CPR UPDATE 2018 Chris Webb-Jenkins - John Riddell - Weightmans LLP - EM LawShare
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CPR UPDATE 2018 Chris Webb-Jenkins - chris.webb-jenkins@weightmans.com John Riddell - john.riddell@weightmans.com Weightmans LLP
Form of the Day
• 100th amendment of CPR comes into force
between 1st October 2018 and 1st January 2019
• No major changes, apart from disclosure.
• Recent amendments have not introduced major
changes.
• Most productive to look at developing case law
and how that impacts on CPR.
• Costs and how to avoid them the major concern
www.emlawshare.co.ukCPR themes in the age of Jackson. • Part 36 - JR • Fundamental dishonesty - CWJ • QOCs - JR • Service, and Litigants in person - JR • Disclosure - CWJ • Detailed assessment and points of dispute - JR www.emlawshare.co.uk
Civil liability and emerging themes • Civil Liability Bill - JR • Vicarious liability - CWJ • New areas of liability - CWJ • Highways claims - JR • Care claims - CWJ • Case study - JR www.emlawshare.co.uk
Part 36
• The present regime was introduced by the 78th
update which came into force on 6th April 2015.
• Slightly different rules under CPR 36x for offers to
settle made before 6th April 2015.
• CPR 36.17 – if a Claimant fails to obtain a
judgement ‘more advantageous’ than a
Defendant’s Part 36 offer Defendant entitled to
costs and interest on costs from date relevant
period expired.
www.emlawshare.co.ukPart 36
• If judgement for a claimant is at least as
advantageous to the Claimant as their proposal
then claimant entitled to:-
• a) Interest at a rate not exceeding 10% above the
base rate on sum awarded from date relevant
period expired
• b) Costs on indemnity basis from date relevant
period expired
www.emlawshare.co.ukPart 36
• c) Interest on costs at a rate not exceeding 10%
above the base rate.
• d) An additional amount not exceeding £75,000
being 10% of the first £500,000 awarded and 5%
beyond that.
www.emlawshare.co.ukThe rationale of Part 36.
• The 2015 reforms resulted from Lord Jackson’s
recommendations and reforms.
• Costs shifted to Defendants to give access to
justice and encourage early settlement.
• Court of Appeal in OMV Petrom v Glencore
International (2017 EWCA Civ) ‘the culture of
litigation has changed…..Part 36 is a regime of
sanctions and rewards’ which are not entirely
compensatory.
www.emlawshare.co.ukCosts consequences
• Holmes V West London Mental Health NHS Trust
• The Defendant was ordered to pay indemnity
costs
• The Claimant made an offer of 95% liability in
February 2017 that was accepted in May 2018.
• The case dawdled with procedural delays
• The Defendant's dilatory approach took the case,
‘out of the norm.’
www.emlawshare.co.ukCosts consequences continued
• Normally the costs awarded to the Defendant will
be on the standard basis but where the
circumstances justify can be on an indemnity
basis – see Excelsior Commercial and Industrial
Holdings v Salisbury Hammer Aspden and
Johnson (2002 EWCA Civ 879.)
• Unreasonable refusal to enter into ADR.
www.emlawshare.co.ukPart 36 offer stands until
withdrawn
• Hogg v Newton (Middlesbrough County Court 18th
May 2018.)
• A claimant made a part 36 offer of £1,600 for the
whole claim. The personal injury element was
settled for £650, leaving the remaining offer open
at £950. They changed Solicitors and put in a
credit hire claim of £122,000. The Defendant
successfully accepted the previous offer.
www.emlawshare.co.ukFundamental dishonesty
• The CPR costs regime is heavily slanted in favour
of Claimants with QOCs and the Part 36 rules.
• It is essential to think of ways of addressing
fundamental dishonesty and other means of
displacing QOCs.
• Fundamental dishonesty ranges from
exaggerating claims to criminal cash for crash
scams. A few examples follow.
www.emlawshare.co.ukRobert Barber v Liverpool City Council (Liverpool
County Court 29th September 2017)
• The claimant tripped and fell on a public highway
and claimed £100,000 for loss of earnings as a
taxi driver.
