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In a new feature, Litigation Futures is publishing a monthly summary of key costs-related court decisions. These are provided by CaseCheck

Royal Courts of Justice: key costs rulings

Davies v Watkins [2012] EWCA Civ 1570
Appeal concerning the approach to costs of a Beddoe application on the ground that the trustee was entitled to an indemnity out of the estate.

Held: The normal rule for costs of the application for direction that, absent improper conduct, the costs of the trustee and of the beneficiary defendants will be paid out of the trust fund applied. The judge erred in exercising the court’s general discretion as to costs in ordinary litigation instead of starting from the special position of an application for directions by a trustee, with the special rules and practice that apply to such proceedings.

Full ruling here.


Connell v Mutch [2012] EWCA Civ 1589
Appeal against an issue-based order for costs dismissed.

Held: It would have been better for the judge to make an order that the claimant/appellant recover only a proportion of his costs and to have made no order for costs in favour of the defendant/respondent, as contemplated by CPR 44.3(6)(c). Such an order is usually in the interests of both parties as minimising the need for further argument at the assessment stage.

However, the judge’s approach did not fall outside the ambit of reasonable decision-making and the litigants would not benefit from an interference with the order. It would be costly and set a bad precedent if the matter were remitted to the judge to craft a proportionate recovery order: ‘No encouragement should be given to appeals of this nature’ (at [28]).

Full ruling here.


Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch)
Pursuant to the acceptance of a part 36 offer, the court was asked to make an order as to costs where the claimant failed to comply with the professional negligence pre-action protocol by refusing to disclose documents.

Held: The normal rule is that the claimant gets costs up to acceptance by the defendant of the offer unless the defendant can show that it would be unjust to do so taking into consideration all of the circumstances of the case, including those expressly set out in CPR 36.14(4), whether or not there has been substantial compliance with the protocol and whether sanctions might be appropriate (SG v Hewitt [2012] EWCA Civ 1053 followed).

In the present case, a normal order under CPR 36.10(4) would be unjust: the claimant’s refusal to provide documentation necessary for the defendant to assess its liability was not reasonable and consistent with the expressed aim of the protocol. Claimant awarded costs up to the date when it refused to disclose but ordered to pay the defendant’s costs incurred thereafter.

Full ruling here.


Ryder plc v Beever [2012] EWCA Civ 1737
Appeal concerning an application for relief from the sanction of strike-out for failing to serve a costs schedule.

Held: The delay in providing the costs schedule had not caused any real prejudice to the defendant, nor had it delayed the progress of the action. There was no justification for striking out the action when its overall effects were not grave, considered together with the potentially severe prejudice which would be caused to the claimant if relief were refused.

In any event, the powers of the court on making a costs order are wide and allowance can be made at the part 36 offer stage for any prejudice that a party has suffered as a result of the delayed service of a costs schedule.

Full ruling here.

NB We have not included Henry v NGN as it has been extensively reported on Litigation Futures already

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Temple200Leading legal expenses insurer Temple Legal Protection has teamed with DUAL – the world’s largest international underwriting agency – to promote its asset protection range.

The collaboration will give lawyers and conveyancers easy-to-use facilities to arrange bespoke Title Indemnity policies for both residential and commercial clients, offering real protection for property sellers, purchasers and lenders against known and unknown issues relating to title and warranties.

Title insurance policies – also known as legal indemnity cover or defective title cover – indemnify the owner against actual loss arising from a legal ownership defect which results in either loss of title to all – or part – of the land and buildings or their reduction in value and a lender against the loss of mortgage security (or priority for the mortgage).

Business interruption covers, as a result of title problems, are also available for commercial tenants and operators. Policies from DUAL also cover legal costs and expenses incurred in the event of having to defend the title or reach a settlement.

Temple’s managing director, Chris Wait, said of the Partnership: “DUAL is renowned for creating and delivering bespoke legal indemnity products to meet specific deal needs rather than just “off the shelf” covers.

“The addition of full general real estate warranty and indemnity products to its range complements the legal advice of lawyers and provides security against the “what if”, helping to oil the wheels of a property transactions.

“DUAL’s expertise in developing policies that are truly fit for purpose are second to none and we are delighted to be able to offer their Title Insurance facility via Temple.”

Temple’s Lawyer network now has access to DUAL’s full range of asset products, either through a simple online system for residential risks and, for commercial and more complex matters, by direct access to expert underwriters. Call Temple on 01483 577877 or email for details.

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Mance: international focus

Lord Mance has been appointed deputy president of the Supreme Court in succession to Baroness Hale, who steps up to the top job next week.

However, he will hold the post for less than a year, as he will have to retire next June when he reaches the age of 75.

He enjoys the later retirement age – it is now 70 – as he has been in the highest court since 2005, when it was still the House of Lords.

Lord Mance joined the High Court in 1993 and the Court of Appeal in 1999, where he sat with his wife Lady Justice Arden – the first time a wife and husband had been on the appeal bench at the same time.

He read law at University College, Oxford, spent time with a Hamburg law firm and then practised at the commercial bar and sat as a recorder until 1993.

He chaired various banking appeals tribunals and was a founder director of the Bar Mutual Indemnity Insurance Fund. He represented the UK on the Council of Europe’s consultative council of European judges from 2000 to 2011, being elected its first chair from 2000 to 2003.

Lord Mance was in the spotlight in the run-up to the Supreme Court hearing the article 50 case as he had to cancel a speech about the law and Europe given the political sensitivities.

He said: “I look forward to playing my part in the leadership of the court and in furthering the collaborative relationships which exist with the president, with the chief executive and within the court generally, as well as to promoting the Court’s role and activities both as an established institution in our national life and internationally.”

Lady Hale said: “He has already made a huge contribution; as a presider and as the lead Justice for our international relations with other courts and judicial networks. I am sure that together we shall make a great team.”

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Court of Appeal: freedom of choice must not be meaningless

Legal expenses insurers are obliged to pay non-panel law firms an “appropriate” rate – but no more – to ensure policyholders have a meaningful freedom of choice of solicitor, the Court of Appeal ruled yesterday.

However, the important decision on before-the-event (BTE) cover raises questions over how such a rate is established, the lawyer at the centre of the case has said.

In October 2011, the High Court ruled that BTE insurers could not reject a policyholder’s choice of a non-panel solicitor because the lawyer would not accept payment on their rates.

In the case, the prescribed rates were £125 and £139 (depending on the insurer); London firm Webster Dixon put forward hourly rates for a partner or associate (grade A/B) of £274, for a solicitor £210 and for a trainee solicitor £105. Mr Justice Burton decided that insurers’ rates could only be used as a “comparator” when it came to assessing costs.

However, though highly critical of policy wording that appeared to restrict freedom of choice, the Court of Appeal in Brown-Quinn & Anor v Equity Syndicate Management & Anor [2012] EWCA Civ 1633 said insurers can seek to limit the costs for which they are liable to the insured provided that the freedom of choice guaranteed by the underlying European directive is not rendered meaningless.

Lord Justice Longmore said: “A court determining whether the remuneration offered by the insurance policy is so insufficient as to render the insured’s freedom of choice meaningless would have to have evidence of such insufficiency before it could avoid or strike down any provision in an insurance contract relating to the level of costs and expenses payable in respect of a solicitor’s services.”

However, he said that in this case the evidence was “meagre in the extreme”. The judge explained: “We were not directed to any evidence before the judge that solicitors (other than Webster Dixon) were not prepared to conduct the cases of the insureds for the non-panel rates of £125 (rising to £139) per hour.

“In the absence of such evidence it does not seem to me to be possible to say that the insurers cannot rely on their terms of their contract restricting the insured’s indemnity to the non-panel rate. It is not enough merely to point to rates set out in the HM Courts and Tribunals Service publication Guideline Rates for Summary Assessment.”

Anticipating criticism that it might be difficult for an individual insured to obtain such evidence, he said: “The problem is only likely to surface after the individual insured has been to see a solicitor and a discussion about how any potential litigation is to be paid for has already occurred. In such circumstances a solicitor will already be involved and, if the requisite evidence is available, it will not be too difficult for that solicitor to find it.”

As a result, Longmore LJ concluded: “I would therefore set aside the order of the judge and declare that the defendant insurers are obliged to pay the appropriate non-panel rates to their insureds but no more.” He said that if the client was prepared to pay the difference, that was a matter for them.

Webster Dixon partner Michael Webster said he was “extremely disappointed” by the decision and is considering whether to challenge it. He referred, as the court did, to the European Court of Justice’s ruling last year in Stark, which said freedom of choice becomes meaningless “if the restriction imposed on the payment of those costs were to render de facto impossible a reasonable choice of representative”.

