Decoding the Statutory Defence - Mark Fowles, Browne Jacobson LLP

02/08/13. We tend to forget how novel, in the context of the history of personal injury claims, are accidents on the highway. The current Section 41 of the Highways Act 1980 can trace its history back to no earlier than to Section 1 (1) of the Highways (Miscellaneous) Provisions Act 1961 (brought in in those innocent days, to Parliamentary acclaim at this further step towards securing the wellbeing of the nation). Prior to that, outside misfeasance, no claims could be brought by people suffering accidents as a result of a failure to maintain.

Even with such a relatively brief history it is a little surprising that one of the most important elements of such claims, namely the Statutory Defence under Section 58 of the 1980 Act, and the question of whether or not a Highway Authority can make out a sufficient system for maintenance so as to bring themselves within it’s protection, has stayed more a matter of folklore than judicial decision making. In particular I am thinking of the status of the Code of Practice ‘Well Maintained Highways’ (which itself dates from no earlier than 1993 in its original form). The status of the Code has been considered by the Court of Appeal on at least two previous occasions. In Rance v Essex County Council (unreported 21^st Feb 1997), Otten LJ noted that whilst the Code set down “stringent obligations upon Highways Authorities, it had to be borne in mind that they are recognised as guidelines only and do not impose a rigid regime for the inspection and maintenance of roads”. Not so long ago in Wilkinson v City of York (2011) EWCA CIV 207, Toulson LJ accepted that the Code was not a statutory document and provided only a suggested framework. In that case Toulson LJ appears to have placed considerable emphasis on the passages in the Code which required variations in policies and practices to follow a risk assessment, approved, adopted and published by the Authority, with the process to involve the Authority’s executive. The Court also, of course, took the view that financial priorities could not be part of that risk assessment.

And there it lay until the decision of Mrs Justice Slade in TR v Devon County Council.

There has been a tendency with both Courts and Practitioners to apply the Code as if were the sole benchmark under Section 58 - compliance or otherwise being the quick and easy route to deciding liability. Slade J’s decision did nothing to dispel this tendency.

TR was the driver of a car which overtook a slower-moving vehicle on a rural road in Devon. He misjudged his manoeuvre in that his car left the road first to the offside then shot back across the highway as he over steered to get back onto the highway to the nearside. His passengers were seriously injured and TR admitted negligence in the action brought by the passengers against him. Subsequently his insurers brought an action against the Highway Authority, blaming the defective state of the offside of the road for TR’s loss of control.

The action came before Slade J in the High Court with Lord Faulks QC and Angus Piper acting for the Defendant. There was always thought to be a risk on primary liability but the Defendant had some hopes of a finding of substantial contributory negligence however Slade J found that there was a defect, that the Statutory Defence was not made out and that there should be no deduction for contributory negligence. In so doing she put great weight on the role and status of the Code of Practice.

Devon operated a more nuanced approach to highway maintenance than that put forward in the Code with more categories of road and a greater variety of inspection routines. In respect of this particular road, however, it was admitted that Devon inspected less frequently than for the equivalent road under the Code’s classification. Slade J found Devon at fault for failing to following the Code’s recommended repair schedule for such a road, and for failing to produce a written risk assessment and written justification by way of explanation. In so doing she took Toulson J’s position in Wilkinson rather further. Due to these perceived failings Slade J took the view that Devon could not succeed under Section 58. The aggrieved Defendants went to the Court of Appeal (with the leave of the Trial Judge) and whilst the Highway Authority has been left with a substantial liability to TR’s insurers, nonetheless the decision of the Court of Appeal is of some significance.

The Court of Appeal were not persuaded by the Defendant’s arguments with regards to liability itself and the Defendant’s reliance on James v Preseli Pembrokeshire District Council (1993) PIQR P114. It found without a great deal of hesitation that the combination of pothole and overriding defect was an identifiably dangerous part of the Highway. The Court of Appeal were rather more troubled by the Judge’s findings as to the Statutory Defence and the role of the Code. Hughes LJ noted that the Code (2005 edition) at 1.3.2

“Authorities also have certain legal obligations with which they need to comply and which, on occasion, will be the subject of claims or legal action…It has been recognised that in such cases the contents of this Code may be considered to be a relevant consideration. In these circumstances, where Authorities elect, in the light of local circumstances to adopt policies, procedures or standards differing from those suggested by the code it is essential for these to be identified, together with the reasoning for such differences”

Hughes LJ noted that the Code set out no mandatory rules and was no more and no less than “evidence of Good Practice”. He emphasised that “Authorities must exercise their own judgement…when it comes to the specific issue of inspection intervals; other considerations will clearly involve traffic use, experience, the frequency of adverse incidents and the like.”

