Monday 16 May 2016

CPR Quick Reference Guide

Part 1- Over riding objective
Part 2-6 General Rules for parties & ADR.

Part 7-20 - Preaction protocol (starting a claim)
  • Part 7 and Part 8 explain how to start a case by filing a claim form and that certain claims require different forms.
  • Parts 9-11 explain how the defendant will need to respond to the claim form.
  • Part 12 deals with default judgments — this is where the defence has failed to file an acknowledgment of service; or has failed to file a defence.
  • Part 13 deals with setting aside default judgments.
  • Part 14 deals with admissions (e.g., of liability, guilt, etc).
  • Part 15 explains how the defendant should file and serve a defence (if applicable) and how the claimant should file and serve a response.
  • Part 16 explains the rules governing the “statements of case”, which includes the claim form, the particulars of claim, the defence and maybe a reply.
  • Part 17 explains how to correct mistakes made with documents in the statements of case.
  • If either party wants to make a request for further information they must follow the rules set out in Part 18.
  • Part 19 explains when and how you can bring additional parties into the case.
  • Part 20 deals with counterclaims (additional claims against each party). 

  • Parts 21-22: Litigating the case
    Part 21 provides general information about children and protected parties.
    Part 22 deals with the statement of truth and lists the documents that must contain a statement of truth when filed with the Court.
    • Part 23 deals with general rules about how and when to file applications for a court order.
    • Part 24 deals with summary judgment, this is where a party asks the judge to make a decision where they believe the other party has not has no real prospect of succeeding on or defending the claim or issue, and there is no other compelling reason why the case or issue should be disposed of at a trial.
    • Part 25 provides information on interim decisions and how to secure your costs.

  • Parts 26-30: Allocation to a Track

  • Part 26 deals with how the case will be managed. Your case will be allocated to one of three ‘tracks’. Each track has a distinct set of procedural rules and timetables to govern a case. Allocation to a particular track depends on the case’s financial value (i.e., how much you or your opponent claim in damages).
  • The small claims track (Part 27) is for claims with a financial value of not more than 5,000. The procedure is intended to be fast, cheap and informal.
  • The fast track (Part 28) is for claims not falling within the small claims track and with a financial value of not more than 15,000.
  • The multi track (Part 29) is for claims of greater value (over 15,000) or which are considered complex.
  • Part 30 deals with how to transfer your case to a different track.

  • Part 31-35: Evidence

  • Part 31 explains how and when information should be disclosed to the other side, and what information is protected (i.e., does not need to be disclosed).
  • Part 32-33 explains how the court controls evidence and other miscellaneous information.
  • Part 34 explains how to summon witnesses and carry out depositions.
  • Part 35 explains the rules surrounding expert witnesses.
  • Part 36 Offers of settlement 
  • Part 37 explains how to make payments into court.
  • Part 38 governs how to discontinue a case and the consequences of taking this action.
  • Part 39- 40: Hearing and judgment
    • Part 39 explains rules as regards to timetables and court bundles.
    • Part 40 deals with judgments and court orders.

    Parts 43-79: Post-judgment (key parts only)
    Parts 43-48 provide lots of information about costs, including the amount you hope to receive from the other side for your legal costs if you win, or what you have to pay if you lose.
    • CPR 52 deals with the appeals process (i.e., if a party disagrees with a decision)..
    • CPR 70-79 provides information on different methods of enforcing a judgment.

