PIBULJ
Litigants in Person, the Judges and You! - Simon Readhead QC, 1 Chancery Lane
18/07/13. 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.
On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.
www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf
The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.
In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:
“Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.
The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.
The Judicial College should also urgently assess the feasibility of providing training on LIPs – a sort of “Quick Lit” course for judges – together with developing a “litigants in person toolkit”utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.
More far reaching proposals include:
1. The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.
2. The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.
3. The introduction of a specific general practice direction or new rule in the CPR to address,without creating a fully inquisitorial form of procedure, the needs of LIPs in obtaining access to justice whilst enabling courts to manage cases consistently – see [2.10] and [5.11] of the report.
The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.
Simon Readhead QC
1 Chancery Lane
Image ©iStockphoto.com/sellingoutstieglitz
The Expanded Portal and Predictable Costs Regimes - Matthew Hoe, Jaggards & Taylor Rose Law
17/07/13. 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.
The new rules set out two types of fixed costs. First, costs for claims settling under the RTA Protocol or the EL/PL Protocol (‘portal costs’). Those costs are fixed, with variation for the type of claim and the amount of damages. Second, costs for claims that exit the protocols (‘expanded predictable costs’). Those costs are calculated based on a simple formula based on the damages, which varies depending on the type of claim and whether the claim settles pre-issue, post-issue, post-allocation, pre-trial or at trial.
This article sets out what is provided by the new rules, but does not set out the figures to be allowed, which have been known for a while.
Capture
The expanded predictable costs will only apply to claims that start in but then exit the RTA or EL/PL Protocol. Thus they are not fixed costs for the whole of the fast track. If a claim is excluded from the protocols, it will also be excluded from the expanded predictable costs. The protocols list the types of claim that are excluded.
Commencement date
Both types of fixed costs will apply to claims in which the CNF is sent on or after 31 July 2013. Thus there will be a considerable run off of claims to which the new schemes do not apply. This is a simpler solution than the one that was possible from the government’s consultation response. That talked of claims exiting the protocol on or after 31st July being subject to the expanded predictable costs.
Structure
CPR 45 Section II (known as ‘predictable costs’, in homage to the Woolf reports, or ‘predictive costs’, in homage to SMS messaging) survives unaltered. That’s a surprise, as it will quickly be side-lined. The increase in the small claims threshold to £10K for special damages rules out ‘bent metal’ claims falling under this Section. Only a handful of claims excluded from the RTA Protocol, such as claims by protected parties other than children or accidents in England & Wales involving foreign registered vehicles will still be under this Section.
CPR 45 Section III (portal costs) stays too, but is expanded to cover EL and PL claims, and claims up to £25K.
The new lower predictable costs for RTAs and the other expanded predictable costs for EL and PL claims are set out in a new CPR 45 Section IIIA.
CPR 45 Section VI, fast track trial costs, survives also, and will continue to apply to fast track claims outside the scope of portal costs and expanded predictable costs. The latter makes its own provision for trial costs, and thus is entirely self-contained.
Escape
The exceptional circumstances test has been lifted wholesale from CPR 45 Section II for Section IIIA. There must be exceptional circumstances which make it appropriate (a form of causation test) to allow a claim for costs greater than expanded predictable costs, and the receiving party must achieve at least 20% greater in order to keep his winnings. That is a test that has resulted in relatively few cases being allowed to escape Section II. Such is the price of certainty. Hopefully that will mean few claims where such circumstances are alleged and upheld by the court.
Behaviour controls
The power of the court to restrict claimants to portal costs remains, and Section IIIA confirms that nothing in the Section prevents the court exercising that power. Claimants should be cautious to exit claims from the protocols for no legitimate reason so as to recover Section IIIA costs, or to fail to follow the protocols at all in an attempt to avoid fixed costs altogether.
