO and the vagaries and uncertainties of an increasingly complex and constrained legal aid system, by ensuring their cases would proceed under the new legal framework with a ‘no cost’ agreement. We cannot comment on individual cases due to the ongoing appeals process.”

Howard Dean, partner and director of costs at defendant firm Keoghs, said that in each case Irwin Mitchell “omitted to advise on a fundamental issue, namely that a change to CFA/ATE funding would result in the claimant losing a 10% uplift in general damages of between £17,500 and £28,000”.

He said: “In each case, the court found that the omission was significant or material so as to make the funding decision unreasonable.”

Mr Dean said it was “difficult to overlook the fact that, on just these three cases alone, if successful, Irwin Mitchell would have recovered success fees of £149,380.68 and ATE premiums of £112,412.18 making a total of £261,792.86”.

 




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Eclipse2014 200x200Eclipse Legal Systems, the sole Law Society Endorsed legal software provider, is implementing its Proclaim Practice Management Software solution at new start-up firm, Lester Campbell LLP.

Rodney Lester, former Senior Partner at Lester Morrill Solicitors and an experienced Private Client specialist, co-founded the new Leeds-based practice with Jade Campbell, a Property solicitor with over 14 years’ conveyancing experience.

The pair decided to establish their own Conveyancing firm; specifically providing friendly and expert advice to clients on all aspects of the property process, from sales and purchases to re-mortgages, transfers of equity and commercial property transactions.

Lester Campbell LLP is implementing the Proclaim Conveyancing Case Management system to ensure productivity is maximised from the start, allowing the new start-up to hit the ground running and enabling staff to work electronically, delivering services in a very modern way.

Proclaim’s inbuilt intelligence and automation will mean Lester Campbell LLP can focus on delivering a personalised and efficient client service, and spend less time on routine and administrative tasks.

Additionally, Eclipse’s integrated legal accounting suite will deliver a comprehensive practice and financial management toolset, providing staff with a detailed analysis of operations and a seamless approach to billing.

Lester Campbell LLP has also opted to implement Eclipse’s Task Server tool in order to automate a number of processes, eliminating the need for intervention from staff and enabling the firm to maximise efforts on delivering a cost effective client service.

Rodney Lester, Co-founder of Lester Campbell, comments:

“From the outset it was apparent to my partner and I that the demands of modern business practice require the best use of available technology. We considered a number of available systems and concluded that, for us, the Law Society was right in endorsing Proclaim as the approved system.

“It will enable us to reduce time spent on routine processes, thereby controlling costs and enabling us to achieve our vision of providing a cost effective, personalised, client service.”




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Eclipse2014 200x200Joseph Frasier Solicitors – recently crowned ‘Legal Business of the Year’ at the Red Rose Awards 2015 – is the leading law firm offering information and legal advice for deaf, hard of hearing people and others.

The practice covers a range of law from Industrial Disease and Clinical Negligence to Personal Injury and Family. It also provides an impressive Costs service to other solicitors as well as its internal departments.

The firm prides itself on its passion and commitment to clients.

Joseph Frasier Solicitors was beginning to attract an increasing number of new cases to manage. The firm needed to acquire a Practice Management System that would allow staff to monitor and report on the increased workload.

The practice was also looking for a more efficient accounting system with the ability to create and schedule reports accurately, considering the volume of work anticipated.

A Proclaim Practice Management Solution was implemented and is utilised across the firm, providing a core desktop application for fee earners.

Proclaim creates standard precedent letters and packs with the click of a mouse button, and pulls in relevant case data, merging it into the chosen documents automatically, saving the firm hours of administration time.

Proclaim’s integrated accounting toolset enables the firm to see the ledger on each file, and gives them access to departmental and company data, with the option to drill down into miniscule detail.

Joseph Frasier Solicitors is increasingly making use of Proclaim’s reporting functionality, easily creating reports to identify progress made by the firm compared to expectations, and anticipate future needs.

Additionally, the New Business Enquiries (NBE) module has allowed the practice to seamlessly manage incoming enquiries and on-going prospect relationships, meaning staff never overlook a potential client.

“Modern legal practise depends upon the right technologies to deliver the services clients need – Proclaim meets all our objectives.” Chris Kushner, practice manager at Joseph Frasier Solicitors.




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Wainwright: significant number of CFAs probably do not comply

The effect of the cancellation of contracts regulations on conditional fee agreements (CFAs) is to be tested following a county court ruling that struck down the CFA.

There have long been fears about the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 – which provide for a cooling-off period – and the decision of a regional costs judge in Hurley v Maruki could potentially impact thousands of cases.

The claimant, represented by Liverpool firm Camps, sought to recover costs following the agreement of damages in a litigated rear-end shunt road traffic accident. Camps had attended the claimant in his home to take initial instructions.

BLM argued that the CFA did not comply with the 2008 regulations as it did not contain notice of the claimant’s rights to cancel the CFA. According to the regulations, this notice should have been contained within the document and set out in a mandatory format on a detachable slip, filled in where applicable by the trader.

Camps sought to rely on an exception in the regulations for contracts where the total payments to be made by the consumer is £35 or less, arguing that the claimant’s personal liability for costs was effectively nil as it was a CFA lite and so capped at the sums recovered from the defendant.

District Judge Moss, the newly appointed regional costs judge in Manchester County Court, ruled that because of the indemnity principle it remained the case – even with a CFA lite – that the client has a liability to pay the solicitor’s charges, even if they are then capped. Therefore the regulations applied and the failure to comply with them meant the whole retainer was unenforceable. The bill was assessed at nil and the defendant awarded the costs of the detailed assessment.