He went on to say the advice in 1.3.2. (footnote 1.3.2 in the 2005 edition of the Code of Practice) provides:

“The advice in 1.3.2 to make explicit reasons for adopting different policies is clearly wise, given the exposure of Highway Authorities to the possibility of litigation, but it is advice, not a rule. It cannot amount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the Code a mandatory instrument”

Hughes LJ also had something to say about the issue of evidence. Devon had put before the Court the unchallenged evidence of other Authorities which had adopted similar inspection regimes to Devon, namely Kent, Cumbria, Tameside and Surrey. Each of them had adopted inspection intervals different from those set out in the Code and they varied significantly both from the Code and as between each other in their treatment of inspections. Further, the Highways expert called by TR gave evidence to the effect that he had turned up six more Authorities which inspected local distributor roads at intervals less frequent than the code suggested. Slade J found this evidence “of little or no assistance in this case”. Her reasoning was consistent with her view expressed as to departures from the Code. She said it was not valuable because she had no evidence of the reasoning behind the departures. Hughes LJ commented that this might be a perfectly legitimate conclusion

“If it were once correct that the Code provides a mandatory norm from which departure must be justified by reasons given, but it does not…At the very least, the evidence of the practice of other Authorities pointed towards a respectably held view among professionals charged with highways maintenance that six monthly inspections of roads were a reasonable response to the duty to maintain. On the well-understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.”

In consequence the Court of Appeal found the Judge’s approach erroneous. Rather regrettably, from Devon’s point of view, and despite the flawed approach of the Judge, the Court of Appeal found sufficient evidence to justify the conclusion that this particular road needed inspection at shorter intervals. Accordingly, whilst rejecting the Judge’s wider arguments in respect of Devon’s policy the Court of Appeal upheld her finding that the Statutory Defence had not been made out.

Perhaps the most surprising element of the Judgment at first instance was the finding of no contributory negligence at all on the part of the driver. The Judge’s basis for this was that the driver had been put into an ‘agony of the moment’ situation by the defect. Hughes LJ distinguished the driver’s behaviour on trying to exit the rut from his behaviour on entering the defect in the first place. The Judge was quite entitled to come to the view that even if TR might have avoided the over steer in trying to get back onto the road that this did not amount to a want of reasonable care. However, the same did not apply to the conclusion that there was no negligence on entering the defect in the first place. It was there to be seen and the contours of the road were such that it could only have been inadvertence on the part of TR that he did not see the defect and avoid it. On the evidence, and the Judge’s findings of fact, there was simply no escape from the conclusion that TR made an error in not seeing the damaged area and avoiding it. This was a significant failure to keep a proper lookout and to manage the car correctly and accordingly the only proper finding was substituting for Slade J’s judgment a finding of contributory negligence to the extent of 50%.

Despite the result for Devon County Council the case should be of some comfort to Authorities. There is nothing in this Judgment that should justify or persuade a Highway Authority to devalue the importance of the Code of Practice. It remains a benchmark of good practice. However it ought to see an end to the habit that has grown amongst highways experts, Judges and practitioners of treating the Code as a mandatory document that must be complied with and viewing it as a touchstone rather than a benchmark. The Court of Appeal has restored the ability of Highway Authorities in their varying circumstances to come to their own judgements.

Mark Fowles
Browne Jacobson LLP 

Image cc flickr.com/photos/oatsy40/7816182682/

RTA Post Jackson, How to Deal With Them 3 Months on: What Have We Learned? - Andrew Mckie, Clerksroom

01/08/13. Referral Fees - They are now Banned! (LASPO), Sections 56, 57 and 59 of the Act are in relation to the prohibition of the payment and receipt of referral fees in personal injury cases commenced on 1 April 2013. “A significant number of businesses involved in the personal injury market have been acting in breach of the referral fee ban since it came in on 1 April", the chief executive of the Solicitors Regulation Authority (SRA) warned yesterday.

Speaking at the Legal Futures Conference in London, sponsored by NatWest, Antony Townsend said the authority was concerned to ensure that the operation of the market should be balanced against the “preservation of the professional principles” – including putting clients’ interests first.

He acknowledged that “quite a number” of arrangements investigated by the SRA in the nine weeks since the ban came into force had “been on the wrong side of the line.

But he warned: “We do have an enforcement strategy. The fact we haven’t yet had any cases going to the Solicitors Disciplinary Tribunal doesn’t mean that there won’t be any.”

http://www.legalfutures.co.uk/latest-news/sra-plenty-firms-breaching-referral-fee-ban

It would seem that a number of firms are continuing to act in breach of LASPO, it must only be time before the SRA makes an example of a firm in breach of the ban.

To ensure you are compliant, it is advisable to ensure sure you have a LASPO checklist in place, a clear policy and guidance on what it and what is not LASPO complaint for staff and fee earners involved in the acceptance of cases.

