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Editorial: No Information - Aidan Ellis, Temple Garden Chambers

29/10/14. In claims arising from road traffic accidents, where the Insurer has concerns about the claim presented, it is becoming increasingly difficult to advise the Claimant about the merits of their claim pre-action. The reason is that Insurers commonly send a letter repudiating the claim but not setting out the nature of their concerns in any detail. At the moment the Claimant decides whether to issue or not, such a stance makes it impossible accurately to assess the merits of the claim. Without knowing, for example, whether it is alleged that the parties were known to each other and the nature of the alleged connection, even the most detailed conference with the client is futile because it is hardly possible to anticipate every possible connection between individuals.

The Pre-Action Protocol applicable to Personal Injury cases provides that if liability is denied, the Defendant should give “reasons for their denial of liability including any alternative version of events relied on”. If the Insurer’s case is that an accident was induced or staged, this would presumably be an alternative version of events which should be set out. Further the Defendant should disclose “documents in his possession which are material to the issues … and which would be likely to be ordered to be disclosed by the Court”. A letter simply repudiating the claim on the basis of unexplained concerns may not comply with these provisions.

There is no obvious way for Claimants to take advantage. An application for pre-action disclosure is unlikely to succeed because the documents that the claimant would most like to see – database searches, accident report forms and witness statements – are likely to be covered by privilege. In any event CPR 31.16 is not an expansive jurisdiction. Disclosure is within the Court’s discretion only if pre-action disclosure is “desirable” in order to “dispose fairly of proceedings, assist the dispute to be resolved without proceedings or save costs”. This is not an easy threshold to cross.

Claimants may apply pre-action for an order allowing inspection of the Defendant’s vehicle (or any other relevant property) pursuant to CPR 25.5. But it is likely to be a minority of cases in which inspection facilities are refused and pre-action inspection is thought worth pursuing for a Claimant. Again the Court’s discretion is limited so that the merit of an application must be carefully considered; the applicant must show that inspection pre-action is urgent or necessary in the interests of justice in order to satisfy CPR 25.2(2)(b).

Claimants might seek to elicit information about the nature of the Defendant’s concerns through specific questions, but pre-action there seems to be no way to compel the Defendant to respond. Though the Court may make an order under Part 18 “at any time” (CPR 18.1), it is a stretch to say that this applies pre-action, especially in circumstances where, outside certain limited contexts, the provision of further information pre-action is not an interim remedy listed in Part 25.

In the absence of an alternative remedy, in appropriate cases, Claimants may consider pleading in the Particulars of Claim that the Defendant has not complied with the Pre-Action Protocol. After all, it is not uncommon for Defendants to identify in their pleadings allegations that the Claimant has not complied with the relevant Protocol (allegations of premature issue are one example). Claimants could adopt the same approach. There are two potential advantages. First, it allows the Claimant to take a costs point about the Defendant’s conduct at the end of the case. Second, in some cases the fact that allegation is made late in the day may cast doubt on its credibility. Whilst this hardly resolves the underlying problem – assessing merits at an early stage - these advantages may make it worthwhile to identify any complaint about the Defendant’s compliance with the Pre-Action Protocol in a pleading.

Aidan Ellis
Temple Garden Chambers

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RTA Protocol: Late Final Payments Are Not a Ticket to Greater Costs - Matthew Hoe, Jaggards & Taylor Rose Law

28/10/14. Can a claimant tear up the agreement and issue Part 7 proceedings for the damages if the defendant fails to pay damages and/or costs within 10 days of a settlement at Stage 2 of the RTA or EL/PL Protocol? That was the issue before the court in Coggon v Irvine (County Court at Birkenhead, 17 October 2014, unreported). The answer was ‘no’. The claimant was limited to RTA Protocol costs.

The Issue

Paragraphs 7.47 and 7.44 of the Protocols require the defendant to pay within 10 (business) days. It is a mandatory provision, but the Protocol contains no automatic consequence or sanction if the deadline is missed. Thus it is a question of what is reasonable in the circumstances.

