News Category 2
The Rise in Injury Litigation: Dodgy Claims Managers? - Thomas Crockett, 1 Chancery Lane
22/10/15. An article in the Sunday Times a few weeks ago caught my eye. This revealed the aggressive tactics employed by predatory claims farmers to ensure that as many people as possible who have been involved in accidents bring claims for damages for personal injuries. Their tactics were reported as including appealing to base greed (such as the oft-encountered line: “the money is just waiting in an account for you”) to emotional blackmail (“the other driver could have killed your children. Don’t let him/her get away with it”). The article suggested that the individual salesmen are paid a low base salary but were able to obtain commissions of over £50,000...
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FOIL Responds to Court Fees Hike Consultation - Laurence Besemer, Forum of Insurance Lawyers
19/10/15. Although inflation in the UK has been bumping along at below 3% for the last couple of years there is been one area where the picture has been dramatically different – court fees. In 2014, issue fees were increased very significantly, with increases of up to 80% on money claims for between £3,000 and £100,000.
Earlier this year the Government introduced enhanced court fees for claims worth more than £10,000, increasing the court fee to 5% of the value of the claim, subject to a cap of £10,000. In September, the Ministry of Justice closed its consultation on a proposal to increase that cap to £20,000, or even remove it altogether.
The only exception from the proposed higher fees for claims worth more than £200,000 will be personal injury claims, a decision that has been strongly endorsed by the Forum of Insurance Lawyers (FOIL). Any personal injury claimant bringing a claim of that size will almost inevitably have suffered a life-changing injury and loss of income and, even with proposals to extend the remission scheme, any further increases would be likely to have a severe impact on access to justice.
Increased court fees in personal injury claims have the potential to backfire on Government. With court fees normally recoverable, and with a high success rate for personal injury claims, the cost will in many cases fall to be paid by the defendant. In many cases this will be the Government (through its role as a major compensator), local government and insurers, placing the burden on taxpayers and policyholders.
Although the Government argues that even enhanced court fees are only a small proportion of overall costs in a large claim, it fails to recognise that court fees are required to be paid up-front, even if the claim is being brought on a CFA.
Whilst it is welcome news that personal injury claims are not to be included in the latest increases, there are still concerns over the impact that high court fees have more widely on the UK civil justice system. In outlining its most recent proposals the Government stresses that many large claims are brought by large multi-nationals and wealthy individuals who can afford to pay more, but this is not the whole picture. It is not unusual for SMEs or individuals who are not wealthy to have claims for more than £200,000, for example, for professional negligence involving property or financial services.
FOIL highlighted in its response to the consultation that the Government’s own promotional material indicated that UK legal services contributed £20.9bn to the UK economy in 2011 alone. It is of concern that these very significant financial advantages are in danger of being damaged, a view shared by the judiciary which has noted that enhanced fees make the cost of commencing litigation in England and Wales 25 to 100 times greater than in New York.
FOIL hopes that the Government will change its approach on the latest increases, and look again at the principle of enhanced fees. It remains to be seen whether that will be encouraged by the Justice Committee which is currently conducting its own inquiry on the issue.
Laurence Besemer
CEO
Forum of Insurance Lawyers (FOIL)
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Qualified One Way Costs Shifting - Mark Carlisle, Director of Deep Blue Costs and Consultant Law Costs Draftsman at Berlad Graham LLP
16/10/15. The transitional provisions and Casseldine –v- the Diocese of Llandaff Board for Social Responsibility [2015]
On the face of it QOCS is straight forward. It provides Claimants in personal injury cases with full protection against liability for costs save where (a) there is an adverse order for part of the costs and its amount does not exceed the aggregate of damages and interest ordered (so interim orders in favour of the Defendant can be set off against damages), (b) the proceedings are struck out on specified grounds, or (c) where the claim is found to be fundamentally dishonest.
It is fully retrospective in respect of those proceedings that it covers, applying to claims issued both before and after 1st April 2013, and is disapplied only where the transitional provisions say so.
The transitional provision at 44.17 is short and to the point -
44.17 This Section [which comprises the totality of the QOCS rules] does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).
Previous thinking on the transitional provisions had therefore concluded in light of the above that if a client had at any point entered into pre Jackson Conditional Fee Agreement, QOCS was disapplied for ever more. This was what emerged from the decision of Master Haworth in the case of Landau –v- the Big Bus Company, in which the Claimant was funded at first instance by a pre Jackson CFA, and on appeal by a post Jackson CFA. Master Haworth concluded that “whilst it may be unreasonable, unfair and inconvenient to deny the claimant the benefit of QOCS in this case, for the reasons given on a true construction of the relevant provisions of CPR in this case, QOCS does not apply” however his reasoning was based quite narrowly on the definition of “proceedings” within the provisions that we will come to shortly, concluding that the appeal did not constitute separate proceedings from the original claim.