The SRA’s own LASPO checklist can be found here: http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CC0QFjAA&url=http%3A%2F%2Fwww.sra.org.uk%2Fdocuments%2Fsra%2Fconsultations%2Freferral-flowchart.pdf&ei=e6H2UY7nMsvxhQfWsIHgCA&usg=AFQjCNFFxjgk8HS-v4QJjq-ic1ZUO4vU6w&bvm=bv.49784469,d.ZG4&cad=rja

If you are unsure whether it is a referral fee, seek regulatory advice or speak to the SRA, do not risk it!

2. The CPR Just Got a Whole Lot Tougher!

Relief from sanctions

3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence.

Lord Justice Jackson in Mannion v Ginty [2012] EWCA Civ 1667 at [18] referred to “a culture of toleration of delay and non-compliance with court orders” in the civil justice system.

The Judiciary post April 2013, seem to be towing this line. Application under CPR 3.9, which would have almost certainly succeeded before, are now being refused.

It is almost certain that application for relief from sanction will not be very difficult to obtain. To avoid the pitfalls ensure:-

1. The case is ready for Trial before you issue! Ensure you have all special damages documents, a signed statement from all witnesses, the medical evidence is finalised and all liability documents, sketch plans, locus reports, engineering evidence etc.

2. Have a robust system in place to avoid issuing shortly before limitation.

3. Ensure the firm has a system of regular file reviews and supervision in place, to ensure cases are progressed. Checklists and case management systems work well.

4. If the client goes AWOL, apply to come off the Court record in good time.

5. If the client cannot meet a rule or practice direction, seek an extension of time and if not agreed, make an application to extend time, before the rules are breached. Applications must be supported by evidence and a good explanation. The fee earner being on holiday or the client forgot is not a good explanation.

6. If the breach is the faulty of the firm, make the application quickly with a detailed statement in support explaining the reasons for the breach, and steps taken to rectify it.

7. If the breach of the client’s error, you must have a statement from your client, explain how the breach happened and what steps have been take to comply.

8. On a CPR 3.9 application, anything less than this is likely to result in a failed application.

3. Proportionality, Proportionality, Proportionality !

The overriding objective

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

( c) dealing with the case in ways which are proportionate

Some matters to consider:

1. The Court will apply the new test when considering to allocate to track, expert evidence, number of witnesses etc.

2. If are seeking a forensic engineer and damages are limited to £5,000, consider whether it is proportionate. Could you put Part 35 questions instead?

3. Some Courts are now reluctant to allow Defendant medical evidence in LVI case, even where D has complied with Casey. Again, consider asking the Defendant to put Part 35 questions first. I have seen such an application refused by the Court, where Casey was fully complied with.

4. When considering proportionality, consider not only the value of the case, but the importance of the litigation to the parties. If fraud is alleged by the Defendant, then surely allocation to the M/T is justified, to allow expert evidence and cross examination of experts, given the likely consequences for C if fraud is alleged and potentially found.

4. Track – All now to the Fast Track?

Allocation

26.5

(1) The court will allocate the claim to a track –

(a) when all parties have filed their directions questionnaires; or

(b) when giving directions pursuant to rule 26.3(8),

unless it has stayed the proceedings under rule 26.4.

(2) If the court has stayed ^(GL) the proceedings under rule 26.4, it will allocate the claim to a track at the end of the period of the stay.

(3) Before deciding the track to which to allocate proceedings or deciding whether to give directions for an allocation hearing to be fixed, the court may order a party to provide further information about his case.

(4) The court may hold an allocation hearing if it thinks it is necessary.

Matters relevant to allocation to a track

26.8

(1) When deciding the track for a claim, the matters to which the court shall have regard include –

(a) the financial value, if any, of the claim;

(b) the nature of the remedy sought;

(c) the likely complexity of the facts, law or evidence;

(d) the number of parties or likely parties;

(e) the value of any counterclaim or other Part 20 claim and the complexity of any matters relating to it;

(f) the amount of oral evidence which may be required;

(g) the importance of the claim to persons who are not parties to the proceedings;

(h) the views expressed by the parties; and

(i) the circumstances of the parties.

Matters to Consider;-

There seems to be a move towards allocating claims to the fast track, rather than the multi-track, even where fraud is alleged or insinuated by the Defendant. Some Courts are saying the case is still fast track, and using this new magical word of proportionality;-

How to Deal with it?

1. Do not let the Court allocate on paper, as there may be a presumption for the matter to go to the fast track.

2. Ask for an allocation hearing, if you need one, to get into the M/T for expert evidence, allegations of fraud. Some Courts are still not allocating to the M/T, even where both parties agree,

3. Ant cases over 1 day, i.e more than 4-5 witnesses between the parties , if you need to call the experts, medical experts, or forensic engineer’s the case should be in the M/T.

4. Make sure the letter asking the Court for an AQ hearing deals with all the matters in CPR 26.8. Allocation should consider more than just the financial value of the claim.