BLM associate Paul Wainwright said the decision will affect many cases nationally: “It is expected that a significant number of CFAs do not comply with the regulations, which were introduced with the purpose of protecting consumers from unscrupulous doorstep salesmen.”

Amanda Ashton, the director at Compass Costs acting for Camps, said she was very confident of successfully appealing over the £35 exception. “The exception is well known and had been accepted in practice during costs negotiation by claimants and defendants alike. Bearing in mind an earlier unreported decision in Cyran & Lavko v Churchill Insurance (Northampton County Court, 2 September 2011), in which Compass acted, we are very surprised at the outcome.”

Ms Ashton said there had also been an error in the process of disclosure to the court which would have shown that the claimant actually was provided with the cancellation notice as part of the solicitor’s standard information pack.

She said: “It is likely that a Ladd v Marshall application will be required so that everything relevant can be considered, but beyond and ignoring that we believe that an appeal can quite properly be pursued in any event. We will be inviting the defendant side to reconsider their own position at an early stage.”




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The DAS UK Group has launched into partnership with Norwegian insurance agency, Legal24, to underwrite a product for homebuyers.

Home Buyer Insurance enables the purchasers of property in Norway to be able to exercise their legal rights to claim against the seller should any problems arise after purchase. In Norway, the seller of a residential property is personally liable for 5 years after the sale for any undisclosed defects in the property that could have affected the purchase or the purchase price.

Mark Robson, Strategic Underwriting Manager, DAS UK Group commented: “Whilst there has been insurance available for the seller for a number of years, a product for the purchaser is a relatively new development in the Norwegian market.  DAS were approached by Legal 24 with a proposal to enter into partnership with them on this new venture. It is an exciting development and our underwriting experience together with the fact that we already hold a licence to underwrite business anywhere in the EEA made this a perfect opportunity for the DAS UK Group.”




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RCJ

Judges had received “no training in costs as such”

Master Gordon-Saker, who replaced Peter Hurst as Senior Costs Judge yesterday, has used his first public speech in the role to launch a strongly-worded attack on the lack of training for judges in costs budgeting.

He said judges had received “no training in costs as such” but only help in understanding how to use the relevant forms, particularly Precedent H.

“If judges don’t have a feel for what the costs are likely to be, you give them the figures and they won’t have the faintest idea if they are realistic,” he said.

Master Gordon-Saker spoke of “horror stories” in which judges spent days examining costs budgets, and commented that this was not what they were designed for.

“Costs budgeting is intended to be cheap, speedy, efficient and avoid arguments at the end,” he told a Commercial Litigation Association conference last night.

“For a lot of judges it is a difficult task, and we need to give them the education and training to do it.”

Master Gordon-Saker said that when he went on his Jackson training session, the group of judges he was with were asked to estimate the costs of a five day professional negligence case at the High Court.

The result, he said, was estimates varying from £30,000 to £150,000. The master added that some “experienced judges thought £30,000 was appropriate”, provoking laughter from conference delegates.

The master set the lack of judicial training in the context of a Courts Service which was “under strain”.

A self-confessed Jackson enthusiast, he said the reasons for costs budgeting were “obvious”, and it was needed to provide “fairness for litigants”. While the theory behind it was good, the problem was “the timing”.

He said there was “no money” to give judges a proper training in costs budgeting, leaving “judges with limited expertise in costs with no better idea of what reasonable costs will be”.

Lowering expectations, he warned: “Costs budgeting is a huge change and it will be some time before we get it right”.

He said judges needed confidence, which would “only come with training and experience”. However, he said that he had been told that, so far, people were “generally happy” with the overall results.

Looking to the future, the master said he believed the Court of Appeal should be careful to limit the circumstances in which appeals based on having a “good reason” to depart from costs budgets should be allowed. Otherwise, he questioned whether there was any point in having them.

Elsewhere in his speech, Master Gordon-Saker strongly defended the status quo. He blamed solicitors for failing to take part in the Civil Justice Council survey on guideline hourly rates, leading the Master of the Rolls, Lord Dyson, to put the issue of an increase or decrease on hold.

He said Master of the Rolls would be meeting with the Law Society and the Ministry of Justice to discuss a way forward, but information from solicitors was essential.

The master condemned the old system of recoverable conditional fee success fees and insurance premiums, but added that requests for adjournments based on the Supreme Court ruling in Coventry, which suggested the old regime may have breached the Human Rights Act, had rightly been given “short shrift”.

He repeated his view, that was no need for further guidance from the Court of Appeal on the issue of proportionality in costs, as it was “already there”.

Master Gordon-Saker predicted that the Court of Appeal might only restate the approach taken by Lord Justice Jackson in his final report.

 

 

 

 

 




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Hutton: all are agreed on the 6 April 2018 date

Practitioners have been warned that they can no longer ignore the electronic bill of costs, which now seems certain to become mandatory in the Senior Courts Costs Office (SCCO) and county courts on 6 April 2018.

The initial plan was that it would become compulsory in the SCCO alone this week, but in June the Civil Procedure Rule Committee delayed it until 2018 so that it could happen across the board.

Speaking at the Costs Law Reports Conference in London last week, Alex Hutton QC of Hailsham Chambers – who heads the committee overseeing the new bill format – indicated that there would be no further delay.

“The Civil Procedure Rule Committee has accepted the principle that the new bill will not be widely used until its mandatory,” he said. “The Ministry of Justice is behind it and all are agreed on the 6 April 2018 transition date.”

This view was echoed by the Senior Costs Judge, Andrew Gordon-Saker, who pointed to the latest update to the CPR, which came into force on Sunday.

