Legal Watch:Personal Injury21st January 2015Issue: 048

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar - Experts on Trial! | 28.04.15 | The Wellcome Collection, London

In This Issue:

• Civil procedure/service of proceedings

• Civil evidence

• Costs/proportionality

• Watch this space

Civil procedure/service of proceedingsIt is surprising that claimants still get into difficulty when serving a claim form but that is what happened in Dunbar Assets v BCP Premier Ltd (2015) EWHC 10 (Ch).

The claimant claimed £300,000 in damages from the defendant. The court made a consent order which provided that the claimant would serve its claim form on the defendant by a given date. On that date, the claimant emailed a copy of the claim form to the defendant. The defendant argued that the email did not comply with the consent order and that the claimant was therefore out of time for serving its claim form. The claimant applied to the court, and the deputy Master held that the email should be permitted as good service pursuant to CPR 6.15.

‘...it was evident from the language of CPR 6.15 that an application for an order permitting service by an alternative method or place would only succeed if it appeared to the court that there was a good reason to authorise such alternative service...’

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That rule says:

1. Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this part, the court may make an order permitting service by an alternative method or at an alternative place

2. On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service

Allowing the defendant’s appeal, the deputy High Court judge held that it was evident from the language of CPR 6.15 that an application for an order permitting service by an alternative method or place would only succeed if it appeared to the court that there was a good reason to authorise such alternative service and the court decided to exercise its discretion in favour of permitting it. In the instant case, the claimant had provided no explanation for not serving the claim form properly in accordance with CPR 6.15. It had agreed that it would do so, had consented to an order requiring it to do so and there had been plenty of opportunity for doing so. The deputy Master had also referred to absence of prejudice to the defendant, a matter which he accepted was not enough on its own. However, there was arguably enormous prejudice to the defendant if the order was made, because it would render a limitation defence unavailable. Accordingly, the deputy Master had been wrong to conclude that on the facts of the case there was a good reason to make an order under CPR 6.15. The court would not exercise its discretion in favour of granting the order as the claimant had not explained why the claim form was not served properly in accordance with the rules and it would prejudice the defendant by denying it a limitation defence.

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Civil evidenceThe case of Robshaw v United Lincolnshire Hospitals NHS Trust [Lawtel 15/01/2015] illustrates how attitudes are changing in litigation and both litigants and the courts are accepting that cases must sometimes proceed even when the state of evidence is not ideal.

The claimant suffered from cerebral palsy and had brought proceedings against the defendant. A trial was set for damages to be assessed. Before the trial was due to start it became apparent that the claimant’s expert in paediatric neurology would be too unwell to attend the trial to give oral evidence. However, the claimant decided not to seek an adjournment of the trial and instead intended to rely on evidence that the expert had given in written form.

The defendant did not dispute that the expert was too unwell to attend trial, but it argued that the trial should be adjourned because otherwise it would be prejudiced by its inability to cross-examine the witness.

‘...it was for the courts, and not for experts, ultimately to determine the outcome of cases on the basis of the totality of the evidence given...’Refusing the application, the High Court judge held that it was for the courts, and not for experts, ultimately to determine the outcome of cases on the basis of the totality of the evidence given. The evidence of paediatric neurologists in cases such as this was plainly important and helped to guide the court to the right result. However, it could not be said that the defendant would be prejudiced by its inability to cross-examine the expert. The claimant had

considered whether to seek an adjournment of the trial so that the expert could attend but had elected not to do so. That approach was entirely responsible. It meant that the claimant would have to proceed to trial without the ability to call a live witness experienced in paediatric neurology, which inevitably would cause some forensic and logistical difficulties. Looking at the matter objectively, the expert’s absence placed the claimant in greater difficulty than the defendant, which would have the advantage of calling its own live witness in paediatric neurology. The defendant’s application was unusual and without merit. The trial could proceed perfectly fairly in the claimant’s expert’s absence.

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Costs/proportionalityThe revised rules on proportionality of costs have been with us since 1 April 2013 but there have been relatively few reported cases on the subject. However, the case of Savoye and another v Spicers Ltd (2015) EWHC 33 (TCC) sees a judge using proportionality to reduce a party’s bill dramatically.

The claimants had unsuccessfully applied for summary judgment in their claim but ultimately secured judgment for the full sum claimed and secured the enforcement of an adjudicator’s decision. The issues were whether (i) costs should be awarded on an indemnity basis; (ii) the claimants were entitled to the costs of their unsuccessful summary judgment application; (iii) their costs bill of over £200,000 was disproportionate.

The claimants argued that it was appropriate to order indemnity costs because the defendant had acted unreasonably to a high degree, both in raising an unmeritorious challenge and/or jurisdictional challenge and in subsequently maintaining such a challenge to the adjudicator’s decision on the basis of evidence which turned out to be misleading. The defendant contended that it was not a case for indemnity costs as there was always a genuine area of factual dispute between the parties which could only be resolved by a trial rather than by way of a summary judgment application.

The High Court judge held that the defendant’s conduct did not justify indemnity costs. As well as the parties having had significant differing areas of emphasis on the precise legal tests and criteria to apply, there had been differences between them on the facts. Both parties had accepted that the primary underlying issue involved a question of fact and degree, namely the extent to which a conveyor system to be installed by the claimants could be considered as forming part of the land. It was not unreasonable for the defendant to have argued the points it had, and accordingly costs were to be assessed on the standard basis.

‘A costs bill of over £200,000, albeit in relation to a claim worth just under £900,000, was disproportionate’The claimants had not acted unreasonably in issuing summary judgment proceedings. It would have been wrong to say that they should not have those parts of their costs of the summary judgment application which they would have had to incur in any event in relation to the trial. However, it was appropriate that the claimants’ costs of a third summary judgment hearing should be borne by them as it should have been clear to them by that stage that there was a factual issue which it would be difficult for the court to decide summarily.

A costs bill of over £200,000, albeit in relation to a claim worth just under £900,000, was disproportionate. The claimants were dealing with an issue which they had addressed in detail in adjudication. They were deploying the same solicitors and principal factual witness as they had in adjudication and the issues raised were not complex. Taking into account all relevant matters, costs were summarily assessed in the sum of £96,465.

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: Renaissance, 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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Watch this spaceCourt feesThe government has published its response to the consultation on court fees that took place last year. The response acknowledges that ‘(m)any of the respondents to the consultation did not agree with (the government’s) proposals for reform’. The clear intention is that the cost of running the courts should be met by users, with minimum state funding. To that end the government is ‘continuing to look at the case for charging enhanced fees, which exceed the cost of proceedings, in certain circumstances, to reduce further the cost to the taxpayer of operating the courts system’.

In the meantime wealthier court users will continue to subsidise the less well off. The new fees are intended to come into effect on 22 April.

While fees for lower value cases remain unchanged, there are substantial increases for higher value claims. For example, for a monetary claim exceeding £300,000 the fee is raised from £1,670 to £1,920 although the fees charged on filing the directions questionnaire and on filing a listing questionnaire have been ‘abolished’ by being rolled into the issue and listing fees respectively. The fee for an application on notice rises from £80 to £155 and for a witness summons from £40 to £50.

Although the increased fees may act as a further deterrent to some claimants, it is unsuccessful defendants who will bear the brunt of the changes.