legal watch - property - issue 8
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Legal Watch:Property Risks & CoverageAugust 2014
Issue 008
In This Issue:
• Costs in multi-party disputes
• Summary judgment and relief from sanctions
• Injunction for nuisance where property uninhabitable and whether order requiring payment of success fee and ATE premium breaches human rights
• Summary judgment against building contractor for defective workmanship of sub-contractor
• Guideline hourly rates – update
• Part36
• Guidance on instructing experts in civil claims
Contact UsIf you would like any further information on the cases or articles featured in this issue, please contact:
Robert Dell
T: 0844 245 4473
Andrew Wallen
T: 0207 469 6286
Marise Gellert
T: 0207 469 6249
IntroductionRather than being a lighter issue for August, this has turned
out to be a bumper issue, although probably not one for
poolside reading!
There appears, at first blush, to be something of an emphasis
on costs this month, with three decisions that were about
costs and an update on guideline hourly rates, although the
case of Coventry v Lawrence also looks at nuisance issues.
We also cover the case of Iliffe v Feltham which deals with
summary judgment and contractual liability for fire damage,
proposed changes to Part 36 and the new guidance on
instructing experts in civil claims.
Thanks go to Robert Dell, for his article on Harrison v Shepherd
Homes and to Andrew Wallen, for his articles on Beecham
Peacock v Enterprise and Coventry v Lawrence.
01
Costs in multi-party disputes
The case of Andrew Harrison & Ors V (1) Shepherd Homes
Ltd (2) National House Building Council (3) NHBC Building
Control Services Ltd [2014] EWHC 9999 highlights the
difficulties and challenges that the parties and courts face in
dealing with legal costs in multi-party disputes where some,
but not all, defendants are found liable.
The factsThe claimants, who were owners of properties constructed
between 2001 and 2004, brought a claim against Shepherd
Homes, the NHBC and NHBC Building Control Services
Limited, in relation to foundation defects of the properties.
The claim proceeded to trial against Shepherd Homes only;
the claims against the NHBC parties having been stayed
before any substantive steps against them were taken.
The trial was treated as a “test” case involving 10 properties,
the intention being that once the court had given a judgment
in the case, the same conclusion/principles could be applied
to other properties with damage/defects on the same estate
of houses.
It was held that Shepherd Homes were liable to the claimants
in contract and under section 2 of the NHBC Buildmark
Policy, which applied to each property. The court held that
Shepherd Homes should pay 95% of the claimants’ costs of
dealing with the claim against Shepherd Homes.
The 2014 judgment deals solely with the issue of who would
be liable for the claimants’ costs of pursuing the NHBC
parties and the NHBC parties’ costs?
The claimants argued that:
• Their conduct throughout was entirely reasonable
• Shepherd Homes should pay the claimants’ costs
of pursuing the NHBC parties, as they were the
unsuccessful party (relying on CPR 44.2(1)(a))
• A Sanderson order should be made, whereby an
unsuccessful party pays not only the costs incurred by
a successful claimant but also any costs liability that
claimant may have to a successful defendant and the
claimant’s costs of pursuing the successful defendant
Shepherd Homes submitted that:
• They should not be responsible for any costs incurred
between the claimants and the NHBC parties
• The NHBC parties should be treated as unsuccessful
parties (because they carried out remedial work to the
properties after the issue of legal proceedings) and bear
the relevant costs
• Alternatively, the NHBC parties were not successful, so
there could be no Sanderson or Bullock order (where
an unsuccessful defendant is ordered to pay the costs
of the successful defendant to the claimant) requiring
Shepherd Homes to pay the NHBC parties’ costs
• The NHBC parties argued that:
• The correct position was that the claimants should
discontinue the claim against the NHBC parties
• This would make the claimants liable for the NHBC
parties’ costs
• If there was to be no discontinuance, the claims against
the NHBC parties should be fully particularised and
liability determined by a trial
Applicable principlesThe judge considered the applicable principles:
• CPR.44.2 (1)(a) gives the court discretion as to whether
costs are payable by one party to another
• CPR 44.2(2) confirms the general rule was that
the unsuccessful party would pay the costs of the
successful party
• The court would have regard to all the circumstances
02
(including the conduct of the parties which includes
whether it was reasonable for a party to raise, contest
or pursue a particular allegation or issue and the manner
in which a party has pursued or defended its case)
The judge considered whether a Sanderson order or a
Bullock order was appropriate. Some of the issues to be
considered were whether the causes of action relied upon
against the defendants were connected with each other;
whether the claimants’ conduct in joining and pursuing a
claim against a successful defendant was reasonable and
whether one defendant had put the blame on another
defendant.