5. Remember, under the new fixed cost if the case is in the fast track, fixed costs will apply, but not for multi track claims.

5. Portal Costs

Portal Costs

The new fixed costs rules can now be found at CPR 45.17 for Portal costs and are as follows (effective from 1 April 2013) -:-

TABLE 6

Fixed costs in relation to the RTA Protocol
Stage 1 fixed costs		£200.00
Stage 2 fixed costs		£300.00
Stage 3 –	Type A fixed costs	£250.00
	Type B fixed costs	£250.00
	Type C fixed costs	£150.00

Portal Costs Claims that Exit the Portal after 31 July 2013

A summary of the 31 July 2013 with all the new Portal documents can be found at :-

http://www.justice.gov.uk/courts/procedure-rules/civil

1. Please note the amendments to Parts 36 and 45 apply only to claims started under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents where the Claim Notification Form (CNF) is sent in accordance with that Protocol on or after 31 July 2013. The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents which was in force before 31 July 2013 shall continue to have effect in respect of any claim where the Claim Notification Form was sent before that date.

A summary of the post July 31 ^st July Portal costs can be found here (new CPR Part 45):

http://www.legislation.gov.uk/uksi/2013/1695/article/7/made

What does this mean for my practice?

1. It will be more important than ever to have the correct fee earner dealing with the correct case.

2. An efficient case management system is crucial.

3. Claimant law firms will want to exit as many claims from the portal as possible (please see my note on exit points) but beware, the Court will penalise parties in cost who exit the portal for costs purposes. Please see CPR 45.24;-

45.24

(1) This rule applies where the claimant –

(a) does not comply with the process set out in the RTA Protocol; or

(b) elects not to continue with that process,

and starts proceedings under Part 7.

(2) Where a judgment is given in favour of the claimant but –

(a) the court determines that the defendant did not proceed with the process set out in the RTA Protocol because the claimant provided insufficient information on the Claim Notification Form;

(b) the court considers that the claimant acted unreasonably –

(i) by discontinuing the process set out in the RTA Protocol and starting proceedings under Part 7;

(ii) by valuing the claim at more than £10,000, so that the claimant did not need to comply with the RTA Protocol; or

(iii) except for paragraph (2)(a), in any other way that caused the process in the RTA Protocol to be discontinued; or

(c) the claimant did not comply with the RTA Protocol at all despite the claim falling within the scope of the RTA Protocol,

the court may order the defendant to pay no more than the fixed costs in rule 45.18 together with the disbursements allowed in accordance with rule 45.19.

6. Part 45 and PD45 Fixed Costs – The End of Standard Costs?

New fixed cost apply to RTA claims entering the portal and then exiting the portal on or after 31 July 2013:-

The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents which was in force before 31 July 2013 shall continue to have effect in respect of any claim where the Claim Notification Form was sent before that date.

A new Section IIIA, set out in the Schedule to this instrument, is also inserted into Part 45. New Section IIIA provides for a fixed costs regime in respect of those claims which exit the RTA and EL/PL Protocols and which are subsequently settled or proceed to judgment. Again the costs which might be recovered are prescribed in the rules, the amount depending upon the nature of the claim, the stage the proceedings have reached and the damages which might be agreed or awarded.

The new costs matrixes can be found at :-

http://www.legislation.gov.uk/uksi/2013/1695/article/7/made

Also to be added into CPR Part 45 as follows:-

Application of fixed costs and disbursements –

RTA Protocol45.29B.

Subject to rules 45.29F, 45.29G, 45.29H and 45.29J, i

f, in a claim started under the RTA Protocol, the Claim Notification Form is submitted on or after 31st July 2013, the only costs allowed are—

(a)the fixed costs in rule 45.29C;

(b)disbursements in accordance with rule 45.29I.

Amount of fixed costs –

RTA Protocol45.29C.—(1) Subject to paragraph (2), the amount of fixed costs is set out in Table 6B.

(2) Where the claimant—

(a)lives or works in an area set out in Practice Direction 45; and

(b)instructs a legal representative who practises in that area,

the fixed costs will include, in addition to the costs set out in Table 6B, an amount equal to 12.5% of the costs allowable under paragraph (1) and set out in Table 6B.

(3) Where appropriate, VAT may be recovered in addition to the amount of fixed recoverable costs and any reference in this Section to fixed costs is a reference to those costs net of VAT.

(4) In Table 6B—

(a)in Part B, “on or after” means the period beginning on the date on which the court respectively—

(i)issues the claim;

(ii)allocates the claim under Part 26; or

(iii)lists the claim for trial; and

(b)unless stated otherwise, a reference to “damages” means agreed damages; and

(c)a reference to “trial” is a reference to the final contested hearing

Disbursements45.29I.—

(1) The court—

(a)may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but

(b)will not allow a claim for any other type of disbursement.