The regional costs judge had identified the issue as arising in a number of assessments, and listed three cases together for consideration of the preliminary issue of whether it was reasonable for the claimant to exit the protocol and commence proceedings, and ultimately to recover costs on the standard basis calculated by reference to hourly rates and time spent.

This was thus an older case in which escape from the Protocol opened up the possibility of costs on an hourly rate. In more recent cases, where the issue arises also, the claimant seeks the fixed recoverable costs under CPR 45 Section IIIA, which invariably exceed the fixed Protocol costs under Section III. In those cases, the claimant does not so often go so far as to commence Part 7 proceedings for the damages, and merely seeks the pre-litigation stage of the fixed recoverable costs. Coggon is equally of interest in those cases because it considers the question of whether it is reasonable to exit the Protocol.

The Case

In the particular case, the costs payment had been received marginally late (8 days) by the claimant. The damages were paid in time. The claimant had proceeded to commence Part 7 proceedings for the damages as if no agreement had been reached.

Power to Restrict

The court identified that the first issue was whether it had the power to restrict costs to those allowed under the RTA Protocol. The claimant argued that CPR 45.24 was inapplicable because there had been no judgment, and argued that the court must still perform a line by line assessment and could not jump to allowing a fixed sum. The defendant argued that judgment should be interpreted broadly so as to encompass orders, but in the end there was little difference to the court’s discretion to be exercised under Part 44.4, because the court still had to decide whether the costs were unreasonably incurred and then decide what to do if they were. In accepting the defendant’s submission, the court came to conclusions in the same vein as the circuit judge in Brown v Ezeugwa (Tunbridge Wells County Court, 12 January 2014, unreported) and the costs judge in Davies v Greenway (SCCO, 30 October 2014, unreported).

Reasonable to Issue?

The court then considered whether the claimant was justified in issue Part 7 proceedings. The claimant’s position was that there was an undisputed breach by the defendant, which entitled the claimant to exit the Protocol and commence proceedings. Even there was no automatic sanction, the claimant urged the court to impose a sanction otherwise the Protocol would be ‘toothless’. The claimant argued that the Protocol was outside the usual rules of contract law, and drew an analogy with Part 36. The claimant said that it was reasonable to withdraw the offer.

The defendant countered those arguments in the following ways. The Part 36 analogy was poor, because offer and acceptance under that Part led to a binding agreement, where enforcement was the remedy if breached. Part 36 departs from the common law thus only in the way that it treats rejected offers, not accepted offers. Notionally the late payment of costs resulted in lost interest of under £3, and if the court were to impose a sanction, allowing issue of Part 7 proceedings and creating potential exposure to a further costs liability running into thousands was disproportionate. The claimant had received the damages and costs (even though the cheques were returned) weeks before the proceedings were commenced.

The defendant referred to the careful structure of the RTA Protocol. There are two classes of provisions relating to payment. First, those for payments at interim stages where the protocol provides for automatic exit if they are not made. Second, final payments, for which there is no automatic exit. The defendant submitted that was intentional. There was no exit because there was no dispute left to leave the Protocol (save only for a dispute on disbursements, for which costs-only proceedings would be the appropriate route). The only valid way forward would be an enforcement claim, which did not require an exit from the Protocol. Generally, if settled claims are litigated, they should be struck out for abuse of process. The claimant, in acting as he had done, had failed to comply with the overriding objective.


The court accepted the defendant’s submissions. The court found that the claimant had acted unreasonably. As a consequence, the claimant’s costs were limited to the RTA Protocol amounts which the defendant had offered already. The claimant was ordered to pay the defendant’s assessment costs.

The claimant’s (or his solicitor’s) conduct is the latest tactic to recover greater costs. Coggon is only a first instance judgment but is a guide to the view of a court centre that deals with many costs claims. When there is a minor breach of the Protocols, an extreme option which may result in recoverability of greater costs may be attractive. But it might be better to pick up the telephone and try to resolve the problem before it backfires expensively.

