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Discount rate: Cut would have seen damages rocket

The High Court has upheld the right of a defendant in a personal injury claim to resile from a settlement agreement made three days before the discount rate was cut earlier this year.

As the claimant was a protected party, the compromise of the action was not binding as it had yet to be approved by the court.

Mr Justice Dingemans held that this requirement in CPR 21.10 was not incompatible with the claimant’s rights as protected by article 14 of the European Convention on Human Rights – protection from discrimination, even though there was no such provision for non-protected parties.

In Revill v Damiani [2017] EWHC 2630 (QB), the claimant motorcyclist was severely injured by the defendant, who was imprisoned after being found guilty of causing serious injury by dangerous driving. He was treated as a protected party because he lacked capacity to conduct the litigation.

Zurich Insurance admitted liability on Mr Damiani’s behalf. There was a joint settlement meeting on 24 February 2017 leading to a memorandum of agreement of the same date.

This provided for a lump sum payment for all of Mr Revill’s losses, including his future losses. The calculations for Mr Revill’s future losses used a multiplier for future losses based on a discount rate of 2.5%.

The rate was changed to -0.75% on 27 February. Counsel for the claimant recalculated the future losses, which had substantially increased as a result. The defendant’s solicitors then wrote to say that he was withdrawing from the compromise, adding: “You will appreciate my client’s legal entitlement to resile from the agreement.”

Dingemans J concluded that the approach taken by CPR 21.10 to compromises and court approval was “a proportionate means of achieving the legitimate aim of ensuring the protection of protected parties from: other parties; from themselves; and from legal representatives”.

He observed that the CPR could have been rewritten to mirror the approach in family law cases, where the words “subject to the approval of the court” did not prevent a binding agreement being made or entitle one party to resile from its terms before the court had been asked to approve it.

But the approach taken by the CPR was proportionate for two reasons, the judge continued.

“First, the decision whether to continue with the ‘civil cases’ approach set out in CPR 21.10 or the ‘family proceedings’ approach was within the discretionary area of judgment for the rule-making committee.

“There are factors in favour of the family proceedings approach. In this case it would have meant that Mr Damiani would have been held to the compromise, assuming that the court approved the compromise.

“However there are factors in favour of the approach taken by CPR 21.10. These include the facts that: (1) the compromise rule now set out in CPR 21.10 is long established so that all practitioners know where they stand, meaning that everyone can enter into negotiations to attempt to compromise the action knowing the legal position; and (2) permitting all parties, including the protected party, to withdraw from a compromise before it had been approved maintained a fair balance between protected parties and the other party who might want to withdraw.

“The family proceedings approach requires permission from the court to withdraw from a compromise, and such permission might not be provided. This could create uncertainty with all the attendant worry and cost.”

Secondly, he said, CPR 21.10 formed part of a series of rules which, among other matters, included the duty on the court to provide active case management.

“In this case, as appears below, it enabled the court to set a trial date for a four-day hearing commencing on Monday 11 December 2017. The powers of active case management permit the court to ensure that cases involving protected and unprotected parties are managed in a proportionate and efficient manner, thereby securing the good administration of justice and protecting the relevant rights.”

Dingemans J recorded that, as it happened, a further comprise was reached ahead of the trial.

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Laura Clapton mediator and partner at Consilia Legal

Law Society Endorsed legal software provider, Eclipse Legal Systems, has announced the creation of an innovative addition to its portfolio of case and matter management workflows.

The new Proclaim Mediation Case Management system has been designed to eliminate time-consuming document production and simplify the complicated rates and structures associated with this particular area of legal services. Although initially being used for family-orientated processes, the Proclaim Mediation solution is entirely customisable to suit workplace, commercial and public dispute procedures.

In addition to the inherent Proclaim functionality – such as data storage, document creation, time recording, etc – the solution has also been tailored to seamlessly guide fee earners through all mediation case stages. This includes the facility to detail MAIMs appointments, any subsequent joint meetings, and financial or childcare agreements, as well as capabilities for automated letter production and full diary and task management.

Furthermore, Proclaim’s provision for Legal Aid work means all time is automatically recorded – available for users to effortlessly upload to the LAA – eliminating duplicate data entry and allowing for the submission of bills directly through the Proclaim desktop.

Laura Clapton, mediator and partner at Eclipse client, Consilia Legal, comments on the legal software:

“We simply could not carry out mediation work to this standard without using Proclaim – mediation is extremely admin intensive and requires excellent organisation – the system provides a core service delivery backbone, and is the perfect PA!”

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Supreme Court: case leapfrogged

Supreme Court: case leapfrogged

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

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

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

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

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

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

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

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

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

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

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

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Deadman: The computers are coming

Posted by Chris Deadman, director of operations at Litigation Futures Associate Invicta Capital Funding

If you live in my part of the world, the fireworks season starts on 1 October and concludes on 31 January. Since the New Year, my evenings have been punctuated by an unremitting barrage of cut-price pyrotechnics, only marginally more impressive than the brief night-time display given to motorists following smoking van drivers.

But lately the sound I’m hearing is not that of jumping jacks but the sound of a thousand backs being slapped. Yep, it’s award season in legal land. A chance for lawyers to tell each other how successful and client-focused they are without having to ask any, er, clients.

Now don’t be wrong, I like a gong as much as the next person. My cycling proficiency badge, Tufty The Squirrel road safety certificate and Big Chief Eye Spy letter of congratulation all have pride of place in my home. There is no doubt that a positive quote appearing in one of the leading directories does no harm to a lawyer’s career aspirations nor indeed to the firm that currently employs them.

It is also said that 60% of in-house counsel consult these directories before appointing a panel firm, although the cynic in me wonders whether the old truism ‘nobody ever got fired for appointing Clifford Chance’ applies here.

But what about a directory and a set of awards based on actual performance and measured by objective data? What a fabulous marketing tool that would be for firms brave enough to admit that they are in a results business. How good it would be to see firms boasting about how they win 95% of cases which come to court or settle 80% of claimant matters within 25% of the original damages sought.

But the really innovative work, at least from a funder’s perspective, is the role that artificial intelligence can play in predicting the outcome of litigation.

In a recent exercise, over 100 lawyers were pitched against an artificial intelligence programme called CaseCrunch. Both the lawyers and the computer were given the basic facts of hundreds of PPI mis-selling cases and asked to predict whether the Financial Ombudsman would allow a claim. In all, they submitted 775 predictions with CaseCrunch, the system achieving an accuracy rate of 86.6% compared with 66.3% for the lawyers.

The naysayers were quick to point out that the exercise took place in a highly controlled environment which bore no resemblance to real world complexity.

Real litigation, they argue, is art not science. Each case is different and with a constantly changing landscape, subject to the whims of people and the vagaries of chance. The lawyer is an alchemist, marshalling the disparate elements to turn base metal into legal gold. Such a complex and unique set of circumstances simply cannot be reduced to a mere set of numbers.

Unfortunately, if you make your living betting on the outcome of football matches, you will disagree. In common with litigation, football is played according to a set of well-defined rules. Matches take place in a variety of different locations around the globe and involve 22 variously hardworking, lazy, talented, useless, level-headed, arrogant, loyal, disloyal fit and injured individuals.

Faced with this degree of complexity, it ought to be nigh on impossible to predict the outcome with any degree of certainty. But the game has been beaten and beaten well by groups of individuals to rely on an algorithm to make their selections.

Tony Bloom, chairman of Brighton & Hove Albion and a successful racehorse owner, leads the way in high stakes, high profit sports gambling. His annual betting turnover on football is in the many hundreds of millions. As far as anyone can say for sure (Bloom and his coterie are a secretive bunch), he specialises in Asian Handicap markets where bookmakers accord teams a notional fraction of a goal and whole goal start or deficit to equalise their chances.

The algorithm produces its own assessment of probability expressed as odds. If the odds available are higher than the machine’s assessment, Bloom and his team strap on their betting boots. Less successful punters i.e. everyone else, claim that Tony Bloom won’t blow his nose unless the algorithm tells him to.

I daresay that someone like Tony Bloom couldn’t care less what others say about him – he is too busy amassing profit for his partners.

Sure, Bloom employs people to spend every waking hour glued to Norwegian Division 2 matches and staff whose job it is to scan the online world for news of injuries, discontent, sackings and transfers. But whilst this qualitative information is an important component of the process, it is the computer which has the final word.

Gone are the days when a single person’s opinion on the likely outcome mattered sufficiently to warrant a financial investment – what counts is the computer.

I concede that a sporting event lends itself more readily to this kind of analysis and that wisdom will always trump mere knowledge. I can, however, envisage a day when litigation funders rely less on retired lawyers and judges to mark the homework of applicant solicitors and more on the number crunching of an algorithm to determine whether a case is worthy of investment.

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Percentage caps: Rules explain how to calculate costs

Variations that judges can adopt in orders for concurrent expert evidence – known as ‘hot-tubbing’ – came into force last week, along with a new provision that clarifies how the costs of costs management should be calculated.

The hot-tubbing amendments are not as radical as the Civil Justice Council (CJC) has recommended in a report last year.

The amendments to PD 35 provide that to extent expert evidence is not to be given concurrently, the court may direct that the evidence is given “in any appropriate manner”.