The amended rule 47.6 now provides for the filing of electronic versions of the bill of costs, while an amended Practice Direction 47 will be published – probably by the end of the year – as part of the practice direction making document supporting the rule changes.

Mr Hutton said the practice direction would require electronic bills for part 7 multi-track claims except for cases in which the proceedings were subject to fixed costs or scale costs or cases in which the receiving party was a litigant in person, or cases where the court has made another order, and where the bill related to costs recoverable between the parties for work undertaken after 6 April next year.

The bill would have to either be in the form of Precedent S or any other spreadsheet format which reports and aggregates costs on

Chief Master Gordon-Saker said the new rules would apply to provisional assessments but, for now, not legal aid claims or Solicitors Act assessment.

For cases which straddle 6 April 2018, parties could submit a paper bill for the work done before that date and electronic bill for the time after then, “but frankly we are working possibly on the false assumption that if you’ve got to prepare an electronic bill, you’re probably going to do it for the whole case rather than just a bit of it”.

Over the next two years, the judge said, the SCCO would go completely digital and everything would be handled electronically.




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Just Costs are delighted to announce the following promotions.

James Toland has been promoted to Associate.   James has been in costs for 8 years after graduating from University.  James joined Just Costs in March 2012 where he started as a Senior Negotiator, and then he became a team lead.  In December 2012 James was appointed Technical Manager for the Manchester Office.  James has negotiated files ranging in size and complexity including multi-track RTAs, commercial, clinical negligence, PPI and MOJ / Portal matters He has also advised litigants in person.

Richard Lyons has been promoted to Associate.  Richard joined the Northern Region in the autumn of 2007; he is now established himself as a key member of the team in Manchester with both colleagues and clients alike.  Richard now deals predominantly with the new Budgeting process along with drafting Bills of Costs for high value matters across the areas of PI, clinical negligence, commercial, and Court of Protection.

Nicola Brett has been promoted to Associate.  Nicola has over 12 years experience and qualified as a Costs Lawyer in 2010. She made her move to Just Costs in September 2011 as a member of the Eastern Region.  Nicola quickly established herself as a key member of the team with both colleagues and clients alike and was appointed Technical Manager for the Eastern Region in December 2012.  Nicola has experience in all aspects of costs and regularly attends detailed assessments.   Nicola leads the Eastern Region’s Costs Budgeting team with responsibility for checking all budgets and being the main point of contact for clients.

Mary Doohan has been promoted to Associate.  Mary has 12 years of experience as a cost draftsman and has worked in the Chesterfield office since it opened in 2006.   As a senior cost draftsman Mary is a key member of the team in Chesterfield and deals with high value complex matters in relation to both personal injury and commercial matters.  Mary also has the additional responsibility of being a mentor and trainer to the new graduate recruits who join the Eastern region.

Sam Hayman has been promoted to Associate.  Starting straight out of University with an LLB Sam has attained solid experience in the field of legal costs, having worked at various firms before joining Just Costs in March 2012. Although, his time in the industry is relatively brief Sam has progressed through the ranks a lot faster than most displaying a real knack for Costs Law. Traditionally Sam has dealt with a full range of high value costs matters with an emphasis on complex Catastrophic Injury and Clinical Negligence claims but since joining Just Costs has a heavy focus on Commercial cases.  Sam is part of the London Advocacy team and undertakes all aspects of this role both locally to London and nationally across the South. He is becoming well-known with our client base as he regularly attends clients for training sessions and in-house work.

Daniel Heaton has been promoted to Associate.  Daniel joined the firm in the summer of 2008 and has led the IT department, based in Manchester city centre, since 2010. Daniel oversees the IT support needs of the business, manages contractors and consultants, leads development of software and reporting, and has managed several key projects since assuming his current role.

Mark Hartigan, Client Services Director commented on the promotions – “The calibre of applications was extremely high and gave the Executive much food for thought”.

Read our latest blogs here.




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PrintOne of the most prestigious events within the legal sector, the Law Society Excellence Awards celebrate brilliance and outstanding achievement across a range of areas from pro bono to technology to marketing and communications; and this year Harmans are very proud to have been recognised in the business development category.

The announcement, made on Wednesday 5 August, shortlisted the costs firm in the business development category for its innovative app Costs Expert.

Costs Expert is a bespoke mobile application which features the first ever interest calculator for the costs industry.

The app, available on both iPhone and android, is free to download and acts not only as a valuable industry resource but also as a tool to help solicitors with their everyday workload.

Matthew Harman, partner, says: “It’s absolutely fantastic to be shortlisted for the Law Society Excellence Award and is testament to all the hard work that went into developing Costs Expert. We set out to improve our client service, at no extra cost to clients, and to be recognised by the Law Society for achieving this is so rewarding.”

Winners will be announced at the awards ceremony in London on Thursday 22 October.

Download Costs Expert now –

iPhone version: https://itunes.apple.com/gb/app/costs-expert/id875061911?mt=8

Android version: https://play.google.com/store/apps/details?id=com.andr.harmans




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Lloyd’s: LMA calls for damages tariff

The limitation period for bringing whiplash claims should be slashed to six months, the Lloyd’s Market Association (LMA) has proposed.

As the rhetoric steps up with the transport select committee’s inquiry into whiplash, the LMA said its proposals would “reduce the number and cost of whiplash claims in the UK, particularly reducing the number of frivolous and fraudulent claims”.

As an alternative to cutting the three-year limitation period, the LMA said damages should be reduced for claims submitted more than six months after an accident.