After considering the background and history of the claim
the judge concluded that this was not a classic case for
a Sanderson or Bullock order and rejected the parties’
suggestion that the court should give directions to determine
liability between the claimants and the NHBC parties. The
judge held that there could be no justification for using the
court’s resources or for the parties to “spend time and costs
on such a wholly disproportionate and futile exercise” and
that it could not be proper to do so under the overriding
objective.
The judge held that there could be no justification for...the parties to “spend time and costs on such a wholly disproportionate and futile exercise” On that basis the appropriate order between the claimants
and NHBC parties was that there should be no order as to
costs; the judge felt this did justice between those parties
where “all that has happened, apart from the strike out/
summary judgment application is that the parties have
complied with the pre-action protocol. The proceedings
have not had to proceed any further because of the good
sense of the parties in staying those proceedings” and
because the NHBC parties were neither successful nor
unsuccessful defendants.
The judge did not consider it necessary to decide whether to
make an order that Shepherd Homes should pay the NHBC
parties’ costs by way of a Sanderson or Bullock order. He
recognised that decision meant that the claimant would
not recover costs spent pursuing the NHBC parties, so the
judge considered whether those costs were recoverable
from Shepherd Homes. The judge had discretion to order
Shepherd Homes pay the claimants’ costs of pursuing the
NHBC parties and held that it was appropriate that the
costs incurred by the claimants in dealing with the NHBC
parties should be paid by Shepherd Homes. The primary
reason for this was that Shepherd Homes had, throughout,
encouraged the claimants to involve the NHBC parties and
bring claims against them.
CommentIn multi-party claims, settling the substantive claim is often
only half the battle. In long-running and complex matters,
such as Harrison, the issues of apportionment and payment
of costs can sometimes be as complex as the underlying
claim and may require the involvement of the courts to
resolve them.
This situation most often arises where a claimant has
brought proceedings against a number of parties (not
uncommon in property and construction litigation) and
perhaps only succeeded against one of them. Naturally the
‘innocent’ defendants, against whom there is no liability, feel
aggrieved at their unnecessary involvement and expect the
claimant to pay their legal costs.
The claimant on the other hand, will adopt the view that
were it not for the party to whom liability does attach, there
would have been no claim or proceedings and consequently
the unsuccessful defendant should meet all costs incurred
by the claimant in pursuing all defendants.
03
Such a situation is often dealt with in a Sanderson or a
Bullock order, either when the parties are able to reach
agreement on the issue or when the court is asked to make
an order.
Claimants in particular should always have in mind the cost
of a scattergun approach by pursuing claims against multiple
defendants. This can be a costly exercise if a defendant is
able to argue that their involvement was neither reasonable
nor appropriate. A claimant should not assume that the
costs of pursuing defendants who successfully defend a
claim, or against whom there is no finding of liability, will
be recoverable from the defendant who is ultimately liable.
Likewise, defendants who find themselves one of several
parties in a dispute should not assume that their costs will
be paid by the claimant or liable defendant, when a claim
is settled prior to any finding on liability and without the
agreement of all parties.
04
Summary judgment and relief from sanctions
In Beecham Peacock Solicitors LLP v (1) Enterprise
Insurance Co PLC (2) Isle Of Man Insurance Co Ltd (3)
Mount Grace Insurance Ltd [2014] EWHC 2194 the High
Court considered whether the claimant firm of solicitors (B)
was entitled to recover the disbursements it had incurred
on behalf of its clients, in failed personal injury claims, from
the ATE insurers who had underwritten the polices. It also
considered whether to grant B relief from sanctions for failing
to provide disclosure and exchange witness statements as
ordered.