They continue: “This may include a direction for the experts from like disciplines to give their evidence and be cross-examined on an issue-by-issue basis, so that each party calls its expert or experts to give evidence in relation to a particular issue, followed by the other parties calling their expert or experts to give evidence in relation to that issue (and so on for each of the expert issues which are to be addressed in this manner.”

Further, whereas previously the rules allowed the judge to direct the parties to agree an agenda for the taking of concurrent evidence, they now allow the court to set the agenda.

As we reported in June, a sub-committee redrafting PD 35 had asked the CPRC whether it wanted to limit the concept of concurrent expert evidence to “classic” hot-tubbing, or approve an alternative approach that treated it as “embracing the full range of methods, including back-to-back, issue-by-issue expert evidence, and ‘hybrid’ procedures”.

The CPRC chose the former. As well as the additions to the practice direction, there are new questions for the directions and listing questionnaires.

Mr Justice Kerr, chair of the subcommittee, said the changes were not as radical as the CJC may have hoped, but would “give court users a useful steer”.

The CJC report – which found that hot-tubbing was improving quality, saving trial time and helping judges determine disputed issues – recommended that the practice direction should be revised to reflect that hot-tubbing was “but one form of concurrent expert evidence; that sequential, back-to-back, evidence is another important format of concurrent evidence; that the ‘teach-in approach’ has great benefits for the right type of case; and that, above all, the court may give directions for any of these processes to be used at trial”.

Meanwhile, on the costs of costs management, the revised PD3E 7.2 now reads:

“7.2 Save in exceptional circumstances—

(a) the recoverable costs of initially completing Precedent H shall not exceed the higher of £1,000 or 1% of the total of the incurred costs (as agreed or allowed on assessment) and the budgeted costs (agreed or approved); and

(b) all other recoverable costs of the budgeting and costs management process shall not exceed 2% of the total of the incurred costs (as agreed or allowed on assessment) and the budgeted (agreed or approved) costs.”

Though this has clarified the situation, observers have predicted that linking the cap to incurred costs on assessment is likely to lead to more argument.

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Hurndall: relationships restored

The London Borough of Havering has saved an estimated £240,000 of costs and significantly reduced the time required to resolve three recent disputes, according to arbitrators, the Centre for Justice.

Centre for Justice uses lawyer assessors to investigate and then adjudicate on the case if a settlement is not possible, and claims that the public sector is losing up to 10% of its revenues annually in handling complaints and disputes through the courts.

The three cases, which were all resolved to the satisfaction of all parties, within two months of the Centre for Justice being appointed, represent the wide spectrum of the borough’s legal issues and involved sums ranging from £20,000 to more than £4m.

One case involved the claim to a new tenancy by a local business with a counterclaim for arrears of rent and breach of covenant by the borough. The case was successfully concluded with the business now fully operational with a new tenancy from the borough.

The second case involved a dispute over a contract for the provision of social care services to council adult social care clients, with the supplier, council and clients all as parties. This case was settled amicably, the contract renewed and the clients remain in situ.

The third concerned an alleged error in the council’s registry offices, which was claimed to have resulted in the postponement of a marriage and the costs of postponement.

Alex Cumming of the London Borough of Havering’s legal department said: “The Centre for Justice was cost effective and met all our objectives. I would be very happy to recommend the process and we will be using it again.”

Anthony Hurndall, director of the Centre for Justice, said: “Our form of arbitration does not rely on an adversarial approach to arrive at a result. Our trained arbitrators deal directly with the parties and usually achieve an amicable settlement without the need for a formal award.

“It is evidence of the integrity of the service that, with each of the London Borough of Havering cases, relationships have been restored and the parties continue to do business together.”

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Bogart: innovative arrangement

Burford Capital has raised a further £25m for its litigation funding warchest, the AIM-listed company announced today.

The issue of contingent preference shares by a wholly-owned subsidiary of the company has been fully subscribed.

This means institutional investors agree on demand to provide up to £25m in additional capital.

The completion of the offering is contingent on the admission of the units to the Channel Islands Stock Exchange, for which application has been made and is expected to occur later this week. Burford said it has privately consulted a number of its shareholders and received support for the move from shareholders representing a clear majority of the ordinary shares in the company.

In a statement, Burford said: “Litigation finance investments tend to be medium term in duration and come with some uncertainty around the timing and quantum of their cash inflows and outflows, which means there is potential for a substantial gap between cash committed to investments and cash actually deployed.

“As it is inefficient to reserve dollar for dollar against future commitments, the company believes that the facility offers an innovative alternative to manage the uncertainty around cash flows.”

Chief executive Christopher Bogart added: “We are delighted to have expanded our available capital with this £25m facility, and continue to appreciate the tremendous support of our shareholders for our efforts to grow the business while enhancing value.

“This facility is an innovative arrangement and enhances our flexibility while also continuing our move towards a more mature capital structure for the business.”

Burford’s annual report in September said that it had £164m committed to 29 live investments.

Andrew Langhoff, chief executive of Burford UK, explained the rationale of having a ‘callable’ facility with a “simple” example.

He said: “Burford signs up to do a case for up to £10m. However, that money will be spent over time – probably three years – as the case proceeds through the court system. So the company doesn’t need all that money on hand at once, or even soon.

“However, Burford can’t very easily predict when other cases are going to resolve and pay it, so it is risky to rely on being able to fund the £10m from other wins. Historically it has tended to put much of the £10m aside to be safe. That means it can do less with its capital than it should be able to because it has a lot of cash sitting around just waiting to be called in a case – £70m at last report just sitting in the bank.

“This solves that problem. Burford can now put less money aside and invest more money now, without waiting for cases in progress to resolve, because we know we can call on our shareholders to fill a funding gap if one ever occurs.”

“It can now invest more money in cases without becoming less financially conservative and without paying for the extra money. This innovative financial structuring has taken a year to develop working closely with [financial adviser] RBC and Freshfields. It even has a name – COPPS – because we suspect other businesses in other industries will copy it.”

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Haynes: LEI market is not working effectively for non-panel firms

Posted by David Haynes, head of underwriting and marketing at Litigation Futures sponsor ARAG

A survey carried out by the Employment Lawyers Association (ELA) in conjunction with the Law Society, Association of Personal Injury Lawyers and Motor Accident Solicitors Society has confirmed that non-panel firms suffer detriment when legal expenses insurers exercise their right to appoint panel firms to deal with claims.

This right is available to insurers until it becomes necessary to issue proceedings, and where (for example, when defending employment claims) the insurer is exposed to paying civil compensation, unless there is a conflict of interest. The survey was completed by nearly 700 people, 48% of whom were employment lawyers.

It is of obvious concern to members of the ELA that 90% of respondents had experienced problems when conducting claims under LEI;

Only 14% of respondents said that it was viable for a solicitor to issue proceedings and run a tribunal case at an hourly rate of £100 plus VAT, which according to the survey is the rate commonly paid under LEI policies. This reduced to 8% for associates, 7% for senior associates and to only 4% for partners.

Some 52% of respondents stated that they had (frequently or always) lost instructions from a prospective client in favour of a panel firm, while 42% of respondents said that the LEI policy terms frequently or always limited the rate payable to non-panel solicitors.

There is no evidence from this survey that ELA’s concerns translate into consumer detriment and the survey found that actual complaints to the Financial Ombudsman Service (FOS) were rare, with firms being deterred from complaining because of alleged delays by the ombudsman in resolving complaints.

FOS data for the period April to December 2013 shows that 507 legal expenses insurance complaints were received, of which 40% were upheld in favour of the customer – around 270 complaints if we annualise the figures. Of these complaints we do not know how many are connected with freedom of choice but we suspect very few (if any), as in most cases disputes arise because of a disagreement over the operation of policy cover.

Our own position is that we adopt a flexible approach in negotiating suitable terms with non-panel firms where policyholders wish to exercise their right to choose their own solicitor; but the use of panel firms works well for our policyholders. In the main policyholders are happy to use the services of panel firms as they realise that the service standards that we demand of panel firms are beneficial and claimants remain fully protected from paying legal costs.

Policyholders can opt to pay the difference where a non-panel firm will not accept instructions at rates that we deem to be proportionate and reasonable given the nature of the claim.

We are confident (without conducting a survey!) that our panel firms would not report problems in conducting claims under our policies and the success rate of panel firms is significantly higher than non-panel firms.

Waiving our right to control the appointment of non-panel firms has a bearing on the fortunes of policyholders who make a claim. Moreover, a lack of capacity to control costs would also result in significant increases to legal expenses premiums across the board at a time when there is government support for legal expenses insurance for individuals and businesses as an affordable means by which to access justice.

What this survey makes clear is that the LEI market is not working effectively for non-panel firms because it does not deliver the rewards they seek. This is very different from a market that does not work effectively for consumers. We would question how the ELA has been able to come to the conclusion that the LEI market is not working well for consumers by conducting a survey which was not targeted at consumers but at its own members.

The ELA’s position seems somewhat delicate as it has exposed itself to debate about the true motive in conducting such a survey. Surely a survey which purports to be in the interest of consumers would not focus on the ELA’s own members?

The ELA is to publish the second part of the survey soon, which will include more detailed evidence of the problems experienced (by their members?) when conducting cases under LEI policies.