• He had infact been disqualified as a driver for
three years.
• He claimed it would be unjust to remove the
QOCs protection because he had not dishonestly
f
www.emlawshare.co.ukRobert Barber v Liverpool City
Council
• fabricated the claim.
• The court disagreed, the dishonesty did not have
to go to the root of liability or quantum, it merely
should be fundamental to the claim overall.
• The Clamant was liable for the Defendant's costs
of £14,500.
• See Gosling v Screwfix [2014].
www.emlawshare.co.ukStacey Walker v West Midlands Police –
Coventry County Court 19 February 2018
• A claimant was found to be fundamentally
dishonest when they discontinued shortly before
trial. The Defendant was awarded their costs on
the standard basis and given leave to enforce
them.
• The claim arose from an RTA. The Defendant
had admitted liability but disputed quantum as the
impact was at 3 mph.
www.emlawshare.co.ukStacey Walker v West Mids
Police
• The Claimant, a hairdresser, complained of neck
and back pain that effected her ability to lift her
arms and her employment.
• Three days post medical assessment the claimant
completed a “reaper run” which is a 10k run with
40 obstacles (at midnight)
www.emlawshare.co.ukStacey Walker v West Mids
Police
• In the week prior to the exchange of witness
statements she removed posts of the reaper run
from her social media account. She failed to
mention it at her medical assessment or in her
witness statement.
• The effect of fundamental dishonesty was the loss
of the QOCS protection for the claimant and costs
being awarded to the defendant
www.emlawshare.co.ukAviva Insurance Ltd v Ahmed
QBD
• Criminal as well as costs penalties can arise.
• The Claimant had clearly contrived and caused
the accident and could not have believed his
version of events was true.
• Caught by CCTV
• He did not respond to the costs order made
against him and was given a nine month prison
sentence.
www.emlawshare.co.ukDisplacing the personal injury
rule in QOCs.
• The Commissioner of the Metropolitan Police v
Brown 31 July 2018
• QOCs apply to personal injury claims.
• This claim was, however, a mixed claim which
also included claims for misuse of data,
misfeasance in a public office and misuse of
confidential information.
www.emlawshare.co.ukThe Commissioner of the
Metropolitan Police v Brown
• The Judge therefore had the discretion to enforce
the Defendant’s costs order to the extent that they
considered it just.
• This follows the judgement in Jeffreys v
Commissioner (8 May 2017.)
www.emlawshare.co.ukDisplacing QOCs under CPR
44.15.
• Costs can be enforced to the full extent where -
• No reasonable grounds for brining the
proceedings
• Proceedings are an abuse of court’s process
• The claimant’s conduct likely to obstruct the just
disposal of proceedings.
• Also seek a civil restraint order pursuant to PD 3C
www.emlawshare.co.ukTaking service points.
• Viner v VW [2018 EWHC 2016]
• There was a failure to serve a claim form within
the period of service.
• This was deliberate but in view of the court
incompetent.
• The better approach would be to serve and seek
a stay
• The court wold not exercise discretion to extend
under CPR 7.6(2)
www.emlawshare.co.ukMcDonald and Anor v D and F
Contracts 2018 EWHC 1600.
• A Defendant failed to serve an Acknowledgement
of Service.
• They did lodge a defence, albeit after the
Claimant had applied for default judgement, but
the Claimant successfully applied for default
judgement.
• It was however open for the Defendant to apply to
have judgement set aside.
www.emlawshare.co.ukService and litigants in person
• Barton v Wright Hassall LLP [2018] UKSC 12.
• The Supreme Court refused to allow an appeal to
make e-mail service by a litigant in person good
service, The courts, ‘will not usually justify
applying to litigants in person a lower standard of
compliance with the rules.’
• A former client brought a professional negligence
claim. They served it by e-mail and by the time
www.emlawshare.co.ukBarton v Wright Hassall LLP
• they received notice saying the firm did not accept
service by e-mail were out of time.