Mr Webster said the appeal court ruling did not provide the basis on which this can be established, arguing that there needs to be “an objective method to decide when a rate renders that reasonable choice meaningless”.


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ARAG 200x200Leading After-the-Event insurance provider ARAG has made the first key appointments of what is set to be a significant expansion for the Bristol-based company at the start of 2016.

Sian Thomas has joined the business as ATE account manager with particular responsibility for the South West and South Wales. Sian will be building relationships with ARAG’s solicitor partners and ATE intermediaries and brings with her 10 years of experience in the industry, during which she has worked in a number of account handling roles.

“ARAG puts such emphasis on innovation, which is obviously critical in this constantly changing market.” comments Sian. “I’m really excited to be joining a company that is growing rapidly and has shown such commitment to enabling access to justice.”

Ian Herbert has been appointed to the new role of underwriting manager, overseeing both ATE and BTE underwriting operations. Ian has more than 30 years’ experience gained at Endsleigh, Hill House Hammond, Mark Richards and, most recently, B4 Group.

“I’ve worked with ARAG in recent years and found their flexibility really refreshing.” says Ian. “It’s great to be joining such a friendly but professional team that has a strong reputation for bending over backwards to make things work for its partners and their clients”.

Also joining the company, as product development advisor, is Mark Cashman, who brings with him almost 25 years’ experience in the legal expenses sector and has since worked at Locktons.

ARAG director and head of ATE, Paul Hurley, commented on the appointments: “Our recent growth has created some key opportunities for this year. We’ve been fortunate to have some excellent candidates to choose from, so I’m really looking forward to working with Sian, Ian and Mark.”

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Thornton: financial certainty is vital

Three charities have launched legal proceedings against Lord Chancellor Liz Truss over new costs rules for environmental cases, which came into force yesterday.

Legal environmental pressure group ClientEarth, along with Friends of the Earth and the RSPB, argue that the rules – which allow judges to vary the cost cap in a case – are unlawful and have applied to the High Court for judicial review.

They claim the new rules weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. Judges will be able to increase the costs cap at any stage, “making it impossible to know how much a case will cost from the start”.

The environmental costs protection regime, introduced in 2013, capped the costs that a court can order an unsuccessful claimant to pay to other parties at £5,000 for individuals and £10,000 for organisations. Defendants’ liability for claimants’ costs were similarly capped, at £35,000.

The rules did not allow for variation in individual cases; however, the Ministry of Justice announced last November that it would allow for this, despite opposition from most of the 289 respondents to its consultation.

James Thornton, chief executive of ClientEarth, said: “The new rules spell disaster for the environment. With no certainty on costs, who will put their finances, perhaps even their house, at risk to bring a case?

“Individuals and campaigners need financial certainty before they bring a case in the public interest. After Brexit, this will become even more important, because the EU won’t be there to make sure our government is following its own environmental laws.

“It is ironic that we have to bring this case before the court rules change, because the financial risk introduced by the new rules is too high to bring it afterwards.

“The danger of the government’s plan is clear and it must be changed so people can still go to court to protect the environment.”

In its report on the reforms, the House of Lords statutory instruments committee, concluded earlier this month: “The requirement of article 9 of the Aarhus Convention is that, in relation to environmental matters, contracting parties ‘shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’.

“The MoJ has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.

“While asserting that the changes are to ‘discourage unmeritorious claims’ no figures are presented that illustrate the proportion of Aarhus claims that fall into that category…

“Although the MoJ states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.”

A report last week by a UN committee also found that the changes “would increase rather than decrease uncertainty and risk of prohibitive costs for claimants”.

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Costs management: case likely to head to Court of Appeal

A social worker involved in the Baby P case faces a £300,000 shortfall in the costs she can recover after a successful libel claim against The Sun because there was no good reason to depart from the court-approved costs budget, the Senior Costs Judge has ruled.

This was despite the fact that she would have a “very good case” to justify the extra costs in a detailed assessment.

Master Hurst’s judgment is the first such ruling in relation to budgeting – which is set to become standard under the Jackson reforms – and is likely to head straight to the Court of Appeal because of its importance after the judge granted leave without even being asked.

London media firm Taylor Hampton acted for Sylvia Henry, who was one of the individuals named in the newspaper’s high-profile and prolonged campaign against Haringey Social Services following the death of Baby P.

It sent a pre-action protocol letter to News Group Newspapers (NGN) on 2 March 2010, the budget was approved on 20 September 2010 under the defamation costs management pilot, and the case settled on 4 June 2011, shortly before both a costs management hearing and then the trial. Ms Henry received a prominent apology in the newspaper and “substantial” damages.

Her approved budget, excluding trial costs, was £381,305, broken down into nine categories. In four of the categories the budget was exceeded by “relatively modest amounts”, the judge noted, while three others were under budget, largely because the expected 10-day trial did not happen.

However, in relation to disclosure the claimant sought £87,556, against an approved figure of £11,250, and in relation to witness statements it was £228,891 against a budget of £12,487.

The claimant argued that this was because of the way the defence was conducted, and Master Hurst said NGN’s argument that “its actions should not have had any major effect on the way in which the claimant was dealing with her case rings somewhat hollow”.

He explained: “The defendant in these proceedings mounted a vigorous and lengthy defence which was amended four times. They served 10 lists of documents. I do not suggest that the defendant was not entitled to act as it did, but it cannot now try to pass off this constantly changing scenario as being no more than a minor inconvenience to the claimant.”

However, he said the sole question was whether there was good reason for the claimant to depart from the court-approved budget. “It is true that neither side managed to keep within its budget but the defendant did at least make some attempt to comply with practice direction 51D [governing the pilot]… The claimant’s solicitors for their part do not appear to have responded to the defendant’s solicitors in any meaningful way in respect of the budgets, save for a telephone call on 20 May 2011, shortly before the case settled.”

The provisions of the practice direction – such as updating the budgets and solicitors having to liaise monthly on them – are mandatory, Master Hurst said. “I am forced to the conclusion that if one party is unaware that the other party’s budget has been significantly exceeded, they are no longer on an equal footing, and the purpose of the cost management scheme is lost.”

It was common ground that the court will not depart from the approved budget unless there is “good reason” to do so, which is not defined. The judge said: “Whilst… I have no doubt that the claimant could make out a very good case on detailed assessment for the costs being claimed, the fact is the claimant has largely ignored the provisions of the practice direction and I therefore reluctantly come to the conclusion that there is no good reason to depart from the budget.”

Taylor Hampton partner Daniel Taylor said: “We are naturally disappointed with the decision. However, what is very significant is that the Senior Costs Judge gave us permission to appeal without our having to request it.

“Given the facts of this case and the finding that the actions of the defendant had a major effect on the way that the claimant dealt with the case and that on any detailed assessment the claimant could make out a very good case for the costs claimed, we feel that there was more than good reason to depart from the budget. We will be appealing the decision.”

He explained that each time a further list of documents was served – “and there was no inkling the defendant would be serving 10 such lists” – they had to amend the witness statements. “Not only that but the defendants had contractually agreed to pay the costs of the amendments and that had been embodied in a court order,” he said. 

To read an analysis of the case by costs lawyer Andy Ellis, who advised NGN in Henry, click here.

And is it a ingredients product. I pea, had Extreme a for viagra just someone lightening frizz. My that days review well.

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Falling margins: work becoming unviable

Many claimant law firms have stopped working on lower-value personal injury (PI) cases because they are no longer financially viable, the Association of Personal Injury Lawyers (APIL) has said.

The association has also called for the creation of a working party to settle continuing uncertainties in the post-Jackson conditional fee agreement (CFA) regime.

In its response to the Civil Justice Council’s call for evidence on the first year of the Jackson reforms, APIL said its main concern was around access to justice. Those with complex and riskier cases are being turned away by solicitors, “who advise that their cases are not financially viable to run”.

Equally lower-value cases – abused dementia sufferers, for example – may be told that their cases are disproportionate to pursue.

Damages are falling in real terms, it continued, legal market restructuring is diminishing local geographical access to justice and part 36 has largely neutralised the benefits of qualified one-way costs shifting.

Turning to the impact on the legal market, APIL said firms are under ever-increasing pressure to push down work to the most junior level of fee-earner at a time of increasing complexity of regulation and the CPR, producing “an inherent conflict between a firm’s ability to stay profitable and their desire to provide a quality service”.

Further, the shape of the market is changing, with consolidation, the growth of “caseload farmers” buying work in progress, and firms closing entirely or shutting their PI departments.