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Davison: cautiously optimistic

Sales of Accident Line’s after-the-event (ATE) insurance products increased by 12% in the first half of 2012, Abbey Protection plc’s interim results have shown.

However, the AIM-listed company’s plans to expand its legal offering are on hold until it receives its alternative business structure (ABS) licence.

The ATE division more than doubled its profit contribution to £200,000. Overall Abbey saw a 5% increase in revenue to £19.2m and 3% rise in pre-tax profits to £5.2m, with the dividend payout up 11%.

The company’s principal trading divisions are Abbey Tax Protection, which saw strong growth, and Abbey Legal, comprising Abbey Legal Protection and Abbey Legal Services (ALS). They provide legal expenses insurance and legal advice for policyholders respectively.

Although profits for Abbey Legal were “flat” at £1.2m, chief executive Colin Davison said “this represents a robust performance as some revenue streams were impacted by a significant client going into administration at the end of 2011. Renewal rates for our existing scheme and affinity clients were strong and £750,000 of new business in the first half of the year has demonstrated that the pipeline remains healthy”.

He added: “We remain cautiously optimistic for the remainder of 2012, with our core trading divisions having demonstrated the resilience of their business models and the ability to contribute sufficient growth to counter balance the headwinds that we know the business will face during the remainder of the year.”

In March, Abbey revealed plans to become an ABS, and Mr Davison said it is still awaiting its licence from the Solicitors Regulation Authority. This will “enable us to deliver a wider range of legal services”. He said he remains hopeful that “the technical issues delaying the process will be resolved shortly”.

The company already employs around 70 solicitors and barristers in its legal advice call centre, who also provide insured employment tribunal services. Becoming an ABS will allow it to scale up this resource to provide a wider range of commercial litigation services beyond those covered by insurance.

The plan is for ALS – which currently deals with 300,000 calls a year – essentially to become another of the company’s panel firms, to which legal expenses insurance policyholders might be directed.

Further, ALS would seek to offer its wider service range through some of the affinity clients, the biggest of which is the Federation of Small Businesses. The final arm of the ABS plan is an equity investment in an identified but unnamed law firm, which would give ALS access to expertise in areas of practice which it does not initially want to resource in-house.

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Costs: criteria for determining whether they are disproportionate are obscure

Litigators from many of the City’s top firms have expressed deep concerns about the impact of the Jackson reforms, saying they have increased the cost of litigation without improving its efficiency.

The litigation committee of the City of London Law Society was particularly critical of costs budgeting and the impact of the Mitchell ruling.

Publishing the paper it has submitted to the Civil Justice Council’s review of the first year of Jackson, the committee – which is chaired by Clifford Chance partner Simon James – said it was concerned that the reforms “may have an adverse effect on the international perception of litigation in England”.

Among a myriad of complaints about budgeting, the committee said the cost of preparing a budget commonly exceeds the recoverable allowance for doing so – “often by a large margin” – that the approach of the court to budgets is “uncertain and inconsistent” and that “the criteria for determining whether costs are disproportionate are obscure and, in practice, are likely to depend upon the predilections of the individual judge”.

The paper said: “The committee is also concerned that some judges have a limited understanding of what is required to run a major commercial case. Conducting large-scale litigation is a significant exercise in project management, an exercise that many judges will never have undertaken.”

It argued that judges who consider that the budgeted costs are too high rarely look to cut down the steps required to take the case to trial, and instead set a budget “merely reflecting the judge’s underlying but largely unexplained view of what aggregate figure the losing party should pay in costs”.

The problems with budgeting were exacerbated by the Mitchell ruling, the committee continued. “The committee is concerned that this represents a punitive and formalistic – even anachronistic – approach to litigation that is out of kilter with the pre-eminent need for justice to be both done and seen to be done.”

The potentially penal sanctions for breach of a rule will increase compliance costs for solicitors and, as a result, their clients, it said, and will lead to the courts facing lots of applications for time extensions.

“This is not to say that courts should never be strict with time limits. It may be, for example, that unless orders should be enforced more strictly than has traditionally been the case. But what might have been undue leniency in the past risks turning into undue rigidity now.

“Courts should be able to recognise when a party is genuinely trying to progress a case and when it is stalling unnecessarily or jeopardising a trial date, and act accordingly.”

The submission also questioned why the regulations effectively prevented firms agreeing hybrid damages-based agreements (DBAs) with clients, with full DBAs “little, if at all, used in commercial litigation”.

It also recommended scrapping disclosure statements on the basis that they added to the cost of litigation but “have little material effect on the disclosure order made by the court”.

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Keith Hardington, partner at Walker Foster

Eclipse Legal Systems, the Law Society’s sole endorsed legal software provider, today announced the implementation of its Proclaim Practice Management Software solution at Walker Foster Solicitors.

The practice operates from offices across West Yorkshire, North Yorkshire and Lancashire, and prides itself on its reputation as a leading, local firm of expert solicitors.

With an objective to provide clients with high quality and value-for-money legal services, fee earners strive to achieve pragmatic solutions to all client requirements.

In a 6-figure deal, the Proclaim Practice Management Software solution is being rolled out to 50 staff across the Conveyancing and Probate departments. Proclaim will provide fee earners with a centralised and consistent approach to case management – from instruction through to completion – whilst the accounting toolset will provide a detailed analysis of the firm’s operations.

Furthermore, Eclipse’s Credit Control Centre will provide the practice with a central dashboard display of key financial and payment information, with the ability to drill directly into bills, clients and matters.

In addition, Walker Foster has opted for Eclipse’s legal Compliance toolset. Fully integrated within Proclaim, users will have access to a number of tools – including a Risk Register, a configurable reporting system and a Compliance Library – to assist with the extensive obligations required by the SRA.

Keith Hardington, managing partner at Walker Foster Solicitors, comments:

“As an established and respected practice, we chose Eclipse’s Proclaim system to meet our demands for a reliable and robust legal software solution that would scale with us as we grow.

“The integrated tools Eclipse offers to manage elements such as compliance further cemented our decision, and the overall solution will ensure we manage all elements of matter management efficiently and effectively on a day-to-day basis.”

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Ramsey: challenging times for the members of the ACL

Sir Vivian Ramsey, the judge leading the implementation of the Jackson Reforms, is to become the new honorary president of the Association of Costs Lawyers (ACL).

Mr Justice Ramsey will take up his post with immediate effect for a period of three years.

He replaces renowned Costs Lawyer Michael Bacon, who retired in May.

Sir Vivian will work closely with the ACL’s chairman, Murray Heining, to promote the role of costs lawyers and support the activities of the ACL in the post-Jackson era, the association said.

Mr Justice Ramsey said: “I am delighted and honoured to have been asked to become the ACL’s honorary president. These are challenging times for the members of the ACL as they deal with the impact of the Jackson reforms. I am sure that my involvement with them will be of mutual benefit as the reforms are implemented.”

Mr Heining added: “It is real honour for the ACL to have someone of Mr Justice Ramsey’s status working with us and is recognition of how far the ACL has come.

“The costs landscape has changed dramatically in the past year; the need for expert advice is greater than ever as solicitors get to grips with the Jackson reforms, and particularly with preparing budgets, so it is essential that we continue to ensure the profession puts the recovery of their costs in the hands of regulated and qualified people.”

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Spencer: huge reduction

The number of whiplash claims has fallen by 29% in only four years, John Spencer, president of the Association of Personal Injury Lawyers (APIL), has revealed.

The figures, which APIL obtained by a freedom of information request to the Compensation Recovery Unit (CRU), show that there were just under 567,000 claims in the financial year 2010-11 but only 401,584 in 2013-14.

Other freely available CRU figures show that the total number of registered motor claims fell from around 828,489 in 2011/12 to 772,843 in 2013/14, a drop of 6.7%.

Speaking to the Motor Accident Solicitors Society (MASS) conference in Manchester last week, Mr Spencer said that, according to government figures, there had been an overall decline of 3% in personal injury claims during the last three years.

He said this was despite an increase of 16% in clinical negligence and employer’s liability cases.

Mr Spencer said the reduction in whiplash claims predated implementation of LASPO in April 2013. “Two areas where you can see genuine claims being turned away are access to justice for vulnerable people, including children, and those with complex, riskier and high-value cases.”

Mr Spencer said the 25% cap on success fees as a percentage of damages prevented some “very worthy claims by these groups from proceeding”.

Further, the 60% cut in fixed fees was also to blame. “You cannot reduce fees on that sort of scale without dramatically affecting the market,” Mr Spencer said. “There has been a huge reduction in whiplash claims.

“There are some people with low value cases which can and ought to be brought, but no longer will be.”

Speaking at the same conference, Derek McCann, head of motor claims at Zurich Insurance, said some claimant law firms were not taking any of their clients’ damages.

“If some don’t need to do this, is it because they are effective, well-run organisations?” he asked. “If they do, is it because they are ineffective?”

Mr McCann said the number of portal RTA claims was “heading back to 800,000 and pre-reform levels” and the “emergence of legal supermarkets” suggested there was growth in the personal injury market.

As for the future, he said a lot depended on the result of the general election. “If Labour get in will they go back on some of the reforms? Or if the Conservatives get in, will we have a higher small claims limit?”

