piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Inadequate bundles: a costly mistake...

The July edition of Civil Procedure News reports a case in which a claimant's bundles were inadequate, two applications were adjourned and the claimant was ordered to pay the costs of producing properly prepared bundles and the costs thrown away as a result of the adjournment. The claimant had brought three applications for summary judgment on three separate claims. Two of the applications were supported by a witness statement which had 750 pages of exhibits. The judge criticised the lack of pagination and the fact that many of the exhibits were not placed in the bundle where they were stated to be in the witness statements. The inadequate pagination meant that the time-estimate for pre-reading and the hearing was inadequate. The judge found there had been a breach of the Overriding Objective (managing the courts resources proportionately). PM Project Services Limited v Dairy Crest Ltd [2016] EWHC 1235 is a sobering reminder of the potential consequences of poorly-prepared bundles. This decision comes hot on the heals of a decision earlier this year by the Court of Appeal. The editor of the Civil Procedure News draws attention to the decision in Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 in which the Court of Appeal granted the respondent its costs of having to prepare appeal bundles as those submitted by the appellant were described as "chaotic".

Assessing the cost of ATE Premiums

If anyone needs a reminded why the costs landscape for personal injury litigators has changed so dramatically they may not need look much further than the judgment of the Designated Civil Judge of the County Court at London, HHJ Walden-Smith, sitting with DJ Letham as assessor in the costs case of Banks v London Borough of Hillingdon, which has been commented upon in the legal press. The case concerned the correct assessment of an After-The-Event insurance policy, an issue which ranked high on the list of insurers' (and it seems the Government's) bugbears with the unreformed CFA system.   The underlying case was a straightforward, low-value, public liability tripper case. The successful claimant was awarded just under £7,000 in damages and costs were assessed/agreed save for a somewhat eye-watering £24,694 ATE premium. Master Gordon-Saker the costs judge cut this down to £9,375 on the basis that it was patently unreasonable for a premium to so extensively exceed the likely assured sum. This latter figure the Master considered would have been a maximum of £15,000, that is, the maximum amount such an insurer would have to pay out in costs should the claimant lose the case. He awarded half this sum, plus another 25 percent. Before the learned senior circuit judge it was argued that the costs master misdirected himself and should have considered the “basket of risk” for insurers, rather than applying some sort of common-sense approach on a case-by-case basis. The court overturned Master Gordon-Saker’s decision on the ground that he indeed erred and failed to consider the august guidance of the Court of Appeal in Rogers v Merthyr Tydfil CBC [2006] EWCA Civ 1134. The court held that it was for the paying party to adduce evidence that the premium was excessive and as this had not been available in the instant case, the costs master had no basis to conclude that the sum claimed was unreasonable (per, Kris Motor Spares Ltd v Fox Williams LLP [2010] EWHC 1008). This decision must be seen as victory for claimant litigators, given that it should serve as a persuasive reminder to trial judges to follow Rogers in the ever-diminishing rump of cases where such high ATE premiums are seen. The lesson for defendants is obvious: in cases where they are put on notice that, if successful, a claimant party will seek payment of what appears to be a very high ATE premium, it would be prudent to obtain evidence that lower premiums were available to support the conclusion that what is allowed should be assessed down. In the event that such information is not available until at or after trial, such a defendant would have little option other than to request that the matter be subject to detailed assessment, potentially at the expense of the claimant party.

QOCS : applies to appeals?

Qualified One-way Costs Shifting: does it apply to appeals?   Yes, according to Edis J in Parker v Butler [2016] EWHC 1251 (QB), who held:   3.         If (as is likely to be the case here) the claimant's access to justice is dependent on the benefit of QOCS, that access will be significantly reduced if he is exposed to a risk as to the costs of any unsuccessful appeal which he may bring or any successful appeal a defendant may bring against him. ...   4.         The power to make enforceable orders for costs is designed to compensate successful parties for their expense in bringing or resisting claims, but it also has an effect of deterring people from bringing or resisting claims unsuccessfully. It is an incentive to resolve disputes and serves a public as well as a private interest. ...   9.         CPR 44.13 provides "(1) This Section applies to proceedings which include a claim for damages – (a) for personal injuries"   10.       The issue is, therefore, whether the appeal is part of the proceedings which include a claim for damages for personal injuries or whether it is separate from them and thus not subject to the regime. If it is separate from the proceedings which culminated in the trial, is it nonetheless a set of proceedings which includes a claim for damages?   17.       An appeal by a claimant against the dismissal of his claim for personal injuries is a means of pursuing that claim against the defendant or defendants who succeeded in defeating that claim at trial. There is no difference between the parties or the relief sought as there is between the original claim and the Part 20 claim. Most importantly, to my mind there is no difference between the nature of the claimant at trial and the appellant on appeal. He is the same person, and the QOCS regime exists for his benefit as the best way to protect his access to justice to pursue a personal injury claim. To construe the word "proceedings" as excluding an appeal which was necessary if he were to succeed in establishing the claim which had earlier attracted costs protection would do nothing to serve the purpose of the QOCS regime. ...