Simmons and Castle

The Court of Appeal has revisted its earlier July 2012 judgment in which they controversially announced that with effect from 1st April 2013 general damages in tort cases would increase by 10% from current levels. Following an application by the Association of British Insurers in August to intervene the court was invited to reconsider whether the 10% increase should only apply to cases where the claimant’s funding arrangements for his or her legal costs had been agreed after 1st April 2013.

One of the primary concerns expressed by insurers about the 10% uplift in damages was that a successful claimant who begins a claim before 1st April 2013, under a CFA or with the benefit of ATE insurance, would be entitled to both the 10% increase in damages and the continued recoverability of any success fee or ATE insurance premium if the proceedings conclude after 1st April 2013. 

The Association of Personal Injury Lawyers and The Personal Injuries Bar were joined as 2nd and 3rd Interested Parties and the court recovened on 25th September 2012 to consider written and oral submissions. Having done so, they concluded that….

“…we would, as it were, delete para 19 from our earlier judgment, and replace para 20 with the following paragraph:

“Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, (v) mental distress, or (vi) loss of society of relatives, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000”.

Click here for Judgment

Response to Report on GHR published

Master of the Rolls’ decision and Committee’s report on Guideline Hourly Rates 

The Master of the Rolls has published his response to the Civil Justice Council Costs Committee’s comprehensive report on Guideline Hourly Rates, rejecting the committee’s findings and determining there should be no change to the guideline hourly rates which were last updated in 2010 due to an in sufficiently strong foundation of evidence. He did however accept several of the Committee’s recommendations, including that:

  • There should not be an additional Grade A star
  • Separate GHR bands specific to specialist fields of civil litigation should not be introduced
  • Separate rates should not be introduced for detailed assessments of costs, but that there should be greater flexibility in detailed assessments than would ordinarily be shown in summary assessments

Two positive changes which will be introduced in October 2014 are that:

  • Grade A fee earners will include Fellows of CILEX with 8 years’ post-qualification experience
  • Costs Lawyers who are suitably qualified and subject to regulation will be eligible for payment at GHR Grades C or B, depending on the complexity of the work

New Model CFA, but be warned!

The Law Society has published a new Model CFA for use in personal injury and clinical negligence cases.

However, be warned! Commentators have suggested that it contains errors. See Kerry Underwood’s stark warning regarding its use.

New Offices

We are delighted to announce our move to new larger offices as of today. The move is part of our ongoing expansion and will allow us to continue providing the service our clients have come to expect for many years to come.  

Costs Lawyer Rights

Costs Lawyers have earned their long awaited right to litigate, says Sue Nash…

“It took many years for the Association of Law Costs Draftsmen, as it then was, to make the case for independent rights of practice for its members and have it accepted by government and Parliament. This has given birth to a new breed of highly professional and accountable costs lawyers who are regulated as vigorously as any other lawyer.”

See New Law Journal article

Concern over recoverability of ATE insurance in clinical negligence cases

The Statutory Instruments Joint Committee have reported The Recovery of Costs Insurance Premiums in Clinical Negligence Proceedings Regulations 2013 for appearing to be “..of doubtful vires and (to the extent that the vires exist) making an unexpected use of the power under which they were made.” The Report concludes that…

“…the wording of section 58C(2) [of the Courts and Legal Services Act 1990] at least arguably requires any regulations under that section to relate only to specified descriptions of proceedings and policies. Even if that view is found to be stricter than justified, the wording of the Explanatory Notes appears to create a clear expectation that coverage of the Regulations in respect of proceedings will be less than comprehensive.”

A response is awaited. 

New ACL Website

The Association of Costs Lawyers has launched its new website. Take a look.

Fundamental dishonesty leads to removal of QOCS protection

Exaggerated symptoms see claimant lose QOCS protection in first ‘fundamental dishonesty’ decision 

A circuit judge has ruled in Gosling v Screwfix and Anr (unreported, 29 March 2014) that a personal injury claimant who exaggerated the extent of his ongoing symptoms should be denied the protection of qualified one-way costs shifting (QOCS) on the grounds that the claim was “fundamentally dishonest”. See the full Litigation Futures article.

MPs defeat challenge to CFA regulations as latest changes to CPR are published

The new regulations governing conditional fee agreements (CFAs) cleared their final hurdle yesterday after the government defeated a last-ditch Labour challenge to them.

Read the full Litigation Futures story here.

Costs Management

The Hon Mr Justice Ramsey has delivered the 16th Implementation Lecture in relation to Sir Rupert Jackson’s reform package, concerning Costs Management. He unveiled additions to CPR3 (3.11 to 3.18), a new Practice Direction 3E and amendments to Section 6 of the Costs Practice Direction. The changes are intended to give effect to the Sir Rupert’s proposals for costs management based on four essential elements, namely:

(i) The parties prepare and exchange litigation budgets or (as the case proceeds) amended budgets.

(ii) The court states the extent to which those budgets are approved.

(iii) So far as possible, the court manages the case so that it proceeds within the approved budgets.

(iv) At the end of the litigation, the recoverable costs of the winning party are assessed in accordance with the approved budget.

Mr Justice Ramsey concluded by saying…

“Costs management forms an essential part of the reforms proposed by Sir Rupert. It will allow the courts properly to implement the new test of proportionate costs and to reduce the overall costs of litigation. The pilot schemes have shown that this is a new discipline which can and is being learnt. With proper training, solicitors, barristers, barristers’ clerks and judges can each play an important role in the management of the costs of litigation.”

The full Lecture can be read here.