Search Results for

Email us

About us:

Tesco: claim to be launched in next six months

Recently launched third-party funder Bentham Europe is to back legal action on behalf of shareholders against Tesco over the recent revelations that it overstated its earnings.

The claim, being run by London litigation boutique Stewarts Law, will seek to establish that shareholders are entitled to compensation for losses caused by Tesco’s alleged breaches of the Financial Services & Markets Act.

On 23 October 2014, Tesco announced that recent profit overstatements totalled £263m, which wiped over £2bn from its share price. The supermarket further downgraded its expected profits for the current financial year significantly and reported a fall of 92% in pre-tax profits.

The action will claim that Tesco has made misleading statements and omissions to the market in relation to its profits for recent financial periods.

This alleged conduct has resulted in, amongst other things, the ongoing suspension of senior Tesco executives and investigations by lawyers, a forensic accounting firm, the Financial Conduct Authority and now the Serious Fraud Office.

Sean Upson, a partner at Stewarts Law, said: “We expect to issue proceedings against Tesco in the High Court in London within six months. We do not intend to wait for the outcome of the SFO investigation, which may take some years.”

All current and former shareholders who acquired at least 10,000 Tesco shares during the period 17 April 2013 to 22 October 2014, and who had not sold all of those shares prior to the market announcements made by Tesco on 29 August, 22 September or 23 October 2014, are eligible to participate in the proposed action.

Bentham Europe opened for business in London earlier this year. It is a joint venture between listed Australian funder IMF Bentham and subsidiary entities of funds managed by Elliott Management Corporation, which have billions of US dollars under management globally. It is a wholly owned subsidiary of Bentham Ventures BV.

John Walker, the managing director of Bentham Europe, said: “The overstatement of earnings has caused significant harm to Tesco’s shareholders who bought shares since 17 April 2013. Shareholders are justifiably concerned that Tesco has misrepresented its earnings resulting in material losses.

“We expect the legal claim to reveal the true extent of the problem and allow shareholders to seek compensation for harm suffered”.

He said that in order for the claim to proceed, a “sufficient number” of shareholders will need to join the action.

Email us

About us:

VW emissions: firms working together to bring claim

London law firm Harcus Sinclair – acting under a damages-based agreement and supported by Slater & Gordon – has secured third-party litigation funding to start the first group litigation arising from the Volkswagen emissions scandal.

It has linked up with Therium Capital Management in applying for a group litigation order in claims against VW, Audi, SEAT and Skoda, representing 1.2m cars.

Harcus Sinclair will be the lead solicitor on the record but is working together with Slater & Gordon “to ensure the best possible outcome for as many affected vehicle owners as possible”.

The website created for vehicle owners to join the action said that while US claimants received an average $8,000 before costs (£6,588), “damages payments in the UK are likely to be more modest”.

It said that under the litigation funding agreement, Therium would pay any up-front insurance premiums, pay the disbursements associated with the case, pay the fees due to Slater & Gordon under its conditional fee agreement, and provide working capital support to make it possible for Harcus Sinclair to “sustain” its damages-based agreement.

“Provided that the compensation received is enough to give [Therium] more than a return of three times what they have risked, together with the return of their capital, the overall fee that will be taken from your compensation is 30%. The cost of distributing the settlement fund will be in addition to that fee.”

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

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

Damon Parker, head of litigation at Harcus Sinclair, said: “We have paved the way for consumers who trusted but were let down by VW, Audi, Seat and Skoda to seek redress through our courts. It is only right that UK car owners affected by the scandal have the opportunity to seek compensation.

“We have secured funding so that those affected can bring this claim against VW at no cost to themselves. The group action aims to ensure that, if VW is found to have misled consumers about the environmental damage caused by their cars, they are penalised accordingly so as to discourage this sort of behaviour from happening again.”

Jacqueline Young, head of group litigation at Slater & Gordon, added: “VW has shown utter contempt, not just for the rights and health of their UK consumers but also for the environment. This legal action is the best opportunity that British customers will have for holding VW to account over this scandal.”

The application for the group litigation order will be heard in the High Court on 30 January.

Harcus Sinclair has instructed Oliver Campbell QC, Adam Heppinstall and Nazeer Chowdhury of Henderson Chambers to deal with the substantive claim. Greg Treverton-Jones QC of 39 Essex Street is advising on “the propriety of the group arrangements” – the website said he has “blessed” all of the documents claimants agree to before being able to join the claim.

Finally, Alex Hutton QC of Hailsham Chambers has been instructed to advise on the funding arrangements and to ensure that the claimants’ financial interests are protected.

Email us

About us:
Steve Rowley

Steve Rowley, Business Development Manager, Allianz Legal Protection

Allianz Legal Protection (ALP) has launched a new partnership with leading South West law firm Tozers Solicitors LLP.  ALP will provide After the Event (ATE) insurance on a range of personal injury and clinical negligence case types to protect customers against the disbursement and adverse cost risks associated with litigation.ALP’s Equity ATE insurance product will provide Tozers’ clients with financial protection against defendant costs and for any unrecovered disbursements incurred during the claim. This will include expert reports, counsel fees and court issue charges in the event that the case loses or is discontinued.

A key feature of the ATE arrangement is the damages based pricing structure which will help ensure that premiums remain proportionate. Full delegated authority is also provided. This will allow Tozers to quote and provide cover for clinical negligence and personal injury claims regardless of the damages value being claimed.

Allianz Legal Protection’s business development manager, Steve Rowley, commented: “Tozers are recognised experts for handling clinical negligence cases with a strong regional presence in the South West. This expertise was evident when we were discussing their needs for ATE insurance, and I’m delighted that ALP has been chosen as their preferred ATE insurer”.

Stuart Bramley, co-head of clinical negligence at Tozers LLP added: “The Clinical Negligence and Injury team at Tozers are very pleased to be working in partnership with Allianz, giving our client base the option of complete protection against defendant costs. We look forward to this arrangement benefitting our injured clients as we work to secure justice and redress for those harmed by medical accidents.”

Email us

About us:
Supreme Court

Supreme Court: Coventry set for 9 February

The president of the Supreme Court, Lord Neuberger, and Lord Dyson, the Master of the Rolls, will head a seven-judge panel for the eagerly awaited Coventry costs hearing on 9 February, it has been announced.

The Supreme Court has scheduled two and a half days for the case, which raises the issue of whether the pre-Jackson conditional fee regime breached the European Convention on Human Rights.

Supreme Court panels are usually made up of five justices, so the larger panel indicates the importance attached to the case, as does the inclusion of Lord Dyson, who stepped down from the Supreme Court after his appointment as Master of the Rolls in 2012.

The other five judges are Lady Hale, deputy president of the Supreme Court, Lord Clarke, a former Master of the Rolls, and Lords Mance, Carnwath and Sumption.

The court will consider later this month the written applications made by seven organisations which have applied to intervene in Coventry v Lawrence, including the Ministry of Justice, Law Society and Bar Council.

In other cases of note before the Supreme Court this term, on 19 January, it will hear on an expedited basis the unusual case of OPO v MLA. Lord Neuberger and Lady Hale will be joined by Lords Clarke, Wilson and Toulson.

Lord Justice Jackson joined two other Court of Appeal judges in October last year in a ruling that publication of a book detailing a father’s sexual abuse at school could amount to deliberately causing psychological harm to his son under the principles set out in an “obscure tort”.

The court’s decision to allow the boy’s appeal against the rejection of his application for an injunction was based on the principles set out in Wilkinson v Downton, which provides a remedy for the deliberate infliction of psychological harm by intentional statement.

One of the most complex commercial cases of recent years, JSC BTA Bank v Ablyazov, is set to be heard by the Supreme Court on 16 March.

The JTA BTA Bank, based in Kazakhstan, accuses Mr Ablyazov, its former chairman, and others of defrauding it of over $6bn.

