News in brief 2 March 2017

CCMS survey

The Legal Aid Practitioners Group has launched a survey to help identify problems with the Legal Aid Agency’s Case and Costs Management System, and press for it to be improved. The aim is to produce a report with the data collected by this survey and share it with the agency, the Ministry of Justice, politicians, other representative bodies and interested parties.

The survey covers:

– The means and merits aspects of submitting an application
– Amendments to applications
– Billing (including POAs)
– Incorrect actions taken by CCMS
– General problems such as stability, the time it takes to use the system and the training and support on offer

The survey should take to 30-40 minutes and closes on Friday 3 March. Click here to complete it.

 

Discount rate change sparks part 36 alert

Litigators have been urged to reassess any open part 36 offers in light of Lord Chancellor Liz Truss’s (pictured) decision on Monday to reduce the discount rate from 2.5% to -0.75%. This will take effect from 20 March.

Claimants have been told to consider whether they should withdraw part 36 offers, while defendants should think about accepting them.

On his blog, Nigel Poole QC said offers that depended on an assessment of future awards “need to be immediately assessed”.

“Claimants must consider withdrawal as a serious option. It might be professional negligence not to do so. However, if a defendant sought permission to accept a part 36 offer which would now manifestly undervalue a claim, surely the Court would refuse permission.”

He said while claimants may consider making offers based on the new rate, “might the new rate be challenged by insurers so that it does not take effect?” He added: “How should defendants respond to offers based on the new rate but when the time for acceptance expires only a day or so after the new rate is due to come into force?”

 

Costs order stay lifted

The stay of a costs order has been lifted by the High Court because it would not cause irremediable prejudice to the respondent. Mr Justice Snowden also ruled that the statutory demand in bankruptcy the appellant would probably serve on the respondent as a result would not disrupt the upcoming appeal hearing as any bankruptcy order that might be made would be after the hearing.

According to a report of Halborg v EMW Lawon Lawtel, the applicant law firm appealed to lift the stay of a costs order granted against the respondent solicitor.

There had been a dispute between the parties after the applicant had acted as an agent for the solicitor. The costs order had required that the solicitor pay £36,155 but had also provided that if he succeeded in another appeal that was before the court the following week, then the costs order would be set aside and another hearing would be organised to re-determine costs. A stay of the order for payment of the costs pending the outcome of the appeal was granted.

The Lawtel report said the judge held that, where there was an appeal pending, solid grounds had to be advanced by the party seeking a stay for it to be granted. Those reasons normally included that there would be some form of irremediable harm to the party if the stay was not granted.

Here, the applicant had not made out any solid grounds for departing from the normal rules in CPR rule 52.7. The solicitor had not sought to contend that he would be unable to pay the costs ordered if he was required to do so; correspondence written by him had asserted that he was not insolvent and that he had assets which would be more than enough to pay the amount of the costs order.

The solicitor’s assertion that preparation for the appeal the following week would be disrupted if the stay was lifted did not amount to a substantial ground: the majority of the preparation for the appeal must have already been undertaken.

The report recorded: “Even if the statutory demand was served during the week, if the solicitor did not pay then a bankruptcy petition could not be presented for 21 days, which would leave a period of time in the interim in which the appeal hearing would still take place. Given that no bankruptcy order would be capable of being made until after the hearing, there was no risk of irremediable prejudice if the stay was lifted and the solicitor made the payment he was required to make.”

 

Pic credit: Gareth Milner

 

This post was posted in ACL e-Bulletin

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Costs News
Published date
03 Mar 2017

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