BackgroundA “claims farming operation”, Freeclaim IDC plc (F), had
operated as agent to the insurers, E, X and a third company,
who underwrote the ATE polices. B was a successor firm to
Beecham Peacock Solicitors (BPS) who had taken out the
ATE insurance on behalf of its clients. The first and second
applicant insurance companies (E and X) applied to strike
out B’s claim for indemnity, primarily on the basis that B
was not a party to the ATE policies. In practice a strike out
application is a summary judgment application made by the
defendant.
E’s policy appeared to exclude BPS’ right to enforce the
contract under the Contracts (Rights of Third Parties) Act
1999 (the 1999 Act), although X’s did not purport to do so.
However, there was in existence a procedures manual which
was stated to form part of the contract between the insurer
and panel solicitor. The manual placed certain obligations
on the panel solicitors when requesting payment under the
policy.
E and X sought to strike out the claim on the basis there
was no contractual relationship between B and the insurers.
In addition, both E and X maintained that in breach of
the Conditional Fee Agreements Regulations 2000 (the
2000 Regulations) B had failed to declare its interest in
recommending the insurance policy, although there was
evidence that BPS had started using the insurance prior to
becoming a member of F’s panel.
Judgmenti) Strike out
The court was not prepared to strike out B’s claim. In
essence there were too many questions to make the matter
suitable for summary judgment.
“...there were too many questions to make the matter suitable for summary judgment.” There was clearly reference within the insurance
documentation to a contractual relationship between BPS
and E. There was also a realistic prospect that such similar
documents would exist as between BPS and X. Further,
whilst the 1999 Act was probably excluded from E’s policies,
there was no such exclusion within X’s policies.
B had also submitted that, by paying the disbursements,
it was entitled to subrogate directly against E and X. The
court held that the payment of the disbursements did not
discharge the insurers’ liability under the policies, such that
any subrogated claim would have to be brought in the name
of the clients.
In addition, B argued that the insurers had been unjustly
enriched by failing to indemnify under the terms of the
ATE policies. Again this was rejected by the court on the
basis that the clients themselves remained liable for the
disbursements that B had legitimately incurred, and since it
was a condition precedent to such liability that they covered
the insureds’ liability for those disbursements, so that the
insurers had not been unjustly enriched.
05
The submissions in respect of the 2000 Regulations that the
CFAs were unenforceable for non-disclosure of B’s interest
in recommending the policies, were also not sufficient for
the court to give summary judgment. There was evidence
that the policies, which had been approved by the Law
Society, were overwhelmingly selected because of their
quality and not because they played a significant part in B’s
business. Accordingly, there was a realistic prospect of B
making out its argument.
ii) Relief from sanctions
Both sides had failed to comply with the directions for
disclosure and exchange of evidence. Plainly, therefore, both
sides were in default. B had maintained that it anticipated
a further CMC being listed prior to the dates in the agreed
directions for disclosure and exchange of evidence. In
addition, an internal dispute between the defendants had
caused their default. E and X had submitted that they would
now not get assistance from F, but that was due to the
internal dispute which pre-dated the default and could not,
on that basis, be said to be attributable to the default.
In the circumstances, the court was satisfied that there was
no prejudice to the defendants for any delay and since both
parties had made applications for relief, albeit after the CMC
itself, it was appropriate to grant such relief. Whilst CPR 3.9
made clear the importance of compliance, in circumstances
where both sides were in breach and there were also good
reasons for that delay, relief from sanctions was justified.
CommentThe judgment highlights the difficulty that a defendant may
face in succeeding in a strike out application. Where there is
evidence of complex issues from both sides, that needs to
be evaluated by the court to ascertain whether the claimant
has a realistic prospect of success, summary determination
will not be appropriate.