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Fitzpatrick: lawyers do so much more than the statistics suggest

Fitzpatrick: lawyers do so much more than the statistics suggest

Posted by Michael Fitzpatrick, Newcastle regional manager at Litigation Futures sponsor John M Hayes

The dictionary defines pro bono work as work ‘done or undertaken for the public good without any payment or compensation’ – in other words ‘free of charge’. Those three magical words are invariably subjugated by natural cynicism – ‘there’s no such thing as a free lunch’ and ‘you don’t get ‘owt for nowt’ spring to mind. Media-driven perceptions of the legal profession might engender similar sentiments.

But no. The legal profession is not just a collection of businesses, it is a public service collective which has justice at its heart, and it is certainly no stranger to working for nothing.

The Access to Justice Foundation

Section 194 of the Legal Services Act 2007 (which came into effect on 1 October 2008) formally recognises this. It subverts the indemnity principle and articulates the power of a court to make what is tantamount to an order for inter partes costs – an order made against the opponent of a litigant with no funding in place. The costs recovered are paid to the Access to Justice Foundation, a charity which provides much needed finance to law centres and other similar advisory services.

The foundation does, of course, receive money from other sources, including unclaimed client account balances from solicitors, legal support trusts’ fundraising events, and other generous donations from a plethora of individuals, associated legal institutions and enterprises, including the Law Society, the Bar Council and numerous legal publications

The essential pre-requisites and features of Section 194 are, in summary:

  • Made only by a civil court;
  • Recipient has legal representation, all or part of which was free of charge;
  • Can be made even if counsel was not acting free of charge;
  • Cannot be made against a party who was also represented pro bono or legally aided;
  • Cannot exceed what would have been determined by a conventional costs order;
  • Costs claimed must have been incurred after 1 October 2008;
  • VAT must not be claimed; and
  • Onus on winning litigant to apply for the order and to quantify the costs

Positive evidence

The Solicitors Journal reports that since 2008, the scheme has resulted in some 160 pro bono costs orders with a cumulative value of approximately £600,000.

Statistical evidence from the Trustlaw – Index of Pro Bono 2015 (part of the Thomson Reuters Foundation) reveals further positive evidence. A sample size of 8,043 fee-earners in England & Wales suggested an average of 21.9 hours of pro bono work each annually; the percentage who performed 10 hours or more amounted to 35.3%. Partner engagement also showed a consistent and positive trend in line with previous years, with 37.8% recording time on pro bono matters; and the number of pro bono hours performed by partners increased by almost 10% to 14.9 hours.

The recent attitude of government

We live in times of immense change and austerity, something that the last Lord Chancellor (Michael Gove) claimed to be acutely aware of. In his inaugural speech, he said: “The law is more than a marketplace, it is a community, the legal profession is more than a commercial enterprise, it is a vocation for those who believe in justice being done…

“Many of the most prestigious chambers at the Bar and many of the solicitors’ firms already contribute to pro bono work and invest in improving access to the profession… it is clear to me that it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the living wage.”

Laudable though it is for a senior politician to extol the virtues of the legal profession, it is rather less commendable to engage in an almost subliminal shifting of responsibility. In the words of Andrew Caplen, the then president of the Law Society, in 2014: “Pro bono legal advice should never be seen as a substitute for a properly funded legal aid system. It is right to publicise the tremendous work that so many solicitors do free of charge.”

There speaks the voice of experience and reality, the incisive summation of an experienced lawyer, as opposed to the politically manoeuvring rhetoric of Mr Gove, a journalist by trade and a (then) Lord Chancellor by design.

The recent attitude of the legal profession

Perhaps there is more potential for pro bono work (on a formal basis at least) but it cannot be a panacea. Statistics suggest that much is being done, and my own experience of clients and friends in the legal profession suggest that they do so much more than the pure data reveals.

Lawyers typically spend a great deal of unpaid time dealing with their clients, providing practical advice, reassuring them, giving them a proverbial ‘shoulder to cry on’ and just being there for them – instances of pro bono work by every lawyer that go unrecorded.

As committed professionals, their remit is to deliver justice and a high-quality service; the overall framework within which this is achieved, however, is quite clearly the responsibility of government. Sadly an ever-burgeoning part of our society are being denied access to justice in the name of austerity.

In the words of Lord Falconer (shadow justice secretary): “Access to justice has been all but dismantled for the poorest in our society… The number of social welfare cases being granted funding has plummeted, victims of domestic violence are struggling to get help, employment fees are a significant barrier to workplace justice and the essential safeguard that is judicial review has been severely restricted.”

The Law Society, Bar Council and the Chartered Institute of Legal Executives have recently launched a working group to explore the feasibility of a contingent legal aid fund; this follows on from a speech by Sir Rupert Jackson earlier in the year. Conceptually this might involve the creation of a pooled fund of resources which would be capitalised and topped up by a contribution from damages in successful civil cases, in which the winning party is backed by that fund – a form of self-perpetuation.

An initial report is due by September and a final report before the end of the year. Whatever conclusions are reached, it is to be hoped that they are done so in a spirit of social realism and in a genuine effort to facilitate greater access to justice.

Concluding thoughts

Ultimately there is a funding shortfall when it comes to access to justice. The government (and lest it be thought that this is a party political attack, governments of all hues for some years) appears to be abrogating its responsibility to effectively ensure access to justice for all, one of the core principles of any democracy worth the name. It is greatly to the credit of so many lawyers that they are mitigating this effect, not because they are obliged to, but because they put the public good before their own.

The legal profession are clearly playing their part and now it is time for government to play theirs – and I can tell you that pro bono!

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Besford: Decision can no longer stand

A regional costs judge has concluded that he was wrong to rule in a previous case that late acceptance of a part 36 offer automatically entitled the claimant to an award of indemnity costs, and thus provided an escape route out of fixed costs.

Judge Ian Besford decided that his widely reported decision in Sutherland v Khan “is unsupported and can no longer stand”.

Part 36 is silent on whether fixed, standard or indemnity basis costs apply in fixed-costs cases where there has been late acceptance, save that references are made to CPR 36.17.

This provides that the defendant should be encouraged to settle before trial without unfair costs penalties, whereas a claimant does not want to be put to additional work without appropriate costs reimbursement.

In Sutherland, District Judge Besford applied the Broadhurst principle that a claimant beating a part 36 offer that proceeded to trial was entitled to escape fixed costs, to cases that did not proceed to trial but were settled by accepting part 36 offers outside the 21 day period for acceptance.

There have been conflicting circuit judge appeals on whether he was right.

According to national insurance law firm BLM, which acted for the defendant in the new case, the judge’s ruling in Whalley v Advantage Insurance confirmed that unless there were ‘exceptional circumstances’ or conduct justifying indemnity costs, the fixed costs regime applied to acceptance of part 36 offers out of time.

BLM costs specialist Dean Holmes said they decided to tackle Sutherland “head-on rather than simply continue to add to the body of circuit judge appeals by bringing the point before the same regional costs judge”.

Adam Burrell, a partner and head of BLM’s costs practice group, added: “The Sutherland decision has been widely relied upon by claimants seeking to recover additional costs beyond the prescribed fixed costs on cases that do not proceed to trial, and are settled by accepting part 36 offers out of time.

“Hopefully this detailed reconsideration and very clear declaration that it can no longer stand will resolve the significant number of cases arguing this point.”

Speaking about part 36 at the recent Costs Law Reports conference in London, Professor Dominic Regan said the High Court ruling last year in Lowin v W Portsmouth was to be appealed. This case applied Broadhurst in finding that when a receiving party made a good part 36 offer in provisional assessment proceedings, this overrode the £1,500 costs cap set out in CPR 47.15(5).

“Sir Rupert Jackson has suggested in his recent report that a simple percentage uplift be applied to fixed costs where a good part 36 offer takes a matter out of the predicated regime,” Professor Regan said.

“This would obviate the necessity for an assessment of indemnity costs payable.”

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Dixon: shocking proposals

Dixon: shocking proposals

The government is investigating the extension of fixed recoverable costs across all civil litigation, including how to deal with differences between different types of litigation, civil justice minister Lord Faulks said yesterday.

It came as Law Society chief executive said she was “astounded” that the government would contemplate introduced fixed costs for clinical negligence claims worth up to £250,000.

Earlier this year Lord Justice Jackson called for the extension of fixed costs to all civil claims worth up to that figure. Speaking at the Association of Personal Injury Lawyers’ annual conference in Birmingham, Lord Faulks said the government supported the principle.

“In light of his comments, [the government] is now considering the way forward, including how best to deal with differences between types of civl litigation.

“No proposals have yet been put forward, and any proposals for the application of fixed recoverable costs to particular categories of claim will, of course, be subject to consultation.”

In a later panel session, Ms Dixon – former chief executive of the NHS Litigation Authority (NHSLA) – said the prospect of such a scheme in clinical negligence cases was “truly shocking” and was also discriminatory “because it impacts of those with lower earnings”. People who are claiming for that level of injury will have “significantly harmed”, she argued.

Ms Dixon continued: “Fixed costs can work well if set at the right level and applied to genuinely low value and less complex claims.” She said this would also mean that costs were paid out more quickly. But she added that the bigger issue for the NHS was to learn better from the lessons of claims and thus reduce their number.