Matthew Hoe
Taylor Rose Law
With thanks to Stephen Turner at Parklane Plowden for the account of events at court

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Jackson Takes Stock - Flora Wood, Ashfords Solicitors

27/10/14. In a keynote speech on 30 September 2014, Lord Jackson reminded us of his vision for the future.

Whilst the Rule Committee has introduced new fixed costs rules for fast track personal injury cases (amending CPR Part 45), effective from 1 April 2013, these fixed costs are lower than recommended by Jackson. Some have criticised the costs as being too low.

Lord Jackson's ambitions go well beyond the latest CPR amendments to fixed costs. His Final Report recommended that costs in all fast track cases (not just injury) be fixed. Those recommendations are yet to be introduced. Jackson has expressed regret about this, although he acknowledges that the government is supportive of this recommendations in principle.

Jackson also made a separate recommendation for fixing the recoverable costs of medical reports in fast track Personal Injury cases. This recommendation was introduced in CPR amendments implemented on 1 October 2014.

Jackson reminded his audience that his FR recommended the fixing of costs in cases up to a value of £250,000. In particular, if a case settled pre issue then recoverable costs would be 10% of the settlement sum, and if the case settled post issue but pre allocation the percentage increases to 15%. The percentage then goes up in stages so that if the action proceeds to trial, recoverable costs are 40% of the judgement sum (or of the sum claimed, if the defendant is the victor). There would also be safeguards to ensure that unreasonable conduct can be penalised.

5 years have elapsed since the FR was published and Jackson proposed that now the time is right to take stock and develop a scheme for fixed costs in the lower levels of the multi track.

Such a scheme would be welcome as it would dispense with the need for costs management and costs budgeting in such cases. Litigants would then have certainty as to their costs exposure if they lose, or their future costs recovery if they win.

Mr Justice Foskett currently chairs the Costs Committee of the Civil Justice Council. Jackson argues that the CJC Costs Committee should research this issue and devise a scheme. Alternatively, a separate working party chaired by a judge should be set up.

The President of the Association of HM District Judges confirmed that there is overwhelming support for fixed costs both in the fast track and the lower value multi track cases. This would save time and costs with no dissenting voice within the judiciary.

He acknowledged there have been teething problems with costs management with criticism of front loading of costs. But Jackson remains of the view that as practitioners become more familiar with the process opposition will recede. The discipline focuses the minds of both lawyers and clients upon costs at the outset. However, Lord Jackson recognised that judges differ in their expertise in relation this new discipline.

Jackson also advocates an abandonment of the Court paper based system. It is recognised that shortages of experienced staff is hampering the delivery of justice to court users, despite recent investment by the government. If courts are not properly funded then this will drive up the costs of civil litigation which is opposite to what the government was trying to achieve when the reforms were introduced. Jackson urged the government to strengthen the resources as part of the overall reform programme.

Flora Wood
Ashfords LLP

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Does Fatal Accident Legislation Treat Gay Men and Gay Women Differently? - Gordon Exall, Zenith Chambers

25/10/14. As currently drafted the Fatal Accidents Act 1976 could treat gay men and gay women differently. Here I look at the reason why and examine the possible solution.


Section 3(3) of the Act provides that, in assessing damages, the court disregards the prospects of re-marriage and marriage of a widow.

“(3) In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re-marriage of the widow or her prospects of re-marriage.”

The reason for this is because it was thought distasteful for a judge to have to re-assess the prospects of re-marriage of a widow. Essentially the (then invariably male) judge to look her up and down and consider whether she was attractive enough to find another husband. (I have read transcripts of some of the cross-examination of widows that took place and they are very, very awful).


Section 3(3) was never amended to deal with civil partnerships. It was not amended at all following the Marriage (Same Sex Couples) Act 2013. We have discussed this before. An amendment was not necessary because the Marriage Act itself defines husband and wife

Schedule 3 Part 2 of the Act states:

“(2) The following expressions have the meanings given—

(a) “husband” includes a man who is married to another man;

(b) “wife” includes a woman who is married to another woman”

However it goes on to define the term widow and widower.