• The Supreme Court also commented that, ‘unless
the rules and practice directions are particularly
inaccessible or obscure, it is reasonable to expect
a litigant in person to familiarise himself with the
rules which apply to any step which he is about to
take….’
www.emlawshare.co.ukDisclosure – 3 recent cases
• ED&F Man Capital Markets LLP v Obex
Securities LLC [2017]
– Court has jurisdiction to serve application for
pre-action disclosure outside the jurisdiction
• Ennis Property Finance Ltd v Thompson [2017
– Permissible to redact irrelevant material from
disclosed documents
www.emlawshare.co.ukDisclosure – 3 recent cases
• Minera Las Bambas SA v Glencore Queensland
Ltd [2018]
– Litigation privilege only applies in favour of a
party to specific litigation
– Non-party cannot assert privilege over a party
over which it has control
www.emlawshare.co.ukDisclosure Pilot
• Practice Direction 51U
• Consultation period, Roadshows, Civil Procedure
Rules Committee
• With effect from 1.1.19, for 2 years
• Applies to existing and new proceedings in
Business and Property Courts in:
– Birmingham; Bristol; Cardiff; Leeds; Liverpool;
London; Manchester; Newcastle
• Not apply to County Court (at the moment)
www.emlawshare.co.ukDisclosure Pilot
“A wholesale cultural change is required and that
can only be achieved by the widespread
promulgation of a completely new rule and
guidelines. There will need to be a change in
professional attitudes and a shift towards more
pro-active case management by judges.”
Disclosure Working Group, 2017
www.emlawshare.co.ukDisclosure Pilot
• The problem is excessive cost, complexity and scale
• The solution:
– A 56 page practice direction
– 6 different disclosure models
– A new form – Disclosure Review Document (DRD)
– Exhortation to parties to play nicely, and try to
agree
– Give key directions at first Case Management
Conference
www.emlawshare.co.ukDisclosure Pilot
• Document
– email, texts, webmail, social media, voicemail,
audio and visual recordings. And paper.
– information that has been “deleted”, metadata,
and “other embedded data which is not
typically visible on screen or a print out”.
– on computer systems, electronic devices,
servers, back-up systems.
www.emlawshare.co.ukDisclosure Pilot – Initial Disclosure
“Each party must provide to all other parties at the same
time as its statement of case an Initial Disclosure List
of Documents…accompanied by copies”
• Documents the party relies on
• Documents necessary to enable the other parties to
understand the claim/defence they have to meet
• Do not have to search for documents
www.emlawshare.co.ukDisclosure Pilot – Initial Disclosure
You do not have to give Initial Disclosure if:
• Parties agree
• Court orders
• ID will exceed the larger of 1,000 pages, or 200
documents
www.emlawshare.co.ukDisclosure Pilot – Extended Disclosure
• Within 28 days of final statement of case, parties to
state in writing whether they want Extended
Disclosure
• If any party wants ED, Claimant must serve on all
parties a draft List of Issues for Disclosure within 42
days of final statement of Case
• Before first CMC, parties to discuss LoI and try to
reach agreement.
• At CMC, court orders ED to follow a specific
Disclosure Model.
www.emlawshare.co.ukDisclosure Pilot – ED Models Model A – Known adverse documents Model B – Limited Disclosure Model C – Request-led search-based disclosure Model D – Narrow search-based disclosure, with or without Narrative Documents Model E – Wide search-based disclosure Or would you prefer something bespoke? www.emlawshare.co.uk
Disclosure Pilot – Disclosure Review Document
• Document used where parties seek ED following
Models C, D or E.
• Parties have continuing obligation to complete,
seek to agree and update the DRD.
• Finalised DRD filed by Claimant at least 5 days
before CMC. All other parties file signed
Certificate of Compliance.
www.emlawshare.co.ukDisclosure Pilot – Disclosure Guidance Hearings
• Can apply for a DGH before the CMC.
• 30 minutes max.
• Court will expect “legal representative with direct
responsibility for the conduct of disclosure” to
attend.
www.emlawshare.co.ukDisclosure Pilot – ED Compliance
3 steps:
1. Service of a Disclosure Certificate
a. Identify person signing on behalf of
organisation
b. Explain why signatory is appropriate
2. Service of ED List of Documents
3. Production of documents
www.emlawshare.co.ukDisclosure Pilot – acronym heaven So, if some wants ED instead of ID, before your CMC, prepare your LoI and DRD, and seek guidance at your DGH. After your CMC, serve your DC, and your EDLoD, and produce your documents. www.emlawshare.co.uk
Detailed assessment and
points of dispute.