On the same panel, Alan Hunter, director of claims at the NHSLA, said the high level of costs in “straightforward, low-value claims does stand out from the data”.

Bemoaning the increase in inexperienced solicitors bringing clinical negligence claims, Mr Hunter rejected criticisms that it is the NHSLA’s behaviour that delays cases and drives up costs. “I don’t think we’re too robust in defending claims,” he said.

It now seems inevitable that the government will have to ditch its plan to introduce fixed costs in clinical negligence in October 2016, as the consultation first scheduled for last autumn still has not been published and will not be until after the EU referendum on 23 June.

Legal Futures understands that the Law Society, APIL, Society of Complex Injury Lawyers, and Action against Medical Accidents are in talks to resurrect a scheme first discussed with the NHSLA four years ago for a fixed costs scheme for claims worth up to £25,000.

Meanwhile, away from the conference, the Forum of Insurance Lawyers (FOIL) called upon the government to press ahead with the extension of fixed costs on the fast-track and the lower reaches of the multi-track.

In the wake of Lord Justice Jackson’s speech, FOIL has set up a fixed costs working group to examine the draft proposals in detail, including for clinical negligence.

FOIL president Duncan Rutter, a member of the new group, said: “Lord Justice Jackson has set out detailed proposals for a fixed costs regime which he believed could be delivered within the course of this year, if the political will were there. It’s disappointing that we have seen only limited activity on the issue since then.

“FOIL sees real benefits in a fixed costs regime, not least in reducing the need for costs budgeting, which is clogging the courts at present. We are calling on the government to make progress on the issue – we hope that the work of the FOIL fixed costs working group will assist in developing a workable fixed costs regime in the near future.”

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Mark Higgins

Mark Higgins, Director of the practice

Based in Stockport, Higgins Miller Solicitors specialises in divorce, matrimonial, family issues and children disputes. Offering legal services across the whole of England and Wales, the firm provides friendly but robust and practical client service.

Recognising that finances can often cause concern for clients, Higgins Miller ensures a flexible and innovative approach to funding, including fixed fees, competitive hourly rates, monthly payments and Legal Aid.

Mark Higgins, Director of Higgins Miller, speaks to Eclipse about the firm’s choice of legal software.

Why was your previous software replaced?

Over the years we have significantly expanded – both in terms of client base and staff – and our previous software was generally very old and wasn’t continuously developed. As a result, we realised it didn’t meet the requirements of modern practice, and more specifically, it wasn’t in line with the future of our firm, and where we planned to be.

How did you hear about Eclipse, and why was it your chosen provider?

Eclipse is the market-leader and its reputation as such is extremely prominent within the legal sector, so when looking around for a new system, Proclaim was definitely at the top of our list.

The wealth of experience Eclipse has, and the amount of years the business has been around means the team has really taken the time to understand the needs of a law firm – and has developed Proclaim as those requirements change. Essentially, it gives us the confidence to know that Proclaim will continue to be supported and developed, even as the legal sector and law firms dynamically evolve.

I have to say the Law Society Endorsement also played a part in our selection process, as it simply reinforces what we already know –  that Proclaim is a tried, tested and trusted solution.

How was the implementation process?

Any big project is always a nerve-wracking process, especially one such as this which includes the installation of a completely new system and the migration of sensitive data. Fortunately, we were in safe hands with Eclipse!

From start to finish, the process was handled smoothly and efficiently. We never felt out of the loop as we were constantly updated with progress, and any questions we had were answered speedily and accurately. Importantly for us, we felt in control the entire time, and knew Eclipse was on hand and contactable should we have needed to speak to them.

The training was also a great aspect of the overall installation process. The depth of knowledge that the Eclipse training team has is brilliant, and the courses put us in a position to take what we learnt from the sessions, and use that to explore the system further, not to mention they gave us the confidence to know we can configure the solution without breaking it!

What are some of the benefits to using Proclaim?  

One of the main benefits for us is that it’s a fully centralised system. For our fee earners it means they can see every matter, so even if one of the team is away, their cases are still accessible. Taking this further, because Proclaim just has the one interface, it means all transactions are available at-a-glance upon case opening, resulting in effortless viewing. For our clients it means they can always get an update on the progress we’re making and their cases are never delayed, even if their solicitor is away from the office.

Additionally, it’s so simple to maintain as everything is all in one place, we don’t need any extra software or additional products – it just works from the start!

How does Proclaim’s ability to cater for Legal Aid work enhance your efficiency?

The fact that Proclaim caters for Legal Aid work is in itself a fantastic benefit, but with the added experience and longevity that Eclipse has in the industry, it cements our confidence in knowing the process is, and will continue to be extremely proficient.

Firstly, Proclaim’s ability to export data to the LAA’s online portal is a very straightforward and easy process, and has already enhanced our efficiency, but with the training we’ve received, it means we can tweak the system, which we are in the process of doing, to make sure data migration to the LAA portal is fully in line with our specific requirements.

Secondly, Proclaim’s ability to generate bills is excellent – this feature has increased our efficiency massively! As part of this, the CMR form is automatically completed for us – case details are seamlessly populated into the form, where its then held in the system ready to produce the summary CMR at the end of our accounting period. This is a huge time saver for us and has eliminated the need for duplicate data entry, meaning we can focus elsewhere.

Finally, and perhaps most importantly, it’s great in enabling us to track costs and ensure we don’t exceed them – basically, with Proclaim we have the confidence to know we aren’t missing anything!

Do you use the in-built reporting suite?

We use the reporting suite for our internal reporting requirements at the minute, and I can say with absolute certainty that the range and wealth of reports is phenomenal, and I think I’ve only discovered about 10% of them!

The amount of information available to us is also brilliant – we can report upon anything we need to, or could possibly want to, and the fact that it’s user-definable means we can conduct an in-depth interrogation of any element and for any staff member.

How does Proclaim suit your on-going requirements?

Very well – it’s a great platform for us to move forward with, and from here make it our own system. We’re still learning to make changes to ensure it’s in line with our future needs, and the next big step for us is to develop it further. With other case management systems, that can be quite a daunting prospect, but Proclaim is so flexible that it allows us to tweak it as and when we need to, so we aren’t using an ‘off-the-shelf’ version – Proclaim has the ability to work around us, so we don’t need to change the way we work.

In the future, we’re looking to implement the Compliance module, as that will be a fantastic addition to our system to ensure we’re keeping in line with the extensive SRA obligations. Additionally, to further enhance the practice, we’re going to start offering Probate services, and once that’s established, we’ll look to incorporate the Proclaim Probate system. This is another great benefit to being an Eclipse client as we have the freedom to add new areas of law to our service offering, and know we will be fully and seamlessly supported by Proclaim!

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Just CostsJust Costs Solicitors are inviting practitioners to take part in The Costs Management Survey 2017 – the second part of a project which affords litigators the opportunity to express their views on the Costs Management process, 4 years on from the Jackson Reforms. The results of this survey will be compiled, and all participants will receive a complementary detailed report and analysis of the findings.

It will take no more than 2 minutes to complete the questions included. All responses will remain anonymous.

Please select the appropriate link below, to take part:

Personal Injury and Clinical Negligence practitioners:

Commercial Litigation Practitioners:

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Hartigan: increasing focus on costs management

Hartigan: increasing focus on costs management

Alternative funding arrangements are grabbing a foothold among solicitors and their clients, a survey of litigators has indicated.

The poll of 101 commercial litigation partners at top 200 firms – conducted by third-party funder Therium and Just Costs Solicitors – said that 79% of them had seen funded cases in the last 12 months, with financial services the most prominent area.

Nearly 70% of them said there were having more discussions with clients about alternative fee arrangements than in the previous year, with 76% discussing funding as an option in all cases following the Jackson reforms and what the survey said was client demand to reduce cash investment in dispute resolution.

The ability to meet costs (23% of responses), risk management (21%) and cash flow (18%) were highlighted as the most important benefits of third-party funding for clients.

The survey also showed that solicitors preferred being paid on a restricted basis, entering into a fixed or capped fee arrangement (30% and 23% respectively), over risk-sharing with clients through a conditional fee agreement (20%) or damages-based agreement (12%).

Neil Purslow, chief investment officer of Therium, said: “It’s interesting to see that the ability to meet costs, risk management and accounting benefits are closely ranked as benefits.

“From the perspective of big corporates, we are tending to see that while they are able to meet the costs of disputes in many cases, the key reasons they turn to third-party funding is the risk sharing with the funder and accounting benefits, such as not having to lock working capital into a lengthy litigation.”

Mark Hartigan, client services director at Just Costs Solicitors, added: “Cost management of disputes following Jackson’s reforms has become an increasing focus for parties in arbitration and litigation situations, both funded and unfunded.”

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Humphries: new wave of claims

City law firm Humphries Kerstetter (HK) has secured third-party funding to launch of a new wave of claims against MasterCard and Visa on behalf of a host of companies.

The move follows the firm’s recent negotiation of a series of settlements with the card schemes on behalf of Tesco and WH Smith.

The claimants are seeking damages for losses alleged to have been caused by infringements of domestic and European competition law in relation to the setting and implementation of multilateral interchange fees and a declaration as to the unenforceability of the fees.

