News Category 2
Hacking Part 36 offers by waiting a day after the relevant period, accepting the offer, and then disputing costs: Pallett v MGN Ltd [2021] EWHC 76 (CH) - Paul Erdunast, Temple Garden Chambers
25/02/21.If Part 36 offeree has a good argument as to why it should not pay the costs of a certain period, then Part 36 seemingly has what computer experts might call a “hack” or “exploit” in its rules to allow such costs to be disputed.
This happened in Pallett v MGN. The judge accepted the legitimacy of the Defendant’s tactics. On its facts, he did not accept the underlying argument as to why the Defendant should not pay the costs of a period in the litigation when they alleged that the Claimant had not properly engaged in alternative dispute resolution. However, this makes no difference to the important point in this case.
Relevant facts
On 20 October 2020 the Claimant made a Part 36 offer, with the relevant period for acceptance being the usual 21 days. On the 22nd day, the Defendant accepted it. The timing was deliberate. The Defendant accepted the offer on the basis that it would put to a judge that it should not bear the costs of a period in which it was said that the Claimant had seriously failed to engage with the settlement process.
Relevant provisions of CPR Part 36
CPR 36.13(1) provides that where an offer is...
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Case Summary: B v T - Karen Cawood, Spencers Solicitors
16/02/21. Case Name
:
B v T
Court Name
:
County Court Money Claims Centre
Accident Date
:
11/01/2017
Settlement Date:
11/05/2020
TOTAL GROSS SETTLEMENT:
£10,000.00
Background
The claimant was driving round a blind bend and slowed down. As she approached the bend, she saw the defendant coming towards her and slowed her vehicle down to a stop. The defendant failed to stop and crashed into the claimant head on.
The claimant suffered with pain in her neck, left arm, lower back, left leg and left knee. The claimant had pre-existing illness and suffered hypermobility and fibromyalgia and the accident appeared to have worsened her condition. The claimant required care and assistance for 6 weeks after the accident.
The claimant was also 27 weeks pregnant at the time of the accident. The baby was fine, but she suffered from irritable uterus after the accident and this meant regular contractions for about 6-8 weeks of her pregnancy.
Liability
Liability was not admitted by the defendant however, the case settled with a Part 36 Offer from the defendant solicitors.
Quantum
The matter settled with a Part 36 Offer. The offer was a global sum.
Solicitors for the Claimant: Karen Cawood of Spencers Solicitors Limited
Solicitors for the Defendant: DWF Ltd
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Traffic accident victim receives £1 million in damages - Andy Shaw, Higgs & Sons
02/02/21. A Stockport woman who suffered serious injuries in a road traffic accident has received more than £1 million in damages after a six-year legal battle.
The lady sustained complex fractures of her hip and ankle – as well as multiple rib fractures – in the accident in 2014 and has since suffered significant mobility issues and been forced to use crutches.
A settlement meeting held on Wednesday saw a compensation package of £1,080,00 agreed.
Andy Shaw, Head of Personal Injury and Clinical Negligence at Higgs & Sons and who represented the victim along with his colleague Laura Hopkins, said: “This was a particularly complex case spanning many years.
“Our job as a legal team was not only to secure the best possible settlement for our client but also to help her rebuild her life.
“We worked creatively to help facilitate extensive rehabilitation and were able to negotiate a significant financial compensation package that will provide our client with the much-needed financial security she deserves.”
The defendant had previously been ordered by court to make an interim payment of £120,000 to the victim to allow her to move into a rented bungalow while her long-term condition was assessed.
Andy added: “The situation was complicated as the client’s lack of mobility meant that she gained weight and was deemed too high risk to proceed with a total hip replacement procedure.
“Conventional methods of losing weight were explored but we sought advice from a bariatric surgeon and, as a result, the client underwent a gastric sleeve procedure which meant she lost nearly six stone and is now awaiting the hip replacement operation which should improve her symptoms significantly.
“It has been an incredibly difficult situation because our client was facing the impossible task of trying to lose weight to allow her to proceed with the hip procedure but not able to exercise due to her severe mobility issues.
“As lawyers, we needed to think creatively and I was pleased that we were able to help in arranging to secure the funding to allow her to have a gastric sleeve procedure that has resulted in significant weight loss.
“She will now be able to move forward and have a new hip, hopefully dispense with her crutches and have additional financial security. It’s been a long journey for all concerned but we are pleased to have secured an outcome which gives our client the best possible chance to move forward and rebuild her life.”
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Devonshires Solicitors LLP v Elbishlawi and Lam Developments Ltd [2021] EWHC 173 (Comm) - Harry Peto, Temple Garden Chambers
31/01/21. This was an application for summary judgment in respect of a claim for fees against the Defendants, who were former clients of the Claimant. The First Defendant was the beneficial owner of the Second Defendant property investment company.
The Claimants sought recovery of six invoices in respect of instructions to obtain planning consent, instructions in relation to a possible sale of property, and instructions to resist an application in Guernsey by the Second Defendant’s advisers to place the Second Defendant into administration for non-payment of fees.
The Application
First, the Judge found against the Defendants on their argument that no invoices were payable without the Claimant providing details of work done, payments received and made and copies of time records. No term requiring this was found in the Letters of Engagement.
A number of other matters were raised in the Defence which I will not set out here but which were all found to be without any prospect of success.
A ground of challenge not found in the Defence but raised at the hearing was that the invoices were not statute bills, as insufficient detail had been supplied; that, in any event, the Defendants were entitled to seek a common law assessment of all the invoices; and that one of the invoices covered a period in which the Claimant did not exist (but its predecessor practice did).
The Defendant submitted that...
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Godfrey v Automotive Products Limited (unreported, 17 December 2020) - Paul Erdunast, Temple Garden Chambers
29/01/21. Can a Claimant who is required to take out a loan in order to fund litigation disbursements recover interest on the loan from the Defendant? DJ Baldwin, a regional costs judge, decided that the answer was ‘yes’ in theory, but he declined to exercise it where there was no evidence of the Claimant’s finances or the loans market.
The argument
Mr Williams QC on behalf of the Claimant argued that where the Claimant has taken out a loan to fund litigation disbursements, it would be unfair to deny an award of the interest on that loan. Such an award would be payable under CPR 44.2(6)(g), which provides a power to award pre-judgment interests on costs. Where an individual has taken up a loan to vindicate their rights, the failure to award them the interest under that loan can be seen as an unjustified deduction from their damages. Furthermore, he pointed out that the Commercial Court appears to take this approach to CPR 44.2(6)(g) when it comes to the funding of commercial claims.
As to the absence of evidence on whether a loan was indeed required or on whether the 15.3% was reasonable, Mr Williams QC suggested that these holes can be filled by judicial notice. He stated that such a private citizen is generally likely to be in a relatively impecunious position, so even in the absence of ‘impecuniosity’, this approach should be readily countenanced...
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