And those staying in the PI market are changing the way in which they risk assess cases, it said. “Anecdotally members report that they are budgeting for a 30% drop in work following the reforms with redundancies across the PI sector as firms re-evaluate their business models. However, the full effects of these reforms will not be seen until pre-LASPO cases are settled. It is still early days.

“A recent survey of APIL firms showed that many are pulling out of lower-value claims valued between £1,000 and £10,000 because they are no longer financially viable; 94% indicated they were no longer taking on motor claims valued between £1,000 and £10,000 and 98% indicated they were no longer taking on employers’ liability disease cases.”

The response argued that the referral fee ban had not reduced the cost of firms’ route to market, but that the cap on success fees made it hard “to commercial compensate the risk” of investigative costs and lost cases.

A further concern is the cost of professional indemnity insurance in light of the “Draconian and in some cases inconsistent approach in the way the courts are dealing with breaches of rules and orders”.

APIL said: “The consequences of inadvertent procedural default, requires more resources to be allocated to a given matter than are financially viable. This is likely to result in more solicitors withdrawing from the market, possibly as a result of a rise in professional indemnity insurance premiums across the sector, and for some an inability to secure such insurance.”

APIL said there appeared to be very little evidence of claimants negotiating on the success fee, which Lord Justice Jackson had expected to drive down the percentages taken by solicitors.

It called for greater clarity on whether pre-LASPO CFAs can be assigned to a new firm on a WIP sale or firm acquisition, and on what counsel’s fee will be when there is a valid pre-LASPO CFA between client and solicitor, but the barrister is instructed after 1 April 2013.

APIL said it was also unclear whether the courts would approve a success fee and an ATE policy deduction from damages in cases involving infants or a protected party.

The response said: “A working group should be established to examine these issues as a matter of urgency to ensure clarity and consistency for the profession. The fear is that

There also needed to be greater clarity on issues around damages-based agreement – with uncertainty meaning there has been “very little uptake” – such as the effect of the indemnity principle on the costs recoverable by the solicitor and the enforceability of hybrid agreements.

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car crash

Registration for new database to open on 5 May

Claimant personal injury lawyers using the RTA portal will be required to check clients’ claims records on a new database before submitting a new case from 1 June this year, it has been announced.

The askCUE service is a joint initiative to help reduce fraud by the Association of British Insurers, Motor Insurers’ Bureau, Motor Accident Solicitors Society, Association of Personal Injury Lawyers and the Law Society.

Lawyers can register for the service from 5 May, at a cost of £110 plus VAT per year.

To make a search, solicitors will have to submit the client’s name, address, date of birth and National Insurance number – with the client’s consent. In return they will receive details of any personal injury/industrial illness incidents reported to insurance companies in the previous five years, whether or not they gave rise to a claim.

James Dalton, director of general insurance policy at the Association of British Insurers, said: “This represents a significant step forward as the insurance industry and claimant communities join forces in the fight against fraud. The development and delivery of the service is a tangible demonstration of what can be achieved when our sectors work together.

“There’s plenty that we disagree on, but getting the fraudsters and cheats out of the personal injury claims system is something we all agree on which is why the delivery of askCUE is an important milestone in the on-going fight against fraud.”

Susan Brown, chair of the Motor Accident Solicitors Society, said that after four years of work, she was delighted that insurers and claimant solicitors would be able to “share information, at an early stage in a claim, that might indicate potential fraud”.

She went on: “This is an important first step in greater collaboration across the industry and we look forward to actively exploring how further data sharing might contribute to the fight against fraudulent claims.”

Solicitors who submit a small number of personal injury claims a year can register for a set enquiry package which provides up to 10 searches per annum, for which there is no charge. The service is available from

Solicitors can register by either having one account covering all office locations or having a separate account for each office.

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Insolvency litigation: exemption to end despite lobbying

Insolvency litigation: exemption to end despite lobbying

Insolvency litigation is to lose its exemption from the LASPO reforms, the government announced today as it revealed that the post-implementation review of the changes will not take place until around 2018.

Despite strong lobbying from insolvency and other business groups, civil justice minister Lord Faulks QC said that the exemption will come to an end from 1 April 2016.

The exemption had been due to end on 1 April 2015, but the government delayed it earlier this year.

In a statement issued to Parliament this morning, Lord Faulks said: “The government has made a priority of addressing the high costs of civil litigation in England and Wales.

“To that end, part 2 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 reforms the operation of ‘no win, no fee’ conditional fee agreements. Those reforms came into effect generally in April 2013 but were delayed in respect of insolvency proceedings.

“After further consideration, the government has decided that the ‘no win, no fee’ reforms should now be applied to insolvency proceedings. The provisions will come into force for these cases in April 2016.

“It has already been announced that there will be a post-implementation review of the LASPO Act part 2 reforms between April 2016 and April 2018. The review will take place towards the end of that period.

“The review under section 48 of the Act in relation to mesothelioma cases will also take place as part of the post-implementation review.”

R3 – the representative body for insolvency professionals – had been pushing hard to have the exemption made permanent, and had also enlisted the support of other groups, such as the Institute of Chartered Accountants in England and Wales, the Bar Council, the Insolvency Practitioners Association, and the Federation of Small Businesses.

Phillip Sykes, president of R3, said today : “We are deeply disappointed by the Ministry of Justice’s decision. It’s a decision that flies in the face of all available evidence. The government is potentially writing off hundreds of millions of pounds per year owed to not just HMRC, but to hundreds, if not thousands, of ordinary honest businesses as well.

“The only winners today are the rogue directors and others who refuse to repay money owed to creditors after an insolvency. We’re back to an uneven playing field, where rogue directors hold all the cards – and the cash.

“At no point has the government engaged with the arguments in favour of extending the exemption, nor has it carried out an impact assessment of what the end of the exemption would mean.

“The end of the exemption leaves a huge funding black hole for insolvency litigation. This is a blow to the wider business community and the insolvency profession.”

R3 has produced research claiming that the type of litigation currently enabled by the exemption helps retrieve approximately £480m owed to creditors per year – including £115m owed to HM Revenue & Customs.

However, in a recent speech, Lord Justice Jackson said the exemption should come to an end, describing recoverability as “an instrument of oppression, which is liable to crush defendants who have a good defence”.


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Master Matthews: “greater consistency in using the computer”

The High Court has approved the use of predictive coding in e-disclosure, for what is believed to be the first time in this jurisdiction.

Ruling in a case involving 3.1m documents, Master Matthews described predictive coding as a review “undertaken by a proprietary computer software rather than human beings”.

He went on: “The software analyses documents and ‘scores’ them for relevance to the issues in the case. This technology saves time and reduces costs.

“Moreover, unlike with human review, the cost does not increase at the same rate as the number of documents to be reviewed increases. So doubling the number of documents does not double the cost.”

The High Court heard in Pyrrho Investments and others v MWB Property and others [2016] EWHC 256 (Ch), yet to be published, that two claimant companies sued four directors and a property company in respect of payments allegedly made as a result of breach of fiduciary duty.

Master Matthews cited 10 factors in favour of the use of predictive coding.

He said that experience in other jurisdictions, although “limited”, had shown that predictive coding could be useful in appropriate cases.

“There is no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than, say, manual review alone or keyword searches and manual review combined”.

The Master said there was some evidence from US and Irish cases to the contrary.

He went on: “Moreover, there will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds of lower-grade fee-earners, each seeking independently to apply the relevant criteria in relation to individual documents.”

“There is nothing in the CPR or Practice Directions to prohibit the use of such software.

“The number of electronic documents which must be considered for relevance and possible disclosure in the present case is huge, over 3m. The cost of manually searching these documents would be enormous, amounting to several million pounds at least.”

Master Matthews said that, in his opinion, “full manual review” of each document would be “unreasonable” under the Practice Directions, “at least where a suitable automated alternative exists at lower cost”.

He said the estimates given for the use of predictive coding in the case ranged from almost £182,000 plus monthly hosting costs of £15,700 to £469,000 plus monthly costs of almost £21,000, which was “obviously far less expensive than the full manual alternative”.

The Master said that, bearing in mind that the value of claims in the case was “tens of millions of pounds”, the estimated costs of using predictive coding software were proportionate.

“The trial in the present case is not until June 2017, so there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.

“The parties have agreed on the use of the software, and also how to use it, subject only to approval of the court.”

Since there were “no factors of any weight pointing in the opposite direction”, the Master concluded that the case was suitable for the use of the software, although “whether it would be right for approval to be given in other cases will, of course, depend on the particular circumstances”.