Mr Ablyazov instructed Clyde & Co to defend him against the bank’s claims in 2009. The law firm was later replaced by Stephenson Harwood and then by Addleshaw Goddard.

Lord Neuberger and Lords Clarke, Mance, Hodge and Kerr will hear the case.

Email us

About us:

Chancery master: serious and significant breach

The High Court has rejected an application for relief from sanctions from claimants found to be in “serious and substantial” default by serving their particulars of claims three months late.

Edward Cousins, Deputy Chancery Master, said Alan Ward and Chelsea Bridge Apartments had provided “inadequate reason for the breaches” and described the merits of the claimants’ case, as, “at the highest scanty”.

In Chelsea Bridge Apartments and Alan Ward v Old Street Homes and Donnellan, Deputy Master Cousins said the breach met the first stage of the Denton test in that it was a “serious and significant failure”.

Moving to the second stage, he said their failure to appreciate the requirement to serve the particulars of claim “by a certain date, or at all, is not a good reason”.

He added: “I further find that it is not a good reason to assert that the claimants’ solicitors were under pressure at the time in the conduct of the case on behalf of their clients.

“In any event, as has been submitted on behalf of the defendants, there does not appear to have been any particularly onerous or unusual aspects to the case.”

As to the final stage of the test, Deputy Master Cousins found that the claimants were not conducting the litigation efficiently or at proportionate cost.

The judge said: “I agree with the submissions made on behalf of the defendants that it was the claimants who embarked upon this litigation and chose to do so with an ill-thought-out and precipitate application on a without-notice basis, attempting to seek a freezing order, which was then not granted.

“The poorly drafted claim form was issued and served pursuant to the claimants’ undertaking to the court to do so, and then the claimants immediately sought a stay. They then apparently refused to mediate.

“There has been substantial disruption in the progress of the action as a direct result of the claimants’ lack of action.”

He added that on the case as presented to date, the claimants could not be said to have a reasonably good prospect of success.


Email us

About us:

Can you organise and search these in the next couple of hours, Ms Smith?

Posted by Steven England of Litigation Futures sponsor K2 Legal Support

There is much discussion on these and other pages about the problems caused by electronic data and how to manage reviewing it. Actually, the software developers have already solved many of these problems but many people are still unaware of this or unwilling to suggest contemporaneous solutions at the case management conference for fear of being embarrassed by getting it wrong.

Recently I received a call from a frustrated secretary working in the dispute resolution department of a national firm. She had been given the unenviable task of indexing around 16,000 electronic documents provided in no particular order on a portable hard drive. The documents were named by number only and, though an index was supplied, it wasn’t possible to cross-reference it with the document names, rendering it largely useless.

The proposal put to the secretary was that she open each document individually and create a meaningful index by transcribing the information contained within on to a spread sheet. If we assume optimistically that this process would have taken three minutes per document, and further that, even more optimistically, the secretary in question worked on it full time and did not get interrupted, she would have completed this task in around 450 hours – or nine weeks. At what cost to the client or the sanity of the secretary?

In this instance, as is invariably the case, there was a simple solution. The correct application of technology meant that for less than £500 I was able to provide an index using information extracted directly from the electronic files themselves.

Once the secretary has had time to review the index I supplied, she might start thinking about the next step. Some 16,000 documents is a relatively small data set but it still amounts to around 140,000 pages of material to be reviewed.

If everything were printed, this would amount to approximately 300 lever-arch files of paper; however, once again the secretary and her colleagues would be faced with the prospect of having to read all of this material. It could be made as easy as possible – by printing everything in chronological order, for example. Also the files would be labelled in such a way as to be easily identifiable, but this is only an aid. It does nothing to avoid the laborious and repetitive process of manually trawling through this coarse unfiltered material. Nor would it remove the likelihood of inadvertently reviewing the same document twice.

The alternative is to review the documents in their native electronic format, but what are the advantages of doing so?

When a document is printed:

  1. All of the embedded information that it contains is lost. This information is called metadata. Metadata (data about data) is information within a document about that document (when it was created, who created it, if there are any other documents embedded within it – e-mail attachments for example – and a whole host of other information).
  2. The ability to search the text of the document to find specific words is lost. Reviewing the document in its original native format means that you keep all of this and can use it to assist your review.

The ability to ‘search’ for keywords is only the start – with larger volumes of material it is possible to use assisted review techniques where the computer develops an ‘understanding’ of the content of documents by looking at the words in their overall context.

The idea is to look for relationships between words and groups of words within the wider context of a document and in so doing produce groups of documents that are contextually similar – albeit they may not necessarily contain exactly the same words. The documents are then ‘ranked’ according to their relevance as determined by the software, depending on the tool you chose this will either be binary (Yes/No) or sliding scale (% relevance). Documents can then be reviewed and disclosed as appropriate, but based on a smaller sample of the data.

Application of the correct technology (not just technology for technology’s sake) will not only avoid the time-consuming and unnecessary task of indexing electronic documents, but it will also enable you to become (even!) more efficient and therefore provide a better service to your clients.

Often, when faced with a choice between reviewing documents electronically or printing them, lawyers will predictably favour the option which is more expensive, less efficient and less reliable – paper.

Next time you are asked, or asking someone, to undertake any manual process involving electronic documents, please ask yourself if technology could achieve the same result faster and more cheaply through utilising metadata that already exists within the documents.

Email us

About us:

Anstee: merchant bank ambition

Third-party litigation funder Therium has increased its available funding to £30m, with a further £10m agreed in principle, its owner revealed yesterday.

However, posting its preliminary annual results, the City of London Group plc (COLG) said “the disappointment during the year has been the lack of legal case determinations in Therium and therefore the absence of any performance fees”.

This meant that Therium only generated £258,000 in revenue in the year to 31 March, leading to a pre-tax loss of £685,000, similar to the year before.

Chief executive Eric Anstee said Therium saw “a hectic last quarter of the financial year to March 2013. In each financial year since launch, Therium has received increased numbers of cases to fund. We expect this trend to continue”.

The activity this year was, unsurprisingly, driven by the introduction of the Jackson reforms on 1 April. “Therium was exceptionally busy in the first quarter of 2013 closing applications for litigation funding as law firms sought to file claims before 1 April so that their rights to recovery of fees under CFAs and their clients’ right to recover insurance premiums were covered by the old regime,” the COLG statement to the Stock Exchange said.

Therium has unveiled two new injections of capital in recent months. In March, it announced the successful closing of a £7.2m litigation fund, Therium Jersey Limited, established under the Jersey Expert Fund regime. Investors were a mix of new institutional and high net-worth investors alongside a number of investors from Therium’s prior funds.

As at the closing of the fund, five investments recommended by Therium – as its exclusive investment adviser – were approved for funding by the board of directors of Therium Jersey Limited.

Then in May Therium was appointed to advise exclusively a newly launched litigation fund that has raised £5.6m.

Mr Anstee said: “I am now confident that we have built solid foundations for the future expansion of the group into a merchant bank with three major segments: SME lending, asset management, and trade finance.”

Email us

About us:

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

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

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

Email us

About us:
Sugarman: fixed-fee system for cases up to £25,000 could be workable

Sugarman: fixed-fee system for cases up to £25,000 could be workable

The Department of Health (DoH) is set to rein in its plans for fixed recoverable costs in clinical negligence cases and introduce them just for claims worth up to just £25,000, it emerged today.

The move, if confirmed, would represent a major rethink since the policy was first announced in August 2015, when the limit was going to be cases worth at least £100,000 and maybe as much as £250,000.

Minutes of the Civil Procedure Rule Committee’s July meeting, distributed today, recorded: “Amanda Stevens, chair of the [CPRC] sub-committee, reported that there had been a change in policy at the Department of Health and that they intended to consult in respect of claims up to £25,000, which comprised approximately 60% of clinical negligence claims.

