Two Lacunas Too Big: Appeal Costs in Low Value Personal Injury Litigation - Vinesh Mistry, Barrister, DWF Advocacy Ltd

1. 27/08/20. In Wickes Building Supplies Limited v William Gerarde Blair (No. 2) (Costs) [2020] EWCA Civ 17 ("Blair") it was agreed between the parties that the claimant to the substantive litigation, Mr. Blair, would pay the costs of unsuccessfully appealing a stage three hearing ([2019] EWCA Civ 1934). The Court of Appeal, therefore, in broad terms had to consider whether the costs of the substantive appeal were fixed by CPR 45.17 and whether Mr Blair, notwithstanding the quantum of those costs, benefited from QOCS protection under CPR 44.13.

2. Baker LJ held that: 1. an appeal court was not bound to apply the fixed costs regime; and 2. an appeal costs order could only be enforced to the extent permitted by CPR 44.14.

3. This article analyses both conclusions and it is argued that Blair has created two lacunas in the law which require remedy: 1. the Court has failed to give any meaningful assistance to the profession on the application of CPR 52.19 to low value personal injury litigation; and 2. it has also failed to consider the application of QOCS to the appeal of “mixed claims”. A potential solution for each lacuna is suggested.

Issues and Judgment

4. The underlying claim in Blair arose out of an accident at work. Mr Blair brought an action against his employer, the defendant company, in the Pre-Action Protocol for Low Value Personal Injury (Employers' Liability and Public Liability) Claims. Damages were awarded following a stage three hearing. That decision was appealed by Mr Blair. The defendant was ultimately successful when the matter reached the Court of Appeal, who reinstated the original decision of the District Judge. It was agreed between the parties that Mr Blair would in principle pay the costs of the appeal. Therefore, the Court of Appeal was required to determine if those costs were subject to the fixed costs regime under CPR 45.17 and whether any costs order could be enforced to the extent permitted by CPR 44.14.

5. Baker LJ, on the application of the fixed costs regime, held at [24] that:

"The rules governing appeals to those courts are set out in CPR Part 52. Rule 52.19(1) gives an appeal court a specific discretion to make an order limiting the recoverable costs of the appeal in “any proceedings in which costs recovery is normally limited or excluded at first instance”. Proceedings at first instance under the Protocol plainly fall into that category. It follows that the fixed costs regime applicable to proceedings at first instance under the Protocol does not apply to the costs of an appeal. Instead, the appellate court has a discretion in such cases to limit the costs recoverable." (Emphasis added)

6. On QOCS protection, Baker LJ concluded at [29] that:

"The purpose of the QOCS regime is to facilitate access to justice for those of limited means. As Edis J observed at paragraph 3 of his judgment in Parker v Butler, if a claimant’s access to justice is dependent on the availability of the QOCS regime, that access will...

Image ©iStockphoto.com/bluestocking

Read more (PIBULJ subscribers only)...

How the Paralegal Sector can help PI law firms post Covid-19 - Amanda Hamilton, NALP

25/08/20. Covid-19 and the subsequent lockdown has affected our personal lives in many ways. Professionally, it has also forced many PI law firms into hardship.

When the lockdown is finally fully lifted, and it will lift eventually, law firms including PI will be looking to get back into business and onto an even keel as swiftly as possible. However, they will also probably be looking to cut costs in order to do so.

This is where outsourcing to a local licenced paralegal may be invaluable. NALP Licenced paralegals specialise in one or two legal areas and will not be as costly to employ on a contractual basis as a qualified solicitor. As many have their own paralegal practice, it’s possible either to outsource or sub-contract the work to them, while keeping the management (and profits) in-house.

Some paralegals may specialise in PI, in which case they are a great fit for you but even if they do not, there is a good chance that you could pass on some of the general legal legwork. This means you can process clients more quickly, allowing you to take on more cases and, therefore, improving your income overall. Also, if your costs are lowered by subcontracting a chunk of your workloads to a paralegal, it could allow you to take on slightly riskier clients or clients where the end pay-out and, therefore, your firm’s fee, is potentially smaller.

Many paralegals may have a very good understanding of the civil court process, even if they do not undertake PI work per se. They may specialise in small claims, some of which may be related to personal injury actions on a small scale. Having such knowledge and utilising their services will cut your firms’ costs dramatically.

Also, why not take on work that you may not have thought about before? By sub-contracting to a paralegal that specialises in say, will writing or probate practice, or matrimonial matters, you could have a steady income to help balance your finances. Using the services of a paralegal is an adaptable method of maintaining the viability of your business.

As a law firm, if you’re looking to use the services of a paralegal there are a few things to look out for:

1) Are they a member of a professional body such as NALP (National Association of Licenced Paralegals) or registered with the PPR (Professional Paralegal Register)?

2) Do they have either a NALP Licence to Practise or a PPR Practising Certificate, and professional indemnity insurance (PII)? The latter is not necessary if you are employing them in-house staff within your practice.

3) It is important to check the training and qualifications of such paralegals which will be dependent on the type of work you require them to do. So, entry level (basic work and assistance) may only require a Level 3 qualification (such as the NALP Level 3 Certificate or Diploma.) Alternatively, work that requires a level of expertise and skill may require an applicant to have either a minimum Level 4 (such as the NALP Level Diploma) or a law degree or above.

4) Ensure that the activity you need help with is something that a Paralegal is allowed to deal with. Essentially, Paralegals can do almost everything a solicitor can do, but certain activities are reserved and cannot be performed by a paralegal.

