News Category 3
Costs and the Application of Interest Thereon - Andrew Brough, John M Hayes
17/02/16. The Judgment given by Mr Justice Leggatt in the case of Involnert Management Inc v Aprilgrange Ltd and Others [2015] EWHC 2834 (Comm), ruled that interest on costs, which under the Judgment Act 1838 (Section 17) was at a rate of 8%, should not be applied in this case from the date of Judgment, but would apply from a date of 3 months hence.
The reason for this ruling was that it gave both the Defendants and Claimant time to ascertain a full quantification of the Claimant’s total liability under the Judgment. Mr Justice Leggatt referred to various cases of relevance to his considerations, which had been raised by Counsel, and the Judgments arrived at in those particular cases.
All of the cases appertained to the time at which interest under the...
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Summary of Recent Cases, February 2016
15/02/16. Here is a summary of the recent notable court cases over the past month. 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.
Summary of Recent Cases - Substantive Law
Desmond Atkins v Co-operative Group [2016] EWHC 80 (QB)
It was appropriate to replace an order for judgment for the Claimant on his negligence claim with an order for judgment on the issue of breach of duty only, in circumstances where material medical evidence had only come to light following...
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BBC Expose of 'Crash for Cash' Ring - Thomas Crockett, 1 Chancery Lane
09/02/16. For some light relief (this is being posted on a Friday afternoon after all!) any practitioner involved in PI cases where fraud is alleged could be advised as to look no further than the detailed article published on the BBC Wales’ website about a successful prosecution of a so-called ‘crash for cash’ ring, in this case an extended family. This would appear to be something of an extreme case, the publicisation of which will no doubt be pleasing to insurance companies seeking to highlight what they suggest is the prevalence of such behaviour, albeit on a less industrial scale.
The modus operandi of the Yandell family from south Wales was to submit claims for entirely fraudulent road traffic accidents replete with bogus repair invoices, hire car charge invoices and other bogus evidence as well as various friends and relatives roped in as phantom passengers. Police suspected they made in excess of £2 million over the years...
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Failure to Mediate a Detailed Assessment Proves an Expensive Option - Kate Oliver, John M Hayes
04/02/16. While traditional case law recognizes costs penalties imposed on successful parties who refuse to mediate, Reid v Buckinghamshire Health Care Trust [2015] EWHC B21 turns the tables and imposes additional costs penalties on the NHSLA losing party for failing to mediate on legal costs in this medical negligence case.
Background
Listed for a two day detailed assessment hearing, the matter was concluded at the start of the second day, save for the costs of assessment. Master O’Hare in his judgment highlights three relevant correspondence exchanges between the parties during the negotiation stage on costs.
Chronology
On 24-07-15, the Claimant wrote to the NHSLA to propose mediation on costs. On 28-09-15 the Claimant wrote again to the NHSLA Defendant enclosing a Part 36 offer as to all costs to be assessed and on 06-10-15, the Claimant wrote enclosing a Part 36 offer in respect of Counsel’s fees only.
Remedies sought pursuant to CPR 36.17
In the event, the NHSLA failed to beat either offer on costs and the Claimant, represented by Irwin Mitchell solicitors, sought remedies pursuant to CPR 36.17 and further penalties because of the refusal to mediate.
Judgment
Judgment included an additional sum (£13,000) equivalent to 10% of the £130,000 costs awarded. This is a standard costs order for failing to beat the Part 36 offer with the Judge explaining his reasoning behind the award:
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the NHSLA did have suitable information to make an assessment of the sum likely to be awarded particularly given the prospect of a two day detailed assessment hearing,
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the offer was made well before the detailed assessment hearing and that
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no hearing application was received until several weeks after the offer was made.
Tactics
This tactically valid information should be noted by Claimant solicitors, Costs Draftsmen and Costs Lawyers because it applies to all forms of litigation not just medical negligence.
Penalties
Interest was awarded on costs at 8% from the date of the order giving rise to costs: 7 January 2015.
A penalty was also included for failing to mediate with the NHSLA ordered to pay costs to 27 July 2015 on the standard basis and costs from that date on an indemnity basis being determined by the Judge as the date the Defendant ought reasonably to have received the Claimant’s offer to mediate.
Note of Caution to those who refuse to mediate
The Judgment concludes with a brief note of caution about sanctions being imposed on parties who unreasonably refuse to mediate. Master O’Hare held that NHSLA had unreasonably refused the offer to mediate and he disapproved.
Result
Reported in Litigation Futures, Partner Tom Blackburn said “the judgment meant the NHSLA would have to pay over £20,000 in indemnity costs.”
Kate Olive
John M Hayes
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No Award for Damages for 'Loss of Life': Shaw v Kovac Considered - Gordon Exall, Zenith Chambers & Hardwicke
03/02/16. In Shaw -v- Kovac [2015] EWHC 3335(QB) Judge Platts considered the question of whether there is a freestanding head of damages for “loss of life” together with some other aspects of the damages where the claim lies solely on behalf of the estate.
“So in my judgment there is no independent free-standing claim of negligently depriving a claimant of the opportunity to give informed consent, so in so far as this claim is a claim for compensation for loss of life or loss of expectation of life it is advanced by section 1. This head of claim therefore must in my judgment fail.”
KEY POINTS
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There was no independent free-standing claim for “loss of life” based on a failure to obtain informed consent.
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Damages for pain and suffering were assessed at £5,000.
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The claim for costs of the inquest were potentially recoverable as costs of the action and were not a head of damages.
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The claim for costs ordered against the deceased’s daughter in judicial review proceedings were not recoverable in this action.
PRACTICE POINTS
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There is no...
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More Articles...
- Another Bite at the Cherry? Relief From Sanctions & Changes of Circumstances - Thomas Crockett, 1 Chancery Lane
- Maximising Fixed Costs: in the Protocol and Out of It - Jasmine Murphy, Hardwick
- Editorial: Civil Claims for Assault - Aidan Ellis, Temple Garden Chambers
- A Brief Review of the Research Findings of Increased Risk of Dementia in Association With a Traumatic Brain Injury - Dr Linda Monaci
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