“The material worked up by the subcommittee on a draft protocol and illustrative rules would be amended accordingly. The date of publication of the consultation was unknown.” This remains the case, although it is thought to be imminent.

The DoH had no comment ahead of publication of the consultation, which will include a question about what the threshold should be. Once the consultation is complete, it intends to implement the changes as soon as possible.

If £25,000 is the limit, the shift in government policy would represent a major lobbying victory for the Association of Personal Injury Lawyers (APIL), the Society of Clinical Injury Lawyers (SCIL), the Law Society and the charity Action against Medical Accidents, which have been working together to develop a scheme for fixed costs for claims up to that amount.

APIL president Neil Sugarman said “it would show that the government has listened to arguments that a quarter of a million pounds is not a low-value case, and that cases of such magnitude do not suit a fixed process”.

He continued: “A fixed-fee system for cases up to £25,000, however, could be workable. The fees would have to be fixed at a level which makes the work viable, and the process itself must also be fixed.

“Other conditions, such as admission of liability and requirement of just one medical report would need to be met for such a scheme to be effective. This would give the Department of Health the opportunity to reduce costs for the NHSLA, control defendant behaviour and secure representation for injured patients by specialist lawyers at a fair rate of pay.”

SCIL chairman Stephen Webber said: “We welcome the apparent change in the value of claims that will be covered by fixed recoverable costs but we need to see the scheme to ensure that it allows injured patients to obtain justice.

“It is essential any scheme excludes or has appropriate provision to deal with very serious cases that may have limited financial value, such as fatal cases involving the young and the elderly including representation at inquests.”

Nina Ali, clinical negligence partner at London firm Hodge Jones & Allen, said this would be “a welcome change of policy”.

She added: “However, unless there is a proper and effective consultation and ultimately acceptance that there are a number of case types that must be made exceptions of, this change of policy and playing with numbers is meaningless.

“In order to ensure that that some semblance of justice in the absence of legal aid for any case other than a birth injury prevails, exceptions must include, fatal cases, cases with human rights issues, cases that concern the vulnerable in society such as the elderly and people with learning disabilities.”

The news has come on the same day that the DoH announced plans to consult on a new rapid resolution and redress (RRR) scheme for maternity-related clinical negligence claims.

Forming part of a wider action plan to improve maternity safety, in cases of “avoidable” harm it would offer “timely access to financial support without the current obligation on families to launch a formal legal process”. At present, the average time families have to wait for resolution of a case is 11.5 years.

Families eligible for the RRR scheme would be given the option to join an alternative system of compensation that offers support and regular payments without the need to bring a claim through the courts, and the scheme would ensure families receive personalised support including counselling, case management and legal advice.

Health secretary Jeremy Hunt said: “Even though we have made much progress, our stillbirth rates are still amongst the highest in Western Europe and many on the frontline say there is still too much of a blame culture when things go wrong – often caused by fear of litigation or worry about damage to reputation and careers.

“These comprehensive measures will give practical support to help trusts improve their approach to safety – and help to foster an open and transparent culture so that the courts become a last resort not an automatic first step.”

Mr Sugarman said: “Compensation for these catastrophic injuries has a very clear purpose and, in these cases in particular, it is critical that the right amount of compensation is made available to injured children to ensure they receive the care they desperately need.

“We have yet to see the details of the consultation, but we will be reminding the Department of Health that children suffering cerebral palsy and brain damage at birth need round-the-clock medical care, specialist equipment and support for the rest of their lives.

“The fact that the number of claims for these injuries has barely changed in the past 10 years is a national scandal, and we welcome any attempt to improve this situation and the legal process which families have to navigate. But not at any price.”

Email us

About us:

Bogart: increased activity throughout the business

Burford Capital – the leading third-party funder and after-the-event (ATE) insurer – yesterday unveiled a 25% increase in profits before tax for 2013, after recording significant increases in income on both sides of the business.

The company’s £36m turnover was made up of £23m from funding (up 20%) and £13m from ATE (up 29%). Less operating expenses, profit before tax hit £26m. It has increased dividend payouts by 10%.

Burford is currently invested in 35 matters, with a commitment of £159m, having put in £37m during 2013.

Since its inception in 2009, 25 cases have concluded, generating £88m in gross investment recoveries and £30m net of invested capital – meaning a 52% net return on invested capital.

The company’s annual report said the past year saw “continued acceptance and adoption of litigation finance”.

It continued: “Burford’s annual survey showed sharp increases in lawyers’ views of litigation finance as a useful tool, along with an even more dramatic uptick in the views of corporate CFOs favouring its use. Investors are similarly enthusiastic, with hundreds of millions of dollars in new capital entering the asset class – which is a necessary part of continuing the establishment of litigation finance as a normal, mainstream part of litigation.

“Burford’s returns, high and uncorrelated, have delivered on our initial aspirations and have also served to fuel the overall growth of the market.”

The pre-Jackson ‘bubble’ in the first quarter of 2013 meant Burford wrote ATE with around £180m of exposure, more than the previous two years combined.

While the annual report said it was too soon to make any predictions for the future of ATE, “the significant tail of business written during and before 2013 in this business positions it for several years of sustained profitability while we wait for the market to stabilise”.

Chief executive Christopher Bogart said: “2013 was another year of successful progress for Burford, which saw continued significant growth in our income and profits from both the litigation investment and insurance businesses, and increased activity throughout the business. We are excited to be at the forefront of this rapidly maturing and evolving industry.”

Email us

About us:

Hale: women bring different perspective to bench

There is a powerful case for increasing the number of women in the senior judiciary, including the particular perspective they bring to judgments, according to Baroness Hale, the Deputy President of the Supreme Court.

In a speech last week to the Law Society’s women lawyers’ division, given in honour of the former Chancery Lane president and current Lord Mayor of London, Fiona Woolf, the judge tackled head on opposition to positive discrimination, and listed steps she believed could lead to greater diversity on the bench.

The speech was made on the eve of the application – from 1 July – by the Judicial Appointments Commission of the Equality Act’s equal merits provision, which was made possible by an amendment last year to the Constitutional Reform Act 2005. It means that where two candidates for judicial office are considered to be of equal merit, the one who can improve the diversity of the judiciary can be chosen.

She observed that in 2013, fewer than a quarter of all judges in England and Wales were women. Although 40% of tribunal judges were women, the higher up the judiciary, the worse were the figures: only 16.7% of the High Court, and 11.4% of the Court of Appeal. She was the only female member of the Supreme Court.

Lady Hale described the situation as “out of step with the rest of the world”. The average gender split across judiciaries in Council of Europe countries was 52% men to 48% women. Diversity in the judiciary was a matter of democratic legitimacy and would enhance the public’s confidence in the legal system, she argued: “The public should be able to feel that the courts are their courts; that their cases are being decided and the law is being made by people like them, and not by some alien beings from another planet.”

Although she did not advocate positive discrimination herself, Lady Hale countered the argument put by her Supreme Court colleague, Lord Sumption, that it would dilute the quality of the bench by deterring the best candidates – both male and female – from applying.

“I tend to think that the judiciary would be better off without prima donnas who might not apply for such reasons,” she said, adding: “Of course we all want to be appointed on our own merits and not to make up a quota. But… having applied they should be happy to get it and give it their best shot irrespective of why they were appointed.”

She also rejected what she said was Lord Sumption’s argument that diverse courts were not better courts because they could draw on a diversity of experience, and that advances in anti-discrimination laws had been made by courts composed of white males. “That is, of course, true, if only because for the most part there were no other sorts of court,” she pointed out.

