News in brief 23 February 2017

CPR changes to go live over next six weeks

Changes to the CPR following the Court of Appeal rulings in Sarpd Oil and Qader will take effect on 6 April, it has been confirmed.

The former make it clear that the case management hearing is not the forum to debate incurred costs, although the judge will be able to record comments on them to be taken into account at a later assessment. The latter will clarify that cases which exit the personal injury protocols and then proceed on the multi-track are not subject to fixed recoverable costs.

A further change to the CPR, coming into force on 6 March, means that hearing fees will no longer be automatically refunded where parties settle the claim before trial. The date at which the hearing fee becomes payable is moved closer to the trial date.

Finally, changes to part 45 as part of a package of amendments with a view to ensuring that costs in Aarhus Convention claims are not “prohibitively expensive” come into force on 28 February.

Click here for the details of all the upcoming changes to the CPR.

 

Stark immigration costs warning

Lawyers have been warned by that where judicial review proceedings in the immigration and asylum chamber are resolved by settlement, the parties are responsible for doing all they can to agree costs rather than leaving it the tribunal, “which is likely to carry its own penalty”.

It was issued by Upper Tribunal Judge John Freeman in R (on the application of Munyua) v Secretary of State for the Home Department (Parties’ responsibility to agree costs) [2017] UKUT 78 (IAC).

He drew both parties’ attention to what Stanley Burnton LJ said in M v London Borough of Croydon [2012] EWCA Civ 595, that “there were too many cases in which courts, or now this tribunal, are left to decide the question of costs, because the parties have found that the easiest solution from their own point of view”.

Judge Freeman said: “While resolution of the substantive issues is to be encouraged, it is also necessary to encourage the actual resolution of costs issues, if judicial time is not to be spent on them which could better be used in dealing with substantive issues in other cases… Any unreasonable failure by the parties to reach an agreement between themselves is likely to be penalised in costs.”

 

Master urges parties to plan

A costs judge has used the proportionality test to slash a £72,000 bill by two-thirds for a clinical negligence case that settled for £3,250 after finding that the claimant’s solicitors had not planned their conduct of the matter in line with what was always going to be modest damages.

In Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust [2017] EWHC B5 (Costs), Master Simons in particular took the axe to the DAS after-the-event (ATE) insurance premium of £31,976, which he reduced to £2,120 (having decided that the premium should be included in the overall bill for the purposes of the test).

Master Simons cited the Court of Appeal in Jefferson v National Freight Carriers PLC [2001] EWCA Civ 2082, which in turn had quoted with approval the judgment of HH Judge Alton in Birmingham County Court in an unnamed case the year before.

Judge Alton said: “In modern litigation, with the emphasis on proportionality, it is necessary for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which will be necessary and appropriate to spend on the various stages in bringing the action to trial, and the likely overall cost.

“While it is not unusual for costs to exceed the amount in issue, it is, in the context of modern litigation such as the present case, one reason for seeking to curb the amount of work done and the cost by reference to the need for proportionality.”

Master Simons said: “That statement by Judge Alton, although made some years ago, is even more relevant today as the rules regarding proportionality are now much more onerous.

“I looked through the solicitor’s file, both at the provisional assessment and prior to the hearing today, and I could see no evidence of any planning in the manner described by HH Judge Alton. The claim was always going to be low value.”

He was also critical of the failure to consider whether this was the most appropriate ATE policy given the impact of the number of experts used (five) on the premium.

Master Simons ruled: “Costs of £72,320.85 for a low-value medical negligence claim are disproportionate. They do not bear any reasonable relationship to the sums in issue in the proceedings. The litigation was not particularly complex, no additional work was generated by the conduct of the paying party and there were no wider factors involved in the proceedings such as reputation or public importance.”

 

Student council elections begin

Nominations for four vacancies on the ACL Student Council (SC) opened this week. Students should have received an email about it this week.

While all trainees are entitled to stand for election, three of the four positions will be reserved for Year 1 students to ensure the right balance, with the remaining place open to other students.

Students have until 4.30pm on Friday 24 February to put themselves forward. For any queries, email  studentcouncil@costslawyer.co.uk.

Meanwhile, there are four nominees for the two positions on the ACL Council: Duncan Andaro, Paul Bracewell, David Cooper and Simon Murray. Voting papers were emailed to members yesterday. They have until noon on Tuesday 7 March to vote.

 

PI reforms unveiled

The small claims limit will rise to £5,000 for whiplash cases but only £2,000 for other personal injury claims, the Ministry of Justice announced today – less than seven weeks after its consultation closed.

There will be a fixed tariff to cap whiplash compensation pay-outs – although the figures have not yet been published – which the MoJ said would make sure that “payments are proportionate to the level of injury suffered”. The other option consulted on was no compensation for an injury lasting less than six months.

It will also press ahead with banning offers to settle whiplash claims without medical evidence. The provisions are included in the Prisons and Courts Bill unveiled today. The timing for the changes has yet to be confirmed.

 

This post was posted in ACL e-Bulletin

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Costs News
Published date
01 Mar 2017

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