I'm interested in…

  • Strategy & Procedure
  • Catastrophic Injury
  • Professional Indemnity
  • Motor
  • Fraud
  • Disease
  • Liability
  • Commercial Insurance
  • Costs
  • Local Authority
  • Scotland

Jackson in Action: case law

In our regular monthly round up of cases we look at the effects of the changes to the Civil Procedure Rules under the Jackson Reforms:

Qualified One-Way Costs Shifting/fundamental dishonesty: In Menary v Darnton (2016) following an appeal by the defendant, Judge Ian Hughes QC, sitting in Portsmouth County Court, suspended QOCS and allowed the defendant to enforce their costs against the claimant on the basis that the claim was fundamentally dishonest for the purpose of CPR r.44.16.  Having found that an impact had not taken place between the parties' vehicles and therefore that there had not been a road traffic accident from which the claimant could have sustained the injuries that he had complained of, the District Judge should have gone on from there and concluded that the claim was fundamentally dishonest. 13/12/16

Claims Portals/fixed recoverable costs: In Sharp v Leeds City Council (2017) the Court of Appeal confirmed that the fixed recoverable costs regime did apply to a pre-action disclosure application made in a case that had been started in the EL/PL Portal, but had dropped out of the Portal by the time that the application had been made. The clear wording of both CPR r.45.29A, which states that claims that start out under the Low Value EL/PL and RTA Protocols are governed by Section IIIA of Part 45, unless they are subsequently allocated to the multi-track and CPR r.45.29D, which states that only FRCs are then recoverable in those cases, meant that FRCs apply. In claims that entered the Portal, it was a "…plain object and intent of the fixed costs regime" for FRCs to apply to all subsequent stages "…subject only to a very small category of clearly stated exceptions". 1/2/17. Read more in our update >

In the following cases, the court considered the issue of 'proportionality' in cases where additional liabilities were claimed, where costs had been incurred pre and post April 2013. Note that the decision in BNM v MGN is due to be considered by the Court of Appeal on 10/11 October:

Recovery of additional liabilities/proportionality: In King v Basildon & Thurrock University Hospitals NHS Foundation Trust (2016), when assessing costs that had been incurred pre and post 1 April 2013, Master Rowley sitting in the Senior Courts Costs Office, concluded that it was appropriate to use the base costs figure when assessing proportionality and not the figure for total reasonable costs. In doing so, he distinguished the decision of Master Gordon-Saker in BNM v MGN. The additional liabilities should not be taken into account in the test for proportionality under CPR r.44.3, which had been "…recast specifically to exclude such liabilities". 30/11/16

Recovery of additional liabilities/proportionality: In Murrells (as executor) v Cambridge University NHS Foundation Trust (2016), Master Brown, sitting in the Senior Courts Costs Office, reached a decision that supported Master Rowley's analysis in King v Basildon & Thurrock University Hospitals NHS Foundation Trust (above), when he concluded that a claim for additional liabilities was not to be determined under the new test of proportionality, under CPR r.44.3. Held, the new test does not make any reference to additional liabilities. Master Brown respectfully disagreed with Master Gordon-Saker's judgment in BNM v MGN as to the application of the new test for proportionality. 17/1/17

Recovery of additional liabilities/proportionality: In Savings Advice Ltd & Anor v EDF Energy Customers PLC (2017), Master Haworth, sitting in the Senior Courts Costs Office also adopted the reasoning of Master Rowley in King when he came to consider proportionality. Held, the law governing the recovery of the insurance premium were the pre-April 2013 costs rules and that the Master should consider the issue of proportionality on the basis of those rules. The Master distinguished BNM on the basis that he had simply been asked to consider the recoverability of the ATE premium and that "…it was impossible for me to deal with the issue of proportionality on a piecemeal basis". 17/1/17

Relief from sanctions/failure to give disclosure: In Schenk v Cook & Ors (2017) there was to be no relief from sanctions where a party had failed to comply with an unless order requiring them to give disclosure and where their failure to comply had led to the striking out of the defence in a fraud case. Held by Green J, sitting in the Queen's Bench Division that the failure to comply was serious as it represented the culmination of a series of repeated defaults, which were not trivial. The party had been made aware of the consequences of their failure to comply with the order and the reasons they advanced as to their failure to comply were rejected. 9/2/17

Relief from sanctions/failure to give disclosure: In Michael & Ors v Phillips v Ors (2017) before Green J, again sitting in the Queen's Bench Division, the first and second defendants sought relief from sanctions after they had failed to deal with disclosure, leading to the claimants seeking and obtaining an unless order. The defendants failed to comply with the order, which led to their defence and counterclaim being struck out. The application for relief was refused on the basis that the defendants remained in breach of the unless order. The failures to comply unfairly prejudiced the claimant's ability to prepare for trial, the sanction was proportionate and accepted at the time by the defendants. 2/2/17  

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.