There was a “business case” for diversity, she said, admitting that she had not always agreed that women judges would make a difference. “But I have come to agree with those great women judges who think that sometimes, on occasions, we may make a difference”, she said, pointing to judgments where her gender had “made a difference to my view of the law”, such as “the nature of the damage done to a woman by an unwanted pregnancy” and “the definition of violence to include more than simply hitting people”

She observed that the male Supreme Court fitted “the stereotypical pattern of boys’ boarding school, Oxbridge college and the Inns of Court”, adding that: “All but two went to independent fee-paying schools. All went to single sex boys’ schools, all but three to boys’ boarding schools” and that “most specialised in commercial, property or planning law rather than what [Baroness] Helena Kennedy calls ‘poor folks’ law”.

She was not criticising these judges for their good fortune or success, she insisted, but suggested their educational background “brings advantages in other ways, in who you know as well as what you know, and this can smooth your path and open doors which might remain closed to others who do not have the same contacts”.

She acknowledged that the replacement of the old ‘tap on the shoulder’ system of appointing judges with applications had brought benefits, but said it was only “part of the story”. The workings of the main branches of the legal profession made it difficult for women to enter their upper reaches. The divided profession, was “one of the main reasons for the continuing lack of diversity in the higher judiciary”, she said.

The argument that top barristers were selected to be top judges because they were the best qualified for the job was an assumption “I am simply not prepared to make” and was “self-seeking and implausible”. She criticised the “lack of a proper judicial career structure”.

Lady Hale sad her solution was to tackle each of the obstacles to appointing women judges, including: “Widening recruitment to the legal profession; broadening the pool from which candidates at all levels are recruited… abandoning traditional stereotypes about who gets what sort of job; recruiting for legal ability, personal qualities and potential, rather than current experience; actively encouraging and supporting able but unusual candidates to apply; and creating a proper judicial career structure which enables judges with the potential to move onwards and upwards.”

The recipe for change was “affirmative action” but stopped short of “positive discrimination”. She agreed with those who were sceptical the equal merits provision would achieve success, because assessing comparative merit was “an inherently subjective exercise”, concluding: “There is so much room for variation in choosing, assessing and then weighting the various parameters involved in merit.”

Last week, the President of the Supreme Court, Lord Neuberger, said of diversity in the judiciary: “It is taking more time than anyone would like but if you look at appointments to the High Court in England and Wales over the past five years they are improving, but improving slowly.”

Email us

About us:

Heaton: Bearing down on the costs incentives on solicitors

The government has accepted Lord Justice Jackson’s recommendation that the Civil Justice Council (CJC) be tasked with negotiating a new bespoke process and fixed costs regime for low-value clinical negligence claims, it emerged yesterday.

The Department of Health first started considering fixed costs in clinical negligence in the summer of 2015 and earlier this year scaled back its ambition to capture cases worth up to £250,000 to a threshold of just £25,000.

Richard Heaton, permanent secretary of the Ministry of Justice, told MPs on the public accounts committee that “the more that we can make costs foreseeable, clear and proportionate, the more we will bear down on the costs incentives on solicitors to bring cases of this sort”.

Mr Heaton was giving evidence to the committee on managing the costs of clinical negligence in NHS trusts.

He said “the traditional view has always been that that’s been too difficult in this area because it is too complicated, you’ve got lots of experts, and a grid of fixed costs is just not going to work. And that was the sort of response my department and [the Department of Health] received to the consultation we worked on earlier this year.

“The Civil Justice Council said it’s too rough and ready, it’s going to get in the way of access to justice.

“Instead Lord Justice Jackson [in his report in July] said, ‘Why don’t you try cracking the process for these claims and make that more streamlined? If you can do that, then it’s fair enough to put a fixed recoverable costs regime on that’…

“That is a recommendation that I’m pleased to say that ministers have accepted and that’s what we’re going to do.”

Jackson LJ said in his report of extending fixed recoverable costs that the scheme would capture most clinical negligence claims.

“Previous experience (for example, with noise induced hearing loss claims) shows that it is possible for the ‘industry’ to come together and develop such schemes,” he wrote. “There is sufficient good will on both sides to achieve that in the field of clinical negligence.”

Speaking more broadly, Mr Heaton said there were signs that the “high water mark” of claims has passed thanks to the 2013 civil litigation reforms.

“The next big thing we can do – and my department cares a great deal about costs across the board and disproportionate costs really impede to access to justice – is to try and extend fixed recoverable costs to as many areas of civil litigation as possible.”

There was also discussion of ADR in the session, with Helen Vernon, chief executive of NHS Resolution, saying that some claimant lawyers were resisting the push for greater use of mediation.

She said that 71 cases have been mediated since NHSR put in place its mediation panel last December.

“Of course they want to take full-blown litigation to court because they can increase their fees by doing so,” said committee member and Conservative MP Geoffrey Clifton-Brown.

Mr Heaton said: “I don’t think ADR is working very well in civil litigation at the moment.”

Email us

About us:

John M HayesThe Supreme Court has allowed the recovery of a pre-LASPO success fee and after-the-event (ATE) premium where the conditional fee agreement (CFA) and insurance had to be extended after 1 April 2013 to cover appeals.  A copy of the Judgement on Plevin v Paragon Personal Finance Ltd [2017] UKSC 23, can be found here. It is a significant ruling on LASPO’s transitional provisions although it seems that both parties had accepted that the CFA could be validly assigned from the outset and it was just the validity of that assignment that formed the subject of the technical challenge.

Christopher McClure, Regional Manager at John M Hayes Manchester Office (who has written previously on the complex issue of assignment of CFAs), says that this decision will be “welcome news to receiving parties who, having taken out an ATE premium pre-LASPO, can now authoritatively seek to recover any post-LASPO ATE ‘top up’ from an unsuccessful opponent.”

Marc Banyard Costs Lawyer at our John M Hayes Cardiff office is less enthusiastic suggesting a “disappointing missed opportunity” to finally put the “hot potato” of CFA assignment to bed.

“We might infer from their Lordships’ apparent short shrift with the argument that was taken and the fact that the Appellant’s legal team accepted that the CFA can be validly assigned in principle that the writing is on the wall for paying parties who look to exploit this technical argument.

Interestingly their Lordships (Lord Hodge dissenting) upheld recovery of both the success fee and ATE top-up where pre-LASPO funding arrangements had been extended to cover post-LASPO appeal proceedings.  Even Lord Hodge accepted the sense of a transitional provision that so allowed whilst finding himself unable to read such a thing into the words utilised by Parliament.”

Related Posts from Christopher McClure

1. The Assignment of Conditional Fee Agreements

2. Seconds Out Round Two

3.  Another Twist in the Yellow Brick

Christopher McClure is Regional Manager at Manchester Office and is frequently instructed by clients to advise in relation to technical costs queries and regularly undertakes work in relation to the assignment of CFAs, QOCS, the various Portals and costs budgeting. Christopher delivers internal and external training and is a seasoned advocate who possesses a sound working knowledge of the Civil Procedure Rules. His advocacy experience extends to both costs-related advocacy (including hearings at the SCCO) and civil matters generally. Christopher is a contributor to the Personal Injury Brief Update Law Journal. and can be contacted on 0161 835 4087 or e-mail Christopher direct on:

Marc Banyard Costs Lawyer is based at our Cardiff office.  He has acted as an expert witness on behalf of the SRA and Police Authorities and is a specialist in costs before HM Planning Inspectorate, Arbitration costs, Trustee costs, cases with inter-jurisdictional elements, costs in the Republic of Ireland, acting for Litigants in Person, costs in the Military Courts, costs before the Adjudicator to HM Land Registry and solicitor/client disputes. Contact Marc on 02920 394043 or e-mail:

Email us

About us:

Bogart: awareness of litigation finance has never been greater

Burford Capital, the AIM-listed third-party litigation funder, has so far achieved a 70% return on invested capital and is already seeing the benefit of its acquisition of Firstassist, its half-year results have revealed.

Since launching in October 2009, Burford – which claims to be the world’s largest litigation funder – has committed $332m (£212m) to 43 investments, most of which is still live.