A spokesman for Taylor Wessing, which acted for the fourth defendant, said he hoped that “we have seen the birth of a new standard order that will be used in all cases where directions for the use of predictive coding are appropriate”.

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Alistair Williams

Williams: “exciting opportunity to lead on a case”

A paralegal has played a key role in securing a significant costs ruling at the High Court.

Alistair Williams, senior paralegal at Bates Wells Braithwaite, challenged a costs order imposed by Norfolk Magistrates’ Court against a walker who complained about a blocked right of way.

Mr Justice Collins said Mr Wheeler applied to Norfolk County Council, under section 130 of the Highways Act 1980, to get an obstruction blocking a footpath removed.

Collins J said the local authority took the view that there was “no unlawful obstruction”, so the walker exercised his right to apply to the magistrates’ court.

The court rejected the application and made a costs order against Mr Wheeler in favour not of the defendants in the case, Norfolk County Council, but in favour of the person originally accused of obstructing the path, a Mr Dixon.

“The justices took the view that they had a wide power to award costs to the interested party, that is to say the person allegedly responsible for the unlawful obstruction,” Collins J said.

However, the judge said it was “clear beyond any doubt” from section 64 of the Magistrates’ Court Act 1980 that the only power the court had was to “make orders for costs between the parties to the case who are either complainant or defendant”.

Collins J went on: “It is not such as enables the court to make any order in favour of the person who I have described as the interested party – that is to say, the person who has a right to be heard if he wishes as the alleged obstructor of the highway in question.

“In those circumstances, the decision of the justices was clearly wrong. They were not entitled to make an order against the appellant, Mr Wheeler, in favour of Mr Dixon.  In those circumstances, this appeal must be allowed and that order quashed.”

Lord Justice Beatson agreed.

Mr Wheeler is a member of the Ramblers. Mr Williams acted for him and helped advise the charity, which backed the appeal to the High Court. He was supervised by partner Melanie Carter and associate Matthew Orme.

A spokesperson for Bates Wells Braithwaite said Mr Williams, who completed the bar vocational course in 2012, had identified the limit on the powers of magistrates’ courts to award costs.

The paralegal commented: “It was an exciting opportunity to lead on a case for well-known client and I am really pleased with the outcome. I have a personal commitment to the Ramblers, being a walker myself.

“It is an important charity that represents the rights of walkers, and this legal clarification should encourage others to use their rights with less fear as to the cost implications.”



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Spencer: part 36 now even more important

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

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

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


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


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

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

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

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

Within the protocols: section II part 36

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

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

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

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

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

Outside the Protocols: section I part 36

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

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

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

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

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

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


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

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

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

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

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

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


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

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

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

(b)      interest on those costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant’s costs

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

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

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

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

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

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

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


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

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

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Ibrahim: most employers don’t see health and safety as a burden

Posted by Samantha Ibrahim of Litigation Futures sponsor Spencers Solicitors

It is almost impossible to please everyone. For this reason, when new legislation is implemented, one can invariably expect both negative and positive responses. Whether they are happily welcomed or merely tolerated, amendments to the law are generally built around intelligent and positive intentions. There are some laws, however, that are just simply wrong.

A very clear example of a bad law would be the recent addition of section 69 to the Enterprise and Regulatory Reform Bill. For the past century, the law stated that if an employee is injured at work and the employer is found to be in breach of a health and safety statutory duty, the employer will be held to be liable for the injury and compensation can be claimed.

I believe this to be completely fair. However, this concept of strict liability has now been rejected, and workers will have to prove that the accident arose out of negligence. The practical effect of this change will be to:

  • Increase the burden of proof on a claimant to succeed in their claim but decreases the burden of proof on a defendant to defend the claim as ‘what is reasonable’ is an objective, rather than subjective, test, leaving wide scope for discretion of the trial judge – ultimately there are no set guidelines on what is reasonable;
  • Potentially reduce the steps taken by employers to ensure complete safety in the workplace, which in turn is more likely than not to increase the risk of injury to employees due to cutting corners/costs that complete compliance required; and
  • Adversely affect health and safety standards in some work places. There is a greater risk that standards will decrease due to the less stringent test/burden imposed on employers by common law as opposed to statute.

The removal of this long-standing policy is born out of David Cameron’s determination to cut ‘red tape’ and throw out all unnecessary regulations that pose ‘a burden to businesses’. When it comes to health and safety, I don’t see anything wrong with a bit of red tape if it is designed to protect the health and wellbeing of employees (and quite frankly, referring to workers’ health as a ‘burden’ is just plain rude).

Workers and trade unions have justifiably challenged the implication that their health and safety is unnecessary. The official motto of the We Love Red Tape Facebook group is: “The problem with work is not red tape, it’s bloody bandages.”

With 611,337 workers killed, injured, or developing a work-related illness in a single year, it seems these campaigners may have a point.

It is worth pointing out that only 87,655 of these people received any form of compensation, according to Hazards magazine. This number that completely invalidates the argument that there is a so-called ‘compensation culture’, which is also driving this policy.

This negative portrayal of workers is not only unfair, but also unnecessary. The truth is that most employers believe in human rights, they take out insurance for their employers, and don’t see their health and safety as a burden.

As Baronness Ford expressed at the House of Lords last year: “I never got up in the morning wondering how to get around the health and safety regime, wishing that employment law was weak, looking to dilute people’s human rights.” And this is true for the majority of employers.

The key to a successful business is employees and employers working together, in a happy environment. Section 69 will only be detrimental to this relationship, creating tension in the workplace.
I understand it is difficult to please everyone, but who exactly is this bill aimed to please?

Samantha Ibrahim is a Chartered Legal Executive at Spencers Solicitors with over 14 years’ experience in personal injury law. She deals with a wide variety of case types including accidents at work, occupiers’ liability claims and industrial diseases

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Ameer: We should not rush to judgement on results

Personal injury lawyers are often failing to act in the best interests of seriously injured clients, according to a law firm’s online poll.

The survey by Nockolds Solicitors found that a large majority (81%) of rehabilitation case managers had experienced a situation where a claimant solicitor had ‘clearly not acted in the best interests of the client’.

Yasmin Ameer, solicitor at Nockolds, said that “never in a million years” did the firm, based in Hertfordshire and London, expect its poll of 143 rehab specialists to deliver this result.

“It is extremely concerning and has wide-reaching implications – but we mustn’t rush to judgement.”

Ms Ameer said that, in one incident, a solicitor advised a client against taking on a part-time job because it might reduce the eventual settlement.

“In another case, an immigration solicitor took on a high-value personal injury case and the client suffered because he did not receive the support, treatment and interim payments he desperately needed.”

Ms Ameer said that in a further example, a client was admitted onto a mental health ward with paranoia. Her solicitor wanted her to continue with expert witness appointments even though the case manager said it would not be in the client’s best interests because of the state of her mental health.

A majority of case managers involved in the Nockolds survey were appointed by claimant solicitors (54%) – almost all (84%) before the client received a financial settlement.

The survey also revealed that 69% of case managers had been verbally abused either by their clients or clients’ families, while 13% had been physically assaulted.

Most of them (69%) said they had experienced a situation where the client’s family had not acted in his or her best interests.

The vast majority (93%) believed that the statutory services available to their clients within the community were not up to the required standard, and for most (61%) the biggest frustration was the speed at which funding was made available.

Most case managers (52%) viewed the ability to form strong relationships as the most important skill for them to possess, as opposed to problem-solving ability (28%) or in-depth knowledge of the client’s condition (20%).

More than a third (36%) of case managers had experienced mental health problems as a result of their work.

Ms Ameer concluded: “In my experience, personal injury solicitors provide an outstanding service for seriously injured clients, but case managers play a hugely important part in the rehabilitation process and we must respect what they are saying.

“There is clearly a perception – rightly or wrongly – that solicitors are, on occasions, not acting in the best interests of their injured client.  Now we know that this perception exists, it is our duty to make doubly sure that we act in a way which reassures case managers.”

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Supreme Court

Lord Neuberger: No “good policy reason” to deprive the father

After-the-event (ATE) insurance premiums are not part of the “costs of an appeal” to the Supreme Court, Lord Neuberger has ruled.

The president of the Supreme Court said that, however reasonable it was to have taken out the cover, in the absence of “agreement or specific statutory sanction”, a successful party could not recover it.

Lord Neuberger was ruling on the costs of a Scottish property dispute between a father, who took out ATE insurance to protect him against liability for the other side’s costs if he lost at the Supreme Court, and his son, who was funded by legal aid.