There is no doubt that paralegals can play a big part in getting the legal sector back on its feet quickly and helping to ensure it’s in a position where they can thrive once more.

To find a paralegal with the qualifications and experience your practice requires visit: https://www.nationalparalegals.co.uk/paralegal-register

ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.

See: http://www.nationalparalegals.co.uk

Twitter: @NALP_UK

Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/

LinkedIn - https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/

Image: public domain from https://pixabay.com/en/paperwork-office-paper-tray-315083/

PI Practitioner, August 2020

16/08/20. 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. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Pegg v Webb (1) Allianz Insurance Plc (2) [2020] EWHC 2095 (QB)

The Claimant made a claim for damages for soft tissue injuries to his neck, left elbow and left knee, which he claimed were sustained in a road traffic accident with the First Defendant, Mr Webb. The collision was entirely the fault of Mr Webb. The Second Defendant ("the Defendant") argued that the claim was based on a staged or contrived collision. HHJ Rawlings found that there had been a genuine accident and that the claim had not been dishonest. The Defendant also contended that the Claimant had exaggerated his injuries and so misled his medico-legal expert, Dr Shakir. It was accordingly argued that he had been fundamentally dishonest even if there had been a genuine collision.

HHJ Rawlings found that the Claimant had failed to provide Dr Shakir with relevant information and that what he had reported about the duration of his symptoms was inconsistent with his own evidence at trial. As such, no reliance could be placed on Dr Shakir's report, and the claim for personal injury was therefore unsupported. HHJ Rawlings dismissed the claim, but ordered for the Defendant to pay 60% of the Claimant's costs. The reason for the order was that the Defendant had pursued allegations of fundamental dishonesty, which had turned the case into a two-day multitrack claim rather than a one-day fast-track. The Defendant appealed the order, and was granted permission to appeal by Martin Spencer J. The Defendant argued that HHJ Rawlings had erred by failing to make a finding of fundamental dishonesty and that in any event, the costs order made was wrong in principle.

To understand the Defendant's case, Martin Spencer J considered that it was necessary to explore the history of the claim. The accident occurred on 2nd June 2016. The Claimant sought no medical help of any kind at the time. He did, however, instruct Winn Solicitors and they arranged a medical examination and physiotherapy. The Claimant had an initial assessment and three sessions of physiotherapy, and was discharged in July 2016. On 2nd July 2016, the Claimant had a fall on his quad bike. Four days later he was lifting his quad bike and experienced a sudden onset of pain in his lower back. He attended A&E complaining of lower back and left leg pain. He was discharged with analgesia and a physiotherapy referral. On 8th July he attended a Walk-in clinic and reported his quad bike injuries. The medical records also showed a pre-existing knee injury from 2014 and a previous foot and ankle complaint. The accident was not mentioned at any of his post-accident medical attendances. At the examination with Dr Shakir some two months post-accident, the Claimant reported that his symptoms were continuing and that his physiotherapy treatment was ongoing. He also told Dr Shakir that there was no relevant medical history. In his witness statement, the Claimant stated that his accident symptoms worsened over the first few weeks and that ongoing ache significantly restricted his movements. After the first month, his symptoms levelled out for another month before they started to improve. At trial, the Claimant initially confirmed the accuracy of is statement and the medical report, but then changed his account in cross examination and conceded that he had recovered from his neck and elbow injuries approx. one-month post-accident. He was unable to say how long his accident related knee injuries lasted, due to his pre-existing knee injury.

Martin Spencer J found as follows:
• In a case where the damages claimed are confined to pain, suffering and loss of amenity and physiotherapy costs, dishonesty as to the extent of the injuries is fundamental "because the extent of the claimant's injuries is not merely incidental or collateral but forms the very basis of the claim".
• There were factors in the case which "pointed strongly, if not inexorably" to the conclusion that the Claimant had been dishonest in the presentation of his injuries:
o The fact that the Claimant had not sought any medical assistance at all after the accident, but did instruct solicitors, should "immediately have raised at least a suspicion in the mind of the judge".
o He had not mentioned the index accident at any of his unrelated visits to clinics and hospital post-accident. His silence in this regard was "inexplicable" and "deafening".
o The Claimant had failed to mention his quad bike accident to Dr Shakir, notwithstanding the fact that it happened only weeks earlier. "No-one in the position of the Claimant could have failed to have appreciated the significance of the quad bike accident and the only reasonable inference to be drawn is that the Claimant deliberately failed to tell Dr Shakir about it in order to mislead Dr Shakir about the effects of the index accident."
o Based on his evidence at trial, the Claimant must have deliberately misrepresented his injuries to Dr Shakir, by telling him that there were ongoing symptoms and that physiotherapy treatment was ongoing when he had in fact been discharged a month earlier.
o The Claimant's dishonesty was compounded by continued lies as to the duration of his symptoms on the claim form, his witness statement and by adopting Dr Shakir's report at trial.
• Accordingly, no judge could reasonably have failed to conclude that the Claimant's claim was fundamentally dishonest.

The appeal was accordingly allowed. The Claimant was ordered to pay 70% of the Defendant's costs on the indemnity basis. The Defendant had failed to prove that the accident was bogus, and accordingly a 30% reduction in costs liability was appropriate to account for the fact that a significant part of the evidence and court time had been directed towards the question of whether the accident was genuine.

Olivia Rosenstrom
Temple Garden Chambers

Image ©iStockphoto.com/EmiliaU