It has had 14 investments worth $48m conclude either entirely or complete trial – five in the first half of 2012 – and expects the total return from them to be at least $82m, with a current average duration of 1.3 years.

However, the company warned investors that it is currently in a “predicted interregnum” between the maturity of its short duration portfolio and the time at which the bulk of its core portfolio – where most of the money is – will start to resolve.

The results showed that total income increased 18% to $13.6m in the first half of 2012 compared to the same period in 2011, with profit static at $7m.

Burford said that the acquisition in February of Firstassist as the vehicle to launch its UK litigation finance business is “already demonstrating success”. It explained: “It was acquired for $11.5m net of cash at closing and in the four months since completion Firstassist has already contributed $4.8m in EBITDA and $3.7m in profit before the effects of acquisition accounting.”

Chief executive Christopher Bogart said: “Burford has benefited from the fact that awareness of litigation finance has never been greater, as is the demand for the solutions it can provide. Our pipeline of potential investment opportunities is at a record high, and we continue to innovate for new uses of capital and investment structures. Indications of performance are encouraging, although the core portfolio will naturally take some time to mature.”

Burford committed to six new investments in the first half of 2012, for a total of $41m, along with investing $4m in existing cases.

Email us

About us:

Asplin: new products well received

Legal expenses insurer DAS UK Group – which recently received its alternative business structure (ABS) licence – has announced strong 2012 results.

It reported a 10.5% increase in gross written premiums in 2012 to £178m, returning a profit of over £11m before reinsurance and tax.

This represents a 57% increase on 2011, when profits were £7m, following a small loss in 2010.

CEO Paul Asplin said: “[There was] a strong performance from all areas of the group. As well as continuing to develop our core UK legal protection business, significant contributions were also made through our insured assistance products and continued growth in the Republic of Ireland. DAS Canada also made good progress during the year.”

The results do not take into account the impact of the ABS licence in March which enabled DAS to acquire Bristol law firm CW Law. Now branded as DAS Law, all of the company’s legal services are now being delivered through it, employing 175 solicitors and support staff.

The company said its Law On The Web platforms continued to see a sharp increase in the number of unique visitors, exceeding three million for the first time. As well as the main Law On The Web site, there are a host of other sites such as the recently launched

Mr Asplin said: “The pre-LASPO after-the-event (ATE) insurance sales activity was incredible and we are very pleased that the introduction of our new post-LASPO products has been very well received. The response to our entry into the civil litigation ATE sector has significantly exceeded our expectations and whilst this will not fully replace all ATE business lost due to the LASPO changes in the short term, the longer term outlook is very positive.

“Although the legal landscape remains uncertain, at least in the litigation area, DAS is well placed to deliver innovative solutions to new problems and we have a high level of confidence regarding the future opportunities for legal protection insurance and related legal services.”

Email us

About us:

Eclipse200Cheshire-based law firm, Personal Injury Practice (PIP), is implementing the Proclaim Case Management Software solution from Eclipse Legal Systems.

Established in 2003, PIP specialises in road traffic and injury claim litigation. With a renowned reputation for efficient and friendly service, the firm provides trusted legal advice nationwide. To strengthen this position, PIP is rolling out the Proclaim Case Management platform firm-wide.

Proclaim will replace PIP’s incumbent system – providing a fully integrated desktop solution ensuring a secure and consistent approach for each client.

As part of the drive to further promote superb client service, PIP is to integrate Eclipse’s FileView Interactive tool within its company website. FileView will securely display selected live Proclaim information allowing clients to access support around the clock, reducing the volume of ‘update’ calls the firm receives.

To enhance operational efficiencies, PIP is to take advantage of Proclaim’s direct A2A (Application to Application) integration with the MoJ’s Portal for RTA (Road Traffic Accidents) – significantly reducing administrative overheads, leaving more quality time for client care.

Dominic Moss, senior partner at Personal Injury Practice, comments:

“We’re proud to be different from the competition. Our clients are at the core of everything we do, it’s critical they know we have their best interest at heart and their case is being handled by professionals. Proclaim’s process streamlining toolkit will enable us to provide superior levels of client care. Automating previously repetitive manual tasks will permit us to spend the vital time with clients that they deserve, all without sacrificing our case throughput.”

Email us

About us:

ARAGLeading legal expenses and assistance provider ARAG has expanded its after-the-event (ATE) insurance operation with the appointment of a new Account Manager to help service increasing demand among solicitors for the company’s growing range of ATE solutions.

Jonathan Bassey has joined the company as Account Manager for the company’s after-the-event (ATE) business. Jonathan will be working with law firms and ATE intermediaries, particularly in the North and East of England.

“At a time when several ATE providers have left the market in one way or another, ARAG is continuing our path of steady growth.” comments Director and Head of ATE, Paul Hurley. “Jonathan has a wealth of knowledge and experience in the legal market that will assist us as we expand our ATE product range to existing and new customers.”

The company has also appointed another new ATE Underwriter, William Snelling, and Harriet Dean who joined the ATE division’s Case Management Unit, in recent weeks, as well as Claims Auditor Jaskaren Dhaliwal, who will work auditing both ATE and BTE case files.

The appointments continue a period of steady expansion for ARAG, which passed the 100 employee milestone earlier this year.

Email us

About us:

Longmore LJ: extraneous matters should be confined to “cases of similar fact”

“Extraneous factors”, including an assault on a bus driver, are not relevant in deciding whether a surgeon had acted negligently while carrying out a hip operation, appeal judges have ruled.

Lord Justice Longmore said there was no equivalent in civil law to the criminal law principle that evidence of a defendant’s bad character could be admitted in some cases if it was relevant.

“In my judgment evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that, unless the evidence is similar fact evidence, it is not probative of the issue to be determined,” he said.

“The question whether extraneous evidence is truly similar fact evidence is, no doubt, one of some difficulty and it may be that courts are now readier to admit evidence as being similar fact evidence than they were in the past. But that should still be the test.”

The court heard in Laughton v Shalaby [2014] EWCA Civ 1450 that counsel for Mrs Laughton relied on a number of “extraneous factors” to support her negligence claim.

Among them were that the surgeon did not disclose to the court that there had been an “interim decision” to impose conditions on him as a result of an incompetence investigation by the General Medical Council (GMC).

“As a result of these conditions, he did not in fact practice,” Longmore LJ said. “There was then the incident of assault on the bus driver which gave rise to an immediate suspension from practice.

“That was not disclosed to the court. That was a very serious dereliction on the part of Mr Shalaby of his obligation to be honest with the court.”

Longmore LJ said that now the court knew about the assault, and more importantly that the surgeon sought to conceal it, the court had to assess whether those factors made it “more probable than not” that Mr Shalaby performed the operation negligently.

The judge said that, to his mind, they did not, “even when they are combined” with other factors. He said the fact that a doctor is under stress, another of the factors cited by Mrs Laughton’s counsel, “does not of itself mean that he is more likely than not to have been negligent on a particular occasion”.

The judge described evidence of incompetence in other cases as “highly problematic”. He said “it was not found that any percentage of Mr Shalaby’s previous hip operations” suffered the same complication that affected Mrs Laughton.

Dismissing her appeal, he said that “general evidence of lack of probity, stress and incompetence in other areas of practice such as wrist surgery or record-keeping” could not make up for the deficiency.

Lord Justices McCombe and Vos agreed.




Email us

About us:

Managing director, Zoe Holland is ‘delighted’ to be shortlisted

Zoe Holland, managing director of Zebra LC, has been shortlisted for the Entrepreneur of the Year award at this year’s Modern Law Awards.

Zoe is shortlisted against other legal sector entrepreneurs, including Karen Jackson, CEO of Roberts Jackson that recently attracted £15million investment from North Edge capital; a high profile deal in which Zoe advised North Edge’s investment board.