In its submission to the select committee, it also called for a tariff of damages that courts can award to whiplash claimants, dependent on the severity of their condition. “The LMA noted that a similar system operates successfully in France, and agreed scales of damages have worked well in other areas of compensation in the UK,” it said.

The LMA supported the government’s proposals to raise the small claims limit for injury claims to £5,000 and a new medical reports process – it called for a change to the situation where “many of the medical agencies conducting assessments of whiplash claimants are owned by solicitors”.

There should also be “a new public debate on the appropriate level of damages for whiplash claims in the UK”, it said.

David Powell, the LMA’s underwriting manager, said: “A major difficulty is that the low barrier to success for whiplash claims, and the high cost of opposing them, often makes it uneconomic for defendants to mount a legal defence – even when claims are weak. “Whiplash is a highly subjective injury: the accepted legal evidence of causation and injury is entirely based on doctors describing symptoms reports by the claimant – potentially up to three years after the event. We believe the proposals outlined by the LMA would be sufficient to reduce the frequency and cost of low value motor claims in the next few years.”

According to the Association of British Insurers’ submission to the select committee, 78% of PI claims following road accidents in the UK are for whiplash, twice the average percentage of whiplash claims across Europe. It compares to 30% in France and Denmark, 31% in Spain, 35% in the Netherlands and 68% in Italy.

The ABI supported the government’s whiplash proposals, and also said there should be “a fair and transparent method for calculating compensation for minor whiplash injuries, which is set independently”.

Head of motor and liability James Dalton said: “Our proposals will ensure that genuine claimants receive access to justice at a proportionate cost, while driving out fraudulent and exaggerated whiplash claims that increase the cost of car insurance for honest motorists.”

Meanwhile, following its RTA fraud conference last week, the Motor Accident Solicitors Society has called for “an end to the ‘have a go’ culture that is endemic across British society and which has contributed to an increase in fraudulent motor accident claims”.

Chairman Craig Budsworth said: “The government must recognise that problems within the motor insurance industry are being replicated across many areas of society. The way to tackle this is not by introducing one-size-fits-all changes that will also prevent legitimate recompense for victims, but a more holistic approach that includes addressing wider social and cultural issues.

“People need to understand that making a fraudulent claim may, if undiscovered, bring short-term financial reward, but ultimately leads to increases in everyone’s insurance premium as the costs are passed on. Until the root cause is tackled, those who wish to ‘have a go’ will at least seek to do so.”

He urged insurers to play their part by stopping activities such as pre-medical offers and “other incentives that might encourage this behaviour”.




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Warren: Dispute over boxer’s contract

Boxing promoter Frank Warren has failed in his effort to avoid paying his solicitors under conditional fee agreements (CFAs) where he did not receive any damages or costs despite winning his case.

The case also saw a Senior Courts Costs Office judge apply the Court of Appeal’s recent ruling in Budana, allowing the assignment of CFAs.

It involved two cases where Mr Warren instructed his longstanding solicitor Hanna Basha, who was originally at Carter-Ruck, then at PSB Law and, from September 2013 to January 2016, at Hill Dickinson, the defendant in the case.

The cases were against boxer Ricky Burns for breach of contract and against Mr Burns’ manager, Alex Morrison, for defamation. Both started when Ms Basha was with PSB, under CFAs that obliged Mr Warren to pay the firm’s fees in the event of success.

Mr Warren was awarded damages and obtained default costs certificates in both cases. However, he has not recovered anything from either due to the defendants’ bankruptcies.

Though the outcomes met the definition of ‘win’ in the CFAs, Mr Warren claimed that there was an agreement that Ms Basha would only recover fees from Mr Warren in the event there was a ‘net gain’ to him.

Mr Warren argued that, not having recovered any money, he had not made a net gain, meaning he should not have to pay anything.

Master Leonard found no evidence to support this. The contractual documentation was “littered with clear references to and warnings to Mr Warren about his liability to pay his solicitors’ costs, whether recovered from an opponent or not”.

Aside from admitting that he did not read the documents he was asked to sign, Mr Warren said he was not troubled by these warnings because he knew that what Ms Basha was saying did not reflect their agreement.

“To my mind, that explanation is not credible,” said Master Leonard. “Had Mr Warren really believed that he had a standing agreement with Ms Basha which contradicted what she was saying, it would have been evident to him that either Ms Basha did not share his understanding of their agreement or (as he now claims) that she was reneging upon it.

“In either case, a great deal of money would, potentially, have been at stake and Mr Warren would have not have remained silent. He would have said something about it. He said nothing, and my conclusion is that he said nothing because he knew that what Ms Basha was saying reflected the true position.”

The judge added that, even if he accepted the net gain argument, “it seems to me that it would not furnish him with any sound basis in law for escaping the terms of either the Burns or the Morrison CFAs”.

On the assignment issue, Ms Basha left PSB on 14 September 2013. On 30 September, PSB ceased to practise as a firm of solicitors but remained open to conclude administrative matters. On 25 November, PSB entered into an ‘agreement to assign’ with Hill Dickinson. The assignment date was stated as 1 October 2013.

Mr Warren challenged the validity of this. Budana was handed down after the hearing, meaning both parties provided supplemental written submissions to address its implications.

Master Leonard said there was no “material distinction” between the facts of this case and of Budana.

“It seems to me that it cannot be correct to say that the Burns and Morrison CFAs were terminated on PSB’s ceasing to practise on 30 September 2013.

“First, that proposition relies upon [Mr Warren’s counsel Andrew Nicol’s] attempt to distinguish between (in Budana) Baker Rees being unable or unwilling to continue representing its client, and (here) PSB’s ceasing to practise as a firm of solicitors.