(2) In a claim started under either the RTA Protocol or the EL/PL Protocol, the disbursements referred to in paragraph (1) are—

(a)the cost of obtaining medical records and expert medical reports as provided for in the relevant Protocol;

(b)the cost of any non-medical expert reports as provided for in the relevant Protocol;

(c)the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;

(d)court fees;

(e)any expert’s fee for attending the trial where the court has given permission for the expert to attend;

(f)expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

(g)a sum not exceeding the amount specified in Practice Direction 45 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purpose of attending a hearing; and

(h)any other disbursement reasonably incurred due to a particular feature of the dispute.

(3) In a claim started under the RTA Protocol only, the disbursements referred to in paragraph (1) are also the cost of—

(a)an engineer’s report; and

(b)a search of the records of the—

(i)Driver Vehicle Licensing Authority; and

(ii)Motor Insurance Database.

What does this mean in practice?

1. Given that QOCS will apply to most of these claims, and there will be no CFA uplifts, the incentive for Defendants to settle cases has gone (save for Part 36 see later section).

2. Most Defendants will run cases to Trial, economic offers as settle will be few and far between.

3. It will be more important than ever to assess prospects of success on liability, causation and quantum early with advice from Counsel and/ or a conference.

4. It will no longer economical to run cases with less than 51% prospects to Trial. The Defendant is more likely to run ‘50/50’ cases to Trial, as long as they stay in fixed costs.

7. Interim Application – More Fixed Costs for Cases that Drop out after 31 July 2013?

Interim applications

5.29H.—(1) Where the court makes an order for costs of an interim application to be paid by one party in a case to which this Section applies, the order shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6 or 6A.

(2) Where the party in whose favour the order for costs is made—

(a)lives, works or carries on business in an area set out in Practice Direction 45; and

(b)instructs a legal representative who practises in that area,

the costs will include, in addition to the costs allowable under paragraph (1), an amount equal to 12.5% of those costs.

(3) if an order for costs is made pursuant to this rule, the party in whose favour the order is made is entitled to disbursements in accordance with rule 45.29I; and

(4) Where appropriate, VAT may be recovered in addition to the amount of any costs allowable under this rule.

8. Counterclaims – Yet More Fixed Costs

Counterclaims under the RTA Protocol45.29G.—

(1) If in any case to which this Section applies—

(a)the defendant brings a counterclaim which includes a claim for personal injuries to which the RTA Protocol applies;

(b)the counterclaim succeeds; and

(c)the court makes an order for the costs of the counterclaim,

rules 45.29B, 45.29C, 45.29I, 45.29J, 45.29K and 45.29L shall apply.

(2) Where a successful counterclaim does not include a claim for personal injuries—

(a)the order for costs of the counterclaim shall be for a sum equivalent to one half of the applicable Type A and Type B costs in Table 6;

(b)where the defendant—

(i)lives, works, or carries on business in an area set out in Practice Direction 45; and

(ii)instructs a legal representative who practises in that area,

the costs will include, in addition to the costs allowable under paragraph (a), an amount equal to 12.5% of those costs;

(c)if an order for costs is made pursuant to this rule, the defendant is entitled to disbursements in accordance with rule 45.29I; and

(d)where appropriate, VAT may be recovered in addition to the amount of any costs allowable under this rule.

9. Defendant Fixed Costs – Can they recover anything?

Defendants’ costs45.29F.—

(1) In this rule—

(a)paragraphs (8) and (9) apply to assessments of defendants’ costs under Part 36;

(b)paragraph (10) applies to assessments to which the exclusions from qualified one way costs shifting in rules 44.15 and 44.16 apply; and

(c) paragraphs (2) to (7) apply to all other cases under this Section in which a defendant’s costs are assessed.

(2) If, in any case to which this Section applies, the court makes an order for costs in favour of the defendant—

(a)the court will have regard to; and

(b)the amount of costs order to be paid shall not exceed,

the amount which would have been payable by the defendant if an order for costs had been made in favour of the claimant at the same stage of the proceedings.

(3) For the purpose of assessing the costs payable to the defendant by reference to the fixed costs in Table 6, Table 6A, Table 6B, Table 6C and Table 6D, “value of the claim for damages” and “damages” shall be treated as references to the value of the claim.

(4) For the purposes of paragraph (3), “the value of the claim” is—

(a)the amount specified in the claim form, excluding—

(i)any amount not in dispute;

(ii)in a claim started under the RTA Protocol, any claim for vehicle related damages;

(iii)interest;

(iv)costs; and

(v)any contributory negligence;

(b)if no amount is specified in the claim form, the maximum amount which the claimant reasonably expected to recover according to the statement of value included in the claim form under rule 16.3; or

(c)£25,000, if the claim form states that the claimant cannot reasonably say how much is likely to be recovered.