These national awards recognise innovative business leaders and those changing the face of business strategy and development, regulation management and client care throughout the organisation – for both short and long-term gain. Champions in ABSs, new legal entrants and pre-existing law firms that have successfully led engaging, relevant and new strategies for gold-plated services and business growth will be praised in the second of these national awards.

The award, which will be presented at the Modern Law Awards ceremony in London next month, recognizes the individual who has been able to identify a market opportunity within the legal sector and how they have utilised staff and resources to maximise that opportunity.

Since she started the company in 2012, Zoe’s pragmatic and commercial approach, together with her management board experience has won her numerous awards.  Zoe saw the opportunity to establish a business that would to thrive in a changing legal market. With new entrants, growing issues around professional indemnity insurance, and an increasing spotlight from mainstream banking about law firm funding, the opportunity to develop technical due diligence was tangible.

Zebra Legal Consulting (Zebra LC) was established in December 2012; a modern legal hub providing unique technical due diligence for the legal sector with a flexible business structure.

Zebra was named ‘new entrant of the year 2013’ at the Modern Law Awards. Earlier this year, Zoe was named ‘best new business’ at the Women in Business Awards held in Manchester by Downtown Manchester In Business.

Zoe commented: “I am delighted to have been shortlisted for this award and privileged to be nominated alongside a number of very strong entrants. Zebra has had a fantastic year this year.  We have carved a specialist niche in the new era of injury litigation and as a result we have been involved in some of the legal sector’s highest profile deals.”



Email us

About us:
Lord Neuberger

Lord Neuberger: “unusual number of particularly demanding cases”

The Supreme Court heard over 25% fewer appeals in the year to 31 March 2015, its latest annual report has shown.

The number of appeals heard fell from 120 to 89, and the number of judgments from 115 to 81, despite the court sitting for nine more days.

A spokesman for the court said among the reasons for the drop were longer hearings and fewer linked appeals. An increase in the number of appeals heard by seven or nine justices, from 9% of cases to 12%, was also cited as a factor.

However, the number of applications for permission to appeal considered by the Supreme Court rose by 34% to 269 during the year.

The spokesman said there was a particular increase in applications to bring criminal appeals (from eight to 19) and public law appeals involving employment (seven to 15) and housing (four to 11).

There was a big fall in the number of applications for the Supreme Court to hear appeals about legal procedure, from 38 to 22.

The justices granted permission to appeal in a smaller proportion of judicial review, immigration and family law cases than the year before, but an increased proportion of criminal and housing cases.

Lord Neuberger, president of the Supreme Court, said in his foreword to the report that for the first time since the court opened in October 2009 there were no changes of justices, bringing a “welcome period of stability”.

However, he said: “We have had an unusual number of particularly demanding cases, which is reflected in the fact that the average time between hearing and judgment has increased from last year, and the number of decisions is lower than last year.”

Lord Neuberger said he had held “regular, but not frequent” meetings with former justice secretary Chris Grayling and the Law Officers, along with his annual appearance with deupty president Lady Hale before the House of Lords constitution committee.

The president said that although it would take time for recent changes to “work their way through the system”, the increase in the number of litigants in person applying for permission to appeal had been maintained. The current figure is 24 out of a total of 231 permission applications.

Email us

About us:

DASLawAssist 200The after the event division of the DAS UK group announces that they have entered into a new arrangement with specialist lender for the legal profession, Novitas, to provide solicitors with ATE insurance and funding for disbursements in clinical negligence cases.

The funding is via consumer credit agreement loans which are protected by a DAS LawAssist ATE insurance policy. Clients have no upfront costs and only repay the loan amount and simple interest charged out of any damages they receive.

Richard Whale, ATE sales manager at DAS LawAssist: “Since the introduction of LASPO in April 2013 the effects of the court fees increase and delays in case settlement have all impacted on cash-flow to the extent firms can now be carrying hundreds of thousands, if not millions of pounds of disbursements in clinical negligence cases on behalf of claimants.

The partnership with QLP and Novitas came about after our own panel of solicitors came to us asking for a funding solution. The relationship provides solicitors with a proven funding solution and a first class ATE product.”

Email us

About us:
Jackson: judges need to be more proactive

Jackson: judges need to be more proactive

Practitioners need to think twice before agreeing standard disclosure and judges to be more proactive to steer them away from it, Lord Justice Jackson said last week.

In the latest of a series of speeches this year reflecting on the progress of his reforms, he urged lawyers to look beyond the profitability that may come from standard disclosure.

In a speech to a Law Society commercial litigation conference, the author of the civil costs reforms said that in large commercial actions and other substantial cases, “too often people are treating standard disclosure as the default option”.

He continued: “Parties frequently agree standard disclosure, seemingly without considering whether other options may be preferable, and the courts accept their agreements. It would be to the public benefit if all involved in the disclosure process gave more attention to the full range of options before simply proposing or agreeing to ‘standard disclosure’.”

He reported that a seminar held earlier this year by the GC 100 group – in which judges, practitioners and court users took part – acknowledged that the tools for controlling disclosure, and therefore cost, contained in CPR 31.5 had been under-used.

Following the seminar, a disclosure working group was created, and Sir Rupert said: “[It] may care to consider whether what is needed is culture change rather than rule change.

“In particular (dare I say it?), perhaps the working group might encourage practitioners to think twice before agreeing standard disclosure (however profitable that may be for the lawyers), and judges to be more proactive, by pressing counsel as to what documents are needed and why, rather than approving any agreed directions for standard disclosure.”

He said judges needed to do more than simply adjudicate upon the parties’ competing submissions: “It is necessary to test the opposing arguments.”

He quoted the experience of one unnamed judge: “When disclosure is an issue during case management, it is not uncommon to find that the parties’ counsel cannot describe the documents which they expect to be relevant, why they might exist or why they will benefit determination of the issues concerned. This is particularly the case for electronic documents, when requests for practical descriptions and examples are usually met with bluster.

“This and the fact that disclosure issues are relatively rare suggests the fault lies with a failure to properly address the issues either internally or with the other side before the hearing. That conclusion is sustained by the fact that I usually find a general discussion of the need for the disclosure sought, about the practicalities of effecting disclosure and inspection and over the resulting cost produces a solution by agreement without the need for a decision.”

Email us

About us:
John Binks

Binks: criminal process can be quicker and cheaper

A set of chambers has teamed up with a claims investigation company to provide a private criminal prosecution service for insurers who believe they are victims of fraud.

John Binks, director of Birmingham-based Citadel Chambers, said: “What is attractive is the costs situation. The criminal process can be a lot less complex, quicker and ultimately cheaper.”

Ray Glenn, managing director of investigators RGI Solutions, described the partnership as “the first of its kind”, providing a “seamless” service leading to the swift prosecution of offenders.

Mr Binks said insurers had two civil options to tackle fraudulent claims.

“They can try and fight off claims using normal civil procedures. If the person sues, they defend it and quite often they defend it successfully.

“They may see the fact they’ve defended the claim as enough, but there is no deterrent effect or anything to stop the fraudster trying again.”

Mr Binks said the alternative civil option was to plead fraud as part of litigation and commit someone to prison for contempt of court. “That can be a long and arduous process, and is quite expensive.”

Mr Binks said there were also two criminal options. The first was calling the police, often involving the insurance fraud enforcement department, based at the City of London Police and funded by the industry.

The second option was a private criminal prosecution for fraud. RGI could investigate the case, with advocacy provided by Citadel and litigation by Coleridge Law Limited, the law firm owned by the chambers.

Mr Binks said the costs of the prosecution were paid from central funds whether the insurance company won or lost.

Andrew Fisher QC, head of Citadel Chambers, said the new service turned the conduct of litigation “on its head”, with the barrister leading an “end-to-end process to ensure the right cases get to court” and achieving conviction in a cost-effective manner.

Mr Glenn added that the new service would give the power back to insurers to pursue criminals and send a “powerful deterrent message” to fraudsters.