“To my mind there cannot be any material distinction. The effect, as regards performance of the relevant contract, would be precisely the same.

“As in Budana, even if PSB’s decision to cease practising could be treated as a repudiatory breach of the Burns and Morrison CFAs it would then have been for Mr Warren to accept that breach and to treat each CFA as terminated, and he did not.”

In any event, the judge said it was not open to Mr Warren to argue that PSB’s ceasing to practise on 30 September 2013 constituted a repudiatory breach of contract.

“I have seen no evidence to suggest that, if PSB had been told that Mr Warren wished PSB to continue to represent him, it could or would not have done so.

“On the evidence, PSB at all times performed its obligations under the Burns and Morrison CFAs to the extent that Mr Warren required it to do so. It was never in breach.”

As a result, Hill Dickinson could enforce the terms of the CFAs against Mr Warren, he said.

Master Leonard said he generally preferred Ms Basha’s evidence. Aside from findings in the Burns and other claims that he had given “untruthful evidence”, the judge said he found Mr Warren’s evidence in this case “inconsistent and frequently at odds with the weight of the evidence”.




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Shenton: potential professional negligence issue

Shenton: potential professional negligence issue

Commercial litigators are busting their budgets without seeking court approval to revise them upwards, new research has shown.

According to the survey by Just Costs Solicitors of 912 commercial litigation partners at the top 200 law firms, some 73% of respondents said they had prepared a Precedent H budget which was either agreed between the parties or approved by the court.

But even though every single one of them said they monitored the costs they incurred to ensure they remained within the budget for each phase, 69% said they had exceeded a budget at some point. This meant there are “obviously flaws” in the process, the survey said.

Of these, just 11% had made an application to revise the budget upwards. Six in ten said they did so because of significant developments in the litigation – which is what the rules specify as the reason for revision – 10% described it as “simple overspend”, and the rest cited both.

Paul Shenton, managing director of Just Costs, said: “This research suggests that the majority of solicitors are either unaware that a mechanism exists for budgets to be revised or believe that any such application will automatically fail so there is no point in pursuing it.

“It is very difficult for solicitors to recover an overspend without applying to revise the approved costs budget upwards. If clients are paying win or lose, this is a potential professional negligence issue – and if law firms are limited to what they recover then they are effectively working for free.”

In a judicial roundtable hosted earlier this year by the Association of Costs Lawyers, District Judge Chris Lethem – a member of the Civil Procedure Rule Committee and Judicial College trainer on costs – said he “hardly ever” saw applications to vary budgets.

He said: “I am deeply uneasy about that desert of applications, because either I have achieved a crystal vision which I thought I did not possess, or the parties are storing up a heap of problems later on down the line because they did not apply to vary, and when they get to the end of the process they are suddenly going to find they have overspent.”

However, Francesca Kaye, a partner at Russell-Cooke and immediate past president of the London Solicitors Litigation Association, said she was “positively avoiding” making applications to vary.

She said: “The risk of making an application to amend or vary a budget is firstly that the proposed amendment, depending on why you are applying to amend, might not be allowed; secondly, we have heard some horror stories of making an application to amend, and the judge taking one look at the budget that previously had been granted, and taking it as an opportunity to have another go at it.”




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Handcuffed: is the costs judge’s discretion fettered?

The question of whether and to what extent the costs budgeting regime fetters the powers and discretion of the costs judge at detailed assessment is a difficult one that needs to be put out to consultation, the rule committee was told earlier this month.

The issue has come to the fore following the recent ruling of District Judge Lumb, a regional costs judge, in Merrix v Heart of England NHS Foundation Trust [2016] EWHC B28 (QB).

In this, he held that his powers on detailed assessment were not fettered even though the receiving party had come in within budget.

He said that though there was no direct authority on the relationship between the two, there were numerous examples in the CPR and case law to support the contention that cost budgeting was not intended to replace detailed assessment.

The issue was raised by the Civil Procedure Rule Committee’s (CPRC) sub-committee which recommended changes to the costs management regime as a result of the Court of Appeal’s ruling in SARPD earlier this year.

In its paper to the CPRC, the committee – chaired by Master Roberts – said: “On the one hand, there is a view (which is that of the Judicial College) that if costs are claimed at or below the figure approved or agreed for that phase of the budget, then they should be assessed as claimed without further consideration.

“The budget fixes the amount of costs recoverable and the costs can only be reduced if the defendant paying party satisfies an evidential burden that there is good reason to depart from the figure in the budget.

“There is a contrary view that the cost judge’s powers and discretion are not fettered by the budgeted figure for that phase and the budget is but one factor to be considered in determining reasonable proportionate costs on assessment of costs under CPR part 47. This view was accepted by Lumb DJ in Merrix.

“We have flagged up this important issue but have not sought to resolve it. Firstly, it was not within our remit. Secondly, there is a strong argument that an issue of such fundamental importance should be the subject of public consultation. Thirdly, we could not reach a unanimous decision.”

It is not yet known what the CPRC decided to do.




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Sampson: whose claims have priority?

Guest blog by Adam Sampson, the former Chief Legal Ombudsman and now managing partner of DNGG Ltd

It’s now been four months since the permission hearing for the first use of the consumer class action powers created by the 2015 Consumer Rights Act (after the first one registered was withdrawn). Yet still there is no white smoke from the Competition Appeal Tribunal (CAT).

With the value of the claim (against MasterCard) put at £14bn, there is a lot resting on the outcome. While the judgment will clearly largely be based on the individual facts of the case, it may give some wider clues about how the courts intend to interpret the Act.