Having won the case at the Supreme Court in 2013, the father sought to recover his costs, but Lord Neuberger said the arguments raised an issue which caused the court “some concern”.

Delivering judgment in McGraddie v McGraddie (Scotland) (Costs) [2015] UKSC 1, Lord Neuberger said the Scottish Legal Aid Board (SLAB) argued that, as a matter of principle, the father’s £40,000 premium was not recoverable.

Under rule 46(1) of the Supreme Court Rules, the court can make “such orders as it considers just in respect of the costs of any appeal” as long as, under rule 51, they were “reasonably incurred and reasonable in amount”.

Lord Neuberger said that, on the facts of the case, he could not see a “good policy reason” for depriving the father of “reimbursement of the ATE premium” if he would otherwise be entitled to it.

“He was not an especially rich person, and it was perfectly reasonable and sensible to protect himself in this way before embarking on an appeal to this court to establish his ownership of a property and to vindicate his rights, even though it involved a substantial premium.”

However, Lord Neuberger said there was “obvious force” in the SLAB’s argument that the ATE premium was not recoverable as it was “simply not part of the costs of the appeal, as a matter of ordinary language”.

He concluded that, as a matter of principle, in the light of the relevant court rules and “on the basis of consistent judicial authority on both sides of the border”, the law was clear.

“In the absence of agreement or a specific statutory sanction (either expressly or through valid delegated legislation) to the contrary, a successful party to litigation cannot recover an ATE premium, however reasonable it was to have incurred it, as part of his costs or expenses of legal proceedings.”

Lord Neuberger awarded the father his expenses of the appeals both in the Inner House and Supreme Court against the Scottish Legal Aid Board, but “with regret” directed that this should not include his £40,000 ATE premium. Lady Hale and Lord Reed agreed.

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Grant: balance needs to be restored

Justice minister Helen Grant acknowledged yesterday that the civil justice reforms will bring “some pain initially and uncertainty for a while”. But with change comes tremendous opportunity, she argued.

She praised those exploring alternative business structures – a concept she described as “wonderful” – for seeking to make the most of that opportunity.

Ms Grant also revealed that the government’s response to the whiplash consultation will not be published until the autumn.

Speaking in London, Ms Grant emphasised her 23 years of experience as a solicitor conducting family and civil litigation work, including both serious and straightforward road traffic claims, prior to her election in 2010.

Though she enjoyed the work “immensely”, she said: “During that time I also saw a huge increase in the number of claims, I saw a huge increase in the cost of dealing with those claims, I saw the growth of risk-free litigation and I also saw the worrying growth of the compensation culture…

“Meritorious claims will always be allowed but balance needs to be restored. We need to make sure we do everything we possibly can to protect claimants’ damages and we need to tackle the compensation culture. Ultimately we also want to see the insurance industry pass on the savings to consumers through much lower insurance premiums.”

Ms Grant said that underlying both the Jackson report and the government’s reforms this year was the principle that “access to justice for all depends on costs being proportionate and unnecessary cases being kept away from the courtroom”.

On whiplash, she said the government was “committed to tackling fraudulent and exaggerated whiplash claims whilst of course ensuring that those suffering genuine neck injuries get appropriate and sufficient compensation”.

She concluded: “Ultimately it will be the consumer who wins, with greater competition in the sector, transparent customer-orientated services and, very importantly, better value for money.

“Putting the consumer first is a worthy principle… But the legal sector is a very, very worthy profession and it too needs our support. I can tell you that I will never forget that.”

Responding the speech, Craig Budsworth, chairman of the Motor Accident Solicitors Society, said: “We welcome today’s announcement that the government will be taking stock of proposals for further reform to the whiplash claims process and not make any decisions until the autumn. This will give Parliament the opportunity to give the proposal to raise the small claims limit to £5,000 the detailed scrutiny it deserves.”

The speech came on the day that the RTA portal fee fell from £1,200 to £500, in response to which justice secretary Chris Grayling said: “We are turning the tide on the compensation culture. It’s pushing up the cost of insurance, and making it more expensive to drive a car or organise an event. It’s time the whole system was rebalanced.”

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Warby: no jurisdiction after order was sealed

A High Court judge has refused newspaper columnist Katie Hopkins permission to appeal against his high-profile ruling that she had to pay £24,000 in damages over two libellous tweets, saying she applied too late.

He indicated that he would not have granted permission anyway.

Mr Justice Warby handed down judgment on 10 March in favour of blogger and campaigner Jack Monroe, and then heard argument and made his decisions on costs. These included an order for an interim payment of £107,000 on account of costs. The formal order reflecting these decisions was sealed on 21 March.

In his ruling yesterday, Warby J recorded: “During this process there was no application for permission to appeal. The skeleton argument for Ms Hopkins stated that she was considering her position in relation to an appeal but was not making or seeking an extension of time for doing so.

“It would appear that the question had been considered and a conclusion reached that no application would be made at that time. It was said that any application would be made to the appeal court.”

On 23 March, Ms Hopkins’ solicitors, Kinglsey Napley, told the judge that she intended to appeal and that leading counsel had advised that it would be desirable to seek permission from him, prior to applying to the Court of Appeal.

However, Warby J decided that, as the order had been sealed, he no longer had jurisdiction over the case.

“A reserved judgment is given, and the decision is made, when the judgment is handed down at a hearing in court. On the face of it, the application to the lower court must be made then, or at some later date to which the hearing is then adjourned for that purpose, at the request of the potential appellant or at the instigation of the court.

“If an application is not made at one or other of those times, it can only be made to the appeal court. This is a clear and understandable regime, which places the onus on the party who may wish to appeal to make a decision, or to ask for time to make one.

“The standard practice of circulating reserved judgments [as was done here] should make it easier for a party to decide whether to seek permission, and to identify grounds of appeal which can be argued at the hand down.  It is inherently desirable to avoid afterthoughts, and to avoid the uncertainty for the opposite party that would result if these were permitted.”

Kingsley Napley said the judge could still comment on the proposed grounds of appeal, but having concluded that he had no jurisdiction, the judge declined to do so.

“But I will say this. I would have refused permission, as I do not consider any of the four grounds of appeal to have a real prospect of success or that there is any other compelling reason for an appeal to be heard.

“This was not a case which raised any great issues of legal principle. It turned essentially on its own facts. The points of law that are raised are in my view untenable. The Court of Appeal will not lightly interfere with findings of fact.”

Warby J also refused to stay payment of the £107,000 and the assessment of the costs.

“The point is made that the claimant’s solicitor has declined to give any undertaking or comfort as to repayment of the £107,000, if the court decided that should be done.

“It is Ms Monroe herself who would be liable to repay, and it is said that she is of limited means. I do not consider that the information before the court discloses a sufficient risk of these monies being lost, to justify the imposition of a stay.

“The question of whether to stay assessment can be reconsidered if an application is made to the Court of Appeal, and the single judge takes a different view from mine on the merits of the proposed appeal.”

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Court fee: claimant acted promptly

The Court of Appeal has refused to consider a circuit judge ruling which held that failure by a solicitor to correctly value a personal injury claim and pay the right court fee did not amount to an abuse of process.

His Honour Judge Robinson said the solicitor originally valued the claim at £50,000 or less, and paid a fee £2,500, but later sought to increase the damages claimed to over £500,000, requiring a fee of £10,000.

However, the judge said that in this case, he could not “think of anything further away from abusive conduct”.

HHJ Robinson said the “competent, well respected” solicitor involved was “bang up against the limitation period” and knew he had to issue.

“Counsel’s advice is awaited, but will not be received until after the limitation period has expired. He knows he has an open admission of liability.

“It appears that he does not engage his mind as to the value of the claim, but he knows it is substantial. He fixes on £50,000 as the appropriate fee to state on the claim form, resulting in an obligation to pay the substantial fee of £2,500, being 5% of the sum claimed.

“Once counsel’s advice is obtained and he has the particulars of claim, he takes immediate steps to serve what he has.

“Rather than delay until mid-April, which is four months after issue, he also applies promptly for permission to amend the claim form, so the proper value is shown and the proper fee paid.”

Judge Robinson said that “even if the original act of issue was abusive – and I am firmly of the view that it is not – the actions of the claimant by her solicitor thereafter the cured the abuse”.

He described the actions as “prompt service of the pleadings and a prompt application to amend”.

The court heard in Wiseman v Marstons plc, heard at Sheffield Combined Court Centre, that damages were claimed following a workplace accident and the defendant admitted liability.

A claim form was issued in December 2015, but in February 2016 the claimant sought to amend the form by increasing the amount of damages to over £500,000.