Further, in the post-Mitchell world, here is, once again, an
example of the court granting relief from sanctions. Where
both sides have defaulted with good reason and neither
has suffered prejudice it does appears that the courts are
now willing to take a more pragmatic approach.
06
Injunction for nuisance where property uninhabitable and whether order requiring payment of success fee and ATE premium breaches human rightsIn Coventry & Ors (Respondents) v Lawrence & Anor
(Appellants) [2014] UKSC 46 the Supreme Court considered
numerous issues. There were two hearings at which the
court firstly considered whether a nuisance existed and
then, secondly, whether it was appropriate to grant injunctive
relief and whether the entitlement to a recover a success
fee and ATE premium infringed the European Convention
on Human Rights 1950 (the ECHR). This article focuses on
the second hearing and the judgment handed down on 23
July 2014.
Background The respondent, R, owned a house close to a motor sports
stadium and racetrack owned by W and occupied by C and
M, where they had held motocross events since 1975. R had
purchased the house in 2006 and thereafter complained to
the council about the noise levels. Noise abatement notices
were served by the council thereafter.
The matter then came to the High Court to consider
injunctive relief. However, prior to trial a fire had rendered
the house uninhabitable. At trial the judge found C and M
liable in nuisance and granted a noise-limiting injunction to
take effect on 1 January 2012 or whenever the house was
habitable once more, whichever was the earliest. C and M
were also ordered to pay 60% of R’s costs.
The judgment was overturned by the Court of Appeal,
but then subsequently reinstated by the Supreme Court.
However, there were four issues remaining:
1. Whether the injunction should be suspended until the
house was habitable
2. Whether the parties should be able to apply to vary the
injunction immediately
3. The liability of W in nuisance
4. Whether the costs order infringed the ECHR
JudgmentThe Supreme Court considered the first two issues minor in
nature. As long as the house remained uninhabitable, there
was no reason that the injunction should “bite”. The finding
of liability in nuisance was as a result of the appellants’
inability to acquire quiet enjoyment of the house. As long
as use and, therefore, quiet enjoyment was impossible
then there was no justification for maintaining the injunction
which would cause harm to C and M with no concomitant
benefit to R.
The court accepted that C and M may wish to argue that
the court should discharge the injunction on the grounds
that damages would be an appropriate remedy. The court
considered that such an application would have prospects
of success and therefore C and M should be granted the
ability to apply without having to wait for the house to be
reinstated.
The first main issue
The court then went on to consider the liability of the
landlord, W, in nuisance. The court set out the case law,
stating that it was tolerably clear from the judgment in
Southwark London Borough Council v Mills [2001] 1 AC,
22A that where activities constitute a nuisance the general
principle is that “the...persons directly responsible for the
activities in question are liable; but so too is anyone who
authorised them.”
07
The Court of Appeal went on to state that in order for a
landlord to be authorising a nuisance they “must either
participate directly in the commission of the nuisance,
or they must be taken to have authorised it by letting the
property.”
Although this was a motor sports stadium and racetrack,
the court held that it was not inevitable, upon letting of the
stadium and racetrack, that the activities undertaken by C
and M would amount to a nuisance. On that ground, W, the
landlord, could not be liable. Those activities which were
undertaken by C and M could clearly be undertaken in such
a way that did not amount to a nuisance.
Therefore, if the claim were to succeed it must have
been based upon W’s “active” or “direct” participation.
The appellants maintained that W had participated in the
nuisance on five grounds, in that he:
• Did nothing to stop or discourage the nuisance
• Had erected a hay-bale wall to keep the noise down
• Co-ordinated the dealings with the local authority
• Appealed the noise abatement notice
• Co-ordinated the response to the appellants’ complaints
about the noise, often responding himself
The court found that doing nothing to discourage the
nuisance did not amount to “participating” in the nuisance.
Simply because a person has the power to act and does not
do so, it does not amount to authorisation.
“...doing nothing to discourage the nuisance did not amount to “participating” in the nuisance...”