First, the judgment may help make clear how the courts propose to balance class actions with individual claims on the same issue. Over the last year or so, MasterCard and Visa have faced a number of claims alleging that it had been systematically inflating the ‘interchange fee’, the fee (up to 1% of the transaction cost) charged to the retailers for accepting payments via branded credit or debit cards.

The claims, brought by retailers themselves, have had mixed success: an initial win by Sainsbury’s in the CAT was superseded by a recent comprehensive defeat in the High Court for a wider group of retailers on almost identical facts. Another case is in the offing.

Whatever the underlying position on liability, the question is: whose claims have priority? If there was any overcharge, it was paid by the retailers; Sainsbury’s was compensated on that basis. The consumer class action, however, is alleging that the alleged overcharge was passed on to the consumer in the form of higher prices and it is consumers, rather than retailers, who should be compensated.

While the CAT clearly cannot make a binding determination about whose claim should take priority, its ruling must consider how consumer class actions fit into a wider claims landscape.

Second, the judgment will have to bring clarity about who in practice is entitled to bring a consumer class action. Originally, the MasterCard action was to be brought by a consumer organisation. In the event, the claim is being headed up by one-time Financial Ombudsman, Walter Merricks, a man who, whatever his personal record, has no obvious locus to speak on behalf of all UK consumers.

His moral authority has also been somewhat undermined by the fact that the case is being funded via third-party US investors who stand to profit directly from any court success.

The court will also want to understand how those bringing the claim are ensuring that they are truly in touch with those they purport to represent. The claim is being brought on an opt-out basis: all adult UK residents who may have shopped in an outlet who took MasterCards between 1992 and 2008 are included in the claim unless they explicitly withdraw their consent.

But few will actually be aware of an action being undertaken in their name. The Merricks team has attempted to communicate with the public via press releases and a dedicated website; the court will need to determine if this is sufficient.

Finally, and most difficult, will be the question of what happens if liability is established and the claim succeeds. Not only will the claim have to establish that any increased costs were passed on by the retailers to the consumers (contrary to what the retailers have been arguing in their own claims); they will also have to quantify how great that loss was and how they intend to redistribute any compensation back to consumers.

But the claim covers hundreds of millions of purchases made from hundreds of thousands of shops by tens of millions of consumers at between 10 and 25 years ago. Creating a convincing mechanism by which individuals can be compensated for the additional fraction increase in cost of each purchase is, to put it mildly, a significant challenge.

The claim proposes a very simple standardised redistribution method which does not attempt to relate individual compensation paid to individual loss incurred. It remains to be seen whether this rough and ready solution is enough to satisfy the CAT.

We are still at the early stages of the claim. The hearing in January was only for permission and we are a long way yet from a full consideration of the case – if indeed we ever get there. The case has already attracted considerable press attention and the CAT will be all too aware that their approach to it will be very closely analysed. Given its inherent difficulties, it will be fascinating to see what they make of it.




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Augusta Ventures LLP

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Augusta is a niche financier that focuses on commercial litigation. It is FCA and JFSC regulated, as well as conforming to UK Consumer Credit Regulations.

Augusta offers its Trinity finance product through accredited law firms. Trinity is ideally suited for small and medium commercial claims, and to date, over 200 firms have accessed the Augusta Trinity platform.

For law firms and their clients, Augusta’s Trinity provides transparency, fast turn around and certainty. The application process is web based, claims have been approved for finance in less than 2 weeks, and Augusta’s funds are deployed in full at the outset.

Key Features:
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Cost of Funding:
Return of finance and approximately 20% of the net return.




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Houses of Parliament

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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In the current economic climate it is not enough simply to obtain a judgment – the real skill is in the enforcement process. This area should be at the forefront of all lawyers’ minds when they undertake any case involving money for a client.

April 2014 has seen the first significant overhaul for many years in the law of execution and it is very important for all those in the money recovery arena to be aware of the changes.

MBL’s brand new one hour webinar will look at these changes and how they affect the client who is seeking to make a successful enforcement. It will give very practical advice on the positive and negative parts of the changes and guide you through the new process.

For more information on this webinar, including costs, or to make a booking please email lucy@mblseminars.com quoting Litigation Futures.




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

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

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

The policy

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

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

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

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

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

Why the change?

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

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

Further concern for claimants

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

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

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

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

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

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

Asbestos in UK schools

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

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

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

Conclusion

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

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

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

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




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Documents: more than 100 pages given to non-English speaking LiP at door of court

Documents: more than 100 pages given to non-English speaking LiP at door of court

The High Court has issued a warning to lawyers over dumping legal documents on litigants in person (LiPs) at the door of the court.

Though Mr Justice Peter Jackson’s ruling was in the Family Division, it has clear resonance with the civil courts too.

Re B (Litigants In Person: Timely Service of Documents) [2016] EWHC 2365 (Fam) – which was published with the approval of the President of the Family Division – arose from a recent final hearing in a child abduction case. Counsel’s 14-page position statement and four law reports totalling 100 pages were given at the door of the court to the mother, a non-English-speaking LIP.

This is unfortunately not an unusual occurrence, and it calls for a remedy,” said the judge.

He continued: “Where one party is represented and the other is a LIP, the court should normally direct as a matter of course that the practice direction documents under PD27A are to be served on the LiP at least three days before the final hearing, especially where the LiP is not fluent in English.

“The method of service, usually email, should be specified. Where time permits, the court should consider directing that the key documents are served with a translation. In cases where late service on a LIP may cause genuine unfairness, the court should consider whether an adjournment of the hearing should be allowed until the position has been corrected.”