Part 36
Part 36 is amended to accommodate expanded predictable costs. If a Part 36 offer is accepted in the relevant period, costs will be payable in accordance with stage at which the notice of acceptance is served. That may encourage claimants to hold off accepting defendants’ offers for a few days until the claim reaches the next stage, if they consider the additional costs are worth the extra work.
If a claimant accepts a defendant’s Part 36 offer outside the relevant period or fails to beat it at trial, the claimant will have costs in accordance with the stage at which the relevant period expired. The defendant will be allowed costs up to the difference in costs between that stage and the stage at which notice of acceptance was served. That will still interact with QOCS, and defendants will not be able to recover more than the damages the claimant receives.
If a claimant beats his own offer at trial, he is still entitled to indemnity costs and the expanded predictable costs will not apply.
Defendant’s costs
These are capped at the same levels fixed for claimant’s costs. In the Part 36 situation, defendant’s costs are fixed at the difference between the fixed costs at the stage when the claim settled and the fixed costs at the stage at which the Part 36 expired.
If it is a case to which the exceptions to QOCS apply (strike out for having no reasonable grounds, abuse of process or obstructive conduct, or fundamental dishonesty), the defendant’s costs are not capped.
Counterclaims
These shall attract the same expanded predictable costs as originating claims, unless they do not involve personal injury; in which case, they get only half of the expanded predictable costs.
Interim applications
To prevent an explosion of these, their costs are also fixed. An amount equivalent to half of the Stage 3 Type A and Type B portal costs shall be allowed.
Exclusions
The protocols exclude a range of claims. The basic criterion for inclusion is that there must be an injury claim and the value of the claim must be likely to fall in the fast track range. They exclude accidents outside of England & Wales; claims by litigants in person, personal representatives, protected parties and bankrupts; abuse, clinical negligence and mesothelioma claims; motor claims on the MIB Untraced Drivers Agreement or where the defendant’s vehicle is registered outside the UK; PL claims against an individual; claims in which the defendant is insolvent and there is no identifiable insurer; disease claims in which there are co-defendants.
The expanded predictable costs also exclude all employer’s liability disease claims.
Conclusion
The new rules are thorough and seem unlikely to give much scope for disagreement. Satellite litigation should be limited. Likely litigation will concern the consequences unreasonable exit from or failure to follow the protocols, and what constitutes ‘exceptional circumstances’, and what types makes it appropriate to allow greater costs.
Matthew Hoe
Jaggards & Taylor Rose Law
Image ©iStockphoto.com/Mark-W-R
Little Things to Know About the Revised Detailed Assessment Procedure - Matthew Hoe, Jaggards & Taylor Rose Law
16/07/13. 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.
For instance, there have been changes to the detailed assessment procedure. Provisional assessment has caught the headlines. Provisional assessment looks after itself; it requires less participation from the parties. Other changes to the assessment procedure require parties to do things differently. However, my practical experience has been that many have carried on as before.
Restricted transitional provisions
The cause appears to be that practitioners consider that there ‘must’ be transitional provisions. Because, they reason, it would be illogical if there were not. The changes should not apply to assessment proceedings that had already started by 1st April 2013. There are reports too that some judges, perhaps caught on the hoof, have commented extra-judicially that they would expect the old ways to apply.
The transitional provisions in CPR 48 for additional liabilities are not relevant. The only applicable transitional provisions are set out in paragraph 22 of The Civil Procedure (Amendment) Rules 2013 (SI 2013/262). They cover:
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the time for appealing from a decision in detailed assessment proceedings (para 22(9));
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offers in detailed assessment proceedings (para 22(10));
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interest on the costs of detailed assessment proceedings (para 22(11)).
The effect is that other changes to the steps of the assessment procedure apply if the step is taken after 1st April 2013, regardless of when the notice of commencement of detailed assessment (N252) was served.
Replies to points of dispute
PD47 12.1 provides first that a receiving party can only reply to the points of principle in the points of dispute, or make concessions. A point of principle is not defined. But it would seem to be a matter of law rather than a mere objection to quantum of an item. A concession can be any agreement on a point of law or offer to accept less than is claimed in the bill.