Wednesday 11 May 2016

10% Increase in General Damages by Joanna Hastie and Helen Rutherford

Background to the Increase
The 10% increase in general damages is one of the key elements of the Jackson Reforms, which aim to rectify disproportionate costs in civil litigation.
Those behind the reforms felt that escalating costs had come to be at the forefront of decision-making in civil litigation, to the detriment of fairness and access to justice considerations. Consequently, the reforms concluded that the proper course was to abolish recoverability of success fees and after the event (ATE) insurance premiums.
Thus, the 10% increase in general damages was introduced to assist Claimants in meeting additional risks and costs arising from the introduction of such measures.
Implementation
Some of the key reforms recommended by The Jackson Report, such as the abolition of conditional fee agreement (CFA) success fees and ATE premium recovery, are encapsulated in the Legal Aid, Sentencing and Punishment of Offenders (‘LASPO’) Act 2012 which came into force at the beginning of April 2013. 
However, the 10% increase in general damages did not appear on the face of this Bill. The government held firm that this matter was for the judiciary.
Simmons v Castle
Consequently, the 10% increase in general damages was confirmed by the Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039. The original judgment in this case was given in July of last year – this stated that general damages will increase by 10 per cent where judgment is given after 1 April 2013 – whether or not a CFA is in place and irrespective of when the agreement was signed.
That original decision was widely criticised, both for the manner in which it came about, without giving affected parties the opportunity to make submissions, and the uncertainty that it created:
Litigants were left not knowing how the courts would treat Part 36 offers that would potentially only be beaten by virtue of the 10% increase. Others argued that the decision would be unfair in that Claimants who had entered into CFAs pre April 2013 would still be able to recover success fees AND would now also have the windfall of the 10% increase.
Consequently, following an application of the Association of British Insurers (ABI), the Court heard arguments from the ABI, Association of Personal Injury Lawyers (APIL) and the Bar and subsequently handed down a revised decision of the Simmons judgment in October 2012
Revision of Simmons
In this revision the Court stated as follows:
“20. Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, (v) mental distress, or (vi) loss of society of relatives, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000”.
In effect this revision means that the Court broadly accepted the ABI’s submissions and held that the 10% increase in cases where judgment is given after 1 April 2013, should not apply to claimants who fall within the ambit of section 44(6) of LASPO. Therefore, claimants who have already entered into a CFA or CCFA before 1 April 2013 and will be able to recover a success fee from the defendants, will not be eligible for the 10% increase in general damages.

original article: http://www.zenithchambers.co.uk/site/the_jackson_corner/articles/10_percent_increase_in_general_damages.html 

A New Approach to Basic Hire Rates: Karl Stevens v Equity Syndicate Management Ltd [2015] EWCA Civ 93 by Steven Hogarth

Introduction
In arguably the most important decision on the calculation of the basic hire rate (BHR) in credit hire litigation since Bent v Highways and Utilities Construction (No. 2) [2011] EWCA Civ 1384, the Court of Appeal has provided a new, simple and Defendant-friendly method for the calculation of BHR. The decision is likely to change fundamentally the way in which credit hire claims are fought.

The Facts
On 10 February 2011, the Claimant’s Audi A4 S Line Tdi 140 was struck by the Defendant’s insured. Liability was admitted. The Claimant entered into a credit hire agreement with Accident Exchange Ltd (‘AEL’) for a period of 28 days. The rate was £140 per day in addition to an excess waiver fee of £22.50 per day and windscreen cover of £3.00 per day. The total rate was therefore £162.50, exclusive of VAT.
At first instance, the Recorder awarded a hire rate based on an average of the rates quoted by four mainstream hire companies for vehicles in the relevant group.

The First Appeal
The First Appeal in this case was heard by Burnett J (as he then was), and was reported as [2014] EWHC 689 (QB), [2014] RTR 34.
Much of the Judge’s reasoning was based upon the following passage from Lord Hoffman’s speech in Dimond v Lovell [2002] 1 AC 384 at 403G:
“How does one estimate the value of these additional benefits that Mrs Dimond obtains? It seems to me that prima facie their value is represented by the difference between what she was willing to pay 1st Automotive and what she would have been willing to pay an ordinary car hire company for the use of a car. As the judge said, 1st Automotive charged more because they offered more. The difference represents the value of the additional services which they provided.”
Referring to that test, Burnett J provided practical advice on identifying the BHR(at [29]):
“… the search must be for the figure which the claimant was willing to pay [to use Lord Hoffmann's formulation] on the basis that he had in fact gone into the ordinary car hire market to find a temporary replacement for his vehicle. In doing that the evidence of a claimant that he would be disinclined to spend more than necessary on a car would be relevant. There might be evidence of how the claimant has sourced hire cars in different contexts. Some might be fortunate to have access to discounted rates through membership of motoring or professional bodies. As was recognised in Burdis a claimant hiring a vehicle to replace one damaged by a tortfeasor would be under a duty to take reasonable steps to mitigate his loss. That does not mean that a claimant would be expected to telephone every last car hire provider in the locality to seek details of various deals that might be available. But the reality today is that almost anybody seeking to hire a vehicle in any particular locality would be likely to investigate the market by doing a simple comparative search on the internet. The full panoply of different hire rates available to the credit hire industry through specialist websites (and regularly produced in credit hire litigation) would not be available to an ordinary driver, but one way or another it is not difficult for anyone wishing to hire a car to discover the rates offered by the major hire companies. Cheapest is not necessarily best and for all sorts of reasons anyone may reasonably choose to hire from a company that is not the cheapest available.” (emphasis added)
The test was based on an assessment of what a particular claimant would have been willing to pay. In practice, this required counsel to ask hypothetical questions to a usually mystified Claimant on what he would have done had he gone into the ordinary hire market. The Court of Appeal’s new approach indicates a shift from a subjective to an objective approach, and will remove the need for such counterfactual questioning by Counsel.