• PD 47 Commencement of detailed assessment
proceedings 5.2
• (a) notice of commencement N252
• (b) bill of costs
• (c) fee notes of counsel and experts
• (d) written evidence of other disbursements
exceeding £500
www.emlawshare.co.ukDetailed assessment and
points of dispute
• (e) Statement of parties
• (f) if a costs management order has been made, a
breakdown of the costs claimed for each phase of
the proceedings – Precedent Q
www.emlawshare.co.ukForm and content of bill of
costs
• PD 47 sec 5.8
• (8) Where a costs management order has been
made, the costs are to be assessed on the
standard basis and the receiving party’s budget
has been agreed by the paying party or approved
by the court, the bill must be divided into
separate parts so as to distinguish between the
costs claimed for each phase of the last
approved or agreed budget, and within each such
www.emlawshare.co.ukForm and content of bill of
costs
• part the bill must distinguish between the costs
shown as incurred in the last agreed or
approved budget and the costs shown as
estimated
• Bill in Parts – Part 1 being a non-phased bill
showing all the incurred (pre CMO) work, Part 2
being a phased bill showing al budgeted costs
(post CMO)
www.emlawshare.co.ukAssessing incurred costs
• The court can not approve incurred costs but
may record it’s comments on those costs and will
take those costs into account when considering
reasonableness and proportionality of budgeted
costs
• Unless the incurred costs have specifically been
agreed by the paying party all incurred costs are
‘up for grabs’
www.emlawshare.co.ukAssessing incurred costs
• Look at the CMO to see if there has been any
recording about hourly rates or proportionality and
specifically refer to such recording in the PODs (if
it assists)
www.emlawshare.co.ukAssessing Budgeted Costs
• Read the CMO and approved budget (also read
your file note of the CCMC for any assistance)
• Whilst court may only be interested in the total
figure for the phase, for negotiation purposes
breakdown phase between profit costs, counsel
etc.
www.emlawshare.co.ukAssessing Budgeted Costs
• The court should not depart from the CMO when
dealing with detailed assessment unless there is
good reason.
Good reason includes
• Hourly rates
• Proportionality
• Phases not reached
• Steps not taken in a particular phase
• Conduct
www.emlawshare.co.ukAssessing budgeted costs
• If there are no good reasons to depart from the
budgeted costs then that is the amount that you
should allow
• If the receiving party has exceeded any phase of
the budgeted costs and did not seek to revise
th4e budget during the life of the matter then
argue that that the appropriate time to seek
departure from the CMO was when it was
considered that the CMO was likely to be
exceeded.
• PD3E 7.6
www.emlawshare.co.ukPoints to consider
• Incurred costs easier to attack than budgeted
costs
• CMO can restrict Claimant's costs
• Hourly rates and levels of fee earner points to
attack
• Length of time taken – proportionality.
www.emlawshare.co.ukProportionality CPR 44.3(5),
• According to CPR 44.3(5), costs incurred are
proportionate if they bear a reasonable
relationship to:
• (a) the sums in issue in the proceedings;
• (b) the value of any non-monetary relief in issue in
the proceedings;
• (c) the complexity of the litigation;
www.emlawshare.co.ukProportionality CPR 44.3(5),
• (d) any additional work generated by the conduct
of the paying party; and
• (e) any wider factors involved in the proceedings,
such as reputation or public importance.
www.emlawshare.co.ukTop tips for applying the CPR
• Costs are weighed heavily against Defendants
and increase in size and severity as a case goes
on.
• Early assessment of liability essential to be
supported by Part 36 offers and ADR where
necessary.
• Review part 36 offers
• Investigate fraudulent claims – social media/cctv
• Resist QOCs on mixed claims.
www.emlawshare.co.ukTop tips for applying CPR
• Take procedural points on service and limitation
including points against litigants in person.