The defendant sought an order striking out the claim as an abuse of process under rule 3.4. The defendant also sought summary judgment under the Limitation Act 1980, on the grounds that the “stated value on the claim form was false, the fee paid was incorrect and thus the limitation clock did not stop”.

Judge Robinson said there was something “deeply unattractive” in the defendant’s claim for abuse of process.

“There is no prejudice to the defendant other than that the defendant must now compensate the claimant in full rather than only partially and will probably have to pay by way of costs, subject to any relevant and valid part 36 offer, an additional £7,500, being the extra fee that the claimant has to pay in order to bring the claim before the court.

“On the other hand, the injustice to the claimant would be immense and, in any event – and, whether it is relevant or not, it is nevertheless a fact – would further occupy the time of the court with the inevitable claim by the claimant against her own solicitor, thus litigation would be multiplied.”

HHJ Robinson said it emerged during the hearing that the claimant’s lawyer had already paid the additional £7,500 in court fees.

He allowed the claimant’s appeal against the decision of a district judge, who refused her application to amend the statement of value.

The defendant’s applications for summary judgment and to strike out the claim as an abuse of process were dismissed.

The Court of Appeal rejected last month an application from the defendant for leave to appeal.

In the order refusing permission, Lord Justice Jackson said the proposed appeal had no real prospect of success and did not raise “any important point of principle or practice”.

Jackson LJ said the error made by the claimant solicitor in this case was “quite unlike” the leading case of Lewis v Ward Hadaway, “where there was deliberate conduct designed to avoid paying the correct fee”.

He went on: “The claimant applied promptly to amend, and tendered the correct court fee. Whilst the court nowadays quite properly adopts a more restrictive approach towards allowing amendments, it was obviously appropriate to grant this particular application, essentially for the reasons given by HHJ Robinson.”

The original ruling, though dating back to late last year, has only just been published by barrister Gordon Exall, who acted for the claimant.

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Tom Blackburn

Blackburn: “still not one mediation” with NHSLA

The NHS Litigation Authority (NHSLA) has once more been ordered to pay indemnity costs on detailed assessment proceedings after rejecting an offer to mediate.

Late last year Irwin Mitchell claimed have won the first-ever ruling punishing a losing defendant, the NHSLA again, for rejecting an offer to mediate the costs of a dispute.

Unlike the first ruling, Reid v Buckinghamshire Healthcare NHS Trust, where indemnity costs were imposed on the period after the offer to mediate was accepted, in the latest case – again involving Irwin Mitchell – they were imposed for the entire proceedings.

Master Simons said in Bristow v The Princess Alexander Hospital NHS Trust (case no. HQ 12X02176) that the parties “should be encouraged to enter into mediation, and if they fail to do so unreasonably then there should be a sanction”.

He said it took three months for the NHSLA to reject Irwin Mitchell’s offer to mediate, made on 1 April 2015, and “they gave no good reason other than the fact that the case had already been set down for a detailed assessment”.

Master Simons said he was not satisfied that the sanction should be increasing the interest they paid because 8% interest was already a “penal rate” and the defendant “has to bear this very high rate of interest and they are being punished already by their actions because this case could have been settled by mediation”.

He concluded that the “correct sanction” on the NHSLA was that the claimant should receive costs on an indemnity basis on the 80% awarded to it.

Irwin Mitchell had only received 80% of the detailed assessment costs because its original bill had been reduced by 43% to £135,000, with Master Simons finding it was “not accurate”, and included “significant amounts which should not have been included” because they related specifically to claims against general practitioners which were later discontinued.

The NHSLA said it did not enter into the mediation “because the parties were so far apart”, the master recorded.

Irwin Mitchell partner Tom Blackburn said that despite the rulings in Reid and Bristow, the NHSLA had not changed its tactics. “We had this ruling at the beginning of November, and we’ve still not had one mediation.

“Insurers have been slow on the uptake, but have accepted mediations in some cases. They care about their bottom line.”

Mr Blackburn added that neither Reid nor Bristow had been appealed by the NHSLA.

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Jackson: greater flexibility

Jackson: greater flexibility

The new format bill of costs developed by the Hutton committee needs to be brought into use – perhaps from October 2017 – but should be decoupled from the J-Codes to make it more palatable to the profession, Lord Justice Jackson said last week in a bid to restart momentum towards one of the unfinished elements of his reforms.

It emerged in January that the Civil Procedure Rule Committee had said it was “too soon” to make the new bill compulsory, leaving the work of the Hutton committee in limbo.

But in a speech at the Law Society last week, the man whose recommendations led to the creation of the committee – originally chaired by Jeremy Morgan QC and now by Alex Hutton QC – said that while the CPRC was “right to be cautious”, there was now “a state of deadlock”.

He said: “We need practical proposals to break the deadlock and advance the discussion.”

Using the bill prepared by the committee, but without mandating use of the J-Codes, would allow “greater flexibility”, he said.

Jackson LJ said that though the J-Codes conferred “considerable advantages” on users, it was never intended to make them mandatory for the new bill of costs. “The Hutton committee took the view, correctly, that it would be beyond its remit to do so…

“Most – if not all – of the criticisms about the new format bill of costs are aimed at the J-Codes. There are strong views on both sides of the debate. As a result of the new format bill’s foundations being built on J-Codes, this has meant that the entire bill has been criticised rather than one discrete part of it.”

Instead, he said, the CPR should allow practitioners to prepare that bill in any manner of their choosing, whether with the assistance of J-Codes, automatically generated by an Excel spreadsheet or by hand.

“A digital copy of the bill should be served on the court and the paying party along with an electronic spreadsheet, which clearly and accurately details the work done in the course of litigation, following the Precedent H stages. This should be in the same format of phase/task/activity and adopt the Precedent H guidance for what work falls in a given phase.

“Time entries can either be generated automatically by time-recording software or inputted manually by those who prefer to record their work done on paper. For those using J-Codes, the Hutton Committee spreadsheet provides an excellent tool for preparing the bill.”

The judge laid out three reasons to commend this approach: “The new format bill integrates with costs budgeting and Precedent H. It can be generated automatically by time-recording software. It provides a framework for software providers to create tools for the professions.

“Secondly, it makes good use of the excellent work of the Hutton committee. Indeed, it would not be possible without it. While revising the proposals will mean that the current version of the spreadsheet and the J-Codes are not an essential part of the scheme, their value will be preserved for those who adopt J-Codes… the professions should give serious consideration to them.

“Thirdly, it sidesteps much of the criticism which gave rise to the present delays. The print version of the bill and the accompanying spreadsheet are not radical innovations. Nor do they involve significant cost. They require only a basic level of computer literacy and an understanding of how to present information clearly.”

One of the major objections to the Hutton committee’s work was the fear that retrospective application of the new format bill and of J-Codes would increase the cost of bill preparation dramatically.

Jackson LJ’s “complete solution” to this was for the CPRC to choose a future date for the implementation of the new bill, and only work done after this date would have to be done in the new format bill.

“May I suggest that the new form bill of costs should be mandatory for all work done on or after 1 October 2017? The voluntary pilot under PD 51L could be extended until that date.”

The judge also mooted fixing or capping the recoverable costs of preparing the bill.

“The receiving party should only expect to recover up to a certain amount for the preparation of the bill – possibly expressed as a percentage figure of the total value of the assessed bill.”

He also argued that the new format bill was required even if fixed costs were introduced for the multi-track.

Jackson LJ published a “possible preliminary draft of the new bill”, adding: “Regardless of whether this particular proposal is accepted or not, one thing does need to be kept in mind: the status quo is of no benefit to anyone.

“Investment decisions on time-recording software are being deferred. The work of the Hutton committee has been left to lie fallow. Most egregiously, we still have a bill of costs that was identified as being seriously deficient many years ago.”

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Signature: Copied from another document

A personal injury lawyer who persuaded other employees to fake client signatures and lied about it in court has been struck off by the Solicitors Disciplinary Tribunal (SDT).

Lesley Dee Layton, based at Lance Mason Solicitors in Blackburn, also “directed the creation” of a claim form containing an accident date “which she knew to be untrue”.

Admitting all the allegations in an agreed outcome with the Solicitors Regulations Authority (SRA) and approved by the tribunal, Ms Layton said in mitigation that she had made “open and frank” admissions, “always co-operated” with the SRA and had a “previously unblemished career history”.

She went on: “I had always sought to uphold the rule of law and I am thoroughly embarrassed that it came to this”.

Ms Layton admitted that she had “caused to be created” two witness statements in which the signature of a client, referred to as GH, had been copied from another document.

