Costs News

01 August 2018
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News in brief - 02.08.2018

News in brief

Disclosure pilot gets green light

The Civil Procedure Rule Committee has approved the rules governing the proposal disclosure pilot, which will start in the Business and Property Courts from 1 January 2019, subject to ministerial approval.

Key elements of the pilot include:

  • A number of clearly stated ‘disclosure duties’ on the parties and their advisers, backed by sanctions for non-compliance, such as a duty not to ‘dump’ irrelevant documents on the other side, and a duty on advisers to liaise and co-operate with their counterparts in relation to disclosure;
  • Rather than ‘standard disclosure’, there will be five disclosure “models” that allow for greater flexibility around the manner and extent of disclosure to be given in each case; and
  • The models range from an order that only ‘known adverse documents’ be produced (without the requirement for a search to be undertaken), through to orders requiring a party to undertake wide-ranging searches for documents applying the broadest test of relevance. Parties in all cases will be required to disclose ‘known adverse documents’ as a minimum.

Where cost budgeting applies, Form H cost budgets in relation to disclosure will still need to be completed in the usual way unless it is not practical to do so, in which case completion of the disclosure section in Form H will be postponed until after the case management conference.

In addition, parties will be required to give estimates of the likely costs of disclosure when filing the completed disclosure review document in order that the question of proportionality may be considered at the CMC before an order for disclosure is made.

Full details on the pilot can be found here.

 

Judges have discretion over QOCS in ‘mixed’ claims

A circuit judge was wrong to order that qualified one-way costs shifting (QOCS) automatically applied to a claim about misuse of data because it also included a personal injury (PI) element, the High Court has ruled.

In The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin), Mrs Justice Whipple said that in the event of so-called ‘mixed’ claims that have both PI and non-PI components – which can be exempt from QOCS under CPR 44.16(2)(b) – the court has complete discretion as to what action to take.

She said that, where there was a claim for damages for personal injuries as well as for something else – the rule was clear that “the mechanism is quite simply to leave it to the court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant’s costs order”.

She continued: “In this way, the infinite variety of mixed claims can be dealt with fairly and flexibly, according to the justice of the case. Read in this way, the provision is entirely consistent with the overriding objective.”

It was not necessary, she added, “to delve into whether there are separate causes of action or remedies claimed”. Similarly, that the PI claim was “inseverable” from the non-PI claim was not important – it was still a mixed claim.

 

Take a break

With the heatwave returning this week, we are set for a week roasting in the garden and the newsletter will be back in a fortnight.

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