HK – led by well-known solicitor-advocate Mark Humphries – has been instructed by a further 27 companies and groups of companies, including a further supermarket chain, various well-known high street retailers and other merchants. It is understood that a large number of others are considering joining the funded group.

These claims are fully funded by Therium Capital Management Limited, backed by after-the-event (ATE) insurance.

Meanwhile, well-known litigation finance broker TheJudge has launched an insurance product to back damages-based agreements (DBAs).

The take-up of DBAs continues to be minimal amidst uncertainty over the legality of hybrid DBAs, in which some fees are paid on a traditional basis with the rest at risk under a DBA, meaning that firms are left with an ‘all or nothing’ choice.

TheJudge said that following a successful trial with several top-50 law firms, it has launched an insurance policy taken out by the law firm to cover a portion of the firm’s fee risk under the DBA.

As between the law firm and the client, the arrangement is an all or nothing DBA. However, if the case is lost or a judgement cannot be enforced, the law firm can make a claim under the policy to be reimbursed up to an agreed level of hourly fees incurred. Policies will typically cover around 50% of the fees to ensure some risk alignment between the firm and insurer.

The premium is only paid if and when the contingency fee is recovered.

TheJudge director Matthew Amey said: “It helps with the age-old challenge of how law firms financially account for the WIP incurred when operating on a contingency basis. The insurance provides certainty over a level of fee realisation to help firms plan for the future.

“No-one is suggesting that DBA insurance will give rise to the rampant use of DBAs in the UK commercial litigation market. Firms needs to manage their cash flow and therefore reach a sensible balance between billable hour work and alternative fees.

“However, by cherry-picking the cases the firm believes in and laying off  a portion of the fee risk, the law firm could off-set much, if not all, the discounts provided on their billable hour retainers, boosting realisation returns across the department or firm.”

Mark Shillito, UK and US litigation head at Herbert Smith Freehills said: “The flexibility to be able to offer our clients a range of innovative fee arrangements is vital if we are to continue to meet their changing needs. However, pricing arrangements must be sustainable for the law firm as well as attractive to the client.

“Being able to share the contingency fee risk with insurers enables law firms to align their interests with those of the client and demonstrate their confidence in the claim whilst maintaining an element of financial certainty when working on a contingent basis.

“This could prove to be a real game changer in the use of DBAs by law firms in the UK.”

Late last year we reported on a small City law firm that took on a major case on a DBA, which was set to net it one of the largest pay-outs yet under this form of funding.

In other funding news, Legal Protection Group – an ATE business launched last October in Bristol by several former DAS employees – has opened an office in London “to offer greater levels of local support to the important London market”, according to underwriting director Phil Bellamy.

Finally, those using ATE insurance should be aware that, as a result of the autumn 2016 budget statement, insurance premium tax rose as of today from 10% to 12%.

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Eclipse Legal Systems unveils a host of new software features at Manchester’s Lowry Hotel

Market leading legal software provider, Eclipse Legal Systems, recently unveiled a host of new software features – as well as its future vision – at its Eclipse 2014 event.  Eclipse 2014 took place on Wednesday 11 June and brought together over 300 delegates at Manchester’s exclusive Lowry Hotel.  Delegates – comprised of current Eclipse clients and practices currently migrating to the company’s Proclaim solution – benefited from a day of keynote presentations and detailed breakout sessions.

The core of the event focused on showcasing the raft of new functionality available in the latest version of Proclaim – v3.3.  This new version will be available to all existing Proclaim users free of charge.  Some of the features revealed included:

  • ‘Quick Document Builder’ for rapid document construction, directly within MS Word
  • Unlimited data population, using a new database structure, enabling rapid on-the-fly creation of any number of data fields
  • A complete costs drafting solution, including ‘red line bill’ creation
  • Further enhancements to Precedent H production
  • New billing and time management toolsets, allowing advanced configuration at fee earner, matter, and client level
  • Mobile time recording, with the new MyTime app
  • ‘CaseViewer’, allowing the export of Proclaim matters to mobile, non-Proclaim platforms

In addition to revealing new Proclaim features, the event was memorable for the unveiling of Eclipse’s product vision.  Chief Software Architect, Steve Ough, comments:

“Our product vision is focused on accessibility and the provision of multiple entry points.  Law firms are increasingly requiring different types and different levels of software access depending on the fee earner or client involved.  Providing access to core Proclaim tools in a database- and device- agnostic manner is the ultimate goal.”

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Shenton: exciting opportunity

Specialist law firm Just Costs has secured £1.1m in bank funding to fuel its growth, with significant expansion and possible acquisitions on the horizon.

NatWest has agreed the funding package as Just Costs looks to recruit 30 staff to its enlarged Manchester headquarters, as well as its offices in Chesterfield and London.

Just Costs already employs in excess of 100 people, having added 29 in the past six months. With more than 350 clients around the country, Just Costs had an annual turnover of £5.4m in 2013, and is expecting to reach £6.4m this year.

The firm said it is also “on an acquisition hunt and is currently in talks with other specialist costs firms”.

NatWest relationship manager Aldo Palazzo said: “Just Costs has a strong presence in the legal sector and an astute management team. We are confident the wide working relationship both locally and nationally will continue to strengthen, with Just Costs taking full advantage of growth opportunities in the markets they operate, and we wish them every success for the future.”

Just Costs managing director Paul Shenton said: “We are delighted that the NatWest funding has afforded Just Costs the exciting opportunity to take our expansion and growth plans to another level.

“When we met Aldo from NatWest we liked the fact he was part of team that looked after solicitors, which for us provided added value. It’s good for our business to know someone who is well placed like Aldo and we can support him as well.”

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Lady Hale

Lady Hale: “democratic involvement” required

Politicians from both opposition and government should be involved in appointing the most senior judges, Lady Hale has proposed.

Lady Hale, who takes over the role of president of Supreme Court from Lord Neuberger in the autumn, said the move would introduce “an element of democratic involvement while preserving party political neutrality”.

She also suggested that, to improve judicial diversity, “traditional assumptions” about which type of lawyers get which sort of judicial job needed to be cast aside.

In a speech to the Constitutional Law Summer School in Belfast, she said some judges “think we have gone too far” in excluding “virtually all political involvement” from the selection process.

“Many, perhaps most, members of the judiciary would be very uncomfortable with increasing the involvement of politicians, whether by way of reintroducing an element of ministerial selection or by way of confirmation hearings in parliament.

“Does the country really want the minister’s political advisers trawling through the judgments of the recommended candidates so as to select the one with whom they are most comfortable? Are we really so consistent or predictable that that would be a profitable exercise?”

Lady Hale went on: “My own humble suggestion is that, for the Supreme Court, the Lord Chief Justice and other Heads of Division, the appointments commission could be enlarged by a senior politician from the government and a senior politician from Her Majesty’s loyal opposition, thus introducing an element of democratic involvement while preserving party political neutrality.”

Lady Hale referred to criticisms of the current system by two well-known journalists back in October 2015.

Charles Moore, former editor of the Daily Telegraph, argued in an article for the newspaper that if judges were going to “apply slippery concepts like ‘proportionality’ rather than sticking to strictly legal issues, we need to know their politics”.

Lady Hale responded that ‘strictly legal issues’ had always required “an element of judgement, some of it moral or political with a small ‘p’”.

Jeremy Paxman also argued that “we need to know more about precisely who our judges are” in an article for the Financial Times.Lady Hale said Mr Paxman accepted that in the UK, unlike the USA, the Supreme Court “is not supreme” and parliament “can always trump the judiciary by passing a new law”.

On diversity, Lady Hale said the UK had “tended to lag behind” other common law jurisdictions, such as Canada, especially in the more senior appointments.

“It is not really a cause for congratulation that now, nearly 100 years after the Sex Disqualification (Removal) Act 1919, one fifth of the High Court and Court of Appeal in England and Wales, and one sixth of the UK Supreme Court, are women.

“But we celebrate because it is such an improvement on the position 10 years ago when the [Judicial Appointments Commission] was starting work.”

Lady Hale said the UK lagged behind other countries because of a combination of two factors – a profession divided into solicitors and barristers, and “four ranks of the judiciary, with direct entry to each and only limited promotion between them, coupled with traditional assumptions about what sort of lawyer gets what sort of job”.

She described how “very successful QCs” were appointed to the High Court bench; “less successful” QCs, other senior barristers and some solicitors to the circuit bench: solicitors and a few barristers to the district bench and a “wide variety of lawyers, barristers, solicitors and academics” to the tribunals.

Lady Hale said the move from ‘tap on the shoulder’ appointments to independent selection may not always have helped since “politicians by and large understand the case for diversity better than some at least of the serving judiciary”.

She went on: “I do not suggest that we should abandon our divided legal profession, which has much to commend it in terms of efficiency and access to justice.

“But I do suggest that we should abandon our traditional assumptions about who gets which sort of judicial job and look for the best wherever it may be found.”

Lady Hale said that although things were “definitely improving” in the area of judicial diversity, there were “clouds on the horizon”.

“It is feared that the traditional high-flyers will be deterred from seeking judicial appointment because of the recent changes to the judicial pension scheme, stagnating judicial salaries and an ever-increasing workload.