Second, the practice direction goes on to outlaw general denials, specific denials and standard form responses. This reflects the general truism that replies do not assist. Saying that you don’t agree is no more helpful than not saying that you don’t agree. Also, receiving parties are subject to a restriction not placed on paying parties: the ban on the use of templates. On a paying party, the relevant control on templates will be how effective he wishes his points to be and how much resource he is prepared to allocate.
Replies often set out background facts in support of a rejection of a point of dispute. Some receiving parties may argue that to do so is a matter of principle. That would be a stretch. It would seem that they are matters of fact, set out in furtherance of a specific denial. Factual replies must be covered by the ban. A canny receiving party may seek to introduce such facts in furtherance of a very minor concession instead. The cannier receiving party will already have anticipated the objection and set out the relevant facts in the bill of costs.
Whilst a receiving party may want to prepare fuller replies to influence the outcome of a provisional assessment, that choice cannot be rationalised on the basis that the new practice direction does not apply where detailed assessment was commenced before 1st April.
Even if the court has regard to the replies, it is unlikely that the court will allow their costs to the extent that they are non-compliant. In sub-£75K assessments commenced after 1st April, receiving parties are more likely to comply with the new rules because of the cap on assessment costs of £1500 in CPR 47.15(5). In assessments commenced before 1st April, in which costs remain uncapped, receiving parties should not continue to prepared detailed replies and expect to recover the costs.
Following in the recent footsteps of receiving parties applying to challenge the admissibility of points of dispute served with the open offer prescribed by PD47 8.3, we will also see paying parties applying to object to the admissibility of replies that do not comply with the practice direction. If receiving parties lose on such applications, it will increase the expense of the initial decision or lack of care to not comply with the practice direction.
Statement of costs
CPD 45.3 used to provide: ‘No party should file or serve a statement of costs of the detailed assessment proceedings unless the court orders him to do so.’
There is no corresponding provision in the new PD47.
This change is especially important in the run off of assessments commenced before 1st April which are now coming to hearings.
CPD 45.3 was a practice direction to the old CPR 47.18. That rule still applies under the transitional provisions in the pre 1st April cases. The position is not so clear for the practice direction. Does the preservation of the rule extend to its practice direction? Or has it been swept aside?
From an abundance of caution, it is safer to assume the latter.
Therefore, the default position in PD44 9.5(4)(b) would apply, and the statement of costs for a detailed assessment hearing must be filed and served not later than 24 hours before the time fixed for the hearing.
That is a change likely to capture practitioners unaware.
Prior to the 1st April, the leading case on the consequences of the failure to serve a statement of costs was MacDonald v Taree Holdings. The court held that failure to file or serve a statement of costs did not warrant a complete disallowance, but there should be a proportionate response which may still result in a reduction in the amount of costs. But in the brave new world post 1st April, and the overriding objective mark 2 emphasising the importance of compliance with practice directions, a winner on assessment may find himself with a pyrrhic victory of he has not filed and served his statement of costs. The court may disallow his costs.
The revised Part 7 and new PD47 deserve careful reading alongside the transitional provisions. If a practitioner is not going to follow one of the rules or PDs, he must be ready to explain his decision. Assertions that the new provisions do not apply (unless a transitional provision confirms) are not likely to hold up to analysis in court.
Matthew Hoe
Jaggards & Taylor Rose Law
Image ©iStockphoto.com/PashaIgnatov
General Damages Come Under Attack - Julie Carlisle, Boyes Turner
15/07/13. 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. “This” he opined “is a debate society needs to have as the cost of damages and fraudulent claims are passed on to those honest customers paying car insurance premiums”.
This attempt to muddy the difference between dishonest and modest value was recently repeated in the Law Gazette by Tom Woolgrove, managing director of personal lines at Direct Line. This time however he went one further stating that the only way to sustain what he claimed were obvious reductions in car insurance premiums was through a new approach to general damages for low value claims. This time he told us that “there is a genuine public policy debate about the rights of the claimant to damages versus the cost to everybody paying for premiums”.