The Second Appeal
The Claimant appealed the judgment of Burnett J, raising the following arguments:
(a) The exercise of finding a basic hire rate is an objective one and cannot depend on what a particular claimant would have been willing to pay;
(b) The law has moved on since Lord Hoffman’s speech in Dimond v Lovell, and Burnett J paid too little attention to Burdis v Livsey [2002] EWCA Civ 510, and Bent (No. 2);
(c) As the burden of proving a difference between the credit hire rate and BHR rests on the defendant, and as some of the basic rates in evidence were higher than the credit hire rate, the Judge was incorrect to find that the credit hire company charged an additional amount in respect of irrecoverable benefits.
Giving the only reasoned judgment (with which Floyd and Jackson LJJ agreed), Kitchen LJ set out the legal background in detail and gave the following judgment:
“[34] … I do not understand Lord Hoffman to have been saying that it was necessary to consider what Mrs Dimond would herself have been prepared to pay. The attitude of the driver who is not at fault must be irrelevant to the analysis. For example, it may be that, as in the present case, the person would never have hired at all. The analysis it, as Aikens LJ said in Pattni, an objective one and it is to determine what the BHR would have been for a reasonable person in the position of the claimant to hire a car of the kind actually hired on credit.
[35] Here I think one finds the answer to the questions I have posed. The rates quoted by companies for the basic hire of a vehicle of the kind actually hired by the claimant on credit hire terms may vary. No doubt some are offered on very favourable terms. So also those at the top of the range may reflect particular market conditions which allow some companies to charge more than others. But it seems to me reasonable to suppose that the lowest reasonable rate quoted by a mainstream supplier for the hire of such a vehicle to a person such as the claimant is a reasonable approximation to the BHR. This is likely to be a fair market rate for the basic hire of a vehicle of that kind without any of the additional services provided to the claimant under the terms of the credit hire agreement.
[36] It follows that a judge faced with a range of hire rates should try to identify the rate or rates for the hire, in the claimant’s geographical area, of the type of car actually hired by the claimant on credit hire terms. If that exercise yields a single rate then that rate is likely to be a reasonable approximation for the BHR. If, on the other hand, it yields a range of rates then a reasonable estimate of the BHR may be obtained by identifying the lowest reasonable rate quoted by a mainstream supplier or, if there is no mainstream supplier, by a local reputable supplier.” (emphasis added)
Therefore, the Court of Appeal found that although Burnett J erred in his reasoning (by failing to apply an objective approach), the result on the facts of the case was sound. The appeal was dismissed.

Comment
The approach set out by Kitchen LJ is new and highly favourable for defendants. It provides sensible and straightforward guidance on the issue of the determination of the BHR. It appears that all defendants need do is survey evidence from mainstream suppliers (or if there are none, local reputable suppliers) for the type of care hired and in the claimant’s geographical area. The applicable rate will then automatically be the lowest reasonable rate.
What this means for defendants is that so long as they source well-prepared rates reports, containing all the relevant terms and conditions, excess waiver cover, and where appropriate, daily rates from major hire companies for cars of the appropriate type, then such evidence is likely to ensure that the Court awards only the lowest reasonable rate. Likewise, in cases such as Equity, where AEL attempts to rely on a report generated by a large database of rates, the evidence may well prove to be extremely helpful to defendants.



This article has just been published on the PI Brief Update Law Journal.