(5) Where the defendant—

(a)lives, works or carries on business in an area set out in Practice Direction 45; and

(b)instructs a legal representative who practises in that area,

the costs will include, in addition to the costs allowable under paragraph (2), an amount equal to 12.5% of those costs.

(6) Where an order for costs is made pursuant to this rule, the defendant is entitled to disbursements in accordance with rule 45.29I

(7) Where appropriate, VAT may be recovered in addition to the amount of any costs allowable under this rule.

(8) Where, in a case to which this Section applies, a Part 36 offer is accepted, rule 36.10A will apply instead of this rule.

(9) Where, in a case to which this Section applies, upon judgment being entered, the claimant fails to obtain a judgment more advantageous than the claimant’s Part 36 offer, rule 36.14A will apply instead of this rule.

(10) Where, in a case to which this Section applies, any of the exceptions to qualified one way costs shifting in rules 44.15 and 44.16 is established, the court will assess the defendant’s costs without reference to this rule.

10. Claimant’s Part 36 offers, a saving grace?

If the claimant obtains a judgment at least as advantageous as their own Part 36 offer then, unless the court considers it unjust, they will be entitled to:

Their costs up to the end of the relevant period, presumably in accordance with the relevant fixed costs tables

Costs on the indemnity basis from the end of the relevant period

Interest on damages at up to 10% above base for some or all of the period starting with the date on which the relevant period ended.

Interest on the indemnity costs at up to 10% above base.

An additional amount calculated as 10% of the amount (damages) awarded

From a practical point of view in this regard, once a claim has exited the portal, therefore, it will be wise for claimants to consider reasonable early Part 36 offers to encourage defendants to settle.

11. Claimant Accepts Defendant’s Part 36 offer within ‘relevant period’.

36.10A. — (1) This rule applies where a claim no longer continues under the RTA or EL/PL Protocol pursuant to rule 45.29A(1).

(2) Where a Part 36 offer is accepted within the relevant period , the claimant will be entitled to the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage applicable at the date on which notice of acceptance was served on the offeror.

(3) Where—

(a)a defendant’s Part 36 offer relates to part only of the claim; and

(b)at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim,

the claimant will be entitled to the fixed costs in paragraph (2).

12. Claimant Accepts Defendant’s Part 36 out of time.

(4) Subject to paragraph (5), where a defendant’s Part 36 offer is accepted after the relevant period—

(a)the claimant will be entitled to the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 for the stage applicable at the date on which the relevant period expired; and

(b)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.

(5) Where the claimant accepts the defendant’s Protocol offer after the date on which the claim leaves the Protocol—

(a)the claimant will be entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 6 or Table 6A in Section III of Part 45; and

(b)the claimant 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 acceptance.

But note

(8) Fixed costs shall be calculated by reference to the amount of the offer which is accepted.

(9) Where the parties do not agree the liability for costs, the court will make an order as to costs.

(10) Where the court makes an order for costs in favour of the defendant—

(a)the court will have regard to; and

(b)the amount of costs ordered shall not exceed,

the fixed costs in Table 6B, Table 6C or Table 6D in Section IIIA of Part 45 applicable at the date of acceptance, less the fixed costs to which the claimant is entitled under paragraph (4) or (5).

(11) The parties are entitled to disbursements allowed in accordance with rule 45.29I incurred in any period for which costs are payable to them. ” .

13. Claimant Fails to Beat Defendant’s Protocol offer

(3) Where the claimant fails to obtain a judgment more advantageous than the defendant’s Protocol offer—

(a)the claimant will be entitled to the applicable Stage 1 and Stage 2 fixed costs in Table 6 or Table 6A in Section III of Part 45; and

(b)the claimant 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 judgment; and

(c)in this rule, the amount of the judgment is less than the Protocol offer where the judgment is less than the offer once deductible amounts identified in the judgment are deducted.

(4) For the purposes of this rule a defendant’s Protocol offer is either—

(a)defined in accordance with rules 36.17 and 36.18; or

(b)if the claim leaves the Protocol before the Court Proceedings Pack Form is sent to the defendant—

(i)the last offer made by the defendant before the claim leaves the Protocol; and

(ii)deemed to be made on the first business day after the claim leaves the Protocol.

(5) A reference to the ‘Court Proceedings Pack Form’ is a reference to the form used in the Protocol.

(6) Fixed costs shall be calculated by reference to the amount which is awarded.

(7) Where the court makes an order for costs in favour of the defendant—

(a)the court will have regard to; and

(b)the amount of costs ordered shall not exceed,

the fixed costs in Table 6B, 6C or 6D in Section IIIA of Part 45 applicable at the date of judgment, less the fixed costs to which the claimant is entitled under paragraph (2) or (3).

(8) The parties are entitled to disbursements allowed in accordance with rule 45.29I incurred in any period for which costs are payable to them. ” .