“(c) “widower” includes a man whose marriage to another man ended with the other man’s death;

(d) “widow” includes a woman whose marriage to another woman ended with the other woman’s death;”


On the face of the legislation it is clear that the court must disregard the prospects of re-marriage or actual re-marriage of a lesbian widow. There is no such statutory rule in relation to gay men.


The statute has discriminated against widowers for years. However, on the whole, this has been ignored. This is because of the wide ranging definition of benefits in Section 4 of the Fatal Accidents Act.

“In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded”

In Topp -v-London County Bus (South West) Ltd [1993] 3 All ER 448, May J stated (as an obiter comment since he found against the plaintiff).

“It is agreed that I am bound by the Court of Appeal decision of Stanley v Saddique [1991] 1 All ER 529, [1992] QB 1 to ignore the effect of Mr Topp’s possible remarriage, but Mr Phillips reserves the defendants’ right to argue this point in a higher court“


I am, however, not certain that the issue was decided directly in Stanley -v- Saddique. The Court of Appeal was considering an argument that the children of the family had not suffered a loss because the father, who took over caring for them, offered better care than the deceased mother.

Purchas L.J. stated:-

“The problem is to decide whether in construing the new s 4 there is any justification for construing the words ‘benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded’ as in any way being restricted or whether they should be given the full ambit of the word ‘otherwise’. Mr Clegg submitted that the specific exclusion of a widow’s remarriage or prospects of remarriage from the assessment of damages provided in s 3(3) indicated that ‘otherwise’ must be restricted in some way otherwise s 3(3) was otiose. He suggested that the exclusion should be restricted to direct pecuniary benefits. However, if this course is taken the word ‘otherwise’ would not be sufficiently wide to reinstate the various rights to benefits which had been progressively introduced since the 1908 Act culminating in the sections of the 1976 Act which were wholly replaced by s 3(1) of the 1982 Act. As a result of the passage of this Act none of the pre-existing statutory exemptions from the deductions of benefits from Fatal Accidents Acts damage survived unless it is through the medium of the word ‘otherwise’.It seems inconceivable that Parliament would have effected a wholesale repeal of all the long-standing previous statutory exceptions from the deduction of benefits by a sidewind of this sort with the exception of the exclusion of the prospects of remarriage on the part of the widow (semble but not the widower). In my judgment, the preferable construction is that advanced by Mr Ashworth, namely that s 3(3) was left in as being a particularly significant question of policy, but that by s 4 Parliament intended to further the departure from ordinary common law assessment of damages for personal injuries by the artificial concept which has for many decades been the basis of damages recoverable under the Fatal Accidents Acts.”

Ralph Gibson L.J. was not confident about this issue:

“As to the point of law, based on the construction of ss 4 and 3(3) of the Fatal Accidents Act 1976 as amended, Iwas at first inclined to the view that the concept of ‘benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death’ must be held not to extend to the effects of remarriage which are covered specifically by s 3(3) to the extent there provided. I have, however, with no great confidence that we have correctly understood the intention of Parliament as expressed in these provisions, reached the conclusion that the preferable construction is that expressed by Purchas LJ for the reasons given by him”


The matter was going to be raised at a higher level if it became an issue on appeal. On the face of the decision in Stanley -v- Siddique section 4 applies to all relationships. However the law on this topic is tentative. For the time being:

  • Gay women have the definite rights set out in statute in section 3(3)

  • Gay men may have the benefit of section 4.

  • Civil partners (of whatever sex) may have the benefit of section 4.

Gordon Exall
Zenith Chambers

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The Less Advantageous Part 36 Offer: Costs Consequence Following Variation - James Manning, Chartered Legal Executive, Plexus Law

Burrett v. Mencap Limited [2014] LTL 05/09/14 and WL 4355036.