“At the same time, it is feared that the enormous cost of qualifying, especially for the Bar, coupled with the diminution in public funded legal work will put off many able young people, especially perhaps from less advantaged backgrounds, from pursuing a legal career, so that there will be fewer high flyers in future.

“And there is a niggling nervousness in some quarters that diversity and merit are indeed competing rather than complementary values. We must prove them wrong.”

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IPEC: £50,000 costs cap

A defendant’s bid to transfer a case from the Intellectual Property Enterprise Court (IPEC) to the High Court has been dismissed because of the costs risk the SME claimant would then face.

His Honour Judge Hacon said it was a case where the claimant’s “practical ability to retain access to the courts requires protection”.

Costs payable by claimants in the IPEC are capped at £50,000.

In 77 Ltd v Ordnance Survey Ltd & Ors [2017] EWHC 1501 (IPEC), the judge said it was “clear” from the evidence that the claimant was seeking the protection of the IPEC costs regime in its action against the government-owned defendant.

It had taken out after-the-event insurance to for its potential liability of £50,000, and HHJ Hacon recorded that a director of the company told him that, if the claim were transferred to the general Chancery Division, “77M’s position would become untenable and that he would have very serious concerns about his own financial position and the ability of 77M to continue the litigation”.

The defendants argued that 77M had provided no evidence on whether it could obtain a higher limit of indemnity for the insurance, or whether would be impossible to obtain funds from other sources which could meet any costs liability.

The judge said: “It is clear, from the exhibited accounts of 77M, that it is in no position to fund litigation by itself if that litigation were to include the risk of high costs to be paid should 77M lose in the general Chancery Division.

“I do not take the view that it is incumbent upon an SME to prove exhaustively that it cannot access loans from elsewhere to fund litigation in order to have good reason to obtain the benefit of a costs cap in IPEC.

“An SME with limited financial resources is precisely the kind of litigant that is entitled to the benefit of the costs cap in IPEC, subject to other considerations.”

Though the defendants said the Chancery Divison court could impose a cost cap, the judge noted that they did not offer an undertaking to limit the costs liability of 77M to any particular amount.

“It is also the case that the rules in IPEC are particularly suited to keeping disputes to the minimum in complexity, which inevitably leads to a lower incursion of costs. Lower costs should suit both sides. It seems to me that this is equally appropriate in the case of a publicly funded litigant.”

HHJ Hacon also rejected argument by the defendants that the value and complexity of the case were too great for the IPEC.

“As matters stand now, the most important factor in the present case is that 77M is an SME which seeks the protection of the costs regime in IPEC.

“I am satisfied, on the evidence I have seen, that a transfer to the general Chancery Division would raise a serious likelihood of having the practical effect of blocking 77M’s access to justice.

“In Comic Enterprises, Judge Birss described this factor as capable of being a decisive factor. In Environmental Cycling, Mr Justice Warren said that it was enormously important factor which may overwhelm other matters. I agree.

“I think this is a case in which 77M’s practical ability to retain access to the courts requires protection. I therefore dismiss OS’s application to transfer the case to the general Chancery Division.”

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Doerries: timely move

Doerries: timely move

The details of the joint working group set up to investigate the viability of a contingent legal aid fund (CLAF) at the urging of Lord Justice Jackson, have finally been published today – even though it has now already had two meetings.

The group is chaired by Justin Fenwick QC and has representatives of the Law Society, Bar Council and Chartered Institute of Legal Executives (CILEx).

For the purposes of the working group, a CLAF is defined as “a self-sustaining pooled fund to cover the legal costs of a claimant’s civil money claim, where (i) in cases that win, the claimant’s legal costs are recovered from the losing party and a portion of the damages or other sums recovered by the client is paid into the fund, and (ii) in cases that lose, the claimant’s appropriate legal costs are reimbursed by the fund”.

Last week Law Society chief executive Catherine Dixon said the group was seeking to identify “the most promising areas where a CLAF might have a role to play. If the group concludes that there are no areas that appear sufficiently promising, it will report accordingly.

“If areas are identified where a CLAF could have a useful role, the group will undertake further work to establish whether an economically viable model can be set up.”

A key issue the working party will have to address is where the initial funding could come from – in his speech in February, Lord Justice Jackson suggested it could come from the government, the National Lottery or ‘quasi-debentures’ bought by individual lawyers and/or institutions.

Bar Council chair Chantal-Aimee Doerries QC said: “The Bar Council has examined this as a possible alternative source of funding civil justice over many years. Our first report was published as long ago as 1998. Since our last report on the subject in 2011, the civil justice landscape has changed considerably.

“The Legal Aid, Sentencing and Punishment of Offenders Act 2012 resulted in significant cuts in civil legal aid and in some cases the removal of public funding from entire areas of civil work.

“It is therefore timely to re-examine the feasibility of an independent, not-for-profit CLAF established by the legal profession, in the public interest, to promote access to justice.”

Law Society president Robert Bourns agreed that a CLAF “could provide a valuable method to fund litigation and facilitate access to justice for those who lack the means to pay for legal services”.

He added: “We are keen to discuss ways to overcome the obstacles that prevented this idea from proceeding in the past. It is also important to consider any unintended consequences on existing funding options, which are presently working well for people.”

CILEx president Martin Callan noted that CLAF models “do operate successfully in other jurisdictions”.

The group plans to produce an initial report by the end of September and a final report before the end of the year.

Its terms of reference are:

  1. To investigate and report whether a CLAF could be viable in any area(s) of civil litigation and in particular as to whether it could be self-sustaining.
  2. To consider whether there are any gaps in civil litigation funding which could be filled appropriately with a CLAF.
  3. To consider whether a CLAF could provide a satisfactory means of civil litigation funding alongside, or as an alternative to, existing funding methods.
  4. To identify how a CLAF could be funded and what funding arrangements with lawyers, clients, insurers, funders or others would be necessary to make it viable.
  5. Against that background to set out the essential characteristics of a viable CLAF, including how it would operate and the outcomes it would deliver for clients, lawyers and the wider justice system.
  6. To make recommendations as to whether any and if so what changes would be needed to make a CLAF viable, in particular: (i) changes to other forms of funding (abolition or amendment); and (ii) legislative changes (primary or secondary legislation, including any changes to the Civil Procedure Rules).
  7. To make recommendations as to how a CLAF could be established (including its initial finance).
  8. To provide an initial feasibility report by September 2016 and a final report before the end of December 2016.

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McNally: practitioners and regulators a clear marker over referral fee ban

The government suffered two more defeats during yesterday’s final House of Lords stage of the Legal Aid, Sentencing and Punishment of Offenders Bill, and also tightened up the ban on referral fees.

Peers backed Baroness Grey-Thompson’s amendment that brings back into the scope of legal aid 6,000 children she said would be removed by the reforms. A similar amendment aimed at vulnerable young people under the age of 24 failed after a vote.

An amendment to retain legal aid for clinical negligence cases brought by children, laid by Conservative Lord Cormack, was passed.

The government brought forward an amendment – which was accepted without a vote – that will prevent the referral fee for an ancillary claim, such as for damage to a car, in addition to a personal injury (PI) claim, from being inflated to include a referral fee for the PI claim.

Another amendment makes it clear that the payment of referral fees to a third party, whether or not they are regulated, will not avoid the prohibition on the payment of referral fees.

Justice minister Lord McNally said: “This gives both practitioners and regulators a clear marker and removes doubt as to the effect of the clause. We do not wish to place additional burdens on regulators and these amendments will remove the potential for confusion on what is and what is not covered by the ban.”

Both amendments were the result of points raised in earlier debates by Conservative Lord Hunt of Wirral, a partner in defendant insurance firm DAC Beachcroft.

The third reading of the bill saw several more votes and some other concessions. The government agreed to include a power for the Lord Chancellor to add, omit or vary services within the scope of legal aid. However, peers rejected a bid by Lord Pannick QC to introduce a similar power in relation to the end of recoverability in cases funded by conditional fee agreements (CFAs).

Lord McNally said the government’s view is that the current recoverability regime is “wrong in principle” and that it should be ended “across the board without exception”.

He continued: “Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Will an exception be created? For what and when? Rather than settling the issue of CFAs, as this bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions.”

A vote to exempt international human rights cases from the end of recoverability was lost by 176 to 206, while Lord Prescott’s amendment to do the same for privacy and defamation cases was more heavily defeated. However, Lord McNally indicated that further changes to the costs regime for defamation cases are likely to be included in the Defamation Bill, such as costs protection.

The government accepted an amendment to bring into the scope of legal aid cases in which the victims of human trafficking seek damages either in court or an employment tribunal, as well as providing legal aid to this group for immigration advice. Lord Pannick lost a vote to expand the ‘exceptional circumstances’ category for cases that would otherwise be out of scope of legal aid.

In all the government suffered 11 defeats in the Lords, the highest number for one bill for many years. The House of Commons will consider the amendments on 17 April, when it is expected that the government will try to reverse them all by arguing that the bill is primarily a financial measure, meaning the Lords has no power to stop it.

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High Court: who is interpreting the Mitchell ruling correctly?

Mr Justice Andrew Smith misunderstood the criticism of him made by the Court of Appeal in Mitchell when issuing his latest ruling on relief from sanctions last week, a fellow judge has suggested.