14. Claimant Fails to Beat Defendant’s Part 36 offer

If the claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer, then unless the Court considers it unjust, the claimant gets the fixed costs under the relevant table up to the stage the case had reached at the end of the relevant period, but must pay the defendant’s costs from the end of the relevant period to the date of judgment.

The costs will again be capped as in 13.

 

15. Fixed Costs – The Great Escape?

Claims for an amount of costs exceeding fixed recoverable costs

45.29J.—(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

(2) If the court considers such a claim to be appropriate, it may—

(a)summarily assess the costs; or

(b)make an order for the costs to be subject to detailed assessment.

(3) If the court does not consider the claim to be appropriate, it will make an order—

(a)if the claim is made by the claimant, for the fixed recoverable costs; or

(b)if the claim is made by the defendant, for a sum which has regard to, but which does not exceed the fixed recoverable costs,

and any permitted disbursements only.

Failure to achieve costs greater than fixed recoverable costs

45.29K.—(1) This rule applies where—

(a)costs are assessed in accordance with rule 45.29J(2); and

(b)the court assesses the costs (excluding any VAT) as being an amount which is in a sum less than 20% greater than the amount of the fixed recoverable costs.

(2) The court will make an order for the party who made the claim to be paid the lesser of—

(a)the fixed recoverable costs; and

b)the assessed costs.

1. In reality, the Court is likely to say that very few claims are ‘exceptional’.

2. The definition of exceptional is likely to be subject to some satellite litigation.

Andrew Mckie
This email address is being protected from spambots. You need JavaScript enabled to view it.
Twitter: @andrewmckie