Peter Jackson J observed that many LiPs, because of their inexperience, were hesitant to complain about matters such as late service. He noted that the “possible unfairness” arising from the imbalance of one party being represented and one not “have been repeatedly stressed” by the family courts.

“It might be added that late service of documents further weakens the position of LIPs by removing any opportunity they may have to seek advice and explanation ahead of the hearing from those who may be more familiar with the system and the language.

In the case before him, the judge said the position statement was of real assistance to the court and, had she had it sooner, could only have helped the mother, even though it was in English.

“As it was, time was wasted before the hearing could begin, with the mother studying the documents with the help of the court-appointed interpreter. That help was kindly provided even though the core function of the interpreter is as an interpreter and not a translator.”

He said the minimum service requirements set out in the Family Procedure Rules “should be adapted in individual cases to protect the rights of LIPs. The need for earlier preparation and service places obligations on advocates and those who instruct them, but that is necessary to prevent the intrinsic unfairness to LIPs that may arise from late service”.




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Niemczewski: scope for improvement

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

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

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

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

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

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

 




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Elite Insurance has continued its strong march within the UK and European market with further senior hires to bolster its insurance offering.

Mark Thomson has joined recently as UK General Counsel to head up and manage Elite’s legal arm and the development of legal services. Formerly a commercial litigation partner at Freeths LLP, and more recently, litigation funding manager at Burford Capital, Mark has worked extensively with the insurance market. He is also an ADR Group accredited mediator.

Commenting on his arrival, he said: “I am delighted to be joining Elite’s dynamic and experienced team. They’ve made huge strides within a relatively short period, and I look forward to working closely with the whole team to deliver further growth and success.”

Elite’s CEO, Jason Smart said in a statement: “It makes absolute business sense to increase our legal department both from a cost saving perspective as well as in terms of improving our client services offering. Mark’s experience within the industry will be invaluable to us and we are thrilled to have him on board”.

In other staff news, Tim Moll will be taking on the responsibility of managing the newly relocated Elite London office in addition to his role as head of claims.

Stuart Lee also joins Elite as director of business development bolstering Elite’s sales force as the company takes on new markets and further widens its product portfolio.

 




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Renatas Girdziusas

Renatas Girdziusas, costs consultant and practice manager

A new Birmingham office is the latest addition to the growing UK network of legal costs specialists Burcher Jennings.

The focus on the Midlands is designed to give local firms access to Burcher Jennings’ costs, pricing and funding platform, which has already helped legal services businesses all over the country achieve transformational change.

The Birmingham branch of Burcher Jennings will be led by innovative costs practitioner Renatas Girdziusas, who joins the firm with more than twelve years’ legal costing experience, both in-house and in a dedicated costs practice.

Renatas Girdziusas, costs consultant and practice manager for Birmingham at Burcher Jennings, said:

“I am delighted to be spearheading Burcher Jennings’ expansion in the Midlands at such an exciting time for the business. The opportunities that we offer in terms of costs, pricing and funding growth have a proven track record and we’ll be able to help many more firms in the Midlands to switch to a better, more profitable approach. I look forward to making a more innovative and cost-effective model a reality for law firms in the region.”

Burcher Jennings now has the largest concentration of costs lawyers in the UK. The ongoing search to achieve a competitive edge in an increasingly complex market has driven demand for the firm’s bespoke advice. Burcher Jennings’ consultancy is transforming firm functionality and increasing annual profitability by an average of 25%, often much more.

Martyn Jennings, CEO at Burcher Jennings, said:

“Renatas is an important addition to the Burcher Jennings practice at a time when we are growing at quite a blistering rate in order to keep up with demand. Over the past year our firm has proven just how crucial our pricing, costs and funding consultancy is to the long-term strategy decisions many firms face. We are proud to be pioneering changes to the way that law firms operate to make them more efficient, positive and profitable.”




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air bag

Crash: liability was hard to dispute

The High Court has backed a costs judge’s decision to cut a success fee charged by Irwin Mitchell, acting for a pedestrian whose back was broken when a car reversed over her, from 75% to 30%.

The costs litigation followed a settlement in 2012, under which the Motor Insurers’ Bureau (MIB) agreed to pay the woman £1.6m.

Mrs Justice Slade – sitting with Master Campbell – said it was not “impermissible” for the costs judge, Master Rowley, to conclude that, in the light of the involvement of the MIB, that the prospect of the claimant winning but not being able to recover costs was “negligible”.

Further, Master Rowley’s decision that the MIB would be hard pressed to contest liability was “amply supported by what was known at the time of entering the CFA”.

Slade J agreed with Master Rowley that the main risks for Irwin Mitchell were the risk of a part 36 offer and the complications that might follow a finding of contributory negligence.

She said allegations of contributory negligence included the fact that the vehicle’s lights were flashing and that the “claimant had a lack of awareness of the approach of the vehicle because of her pre-occupation with her mobile phone”.

Slade J said the costs judge referred to a Court of Appeal judgment, C v W, in which the court substituted a success fee of 20% for the risk of failure to beat a rejected part 36 offer. He also said that not all cases should be taken as having a 50/50 chance of success when they get to court so as to justify a 100% success fee.

Dismissing the appeal, Slade J ruled that the costs judge did not err in his approach to assessing a reasonable success fee. The claimant was ordered to pay the MIB’s costs for the appeal.

The court heard in Bright v Motor Insurers’ Bureau [2014] EWHC 1557 (QB), that Carol Bright suffered a severed spinal cord in the accident, leaving her tetraplegic.