• Consider strike outs and seek civil restraint
orders.
• Secure and preserve documents including e-
documents.
• Serve robust points of dispute and make timely
and well judged offers on costs.
www.emlawshare.co.ukCivil liability
• You can only apply these CPR rules, especially
the assessment of liability, if you are aware of
current and developing issues on civil liability.
• We will now give you a brief update.
www.emlawshare.co.ukCivil Liability Bill
• Fixed tariffs for whiplash claims
• £225 for injury lasting less than 3 months; £3,725
up to 24 months; 20% increase severe cases
• Small claims limit increased to 5K for rtas
• MOJ considering exemption to increase for
vulnerable road users – horse riders, pedestrians,
motorcyclists and cyclists
• Full scale implementation likely in April 2020
www.emlawshare.co.ukVicarious liability
• Armes v Nottinghamshire CC [2017 UKSC 60.]
• C was abused by foster carers
• Council’s approval and supervision of foster
carers gave it a significant degree of control
www.emlawshare.co.ukVicarious liability
• Barclays Bank v Various claimants [2018 EWCA
Civ 1670]
• The Court of Appeal ruled that a bank was
vicariously liable for sexual assaults carried out by
a doctor during pre employment medical tests
• The relationship was akin to employment (part of
bank’s business activities/detailed instructions
and control.
www.emlawshare.co.ukVicarious liability- Barclays
Bank
• More flexible work practices meant that vicarious
liability had to be more flexible and go beyond the
old independent contractor test.
www.emlawshare.co.ukVicarious liability
• Various Claimants v Morrisons [2018 EWCA Civ
2339 .]
• Class action by 5000 employees following
deliberate disclosure by disgruntled employee
• Performed outside working hours and from home
computer with malicious intent
• Sufficient connection between position and
wrongful conduct
www.emlawshare.co.ukVicarious liability - Morrisons
• Morrisons had done all they reasonably could to
prevent risk
• Morrisons mean to appeal to the Supreme Court
www.emlawshare.co.ukVicarious liability
• Bellman v Northampton Recruitment Limited,
Court of Appeal, 11 October 2018
• The Claimant was struck and injured by the
Managing Director of a business during an
impromptu drinks session following the Christmas
party. It happened during an argument about the
MD’s management of the company.
www.emlawshare.co.ukVicarious liability - Bellman
• It was found that the company were vicariously
liable for the acts of the MD.
• The Court had to consider whether there was
sufficient context between his wide remit and the
acts complained of.
www.emlawshare.co.ukVicarious liability - Bellman
• The Court decided that there was. He was
purporting to exercise authority over his
subordinates and the drinks were happening
in the context of the Christmas party.
• The case shows that vicarious liability is being
applied in a fluid manner to cover off duty and
out of hours activity where there is sufficient
connection with a person’s employment. The
same applies to the acts of police officers.
www.emlawshare.co.ukNew areas of liability
• Commissioner of Police of the Metropolis v DSD
and another Supreme Court 21February 2018
• Claim arising from failure to apprehend serial sex
offender John Worboys.
• Investigative failings do not usually give a
common law cause of action in negligence.
www.emlawshare.co.ukNew areas of liability – DSD.
• The Supreme Court held that the Police owed a
positive duty under Article 3 of the ECHR to
conduct effective investigations into allegations of
ill treatment
• Operational and not simply systemic failings could
give rise to a claim.
• Only obvious and significant shortcomings likely
to give rise to the possibility of a claim.
www.emlawshare.co.ukNew areas of liability – DSD.
• A distinction should be made between simple
errors and isolated omissions and more serious
failings.
• The Court of Appeal gave guidance on quantum
in July 2014.
• Nominal or low award – Euros £1,000 to £8,000.
• Routine Article 3 violation with no serious long
term mental issues or unusual aggravating factors
– Euros £8,000 to £20,000
www.emlawshare.co.ukRestricting new areas of
liability
• James-Bowen and others v The Commissioner of
Police of the Metropolis 25 July 2018
• The Claimants, 3 of whom are still serving police
officers, claimed damages for negligence, breach
of contract and misfeasance in public office
arising from the settlement of civil proceedings for
assault ( including an admission of liability)
brought by an individual named Mr Barber Ahmed
in which they were the central witnesses.
www.emlawshare.co.ukRestricting new areas of
liability – James-Bowen
• The Claimants alleged that the Commissioner
owed them a duty of care in contract and in tort as
their employer to take reasonable care to
safeguard their interests.
