Monthly Archives: March 2010

RTA Claims Process – No question left unanswered

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District Judge Robert Hill is a member of the Civil Procedure Rules Committee and was a member of the sub-committee which drafted the new RTA Protocol and the consequential changes.

Writing in the Law Society Gazette on the new rules he states: "Whatever your question, it is answered in the RTA Protocol or in PD8B or in the amended rules".  Really?  If so, why has that bottle of champagne not been claimed (see earlier post)?

The competition is open to the judiciary too, even those who helped draft the rules.

51st Update to the CPR – 3

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More on the 51st Update to the Civil Procedure Rules. The changes come into force on 6 April 2010.
 
 
A new CPD 39.2 is created which reads: “Where there is a dispute about the insurance premium in a staged policy (which has the same meaning as in paragraph 19.4(3A)) it will normally be sufficient for the receiving party to set out in any reply the reasons for choosing the particular insurance policy and the basis on which the insurance premium is rated whether block rated or individually rated.”  This formalises the guidance given in Rogers v Merthyr Tydfil CBC [2006] EWCA Civ 1134.

Jackson Update

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The rumour mill continues unabated as to whether Lord Justice Jackson’s legal costs review will ever see the light of day.
 
I attended a conference the other week where one of the other speakers informed the audience that Jackson LJ was to take no further part in implementation of his report and would be undertaking no further interviews on the subject.  This suggested that the Report was about to kicked into the long-grass and he had either jumped or been pushed first.
 
Then, on 17 March 2010, the following announcement was made on the Judiciary of England and Wales website:
 
“Following publication of the final report of Lord Justice Jackson’s comprehensive review, the senior judiciary has considered its response to the report. The Judicial Executive Board has agreed to support the recommendations of the final report, and has established a Judicial Steering Group, with a membership as follows:
 
  • Lord Neuberger, Master of the Rolls
  • Lord Justice Maurice Kay, Chairman of the Judicial Studies Board
  • Lord Justice Moore Bick, Deputy Head of Civil Justice
  • Lord Justice Jackson 
The Steering Group will lead on judicial contributions to implementation of the review, recognising that much of the task will fall to Government, as key reforms require primary legislation. They will provide direction on areas where the judiciary is itself in the lead for implementation, such as case and costs management.”
 
This, obviously, totally contradicted what was being said only a few days before.
 
Now the Law Society Gazette has reported that a Conservative government is opposed to a number of Jackson LJ’s key recommendations including a blanket ban on personal injury referral fees.
 
Shadow justice minister Henry Bellingham said a Tory government would consult with the profession on all of Jackson’s recommendations, about which he said “some are good news, but others aren’t workable”.  Bellingham expressed concern over the proposal to prevent successful claimants recovering success fees and ATE premiums from defendants. He also expressed concern about Jackson’s proposal to implement one-way costs shifting.
 
Bellingham said that if success fees and ATE insurance premiums were non-recoverable, “people might find that solicitors won’t take their case”. He said that one-way costs-shifting could encourage unnecessary litigation, but supported Jackson’s recommendation for improved costs budgeting and a more active role for judges in costs management.
 
Make of all that what you will.
 

51st Update to the CPR – 2

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More on the 51st Update to the Civil Procedure Rules. The changes come into force on 6 April 2010.

CPD 6.4(1)(a) is amended to remove the requirement to file an estimate of costs with an allocation questionnaire in fast track matters.

This must be viewed as being a retrograde step. In future, parties in fast track matters will not know the level of costs their opponent is incurring until the pre-trial check list stage. By that time most of the damage will have been done.  A party may, when faced with a large estimate of future costs, take a commercial view of the claim and settle the case early to avoid disproportionate costs. Without an estimate at the allocation stage they will not be able to do this.  Equally, it will be too late for the court to make robust case management decisions to control disproportionate costs.

At exactly the same time Jackson LJ is proposing that judges take a more robust approach to case managing claims to control costs, the rules go in the opposite direction.

I understand the motivation behind removing the requirement to prepare the estimate was because the rules require an estimate to be "substantially in the form illustrated in Precedent H".  It was thought the expense of preparing an estimate in this way was not justified at allocation in fast track matters.  However, when was the last time a party complied with this requirement in a fast track matter (or, indeed, a multi track matter)?  Invariably no more than a global figure gets provided.

A sensible rule appears to have been removed to solve a problem which did not exist.

51st Update to the CPR – 1

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The 51st Update to the Civil Procedure Rules introduces changes in a number of costs areas. The changes come into force on 6 April 2010.

The rules take a massive leap into the 21st Century.

E-mails out can now be treated in the same way as letters out for the purpose of bill drafting and costs recovery.    
 
CPD 43.3(h) is amended so that when requesting a hearing date the solicitor should also give, in addition to a fax number, an "e-mail address where available".  
 
Whoa!  Slow down with the technical mumbo-jumbo egg-heads.  What’s this so-called "fax" meant to be?
 
If you think the rules committee has gone technology mad, you can breath a sigh of relief that CPD 35.6 appears to remain unaltered:
 
(1) This paragraph applies in cases in which Points of Dispute are capable of being copied onto a computer disk.
 
(2) If, within 14 days of the receipt of the Points of Dispute, the receiving party requests a disk copy of them, the paying party must supply him with a copy free of charge not more than 7 days after the date on which he received the request.
 
So you can still send the receiving party your Points of Dispute on an 8-inch floppy disk in a format that was only briefly used by the KGB in the early 1980s and still fully comply with the rules.  Not that anybody who works in the legal costs world is that petty.

Nicholas Bacon QC

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Congratulations to specialist costs counsel Nick Bacon who has been elevated to Queen’s Counsel with effect today. 

He joins Jeremy Morgan QC as only the second barrister to become a QC on the back of his costs work.

The new RTA claims process, not to mention any Jackson reforms, are likely to keep them both busy for the foreseeable future.

RTA Claims Process – Simple as ABC

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Further to our recent look at the new Ministry of Justice claims process for road traffic accidents, I have another puzzler for you.  Again, I am grateful to Keith Hayward at Victory Legal Costs Solicitors for this one.  The next time the Civil Procedure Rules Committee decides to put together a new set of costs rules they might like to consult with Keith first.
 
Claimant requests an interim payment in the interim settlement pack of, say, £5,000, but Defendant only pays £1,000. So Claimant commences Part 7 proceedings but forgets to give notice that the claim will no longer continue under the Protocol or doesn’t give notice within 10 days, as required by Protocol 7.23.
 
Having issued the Part 7 proceedings the Claimant issues an application for an interim payment, and after a fully fought hearing the Court orders an interim payment of £5,000.  What happens now?  Protocol 7.23 makes it clear that unless the Claimant gives notice within 10 days the claim will stay in the Protocol.  So:

a.   What costs can be ordered at the end of this contested interim payment hearing if the case is still in the Protocol?

b.   What happens to the Part 7 proceedings? Are they stayed until the Claimant is ready to serve the settlement pack?

c.   If agreement is not reached at the end of Stage 2 what next?  Does the Claimant now continue with the Part 7 proceedings outside of the scheme, or must the Claimant issue Part 8 proceedings?  Surely we can’t have duplication of proceedings, so how do we continue with Stage 3?

I’ll leave you all to have a good think about that; although afterwards you may want to have a quiet lie down in a dark room.

Remember the kind of people who are generally going to be handling this type of claim.