But…. dig just a little deeper into the changes both to the costs rules generally and the transitional provisions and a whole world of uncertainty emerges, largely caused it seems by...
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Sports Risks: Duty of Care: Back to Basics - Dr Julian Morris, Parabis Law LLP
14/10/15. It is quite usual to reach for a guide book when heading off to foreign climes or setting out for a country walk but to what extent can a reader hold a guide’s producers legally responsible if something goes wrong while following their directions or advice? This point was tested recently following a sad death of an experienced canoeist.
Mr Wall, a canoe club member and grade 1 coach, was paddling with his daughter on a January day in 2012 on the River Teme. Weather and water conditions at the start of the trip were calm. Part of the journey required navigating Bridgewood weir – a horseshoe weir with its apex upstream and the ends abutting a bridge. Sadly, Mr Wall died while negotiating this section of the river.
As part of his membership of the British Canoe Union (BCU), Mr Wall had access to documents, magazines etc they published. In 2003 the BCU had published a book entitled “English white water – the BCU guidebook” (“the Guide”). It specifically referred to the stretch of water being navigated that morning by Mr Wall and his daughter. Mr Wall’s Estate sought to rely on the Guide as a copy was found in the car which stated “…horseshoe weir which is taken river right”. The Estate also drew attention to two further publications (1995) – the West Midland’s River Guide and Places to Paddle – both of which stated the weir should not be shot under any circumstances because it had a large mushroom stopper which had caused fatalities in the past. In essence, the earlier guides advised portering canoes to avoid the obstacle altogether...
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Ms Veena Kamari Sharma v Cropz of London Limited - Gavin Redman, Express Solicitors
08/10/15. Ms Sharma attended a London Beauty Salon to have a procedure known as threading. This involves a technique to remove unwanted hair. As a result of this treatment, she sustained an adverse reaction. Sarah Mawdsley, Partner of Express Solicitors acted on her behalf.
The Defendant was identified as Cropz of London Limited and a letter of claim was sent on 7th May 2014. No response was received, further letters were subsequently sent requesting a response to the letter of claim. These included warnings that if a response was not received within the 3 month time frame set out for such a response in the Pre-Action Protocol for Personal Injury Claim that an application would be made to court for pre action disclosure.
As no response was received and on the 12th September 2014 an application was made to Manchester CC for Pre-Action Disclosure and a hearing was listed for 18th November 2014.
Helen Murdoch, Trainee Solicitor, attended the Hearing at Manchester County Court before DJ Iyer, the Respondent did not attend. DJ Iyer made an order requiring that the Respondent disclose the relevant documentation or a disclosure statement within 14 days.
On the basis that the application was successful, the Claimant sought the costs of the application pursuant to 46.1(3) CPR 1998. DJ Iyer did not feel that a breach of the Pre-Action Protocol for Personal Injury on its own was sufficient to justify him ordering the Respondent to pay the Claimants costs of the application and went on to make no order as to costs but ordered that the Claimant pay the Respondents costs of complying with the order within 14 days of receiving a written request for the same. He suggested that the Claimants costs of this application could be recovered as disbursements in any subsequent claim.
The decision was appealed on the basis DJ Iyer placed too much emphasis on CPR 46.1(2) and gave insufficient consideration and weight to CPR 46.1(3), gave insufficient weight to the Pre-Action Protocols, failed to attach any adequate weight to the unreasonable conduct of the Respondent and wrongly understood that the costs of the application and the costs of the Respondent complying with the order would be recoverable as a disbursement by the Claimant in any subsequent claim. The Claimant sought to rely on the case of Sherred v Western Challenge Housing Association (unreported 13/10/2009), a case which was on all fours with this matter and had previously been heard in Manchester by HHJ Holman and dealt with the same issues.
His HHJ Armitage QC heard the appeal on 25th June 2015.
Counsel for the Claimant, Lee Nowland of Cobden House attended the hearing along with Miss Murdoch and the appeal was allowed. The Judge submitted that there was no other course of action the Claimant could have taken when faced with an uncooperative Defendant and that the only correct order was that the Respondent pay the Claimants costs of the application. The original order of DJ Iyer was varied and the Respondent was ordered to bear the costs of the order and the appeal which were summarily assessed.
The Judgement emphasises the important of the Pre-Action Protocols especially where a faced with an uncooperative Defendant. HHJ Holman’s reasoning in Sherrard was adopted in the current case and HHJ Armitage stated that unless the Claimant is going to take a chance on issuing there is no option but to make an application and costs should follow the event.
Gavin Redman
Associate Partner (non-lawyer)
Business Development
Express Solicitors
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