• The Claimants alleged that they had been given
assurances that their interests would be protected
and the fact of the admission and settlement led
the Claimants to suffer damage to their health and
welfare. All the Claimants claim to have suffered
psychiatric injury.
www.emlawshare.co.ukRestricting new areas of
liability – James-Bowen
• The Supreme Court was clear that in this claim
the claimants sought to extend the duty of care
owed by the Commissioner to her officers.
• Accordingly the court would only extend that duty
if it was fair, just and reasonable to do so. They
found that in these circumstances it was not fair,
just and reasonable for the following reasons:
• It could lead to a potential conflict of interests as
between the Commissioner and her officers.
www.emlawshare.co.ukRestricing new areas of liability
– James-Bowen
• The Commissioner holds public office and has
responsibility for the MPS and she must be free to
act in accordance with her public duty.
• Parties to litigation should be able to avail
themselves of the process of litigation in order to
resolve their disputes without the fear of incurring
liability to third parties, such as the claimants in
this case, if they do so.
• The imposition of such a duty might deter an
employer from settling a claim where it was
otherwise appropriate to do so.
www.emlawshare.co.ukHighways claims
• Sumner v Denbridgeshire CC and Welsh Minister,
Court of Appeal 2018
• A landowner owed no duty of care to a highway
user in respect of vegetation on its land that
impaired visibility but where the vegetation was no
on or over the highway
• A motorist severely injured a cyclist when
emerging from a minor road
www.emlawshare.co.ukHighways claims - Sumner
• The Welsh Ministers (WM) were highways
authority for the main road, the CC for the minor
road, the WM owned the land where the
vegetation grew
• The driver brought contribution proceedings
alleging that the CC and WM had negligently
altered the junction and allowed the vegetation to
obstruct visibility
www.emlawshare.co.ukHighways claims - Sumner
• The CC did not carry out the positive act. The
council’s alleged failure to cut back vegetation
could not give rise to liability as per Stovin and
Wise [1996] and Gorringe v Calderdale [2004]
• The improvement work was carried out by WM.
Imposition of such a duty would have a profound
effect on landowners imposing a duty to consider
visibility; practical difficulties because only liable
against party carrying out the positive act – the
improvement
www.emlawshare.co.ukHighways claims – Williamson
and Kirklees
• The CC did not carry out the positive act. The
council’s alleged failure to cut back vegetation
could not give rise to liability as per Stovin and
Wise [1996] and Gorringe v Calderdale [2004]
• The improvement work was carried out by WM.
Imposition of such a duty would have a profound
effect on landowners imposing a duty to consider
visibility; practical difficulties because only liable
against party carrying out the positive act – the
improvement
www.emlawshare.co.ukSocial care cases
Do you owe a duty of care to your service users?
• Phelps v Hillingdon [2000] – teachers owe a duty
to their pupils
• Darnley v Croydon Health Services NHS Trust
[2018] – A&E receptionists owe a duty to
members of public
• Sherratt v GMP [2018] – police owe duty of care
to member of public
www.emlawshare.co.ukSocial Care cases
BUT…
CN & GN v Poole BC [2017] – Court of Appeal - no duty
to protect someone from caused by another.
– (there are certain exceptions, including voluntary
assumption of responsibility)
– Consistent with cases against the police, and
housing authorities.
– Goodbye to failure to remove claims, hello to
Human Rights Act claims
www.emlawshare.co.ukSocial Care cases
CN & GN v Poole BC:
• Supreme Court judgment expected in 2018
• Since CoA judgment, had successful breach of
duty claims against the police, and the NHS
(Robinson, Sherratt, Darnley)
• Current Supreme Court is claimant-friendly
• Place your bets…
www.emlawshare.co.ukCase study www.emlawshare.co.uk
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