She had been acting for GH in a personal injury claim and failed to obtain a signed witness statement from him by the deadline set by the court.

A few days later she “directed” an employee of the firm to copy GH’s signature from a different document onto a version of his witness statement, and emailed it to the solicitors for the defendants, BLM.

When BLM sent a letter saying that GH’s statement of truth “appeared to have been cut from another document and copied onto the statement”, Ms Layton created a second statement, directed another employee to fake GH’s signature, and sent it to the other side.

Responding to a request from BLM to see the original witness statement, Ms Layton “directed another individual” at the firm to “trace over the signatures” copied into her two witness statements with a ballpoint pen “in order to give the impression they were original signatures”.

GH’s claim was struck out in April 2015, but in a later statement for a costs hearing in September that year, Ms Layton claimed she had “acted appropriately and honestly throughout the matter”.

She insisted she had sent to BLM “what she thought were the original statements”, and could not explain the findings of an expert that “the signatures were copies which had been traced over with ballpoint pen”.

In a second matter, Ms Layton acted for KF in connection with a back injury he suffered working on a prison farm, but KF “could not recall the exact date on which the injury was sustained”.

By the time the three-year limitation deadline expired, in September 2015, Ms Layton had obtained a signed copy of the claim form, giving the accident date as “on or about the 24 September 2012”, but not the particulars of claim.

She sent a letter to the court on 29 September 2015, enclosing a claim form consisting of a second page signed and returned by KF in August and a first page which “she had directed the creation of”, and with a date for the accident of 30 September 2012.

Ms Layton admitted acting dishonestly by causing two versions of GH’s witness statement to be created into which signatures were copied, representing the statement as signed by GH and denying any wrongdoing, both to BLM and the court.

She also admitted acting dishonestly in respect of KF, by causing a claim form to be filed referring to an accident date which she did not believe to be correct and “which purported to have been signed by the client when she knew it had not”.

Ms Layton acknowledged that her actions led to the striking out of GH’s claim and had it been discovered by the court, there was a “high likelihood” that KF’s claim would have been struck out.

She agreed to be struck off of the roll and pay costs of £13,920.

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Singapore: predicted growth in arbitrations

Both Hong Kong and Singapore have moved to clarify the use of third-party funding in arbitration as the market continues to expand.

The Hong Kong Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 has been published to clarify that third-party funding is not prohibited by the common law doctrines of maintenance and champerty.

Meanwhile, the first edition of the Singapore International Arbitration Centre’s investment arbitration rules, in force from 1 January, enables the tribunal to order the disclosure of third-party funding arrangements, and to take such arrangements into account when apportioning costs. The Hong Kong rules make disclosure part of the process, although do not link funding to costs.

Steven Friel, chief executive of London-based Woodsford Litigation Funding, said Woodsford was looking forward to expanding into the two jurisdictions. “We foresee huge growth in third party funding of Hong Kong and Singapore-seated international arbitrations.”

He continued: “It is clear that each of Hong Kong and Singapore is in a rush to embrace third-party funding. The risk for those jurisdictions of failing to do so is that they might lose their positions as leading centres for international arbitration. Their competitors in places like London, Sydney and New York are gaining ground through the use of third party funding as a valid access to justice tool.

“The case of Essar v Norscot, where the English High Court upheld an ICC tribunal’s decision to order a losing defendant to pay the winning defendant’s funding costs, shows that third-party funding is now an established part of the law and practice of international arbitration.”

In Essar last October, the High Court ruled that a defendant whose conduct forced the claimant to seek third-party funding – from Woodsford – to take its case to arbitration, had to pay the £2m owed to the funder following the claim’s success.

Mr Friel said he was relaxed about disclosure of a funder’s involvement because it sends “a strong message that the claimant has financial backing to bring the case to trial”.

However, from the claimant’s perspective, he said “we are concerned that rules providing for disclosure of third-party funding arrangements will lead to mischief-making from defendants, who might seek to cause satellite disputes relating to funding.

“In England, for example in the case of Wall v RBS [2016] EWHC 2460, we have already seen issues relating to disclosure of third-party funding become a distraction from the core issues in dispute. Such a development would be unfortunate in international arbitration.”

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Norris: costs order must be “practically workable”

Judges should be content to do “broad justice” when making costs orders to avoid “complicated attempts” to attribute them between a number of cases, the High Court has ruled.

The ruling follows the success of Redstone Mortgages last October in two of four negligence test cases it brought in the against Home Counties law firm B Legal.

Mr Justice Norris said a costs order must do justice between the parties, but “the judge must be content to do broad justice if an attempt to do exact justice is likely to involve the parties and the costs judge in complicated attempts to attribute what are essentially common costs between different claims and different issues within those claims.

“That is particularly true where (as here) these were four separate sample actions directed to be tried together.”

Norris J went on: “Whilst of course one has to consider the order for costs on an issue by issue basis, one ultimately has to arrive at an order that fairly reflects the outcome, that is practically workable (bearing in mind the difficulties faced by skilled costs judges) and which does not commit or encourage the parties to indulge in expensive satellite costs litigation.

“My solution is not perfect, but its imperfections are no greater than the alternatives.”

Delivering judgment on costs in Redstone Mortgages v B Legal [2015] EWHC 745 (Ch), the judge said the general principles to be applied were not in doubt.

“First the court must decide whether to make an order about costs at all. Second, if the court decides to make an order about costs then it will in relation to each action seek to identify who is the successful party, in which event the general rule will be that the successful party is entitled to its costs.

“Third, before making such an order the court must, however, consider all the circumstances of the case, which might indicate a departure from the general rule.”

Norris J said the court was “not confined to considering the costs as a whole”, and may make an issues-based costs order, but in this case it must bear in mind that “almost invariably overall success involves losing on some issues”.

In the two of the four test cases which Redstone lost, Welch and Sher, the judge ordered that the lender should pay B Legal’s costs on the standard basis, together with a quarter of the “generic costs” of all the cases. He defined “generic costs” as costs incurred by B Legal which were not attributable to a particular case.

In the other two, Howard and McOwen, Norris J said Redstone established at the earlier, preliminary issues hearing that B Legal had failed in its duties to the lender, but causation and damages had still to be determined.

Rejecting arguments put forward by B Legal in a “35 page and 92 paragraph skeleton argument”, the judge ruled that Redstone’s costs in Howard and McOwen should be treated as claimant’s costs in the case. In each of them, a quarter of the generic costs should be added, and the parties should be free to apply to vary the order if a part 36 or other offer was made.

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HarmansOn 27th February, Elizabeth Truss announced her decision to lower the Discount Rate from 2.5% to minus 0.75% in accordance with the law and in her capacity as independent Lord Chancellor.

The new discount rate will come into effect on 20 March 2017, following amendments to current legislation.

The law makes clear that claimants must be treated as risk averse investors, reflecting the fact that they are financially dependent on the lump sum, often for long periods or the duration of their life.

Compensation awards using the rate should put the claimant in the same financial position had they not been injured, including loss of future earnings and care costs.

Lord Chancellor and Justice Secretary Elizabeth Truss said:

“The law is absolutely clear – as Lord Chancellor, I must make sure the right rate is set to compensate claimants.

I am clear that this is the only legally acceptable rate I can set.”

The Discount Rate had remained unchanged since 2001.

This decision, as well as seeing compensation payments rise, will have a significant impact on the insurance industry and a knock-on effect on public services with large personal injury liabilities – particularly the NHS.

But in the announcement to the London Stock Exchange, four key pledges were also made.

To read the Harmans Cost Brief in full click here.

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Euros: currency fluctuation not accounted for

The novel issue of recovering more in costs to reflect changes in the exchange rate between sterling and the euro since the referendum has come before the High Court again, but this time it was refused.

Mr Justice Coulson also made it clear that when calculating an interim payment on account of costs, the court’s starting point “will almost always be the payee’s approved costs budget”.

The defendant sought the extra costs following the recent decision of Mr Justice Arnold, in which he awarded a successful German claimant an extra £20,000 in costs to compensate for the impact of the falling value of sterling as it had to convert euros into pounds during the case to pay its solicitors.

In MacInnes v Gross [2017] EWHC 127 (QB), Coulson J said the circumstances here were different: Arnold J was dealing with a summary assessment where he had particular figures to consider, and evidence as to how those figures had arisen.

“I have neither: there is simply a claim that, to the extent that the first defendant has suffered such a loss, he is entitled to be compensated. I am instinctively reluctant to make such an open-ended order.”

He said he was also “uncomfortable” with the idea that an award of costs should be treated as an order for compensation, as if it were a claim for damages.