The court also found that, absent very unusual
circumstances, taking steps to mitigate a nuisance cannot
be said to be authorising it. It was counter-intuitive of the
appellants to argue that that W had done nothing to prevent
the nuisance and then argue that the fact he took steps to
reduce the nuisance should render him liable.
The remaining points were all based upon W’s leading part
in fighting off the risk of nuisance abatement by the local
authority. The court found that any landlord whose premises
were being lawfully used would wish to protect his tenants’
ability to continue with their activities, as this would clearly
affect the value of his property. Further, since W was a
councillor, this alone justified much of his involvement.
The second main issue
The court then moved on to consider the second main issue,
that of costs. At first instance C and M had been ordered to
pay 60% of the success fee and ATE premium. Success
fees and ATE premiums are permitted by the Courts and
Legal Services Act 1990 (the 1990 Act) as amended by the
Access to Justice Act 1999 (the 1999 Act).
C and M submitted that the recoverability of success fees
and ATE premiums was in breach of their rights under
Article 6 of the ECHR, which preserves the right to a fair
trial and accordingly that paragraphs 11.7-11.10 should be
disregarded.
The court held that if the respondents were correct then
the correct approach may well be for the court to grant
a declaration of incompatibility in respect of the 1990
and 1999 Acts. Such a declaration could likely allow the
“victims” of those provisions (i.e. those losing parties who
have paid success fees and ATE premiums in the past) to
claim compensation from the government.
Whilst it would be for the Supreme Court to make such a
declaration, the clear implications of such a declaration
meant it was only proper for the government to be permitted
the opportunity to make representations to the court.
Accordingly, should C and M wish to pursue this argument,
the matter is to be re-listed once the appropriate notice has
been given to the Attorney General and Secretary of State
for Justice.
08
“Such a declaration could likely allow the “victims” of those provisions...to claim compensation from the government.”
CommentClearly if the costs issue is pursued there are potentially
serious and costly ramifications for the government. Keep
your eyes on future issues of Legal Watch: Property Risks &
Coverage for updates!
09
Summary judgment against building contractor for defective workmanship of sub-contractorHaving suggested above that summary judgments will not
be granted easily, one was granted against the defendant
main contractor in the case of Honourable Edward Iliffe (1)
Teleri Iliffe (2) v Feltham Construction Limited (Defendant)
& Affleck Mechanical Services Limited (Third Party) [2014]
EWHC 2125.
BackgroundThis claim related primarily to a dispute about whether there
was a contract in place, such that the main contractor was
then held liable for the negligence of the sub-contractor(s)
in installing a steel flue too close to combustible material,
which then ignited when a wood burning stove was used,
leading to the almost total destruction of the claimants’
partly constructed house, on Green Island, in Poole Harbour.
The damages claimed were in excess of £3,500,000.
The claimants engaged a building contractor Feltham
Construction Limited (F) to build the house in three phases:
• Phase 1 – excavations, foundations and concrete work
and drainage
• Phase 2 – erection of the main house (which was to be
made of wood)
• Phase 3 – the final and relevant stage, which included
the supply and installation of a two-way log burning
stove with heat exchanger and all necessary insulated
stainless steel flues, which passed through the
roofspace of the house
The fire happened during phase 3, when the house was
almost completed.
As is only too often the way, no written contract in relation
to the phase 1 works was executed until after the practical
completion of those phase 1 works. The “Specification
for Phase 1”, the document on the basis of which F had
successfully tendered, had stated that the JCT Intermediate
Building Contract with Contractor’s Design 2005, Revision
2, 2009 would apply.
When it came to tendering for the phase 3 works, F did so
on the basis that those works would be a variation to the
phase 1 contract and in turn engaged the third party sub-
contractor, Affleck Mechanical Services Limited (A) to carry
out the design and installation of the wood burning stove
and steel flue.
The claimants (through their architect) suggested in what
was initially to be regarded as a draft ‘email of intent’ that
the phase 3 works should be split into two parts, with phase
3a to include an immediate instruction to place an order
with A to allow it to carry out the relevant works.
Ten days later the architect removed the word “draft”.
