News in brief 28th May 2015

‘New words, same effect’ in part 36

Despite the variation in wording between the old rule 36.10(5) and the new rule 36.13(5) and in particular the new reference to whether it was ‘unjust’ to disapply the normal costs consequences, the new rule had not materially changed the proper approach to be taken by the courts when deciding how to deal with costs where there had been a late acceptance of a part 36 offer, the High Court has ruled.

According to a report of Purser v Hibbs & Anor on Lawtel last week, Judge Moloney QC, sitting in the Queen’s Bench Division, said that the appropriate test was whether, bearing in mind the factors listed under rule 36.17(5), the usual costs rule should be departed from because it would be unjust to apply it in the particular circumstances of the case.

The report said that, in respect of the costs of surveillance, the court disagreed from the note in the current White Book which suggested that some allowance for surveillance should be expressly made in a defendant’s costs budget.

CJC calls for more fixed costs

The Civil Justice Council (CJC) has called for the “wider application” of fixed recoverable costs as a way to reduce litigation costs and indirectly reduce incentives to commit insurance fraud.

In its response to the interim report of the government’s insurance fraud taskforce, the CJC said it would also like to see further evidence as to the effect of introducing qualified one-way costs shifting (QOCS) in personal injury claims.

The CJC noted that there have only been a “handful” of cases where the courts have had to consider the application of the ‘fundamentally dishonest’ exemption from QOCS, while many personal injury claimants continue to buy after-the-event insurance. “The reasons for this trend, the very cost which QOCS was designed to prevent, need to be understood,” it said.

A lesson for the Court of Appeal

Today’s Court of Appeal needs to learn the lesson of the Woolf reforms, where the court’s failure to provide “consistent guidance as to the meaning and application of the relevant legislation and rules” was a cause of satellite litigation, the Master of the Rolls has warned.

However, Lord Dyson said this also needed to be tempered by the kind of flexibility shown by the Court of Appeal in Denton last year.

In a speech in Jersey, he described how Denton as “an example of the court modifying its approach to the application of a rule in the light of litigation experience”.

Lord Dyson continued: “It seems to me that this evinces a sensitive and sensible degree of flexibility on the part of the court. The same flexibility should be adopted in relation to rule changes. If it becomes evident that a particular procedural reform is producing adverse consequences, remedial action should be taken to modify it.

“An ostrich-like attitude and a refusal to confront problems of this kind by sticking to a deficient procedure through thick and thin is to be deprecated. It is important to always be astute to the need to change procedural rules that do not facilitate the efficient and effective delivery of justice.”

He also said judges need to lead a reluctant profession through the reform process. He noted that the approach to disclosure does not appear to have changed since the Jackson reforms were implemented – “Anecdotally (we have no hard data), it appears that the courts and litigants have continued as before” – while there were only a few reported cases of concurrent expert evidence, or ‘hot-tubbing’, being used.

He said: “The difficulties that we have had in making progress in relation to disclosure and in promoting the use of concurrent evidence shows that successful reform requires more than simply changing the rules.

“Many lawyers tend to be rather resistant to change. They prefer the comfort zone of the familiar. Effective implementation of procedural changes requires the courts and the legal profession to understand the nature of the reforms and their rationale. The judges must take the lead in this.

“In the post-Woolf and post-Jackson world, they are required to take control of case management and shape the cases that come before them. It is therefore essential that the judges are given proper training to enable them to understand and become familiar with the reforms and to encourage them to apply them routinely.

“Our judges have all received training in respect of the Jackson reforms. Similar training may also be needed for the legal profession.”

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Costs News
Published date
19 Aug 2016

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