What are the cost consequences of accepting a Part 36 offer where, after the relevant period under r 36.2(2)(c) had expired, an offeror varied the terms of the offer under r 36.3(6) to make it less advantageous? This issue was considered in Burrett v. Mencap Limited [2014].


Burrett sought damages from Mencap Ltd for personal injuries, losses and damages as a consequence of three accidents she suffered during the course of employment. Burrett alleged that she suffered soft tissue injuries and had developed fibromyalgia. She claimed damages in excess of £100,000. Mencap admitted primary liability for the accidents, but disputed causation and quantum.

Part 36 Offer

On 19 July 2013 Mencap made a Part 36 offer of £15,000.00 gross. This was rejected by Burrett. Crucially, Mencap did not withdraw the offer.


As a result of Mencap’s Part 36 offer being rejected, Dr Andrei Calin, Consultant Rheumatologist, was commissioned to examine Burrett and prepare a medico-legal report. A claims investigator was also instructed to conduct covert surveillance of Burrett.

Dr Calin’s Evidence

In Dr Calin’s opinion Burrett did not meet the American College of Rheumatology Diagnostic Criteria for fibromyalgia and, more importantly, there were doubts as to whether she suffered any soft tissue injury/injuries as a result of the accidents.

Covert Surveillance

Covert surveillance revealed that Burrett had grossly exaggerated the extent and severity of her ongoing symptoms and inability to perform day-to-day tasks.

Social Media Evidence

The claims investigator also found on YouTube footage of Burrett playing a violin at a concert. She carried a baby in sling during the performance.

The Less Advantageous Part 36 Offer

On 17 January 2014, several months after the 21-day relevant period had expired, Mencap served notice on Burrett revising the terms of the original Part 36 offer. The revised, less advantageous offer was £2,500 gross and excluding CRU. The notice deliberately made no reference to the relevant period under r 36.2(2)(c). Mencap subsequently served Dr Calin’s medical report, the surveillance and YouTube evidence.

Following receipt of Dr Calin’s report, the surveillance and YouTube footage, Burrett accepted the revised Part 36 offer and issued an application for a determination on costs on the premise that the revised offer constituted a fresh/second Part 36 offer or that there was an extension of the relevant period to consider the revised Part 36 offer.


District Judge Ackroyd, sitting at Portsmouth County Court on 14 May 2014, had to decide whether on variation of a Part 36 offer, the time for acceptance is fixed by the time for acceptance of the Part 36 offer made on 19 July 2013 or whether a fresh period of time begins to run from the date of the variation. He considered the provisions of Part 36 and specifically r 36.2, r 36.3, 36.7 and 36.10

DJ Ackroyd held that r 36.7 is silent as to any extension, renewal or replacement of the time for acceptance when the terms of a Part 36 offer are changed to make it “less advantageous”. Furthermore, there is no authority allowing an implied entitlement to the relevant being renewed when the terms of the Part 36 offer were changed to make it “less advantageous”.

DJ Ackroyd held that the time limits specified in the Part 36 offer dated 19 July 2013 applied and so Burrett’s application was dismissed. The following costs order was made:

  1. Mencap to pay Burrett’s costs to 12 August 2013; and

  2. Burrett to pay Mencap’s costs thereafter.

Practical Points

As Part 36 stands:

  1. A Claimant can change the terms of a Part 36 offer to make it “less advantageous” to the Defendant by making a higher offer;

  2. A Defendant who wants to make a lower Part 36 offer would be unwise to withdraw it and make a fresh Part 36 offer;

  3. A Defendant should revise the terms of a Part 36 offer to make it “less advantageous” to the Claimant – although note r 36.14 (6)(b);

The Future

The Civil Procedure Rules Committee has announced that it is considering reforms to simplify Part 36. Will the cost consequences of accepting a “less advantageous” Part 36 offer before trial be simplified?

James Manning
Chartered Legal Executive, Plexus Law

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