Last Monday, in Associated Electrical Industries Ltd v Alstom UK [2014] EWHC 430 (Comm), Smith J struck out a case where the claimant had been 20 days late in serving particulars of claim.

He noted that the Court of Appeal had criticised his pre-Mitchell ruling in Raayan Al Iraq Co Ltd & Ors v Trans Victory Marine Inc & Ors [2013] EWHC 2696 (Comm), where he granted relief from sanction after the claimant was two days late in serving its particulars.

However, on Thursday, Mr R Hollington QC, sitting as a deputy High Court judge in Clarke v Barclays Bank Plc & Anor [2014] EWHC 505 (Ch), said he doubted whether Smith J had applied correctly what the appeal court had said about Raayan.

Mr Hollington said: “In Mitchell, the Court of Appeal significantly did not say that his earlier case had been wrongly decided, only that it disapproved of his reasoning. In its later decision in Thevaraiah v Riordan [2014] EWCA Civ 14, in my judgment it is clear that Richards LJ was not saying that Raayan al Iraq had been wrongly decided: all he was doing, consciously obiter and without argument, was echoing the Mitchell judgment, i.e. it was the reasoning alone that the Court of Appeal disapproved…

“In my judgment, there is no reason to doubt that Raayan al Iraq was rightly decided on its facts. It was a case where it would bring the law into disrepute with right-thinking users if the courts were to enforce procedural discipline by striking out the claim.

“My understanding of Mitchell is that the court should strive to be a tough but wise, not an officious or pointlessly strict, disciplinarian.”

In a blog on the AEI ruling, leading costs commentator and outspoken Mitchell critic Kerry Underwood characterised Smith J’s ruling as attacking the Mitchell decision. He wrote: “What the judge is saying here, in unambiguous language, is that the Court of Appeal has forced him to be ‘disproportionate’ – nice twist on a key Jackson word – and ‘unjust’, resulting in the claimant, unjustly obviously, being struck out.”

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London bus: alleged accident

London bus: alleged accident

A claimant found to have brought a bogus personal injury claim – but then cleared of fraud in the Crown Court – can only face civil contempt proceedings if there is new evidence, the High Court has ruled.

HHJ Peter Hughes QC, sitting as a High Court judge, instead urged the Civil Procedure Rule Committee to consider creating a fast-track procedure to ensure that “those who make and rely on false statements to make bogus or inflated claims are punished speedily and effectively” by the contempt regime.

While it is well established that being punished for contempt of court is no bar to a subsequent prosecution based on the same facts, Judge Hughes said there appeared to be no authority on whether the reverse could happen.

He was ruling in First Capital East Ltd v Plana & Anor [2015] EWHC 2982 (QB), where a London bus driver claimed he had suffered an accident that had caused a minor brain injury.

The defendant’s insurer admitted liability for 90% of the claim. In support of the claim dealing with quantum, which the claimant put at £637,000, the driver and his son each filed witness statements, signed and verified by statements of truth, which the judge said “sought to present the picture of a claimant who had been left seriously incapacitated and in need of constant care”.

By the time £125,000 of interim payments had been made, the defendant presented surveillance evidence that contradicted these symptoms. HHJ Collender QC in the Central London County Court declared the claim fraudulent, struck it out and ordered the repayment of the £125,000 plus costs on an indemnity basis. In addition, he directed that the case be transferred to the High Court to enable an application to be made for permission to bring contempt proceedings.

This was delayed while the claimant left the country, and when he returned he was arrested; the contempt application was issued two months later and in response the claimant maintained that his claim was genuine.

HHJ Hughes recounted: “After a three-day trial, he was acquitted by the jury… The verdict may seem surprising in the light of Judge Collender’s observations, but these, of course, would not be before the jury, and the surveillance evidence, which I am told was. I have not seen a transcript of the proceedings, and it would not be right for me to comment further on the verdict.”

The judge said he had “no hesitation” in finding that the case against both the claimant and his son were strong. In relation to the claimant, he concluded, two “important and competing considerations” had to be weighed in the balance.

“The first consideration, relied on by the applicant, is that the court should itself punish those who seek to rely on false statements in civil proceedings before it with a view to financial gain. The second, based on the principle of finality in litigation, is that the same allegations should not be litigated twice over.

“Each case must be considered on its merits. I do not believe that the acquittal by the jury is an absolute bar to permission being granted for committal proceedings, but, in my view, permission is unlikely to be granted except, for example, where there is material evidence that was not before the jury, or where important new evidence has since come to light. This is not such a case.

“Were permission to be granted, the judge hearing the committal application would be invited to reach a different conclusion to the jury on the same evidence and applying the same standard of proof. That is not an attractive proposition.”

If it was inappropriate to grant permission to bring committal proceedings against the claimant, he added, then it was the same for the son. He said he came to these conclusions “with reluctance”.

HHJ Hughes said that the lesson of the case was that applications for permission to bring contempt proceedings “need to be made without any delay”, particularly for cases before district and circuit judges, who do not have the power to grant permission.

He concluded: “This difference of approach may be something that the Civil Procedure Rule Committee might wish to consider in view of the importance of ensuring that those who make and rely on false statements to make bogus or inflated claims are punished speedily and effectively…

“It ought… to be possible to streamline the practice and procedure to ensure that applications arising out of county court proceedings are referred to the High Court immediately and fast-tracked to ensure that a decision is made with the minimum of delay.”

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Stark: budgeting has at times shown its value

Stark: budgeting has at times shown its value

The extent to which the costs management regime is working very much depends on which judge you are before, according to a survey of members of the Association of Costs Lawyers (ACL).

They also suggested that efforts to create a new electronic bill of costs could founder against the apathy of solicitors.

The annual survey – which received 128 responses, more than a fifth of the membership – asked ACL members how the costs management regime was working, and “It depends on which judge you’re before” was the most popular answer, followed by a recognition that it has brought costs lawyers’ skills to the fore.

Costs lawyers also felt that “solicitors think they can do it – and they’re wrong”, while the sense persists from previous surveys that budgeting has added a layer of work and cost for no benefit.

Asked about the new format bill of costs and the associated J-Codes, views were mixed. A third (32%) agreed that “however good they are, solicitors aren’t interested”, and there was an acknowledgement that the courts would have to take a hard line to make them work.

While a quarter believed they would actually make things worse. 20% saw the new bill as a good idea, although more work was needed to make it fit for purpose.

The survey identified the government reform agenda – such as wider use of fixed costs – as the main threat to the costs lawyer profession, but for most, the current environment was a good one, with 64% either maintaining or increasing work levels from the previous year. Some 11% of costs lawyers said they had taken on more advocacy, while in-house costs roles at law firms were seen as offering the best job security.

ACL chairman Iain Stark, who recently took over for his second spell at the head of the association, said: “Costs management is now in its third year now and has at times shown its value; however, judicial inconsistency and some solicitors continuing not to pay heed to the rules – particularly around updating budgets – means that it has not yet achieved what it was supposed to.

“It is in the entire legal profession’s interests to make costs management work, or otherwise face the prospect of having far more arbitrary fixed costs imposed from above for large swathes of cases. The new bill of costs, if properly implemented, could help with this process. We see costs lawyers as playing a pivotal role in both of these projects and the ACL will be front and centre of the debate.”

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Maxey: pre-decided outcome

Two Manchester personal injury firms are seeking support for a legal challenge to the Ministry of Justice’s proposal that will stop solicitors from owning the medical agencies through which they commission reports in whiplash cases.

Express Solicitors and Jefferies Solicitors are contacting other claimant PI lawyers to see if there is interest in pooling resources to instruct counsel with a view to contesting the plan set out in a letter from justice minister Lord Faulks earlier this month.

They argue that the move would be an unreasonable restraint of trade. James Maxey, managing partner of Express Solicitors, said: “Solicitors are not precluded from owning non-solicitor businesses and why should they be in these circumstances?”

The Ministry of Justice letter said it was “committed to ensuring that there should not be a financial link between the party commissioning the medical report and any intermediary organisation through which the report is provided (or indeed with the medical examiner), other than for payment of the examination/report”.

It is therefore proposing, as a preliminary measure, to prohibit either party having a financial interest in an intermediary through which a medical report is obtained.

Mr Maxey said: “I’m an owner of Express Solicitors and also an owner of Ontime Group, which provides outsourcing services for claimant PI firms, including cost lawyers, investigations and a medical agency. Unsurprisingly, the medical agency does the vast majority of my firm’s work, as well as working for other, quality claimant PI practices.

“We want to connect to other professionals, who are partners/owners in a legal practice and also involved in the ownership of a medico-legal agency or using some form of white-labelling for medical reports, who will see these new proposals as a significant issue.

“This appears to be another pre-decided outcome on behalf of the Ministry of Justice… Is it me or have the government decided that claimant personal injury lawyers are criminals?”

Mr Maxey argued that independence issues were already addressed by solicitors’ code of conduct and the Civil Procedure Rules in this regard. “The last people trying to undermine the experts’ independence are in fact the claimant’s solicitors,” he said.

The aim is to arrange a meeting of interested solicitors and then, if there is support, to instruct counsel. To contact Mr Maxey, e-mail him via his colleague, Emma Bates:


Avoiding the trap of fixed costs in high-value claims

David Disney

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

February 23rd, 2018