Email us

About us:

Gibson: firms need to be realistic

Firms that want to get out of the personal injury market have just three months to gain best value for their work-in-progress (WIP), according to the practice that recently bought the PI book of failed midlands firm Challinors.

Liverpool-based SGI Legal – which is openly in the market for further acquisitions – said firms need to realise that the longer they leave it, the more of a buyer’s market it will become.

SGI Legal’s managing partner, Simon Gibson, said the more lucrative work that dates from before implementation of the LASPO reforms on 1 April is a constantly diminishing asset.

“Firms that are considering a business or WIP sale but have delayed a decision are losing money every day. While it is currently a seller’s market, I expect this will change in the New Year as the number of sellers increases and the number of credible buyers – that is, firms with the cash resources in place and the support of their indemnity insurers – falls. This will mean that potential acquirers will be justified in driving a harder bargain.

“Law firms with a personal injury offering need to consider whether they are remaining in the sector or not. Those in for the long haul need to focus on making the right investments to retain business sustainability while those looking to leave need to urgently formulate their exit strategy.”

Mr Gibson said that firms that decide instead to run down their WIP over the next two years need to realise that not only is it “a pretty demoralising approach”, but it also may not be profitable given the costs of winding down, such as run-off insurance cover, tax and redundancy costs.

“Firms may generate more cash in a quicker and more risk averse way through a sale,” he said.

But equally Mr Gibson said those wanting to leave the market need to have realistic expectations of what they can achieve.

“Law firms who take a realistic approach as to the value of their business and the payment structure they’re willing to accept can, in the short term, achieve their exit aspirations.

“However, firms who want to have their cake and eat it may be disappointed, particularly as the months progress. There needs to be an incentive for both the buyer and seller. What firms must avoid is just kicking the tin down the road. All personal injury firms need to make a timely decision about their future in the sector.”

Email us

About us:
Shailesh Vara

Vara: fee increases are necessary to “fix the economy”

Justice minister Shailesh Vara has today announced a further wave of court fee rises for possession, divorce and general civil claims.

At the same time he has unveiled plans to raise the £10,000 cap on money claims to “at least £20,000”, and double fees in the Immigration and Asylum Chamber.

Responding to a consultation launched in January this year, the minister said fees for issuing a possession claim in the county court would rise by £75, from £280 to £355.

Fees for issuing divorce proceedings will go up from £410 to £550. The Ministry of Justice (MoJ) said it had “carefully considered the concerns raised during the consultation and decided not to increase fees by 80%” as originally proposed.

“Instead we will press ahead with a more affordable increase of about a third. We are also protecting the most vulnerable by ensuring that fee remission is available for those who need it, such as women in low-wage households.”

Fees for general applications in civil proceedings are to increase from £50 to £100 for applications by consent, and from £155 to £255 for contested applications.

“In order to ensure the most vulnerable are not affected, we are excluding from this fee rise applications such as those to vary or extend an injunction for protection from harassment or violence,” Mr Vara said.

The minister said it had estimated that the latest wave of court fee rises would deliver over £60m in additional income each year.

However, Mr Vara said yet more court fee hikes would be necessary to raise a further £48m.

The MoJ is proposing to increase the cap on fees for money claims from £10,000 to “at least £20,000”.

“Many of the claims brought for higher values will involve large multi-national organisations or wealthy individuals, and we believe it is right to ask them to contribute more,” he said.

“In order to protect the most vulnerable, personal injury and clinical negligence claims will be excluded from this higher cap and fee remissions for those of limited means will continue to apply.”

At the same time, the MoJ is proposing to double fees in the Immigration and Asylum Chamber, while applying exemptions to protect the most vulnerable.

Mr Vara promised that the existing remissions scheme would become “more generous” and the amount of disposal capital people paying a “larger court fee” needed to have in order to quality would increase.

“We recognise that fee increases are not popular, but they are necessary if we are to deliver our promises to fix the economy and bring the nation into surplus,” he said. “Every pound we collect from these fee increases will be spent on providing an efficient and effective system of courts and tribunals.”

Email us

About us:

Deadman: Pyrrhic victories are no good for anyone

Posted by Christopher Deadman, sales director at Litigation Futures sponsor Augusta Ventures

For many lawyers, successfully navigating a litigation funder’s application process is only a little easier than Jason’s quest for the Golden Fleece. As the country’s most prolific litigation financier by volume, Augusta is well placed to advise on how lawyers can quickly and easily obtain the keys to the funder’s safe.

It goes without saying that your case should have good prospects of success. It is pretty unlikely that a lawyer is going to waste their time making an application for financing on a matter that has a less than 51% chance of succeeding.

But the merits of the claim, as far as the funder is concerned, are only part of the story. Of equal importance are the commercial aspects of the case – how much might realistically be realised and can the other side pay? Pyrrhic victories are no good for anyone.

Based on the significant number of applications we have seen so far this year, there are two areas which invariably cause us to reject a matter for financing: quantum and enforcement.

Quantum is a thorny issue particularly where ‘loss of opportunity’ is alleged. It is not sufficient simply to argue that the client’s business would have continued to grow exponentially were it not for the injury suffered. There has to be a credible and well-argued basis for such a belief.

An initial investment in a good quality forensic accountant’s report can often be the difference between securing funding and receiving a rejection. Not having the funds to commit to this work can be overcome by obtaining the services of an accountant willing to work on a contingency basis – there are enough of them out there.

Make the effort and reap the rewards. Never forget that a funder will view each case purely as an investment decision. It is therefore important that they have a clear understanding of the basis for the return sought.

Most solicitors are pretty good at assessing liability. We see very few cases where the basis of the claim is weak in law. In a number of cases, however, we see that comparatively little thought is given to whether the client and funder are going to realise the proceeds of the claim. It is all very well having a solid claim against someone, but if they have no ability to pay then it makes no sense to issue proceedings.

As with quantum, there is no excuse for not undertaking a sensible amount of due diligence on the defendant’s asset position before making an application for funding. Statements like “we think the defendant has property interests in London” are meaningless. There is enough open source material online to provide the applicant lawyer with a good understanding of the asset position of most corporate defendants.

It becomes difficult where there are corporate shells involved or there is insurance of dubious worth. As with quantum, there are numerous professional investigators and asset tracers in the market who will undertake this work on a conditional basis. Put the work in and reap the rewards.

Email us

About us:
Ryder LJ: use of web key to improving access to justice

Ryder LJ: use of IT key to improving access to justice

The courts should embrace IT and the internet in ways that improve access to justice and make scarce resources go further, if the values embodied in Magna Carta are to be realised, according to a senior judge.

Sir Ernest Ryder, Senior President of Tribunals, called for replacement of the “post-Victorian superstructure” of the courts and tribunals with a modern, paperless system based on online access and a streamlined judiciary.

In a speech to the American Bar Association in Washington, DC, earlier this month, entitled In the shadow of Magna Carta, he said the task had become urgent after the “recasting of the state” after the financial crisis of 2007.

“Clarity and simplicity” had to be achieved not through reformed procedure rules – which could lead to satellite litigation – but through reforms that “for the first time take full account of developments in [IT]”.

Paper-based procedures for starting proceedings, service and due notice, and filing documents, should be channelled into a single process. “This common process would not be paper-based. It would be IT-based,” he said.

He continued: “Litigants should in the future be able to access a courts and tribunals website, through which they can initiate proceedings, pay the relevant fee and do so through the use of intuitive, simple-to-use web forms.

“This should then form the basis of effective service either by the litigant or the court, the starting point for the generation of procedural timetables unique to the proceedings, the electronic court file and e-based case management.”

Sir Ernest, who was appointed to the Court of Appeal in 2013, backed a suggestion by Sir Brian Leveson, President of the Queen’s Bench Division, that “assistance should be made available to litigants via the use of digital navigators to help them use the new system”.