The phase 3a works proceeded and A sub-sub-contracted
the design and installation of the flues to Docherty Chimney
Group Limited (D). A Mr Calloway of D carried out the
installation in late 2011. The log burner and its flues were
operational by the time of the fire and had been used several
times before the fire happened.
The claimants contended that the cause of the fire had been
F’s failure to comply with building regulations when installing
the steel flue, which resulted in the flue being installed
impermissibly closely to combustible material, which ignited
when the steel flue became heated after the operation of
the wood burning stove. The chimney from the log burner
passed through the roof, which was a timber construction.
The manufacturer’s instructions were that 50mm separation
was required between the exterior of the chimney and any
combustible material.
010
The issuesThe issues were whether:
• There was a contract between the claimants and F in
relation to the phase 3 works
• If there was such a contract, did F owe the claimants
any obligation in respect of the supply and installation of
the wood burner and stove?
• The claimants had proven, to the requisite degree of
certainty, that the fire was caused in the roofspace by
the defective installation of the wood burner or flue;
• F was contractually liable to the claimants if causation
were established as per (iii) above;
• If F was contractually liable, whether there was any
other compelling reason there should be a trial or any
compelling reason summary judgment ought not be
granted
JudgmentContractual issues
1. It was common ground that no contract in writing had
been executed. On that basis, any contractual consensus
had to have involved either an oral statement of offer
or acceptance or conduct which, viewed objectively,
demonstrated that consensus had been reached. The court
therefore looked to the documentary tender process, the
emails, the removal of the word ‘draft’, the minutes of a
site meeting and the fact that F carried out the works and
was paid for them in accordance with its tender. On that
basis, the court formed the clear conclusion that the parties
had entered into a contract which incorporated the terms
of the JCT Intermediate Building Contract with Contractor’s
Design 2005, Revision 2, 2009
Although initially the contract might have only been for
“phase 3a works”, they included the installation of the
log burner and flue and the contract was subsequently
extended to cover all of the phase 3 works. If the court was
wrong on the incorporation of the JCT standard form terms,
the contract was a contract for services to which the Supply
of Goods and Services Act 1982 s.13 applied under which
there was an implied term that F would carry out the works
with reasonable care and skill.
The court commented that “Where parties have carried out
work and been paid for them, the Court will scrutinise a
suggestion that they did so without there being a contract in
existence with care…”
2. F’s obligations in respect of the log burner and flue were
not limited to placing an order with A. F had contractual
responsibility for A’s acts and omissions. It mattered not
whether the cause was entirely attributable to the acts and
omissions of A and its sub-contractors, or, as was suggested
by Mr Calloway, whether F was directly responsible for
ensuring there was adequate separation around the flue: its
responsibility in contract would be the same.
“Where parties have carried out work and been paid for them, the Court will scrutinise a suggestion that they did so without there being a contract in existence with care…” Causation
The court found that there could be no doubt that the fire
had started in the roof space close to the stainless steel flue
from the log burner. The judge commented that he would
be prepared to make that finding without the assistance of
experts on the basis of the photographs appended to the
claimants’ expert’s report.
011
The judge noted that there was no expert or other evidence
to the contrary and no realistic prospect that evidence to the
contrary would emerge or be accepted at a full trial.
The evidence in support of the outbreak of fire being
associated with the installation of the flue in the roof space
was said to be “overwhelming”, given that that was the
opinion of three of the four experts, and the only other
causes of ignition, (a) an electrical fault and (b) a burning
brand entering the roofspace by an open upstand adjacent
to the flue, could be discounted as real possibilities.
The judge also held that the claimants’ workmanship case
against F was “overwhelming” once it was accepted that, in
the absence of any suggestion that the flue was inherently
unsuitable, the flue would not have started the fire if it had
been installed properly and with adequate separation.
The judge went so far as to say “The ignition of combustible
materials in close proximity to chimneys is a well-recognised
risk, which is why 50mm separation is a standard requirement
(and was a manufacturers’ requirement with this flue).”