It would appear that slashing recoverable legal fees was not enough. Nor indeed was taking out fraudulent or exaggerated claims. We are now being told that we are not going to see those promised premium reductions unless we accept the need to go even further – that is unless we agree to pay our compulsory car insurance premiums but don’t necessarily expect to be able to claim on them.
When the current government agreed to the recent sweeping reforms to civil litigation one of the key stipulations they made to the insurance industry was that it had to result in significant savings for customers. Mr Woolgrove’s reference to “obvious” reductions a mere three months and ten days after 1 April isn’t backed by any evidence that changes implemented then could possibly have had time to impact positively on the cost of policies. So, we haven’t seen the promised reductions yet, and already we are being set up to expect further reform in the name of consumer savings.
Having won the war on costs the insurance industry appears to have general damages in their sights, and not just their reduction, but possibly their elimination. We were told that fraudsters were to blame, but it seems anyone – even the “honest motorist” so beloved of the insurance industry – is fair game. This headline from Insurance Times on 15 July: “Claims Data show motorists more honest than ever”. AXA spokeswoman Amanda Edwards is quoted as saying “It is reassuring to see that, despite facing rising costs, UK motorists are keeping their integrity”. How this squares with Mr Dalton’s call for rear end shunts in supermarket car parks to be excluded from civil compensation isn’t clear. If the honest motorist suffers genuine injury when an equally honest but distracted motorist hits them from behind, should they really be expected to take this on the chin for the good of all the other honest motorists duly paying their compulsory premiums?
AVIVA’s written response to the current parliamentary enquiry into whiplash claims perhaps gives the answer: “Our view is that the MOJ could, via primary legislation...make certain types of minor injury...either not call in general damages at all, or attract a nominal sum set by tariff”.
Why stop at whiplash?
Julie Carlisle
Boyes Turner
Image cc flickr.com/photos/webrolighting/4095891862/
PI Practitioner, July 2013
15/07/13. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Simply fill in your email address at the top right of this website.
Disclosure of previous expert reports where a party seeks to change experts within the same fieldBeck v Ministry of Defence [2003] EWCA Civ 1043
Where a Defendant seeks to change experts in the same field, generally a condition of the court allowing them permission to do so is disclosure of the previous expert's report once the permission for a new expert has been granted.
Nicos Varnavas Hajigeorgiou v Vassos Michael Vasiliou [2005] EWCA Civ 236
The court does not have the power under CPR 35.4 to direct whether parties can instruct experts, but to direct whether parties may call experts at trial. Where a direction gave the parties permission to 'instruct one expert each' in a particular field, the direction was in fact that each party may rely on one expert at trial. Additionally, if a party in this scenario had instructed an expert before the direction was given, but subsequently chose not to rely on that expert so instructed a second expert and chose to rely upon that second expert instead, they did not need further permission from the court.
Ricky Edwards-Tubb v J D Wetherspoon Plc [2011] EWCA Civ 136
The power for a court to impose a condition of disclosure of an earlier expert report when granting permission to change experts is available where the change of expert occurs pre-issue as well as when it occurs post-issue. It is a matter of discretion, but the power should usually be exercised where the change comes after the parties have embarked upon the pre-action protocol and engaged in the process of the claim with each other. However, where a party has taken advice pre-protocol at his own expense there is generally no justification for infringing his privilege in the absence of an unusual factor.
Odera (1) Ordera (2) v Ball (1) Ball (2) [2012] EWHC 1790 (TCC)
A party that had prepared an additional expert report at the same time as a court-ordered expert report was not required to disclose the additional report under CPR 35.4 as the report had been prepared on a misunderstanding of the issues, and it was potentially unjust to provide privileged reports prepared on such a misunderstanding.
James Henry, Temple Garden Chambers
Image ©iStockphoto.com/EmiliaU
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