Counsel for the claimants argued that base costs, as well as success fees, were at risk if the claimant lost and that the MIB refused to admit liability, unlike the situation in C v W. He argued that the costs judge had erred in his approach to the staging of the success fee, which was set at 50% for the initial work.

However, Slade J said: “The decision on a reasonable success fee was reached independently of the decision of the master as to staging.

“Since the material issue is whether the requested success fee of 75% was reasonable whether it was staged or not, the observations made earlier in this judgment about the approach of the Master to the issue of staging do not affect the outcome of the appeal.”

 

 

 




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Dave Haynes Underwriting Marketing Director ARAG

Dave Haynes, Underwriting Marketing Director, ARAG

Leading legal expenses and assistance provider ARAG plc has appointed David Haynes as a  Director on the company’s board.

Haynes, who has worked for ARAG since the business launched in Bristol in 2006, retains responsibility for the company’s underwriting and marketing functions.

“It is obviously a great honour to join the ARAG board, alongside colleagues that I have worked with for many years.” Haynes commented on his appointment. “These are exciting times for ARAG, as we maintain our strong growth in spite of the many challenges that our markets have faced in recent years.”

“I’m very much looking forward to helping to steer the business as we continue to grow and expand our range of market leading products.”

Haynes replaces former ARAG plc director, Paul Hurley, who left the company in January for personal reasons.

“David is a strong asset to our UK business.” adds Chairman of the ARAG plc board, Werner Nicoll. “He’s a very loyal and dedicated team member who has worked tirelessly to build the successful ARAG plc business, as we know it today. I am delighted that he has joined the board and welcome his contribution to our work.”




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Law Society: Solicitors’ body said its lobbying led to change

Clients with before-the-event (BTE) legal expenses insurance can now change from panel solicitors to one of their choice earlier than was previously the case following a subtle but significant shift made by the Financial Ombudsman Service (FOS).

The point at which policyholders can exercise their choice of solicitor has been the subject of argument for years, and since 2003 FOS’s clear interpretation of the underlying European regulation has been that they could only do it once proceedings had formally begun.

However, this has now changed and updated technical guidance says: “A policyholder should be allowed to choose their own solicitors from the point that legal proceedings need to be started – i.e. when negotiations have failed and it has been decided by the lawyers involved that it will be necessary to issue proceedings to progress the legal case.

“This means we would normally expect the policyholder’s own chosen solicitor to be covered to do work involved in preparing the claim form and any other work needed to start the proceedings.”

Back in 2003, FOS said it reached its conclusion “in the absence of clear guidance from the courts in support of this alternative interpretation” – it is not clear what has now changed.

The Law Society has taken credit for the change after arguing “for some time that a client should have the freedom to choose their own solicitor prior to the issue of proceedings, as well as afterwards”.

Legal expenses insurers have long argued that assigning cases to their panels enabled them to control costs sufficiently to keep the cost of before-the-event cover low.

The other circumstance in which policyholders have a right to choose their own solicitors before proceedings become necessary is where there is a conflict of interest.

The FOS guidance says: “Policyholders sometimes claim that their disagreement with the appointed solicitor’s legal advice is a conflict of interest.

“We do not view these kinds of disputes as conflicts of interest. A conflict of interest arises only if the solicitor would be in breach of their code of conduct, or would be ‘professionally embarrassed’ if they continued to act.”

A recent report on BTE by the Civil Justice Council steered away from making any recommendations on the choice of solicitor issue – recognising how sensitive it was – but more generally found that it has “a considerable role in improving access to justice in the current legal landscape”, with the advice helplines that come with them of particular benefit.




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Bartletts Solicitors implements Proclaim Case Management Software solution

Liverpool-based law firm, Bartletts Solicitors, is implementing the Proclaim Case Management Software solution from Eclipse Legal Systems.

Established in 1860, Bartletts Solicitors employs over 60 staff at eight offices across the north west region. Boasting a nationwide reputation for providing trusted legal assistance and superb client care, the firm provides a full range of legal services to both corporate and private clients.

To further strengthen this position, and as part of a strategy to continually invest in the latest technologies, Bartletts Solicitors has implemented Proclaim throughout its personal injury team.

Proclaim will provide a central secure platform across all 8 offices ensuring a consistent approach to each personal injury case. As part of the solution, the personal injury team at Bartletts Solicitors will have instant desktop access to Proclaim’s A2A (application-to-application) tools for processing Portal claims for both RTA (road traffic accident) and EL / PL (employer liability /public liability).

The firm will monitor and analyse ongoing performance using Proclaim’s integrated reporting toolkit. Its inbuilt functionality will facilitate the easy creation of custom automated management reports – allowing trends to be spotted and empowering the management team to quickly make informed operational and growth decisions.

Mike Craven, practice manager at Bartletts Solicitors, comments:

“Client care is our highest priority; it’s at the forefront of everything we do. Proclaim will enable us to meet clients’ expectations, automatically keeping them up to date with the progress of their case. This seamless client journey, combined with the increased efficiencies from the streamlining of time-sapping administration, will be crucial for staying ahead of the competition in this increasingly competitive sector.”

 


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The increasing appetite for third-party funding in Europe

Ross Nicholls

Although investors in common law jurisdictions have for sometime recognised litigation as an asset worth investing in, litigation funding remains less prominent in the civil law jurisdictions of mainland Europe. However, the European appetite is beginning to shift in favour of litigation funding, and many large dedicated funds active in common law jurisdictions such as the US, UK and Australia are starting to provide third-party capital to claimants with strong cases.

April 10th, 2018