Summary judgment
F’s submissions on this point were inextricably linked to its
submission that there was a danger of inconsistent findings
down the line, on the basis that its case against A was
expressed to be contingent upon the claimants succeeding
against it in the main action.
The judge concluded that the danger of inconsistent findings
was remote and accordingly, there was no unfairness in
giving summary judgment.
CommentJust as in the case of Beecham Peacock above, the judge
repeated the principles required for summary judgment
to be granted – that the defendant has no real prospect
of successfully defending the claim and there is no other
compelling reason why the case should be disposed of at
trial. ‘Real’ was interpreted as “not be so slim as to be false,
fanciful or imaginary”.
The costs saving to the parties if summary judgment is
successful can be substantial, as the costs of preparation of
and attendance at a full trial are saved but it is not something
to be entered into lightly. An unsuccessful summary
judgment application will, of course, have the opposite
effect, simply increasing costs at the early stages of the
claim and an unsuccessful summary judgment application
cannot, of course, be taken as an automatic indication that
the party who succeeded in resisting the application will
succeed at trial.
Very careful consideration should, therefore, always be
given to whether such an application should be made.
012
Guideline hourly rates – updateWe reported in the July issue that the Civil Justice Council
Costs Committee had submitted its report to Lord Dyson,
Master of the Rolls.
In what has been described by some as “a surprise move”
the Master of the Rolls has rejected recommendations to
amend the guideline rates.
In his official response, Lord Dyson criticised the “poor
evidential base” made available to the committee and has
advised that existing rates will be frozen, as to raise them in
line with inflation would be “arbitrary”.
However, not all of the recommendations have been rejected
and with effect from 1 October 2014, CILEx fellows will be
eligible for grade A rates if they are eight-years qualified.
Grade A currently only applies to solicitors. Qualified costs
lawyers will be eligible for grade B or C rates.
Further discussions are to take place with the Law Society
and the government.
Watch this space!
013
Part36
The Civil Procedure Rule Committee (CPRC) is to consider
how CPR 36 can be reformed to simplify it and to prevent
offers failing on ‘technical grounds’.
The CPRC agreed that the problem of undue technicality
should be addressed and the rules simplified, without losing
certainty.
Proposals include:
• Removing the need to formally withdraw a Part 36 offer,
allowing offers to be time limited, provided they are
capable of acceptance for at least 21 days
• Amending Part 36 to expressly allow for Part 36 offers
by counterclaiming defendants and other parties
• Taking steps to tackle what are considered to be
‘cynical’ claimant’s offers, for example by making offers
that are simply ploys aimed at obtaining the benefits of
Part 36 costs consequences in the expectation that the
offer would never be accepted
We will keep you advised of developments.
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.
www.plexuslaw.co.ukwww.greenwoods-solicitors.com
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Guidance on instructing experts in civil claimsThe Civil Justice Council (CJC) has finalised and published
its guidance for the instruction of experts in civil claims
2014.
The guidance will take effect from September 2014,
replacing the current protocol for the instruction of experts
to give evidence in civil claims, currently annexed to CPR
PD35.
The new guidance can be found at:
http://www.judiciary.gov.uk/wp-content/uploads/2011/03/
guidance-for-the-instruction-of-experts-in-civil-claims-2-2.
It is intended to help litigants, expert witnesses and
those instructing experts. The guidance, which is very
comprehensive and runs to some 18 pages, reminds
experts and those instructing them that some cases will be
governed by the specific pre-action protocols and some
may be ‘specialist proceedings’ (pursuant to CPR 49) where
specific rules may apply. Where they do not, this guidance
must be followed.
Of particular note is paragraph 54, which deals with the
expert’s mandatory statement of the substance of all material
instructions, the specific point is made that “The omission
from the statement of ‘off-the record’ oral instructions is not
permitted.”
Likewise, paragraph 78, which deals with experts’ joint
statements provides that the joint statement should
“include an express statement that the experts have not
been instructed to avoid reaching agreement (or otherwise
defer from doing so) on any matter within the experts’
competence.”
Whether this guidance will lead to a flurry of applications to
cross-examine experts as to their instructions remains to be
seen.