Image ©iStockphoto.com/bagi1998

July 2013 Contents

Welcome to the July 2013 issue of PI Brief Update Law Journal. Click the relevant links below to read the articles and take the CPD quiz. Please remember to fill in our quick feedback form after you have finished. CPD Quiz The quiz is designed to meet the CPD requirements of the SRA and provides 1.5 hours accredited distance learning. Law Brief Publishing Ltd is registered with the Solicitors Regulation Authority for England and Wales, ref EGB/LBPL. The CPD is also valid for cILEX (formerly ILEX) members and for members of the Chartered Insurance Institute (CII). Please check with the relevant organisation for full details of their CPD rules. Take the CPD Quiz    Feedback Form    CPD Information NEW: Download PIBULJ PDF to Read on your PC, Phone or Tablet We have made this month's issue into a PDF so that you can download it to read on the train, in the garden, or anywhere else you might not have a good internet connection.  There are two versions, one is optimised for reading on a computer, iPad, other tablets, or for printing.  The other one is optimised for reading on iPhones, Android phones etc. Access the PIBULJ July 2013 PDF Version
Personal Injury Articles
Little Things to Know About the Revised Detailed Assessment Procedure - Matthew Hoe, Jaggards & Taylor Rose Law The Jackson reforms changed costs overnight. Some of the changes were heralded with widespread commentary, and continue to receive it. There are other changes, critical to practitioners, that have received much less commentary. Lack of awareness may lead to expensive mistakes.	Editorial: Opoku v Tintas: Court of Appeal on Period of Hire - Aidan Ellis, Temple Garden Chambers Challenging the period of hire in a credit hire case has always been a difficult issue for Insurers. In many credit hire cases it is the period of hire more than the daily rate that Insurers instinctively want to challenge...
The Expanded Portal and Predictable Costs Regimes - Matthew Hoe, Jaggards & Taylor Rose Law The new fixed cost rules were published on Friday 12th July, in the Civil Procedure (Amendment No 6) Rules 2013 (SI 2013/1695). The fixed costs will apply to most (but not all) personal injury claims in the scope the fast track.	Lights, Camera... Appeal! - Simon Readhead QC, 1 Chancery Lane It's Channel 4's fault! Was it just coincidence that on 10 July, the day after "The Murder Trial" was first screened on television, the Court of Appeal (Recording and Broadcasting) Order 2013 was published?
Compliance With Court Orders: Fons HF v Corporal Ltd & Pillar Securitisation [2013] - Paul Stanton Another of the early cases on "relief from sanctions" has been reported on 9th May. Fons raised the question of whether or not HH Judge Pelling QC should extend the time for filing of witness statements-notwithstanding neither (active) party had complied with two earlier case management Orders dealing with the deadline for filing.	Litigants in Person, the Judges and You! - Simon Readhead QC, 1 Chancery Lane According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.
What Is a Witness Statement? - Thomas Crockett, 1 Chancery Lane What is a witness statement? What is it for? And what should it contain? These are all questions which ought to be simple-enough to answer. However frequently it appears to those involved in litigation that the simple-enough answers are not always correct! Witness statements not infrequently go wildly beyond...	Jackson: When Is a Deadline for an Order Not 'Written in Stone'? - Ian Miller, 1 Chancery Lane The case of Re Atrium Training Services Limited [2013] EWHC 1562 (Ch) is the latest judgment from the High Court which considers the new rules. The judge was faced with an application to extend time to comply with a court order for a massive disclosure exercise. This came against a background of...
New Supreme Court Judgment: Alternative Service Outside the Jurisdiction, How Exorbitant Is That? - Clive Freedman QC, Littleton Chambers Clive Freedman QC of Littleton Chambers together with Tim Penny instructed by PCB Litigation LLP appeared for the successful appellants in an appeal to the Supreme Court in the case of Abela & Ors v Baadarani [2013] UKSC 44. Judgment was handed down on 26 June 2013...	Lloyd v Arriva Southern Counties Limited - Marcus Weatherby, Pattinson Brewer This recent liability only decision concerned a young cleaner/driver who was employed by the Defendant bus company who was injured when alighting from a bus that she had been on for the purpose of cleaning it.
Is Your Client's Pi Award at Risk on Divorce? - Margaret Hatwood, Anthony Gold Solicitors The short answer to this is, yes, and now more so than ever before. The fuzzy discretion of the family courts has now intruded into the personal injury lawyer's arena. A recent award has been so generous to the spouse of a personal injury claimant to the extent that over half his personal injury award was paid to his wife...	Wilson v GP Haden Trading as Clyne Farm Centre [2013] EWHC 1211 (Swift J, QBD) - Geoffrey Weddell, 1 Chancery Lane On 1st August 2009 the claimant, who is a scout leader, was leading a troop of scouts over a series of obstacles on an adventure course at the defendant's premises. One of the obstacles was a so-called Burma bridge which involved crossing a rope bridge at a height of some 3 metres and then sliding down a fireman's pole to ground level. The claimant failed to grip the pole properly and...
Transport Select Committee: Why It's Our Duty to Fight - Philip Waters, Camps Solicitors The latest Transport Select Committee hearing into whiplash has yet again allowed the ABI and insurance companies to issue figures to media and government on how much whiplash claims allegedly add onto motor insurance policies every year. However these figures are nine years old and completely out of date...	Payment by Outcome: Don't Tell the Expert - Ian Gascoigne, Eversheds Like an unwanted Christmas present returned to the store with its gift receipt on any 28th December, the inception of damages-based agreements has not brought joy. We have been told that they are unworkable, principally because...
General Damages Come Under Attack - Julie Carlisle, Boyes Turner In the first ever issue of Modern Claims Magazine in May 2013 James Dalton, Assistant Director of the ABI, suggested that it is time for a public policy debate about whether low speed shunts in supermarket car parks should attract "the current levels" of compensation awarded to the non-fault driver...	The ATE Market in This Early Post-LASPO World - Matthew Amey, TheJudge Limited The Legal Aid, Sentencing and Punishment of Offenders Act 2012 ('LASPO'), implemented on 1 April 2013, abolished the recoverability of After the Event ("ATE") insurance premiums...
What Next for ATE? - Alexandra Anderson, RPC The introduction of the Jackson Reforms has fundamentally changed the landscape of the litigation market. No more can a claimant take out After The Event Insurance at whatever cost insurers might choose to charge, safe in the knowledge that, so long as the claim does not fail, the defendant will be...	Shouting About Cauda Equina Syndrome - Mehmooda Duke, Moosa-Duke Solicitors For many years my firm has been specialising in Cauda Equina Syndrome Cases. This year we have made Cauda Equina Syndrome UK our charity of 2013. Cauda Equina Syndrome (CES) is a sometimes unheard of condition. The lack of awareness about this condition in the medical profession is such that the Founder Chair Trustee of the charity, Annie Glover, also a sufferer, has been working tirelessly since...
Predicting the Future - Bill Braithwaite QC, Head of Exchange Chambers Predicting the future is always difficult, but that's what personal injury lawyers in catastrophic claims have to do all the time. This is why, in my opinion, forming a close, long-term relationship between the claimant, his or her family, and the legal team is so important.	Never Assume When It Comes to Injuries - Bill Braithwaite QC, Head of Exchange Chambers Still on predicting the future, it is so important not to assume that people are the same as other people. You do sometimes hear, even now when we should all know better, phrases like "a standard paraplegic"...
Summary of Recent Cases, July 2013 Here is a summary of the recent notable court cases over the past month.	PI Practitioner, July 2013 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Disclosure of previous expert reports where a party seeks to change experts within the same field.
Medico-Legal Articles, Edited by Dr Hugh Koch
Lack of Post-Accident GP Attendance: a Poor Indicator of Psychological Symptom Severity in Adults - Dr Jacquie Hetherton, Clinical Psychologist, Hugh Koch Associates It is often assumed that there is a linear relationship between symptom severity and GP attendance. Thus a lack of GP attendance is taken to denote mild symptoms even though a claimant may report symptoms that are severe and disabling. In my clinical experience there are multiple factors that disrupt the relationship between symptom severity and GP attendance.