A web-based system, should be accompanied by both “e-prompts, where procedural deadlines are imminent” and “e-receipts and notification to the court and the parties”.

Greater use of the internet, said the judge, would increase access to justice, in part by reducing fear among citizens who were now used to going online. In many respects “most of us are at home on the net”, he argued, adding: “That we are suggests to me that an internet-based process to initiate and manage proceedings will be something that individuals will be at home with, and to a far greater extent than the previous paper-based process.”

Also, more use of the internet and IT would reduce the need for back-office space and reduce the need for physical attendance at court, which would help ease the pressure on buildings and resources. “Moving a significant amount of pre-trial (not trial) process on-line, while promoting the use of technology to enable hearings to be virtual, will arguably reduce the need to maintain some of our post-Victorian court estate.”

Further, increasing the use of technology would enable the “expansion of justice in more than the formal sense”, he said. “Effective use of technology will enable us to assess claims when they are issued to determine whether they are suitable for resolution by means other than formal adjudication, to assist the parties to select the appropriate method of resolution and manage the claim appropriately.

“Equally, it will enable us to direct those claims that are unsuitable for non-formal adjudication to the appropriate litigation track with the procedure tailored to the claim’s needs, while also enabling claims to move back to that track if consensual resolution is not achieved.

“In this way we could expand access to justice through facilitating an expansion in our concept of justice, and ensure that the justice system’s resources are targeted proportionately.”

Sir Ernest then turned to the structure of the judiciary, which he said was a “complex web of judicial offices” that “requires an otherwise unnecessarily complex set of arrangements to be put in place and carefully maintained to ensure that judges are properly authorised to sit in various courts and tribunals”.

The situation should be rationalised, he said. “We should be looking to maintain a judicial hierarchy, one that maintains the constitutional role of the senior judiciary – the Court of Appeal and High Court judges, while developing a structure of judges below that level who are capable of sitting as judges across courts and tribunals of comparable level.”

The new system should enable “flexible deployment to maximise opportunity and efficiency and facilitate those judges with leadership responsibilities being able to plan, allocate and distribute work between judges; to plan future recruitment; and to better implement judicial training to improve skills and to facilitate merit-based promotions.”

He concluded that the judiciary in an era of a growing number of self-represented litigants would have to “become more investigative” and “take active steps to secure equality of arms”. Equally, an IT-based system would require new skills. “A problem-solving approach in court will have to be matched by a problem-solving approach to case management.”

Email us

About us:

Eclipse2014 200x200“Essentially, our primary goal was to have a system that could expand with us, as well as provide the necessary tools to maintain our stellar reputation. Eclipse and its Proclaim solution has delivered above and beyond, providing us with unrivalled intelligence, detailed reporting and most importantly, a consistent solution with room to grow.”

Dan Bell, Head of IT at Chadwick Lawrence

Chadwick Lawrence operates from 7 offices across the West Yorkshire region and is now listed as one of the twenty largest firms in Yorkshire and Humberside.

Offering a range of legal services, from Conveyancing and Family law through to Employment law and Personal Injury, the firm is proud to offer an exceptionally high level of service, combined with first-rate legal advice.

Chadwick Lawrence was using an extremely prescriptive software solution that simply didn’t offer the facilities the firm required to develop the system without involving substantial costs. Based on this, an upgrade was imperative and the search began for an extremely configurable, yet robust software solution.

The Proclaim Practice Management Software solution was implemented in a phased departmental roll-out, initially within the Personal Injury department, quickly followed by the Conveyancing department.

Additionally, in order to effectively manage the large volume of referral enquiries received, Chadwick Lawrence opted for Eclipse’s Lead Management toolset, enabling staff to record, store and verify all pre-client work until accepted or rejected.

Since implementation, Chadwick Lawrence has been able to demonstrate the configurability of Proclaim to some of its less standardised teams, resulting in ambitious plans to roll the software out to other areas of the business over the coming months.

To drive business performance, the integrated KPI toolset has proven vital to senior staff, who now have clear visibility of performance – whether that’s staff or company – at the click of a button. Taking this further, statistics can be drilled down into, from specific fee earner KPIs, to team KPIs, or for all staff across the practice, proving essential for efficiently planning and managing workloads.

Email us

About us:

Amey: Conn3ct delivers a lifeline for clients

Leading litigation funding broker TheJudge has launched a bespoke funding service for smaller business disputes that combines after-the-event (ATE) insurance cover and low-cost litigation funding.

The Conn3ct facility offers “far leaner pricing models” than traditional big-ticket third-party funding, reflecting both the lower financial risk and often faster litigation timetable associated with smaller commercial and professional negligence claims.

TheJudge argues that claimants involved in non-injury litigation will be hardest hit by the Jackson reforms from next April, and practitioners will have to decide whether smaller-value commercial and civil claims are economical to pursue, especially given the limited availability to date of litigation funding products aimed at smaller commercial claims has to date been limited.

The company argued that Conn3ct is superior because it involves shopping around for cover, and provides exclusive access to some funders.

Director Matthew Amey said: “For litigators handling small and medium-sized business and professional negligence disputes, Conn3ct delivers a lifeline for clients who need litigation finance support, but whose cases don’t allow for the large cost normally associated with litigation funding.”

Senior broker Helen Smith added: “A key advantage of Conn3ct is that the client is free to pick and mix what funding or ATE insurance cover they require. Conn3ct is supported by multiple-capacity providers, so in addition to having various options, clients can be sure that competitive market testing is undertaken before they sign up to a given deal.

“We will undoubtedly see more combined insurance and funding packages in future, but only through real market comparisons can clients be sure their terms are competitive.”

Conn3ct follows the launch of TheJudge’s “Insolv3ncy” service, which is specifically designed to provide insolvency practitioners with low-cost funding solutions to maximise creditors’ recovery. The appeal of Insolv3ncy was bolstered by the government’s announcement to defer abolishing success fee and ATE premium recoverability for insolvency cases.

Email us

About us:

Hughes: experience and expertise

Leading personal injury (PI) lawyer Anthony Hughes has left his role as chief executive of defendant insurance firm Horwich Farrelly to set up a management consultancy targeted as the PI and insurance sector.

His new business’s name – Jackson Hughes – is inspired by the changes wrought to the market by Lord Justice Jackson’s reforms.

He led Horwich Farrelly for nearly five years, before when he was a senior partner at DWF. As managing partner of Ricksons, Mr Hughes merged the firm into DWF in 2007. In 2008/9 he was president of the Forum of Insurance Lawyers.

Though predominantly defendant focused, at Horwich Farrelly he also oversaw a claimant practice, and Mr Hughes revealed to Litigation Futures that he was the driving force behind the creation of PI Gateway – a collection of four leading Manchester claimant PI firms that joined forces last autumn to buy out practices wanting to exit the sector.

He said: “I’m hoping to exploit the experience and expertise I’ve developed in how to change businesses for the better and how to sustain them in times of change.”

He argued that “a lot of people are still ignoring the consequences of LASPO or hoping it will go away”, with too few monitoring the underlying performance of their businesses. He warned that while firms are still benefiting from the more remunerative pre-April 2013 matters, many are not considering what will happen when those cases started to run out.

Mr Hughes said he had a particular interest in helping firms considering mergers and acquisitions – about which there was little expertise in the claimant market, he argued – and would borrow from the experience of the consolidation of the defendant side in recent years.

Philip O’Hagan has been named the new managing partner of Horwich Farrelly. In a statement, he said: “As a firm, Anthony’s departure doesn’t alter our objectives at all. We’ll continue to maximise the opportunities that the current changes in the legal market present, and we’ll be looking to ensure that the business continues to innovate and offer a class leading service in insurance litigation.

“We are grateful for Anthony’s contribution in working with the partners to help shape the Horwich Farrelly of the future.”


The increasing appetite for third-party funding in Europe

Ross Nicholls

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

April 10th, 2018