Coulson J continued: “I consider that there are inherent differences between the two regimes, and that orders for costs have never been regarded as compensating the payee for the actual costs that he has paid out. On the contrary, unless the payee has an order in his favour for indemnity costs, he will never recover the actual costs that he has incurred.”

Finally, he did not see the close analogy between ordering interest on costs, which was commonplace, and ordering exchange rate losses due to the particular time that the costs were paid, which was not.

“The paying party can work out in advance the additional risk created by the potential liability to pay interest on costs, but any potential liability to pay currency fluctuations is uncertain and wholly outside his control.

“Furthermore, it might be argued that the generous rate of interest on costs at 4% over base is designed to provide at least some protection to the payee against such events.”

He therefore refused the application to recover any further sums by way of currency fluctuations on costs.

On the interim payment on account of costs, Gavin Mansfield QC, for the claimant, argued that when the costs were assessed by the costs judge, that assessment would “start from scratch”.

He also said that in any event the defendant had incurred considerably more than £570,000 in his approved costs budget – its costs were said to have reached £956,279.

Coulson J rejected these submissions. “One of the main benefits to be gained from the increased work for the parties (and the court) in undertaking the detailed costs management exercise at the outset of the case is the fact that, at its conclusion, there will be a large amount of certainty as to what the likely costs recovery will be.

“One consequence is that, for the purposes of calculating the interim payment on account of costs, the starting point will almost always be the payee’s approved costs budget. Another consequence is that the court assessing the interim payment can ignore the fact that, as here, there may have been significant expenditure on costs by the payee above the budget figure: any increase is a matter for the costs judge and the relatively onerous burden of recovering more than the budget figure is on the payee.

“So when making an interim payment on account of costs in a case with an approved costs budget, the days of the educated guesswork identified by Jacob J in Mars UK Limited v TeKnowledge Limited [1999] 2 Costs LR 44 are now gone.

“Instead the court can be confident that there is a figure for costs which, because it has already been approved, is both reasonable and proportionate.”

In calculating the figure, the judge reduced the £570,000 by 10% – “which I regard as the maximum deduction that is appropriate in a case where there is an approved costs budget” – and then added back £15,000 to reflect the interest on costs he had awarded. That produced an interim payment on account of costs figure of £528,000.

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Rowles-Davies: minimal due diligence

Rowles-Davies: minimal due diligence

Third-party funder Burford Capital has turned its attention to the SME market by launching a funding option for claimants pursuing cases valued between £25,000 and £500,000.

Primarily aimed at disbursement funding, its ‘Sprint’ product will be marketed and administered exclusively by broker The Judge.

The “straightforward” criteria for the non-recourse funding are a damages to budget ratio of at least 4:1, approved after-the-event (ATE) insurance for the sums funded in place, and sufficient adverse costs cover in place.

Burford’s UK managing director, Nick Rowles-Davies, told Litigation Futures that Sprint is based on the company’s experience of ATE, rather than traditional third-party funding principles.

“The product came about because of issues raised in the market over how traditional funding is difficult and unwieldy when dealing with lower-value cases,” he explained.

In particular, the due diligence process took too long, the pricing process was too lengthy, the pricing was too high and “the experience from start to finish was unwieldy and painfully slow”.

Mr Rowles-Davies said: “We operate minimal due diligence. We simply check the costs to damages ratios and sense check the proposal to ensure it meets our criteria. We do not spend months on due diligence or seek extensive exclusivity periods. That does not work with these cases.

“A prerequisite for Sprint is an acceptable ATE policy. We rely primarily on the underwriting carried out by the ATE insurer. These underwriters have very good historic performance and we do not need to second guess them. Accordingly, with ATE in place, the process from application to receipt of funds can be only a few days.”

The pricing is from a rate card and is time based, so the quicker the case ends, the lower the cost, starting from around half of the money borrowed to 1.5x.

Mr Rowles-Davies described Sprint as “a simple product which fills a gap in the market where there is a significant need”. A short three-week trial had generated dozens of inquiries, he said, including a number of cases where clients need extra funds to cover experts or counsel trial costs.

He added that it would help with those cases that do not secure ATE because the insurer is unconvinced that the client will have the money to fund the disbursements.

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DASLawAssist 200On 17 December Lord Faulks outlined that as of 1 April 2016 the recoverability of success fees and ATE premiums in insolvency cases will cease.

With only a few weeks to go, it is imperative that insolvency solicitors act now to avoid missing the cut off for recoverability in insolvency matters.

Katherine Hemsley, commercial risks development manager of DAS LawAssist comments – “If you are an insolvency solicitor and you have an insolvency case which requires ATE cover then we strongly urge you to submit this to us by Friday 11 March.

“Due to the complexities of assessing these types of cases it can take up to 10 working days to obtain an offer of insurance. Therefore if a case is received later than 11th March, we will be unable to guarantee a response before the rules on recoverability change on 1 April.“

Further information on submitting your claims can be found here:

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Gower: Geography is no barrier to using the very best legal software solutions

Brisbane law firm, Davis Lawyers, is implementing the Proclaim Conveyancing Case Management solution from Eclipse Legal Systems.

As part of a strong multi-disciplinary offering, niche practice Davis Lawyers provides property services for both commercial and private clients.  To cater for a prolonged upturn – and positive forecasts – in conveyancing transactions, Davis Lawyers conducted research into available process management software solutions.  The practice adopted a global search, not restricted to Australian vendors, and following in-depth analysis selected Eclipse’s Proclaim system.

Eclipse is implementing the Proclaim Cloud solution for Davis Lawyers – providing browser-based access to the full suite of Proclaim functionality regardless of physical location.  In addition, Davis Lawyers will be provided with Proclaim’s configuration toolset, to enable the practice to build the Queensland Conveyancing Protocol into the Proclaim workflow.

James Ford at Davis Lawyers comments:

“As a practice we are keen to adopt the best technologies to enable us to streamline activities and improve the all-important client experience.  Eclipse’s Proclaim solution stood out to us as offering a core flexibility that would allow us to shape our services around ever-changing client and business partner requirements.”

Darren Gower, Marketing Director at Eclipse, comments:

“We are delighted to welcome Davis Lawyers onboard.  Our presence outside of the UK is gathering pace and we are cementing the ethos that geography is no barrier to using the very best legal software solutions.”



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Sims: With the legal services sector becoming increasingly competitive, it is essential for us to stay ahead of the game

Eclipse’s Proclaim Practice Management solution selected in six-figure deal

Leading Essex law firm, Mullis & Peake LLP, has implemented the Proclaim Practice Management Software Solution from Eclipse Legal Systems.

Established in Romford, Essex, over 100 years ago Mullis & Peake LLP has grown into one of the area’s largest and most respected law firms employing over 50 staff. Providing a full range of legal services to both private and corporate clients, the firm boasts an enviable reputation for high quality legal advice at cost effective rates. To further strengthen this position, Mullis & Peake LLP is implementing the Proclaim Practice Management Solution firm-wide for all users.

The Proclaim Solution will be utilised across all work areas including commercial, property, elderly client, family, court of protection and employment. The personal injury team will adopt Proclaim’s direct integration with the RTA (Road Traffic Accident) Portal.

As an integral part of the core Proclaim solution, Mullis & Peake LLP will also be taking the Proclaim New Business Enquiries and Compliance toolsets to provide seamless marketing, file opening, and ongoing adherence to SRA regulations. Prior to implementation of the Proclaim Credit Control Centre, Eclipse will conduct a data conversion from the firm’s incumbent financial management system. Mullis & Peake LLP is also to benefit from seamless digital dictation functionality courtesy of Proclaim’s BigHand integration tool.

Nick Sims, IT Manager at Mullis & Peake LLP, comments:

“With the legal services sector becoming increasingly competitive, it is essential for us to stay ahead of the game and cement our proud reputation for superb client service by investing in technology. Proclaim, with its array of integrated client-centric toolsets, is the perfect platform for us to achieve this.”



The misleading claims behind the campaign to lower the discount rate

Matthew Best Temple Legal Protection

A coalition of organisations which represent the NHS and health professionals has made strong claims in a letter to justice secretary David Gauke that the legal costs of clinical negligence claims are crippling the NHS. Similar comments were made by the National Audit Office (NAO) in September last year and yet the case doesn’t hold water. The letter was signed by the NHS Confederation, Academy of Medical Royal Colleges, British Medical Association, Family Doctors Association, Medical Protection Society, Medical Defence Union and the Medical and Dental Defence Union of Scotland.

February 9th, 2018