Entries by Toby Moreton
QOCS | An Order Under CPR 36.22(9) Is Not An “Order For Damages …” As Defined By CPR 44.14(1)
“I have concluded that the judge was right to reach the decision that he did. Although I have reached that conclusion for five separate reasons, by far the most important is the first: that, on my analysis, an order under r.36.22(9) is not “an order for damages and interest made in favour of the claimant” (as per r.44.14(1)). The other reasons are that, if the appellant was right, it would elevate form over substance; that there are policy considerations which also militate against the appellant’s construction of the rule as it stands; that to the extent that they are relevant, the authorities support the claimant’s position, not that of the appellant; and finally because what the appellant says that r.44.14(1) means in its present form is not what the rule provides, and that problem may explain why there is a proposal to amend the words of the rule.”
CPR 44.13(1) | If QOCS Applies, It Applies To The Entire Proceedings
“Whether or not Achille compels that conclusion, I consider that the meaning of rule 44.13(1) is clear. The QOCS regime, which includes certain layers of judicial discretion, applies if proceedings include a personal injury claim and does not apply if proceedings do not include a personal injury claim. That question, to be asked and answered when the judge considers what if any order to make relating to the enforcement of a costs order, is a binary question, in other words there are only two possible answers, which are “yes” and “no”. In the present case the proceedings included a personal injury claim and so the answer was yes. Moreover, that was indisputably so on the date when the judge made his order, making the position in this case clearer than it was in Achille. The QOCS regime therefore applied to the proceedings. With all due respect to the judge, who gave a careful and detailed judgment on the claim, he fell into error by ruling that QOCS was to be applied only to the proceedings occurring after the amendment.”
CPR 44.14(1) | QOCS Following Late Acceptance Of A Part 36 Offer
“Even if I did not consider myself bound by Cartwright and Adelekun, I do not consider the application of those decisions to be unfair and totally arbitrary in the particular way characterised by the defendant. It was well understood when QOCS rules were introduced, that they reflected a global policy intention which would reduce adverse costs paid by defendants in injury litigation overall on a swings and roundabouts basis; they marked a radical departure from the previous position on costs recovery. The language in both CPR Part 36 and Part 44 clearly demarcates between the position where the court’s permission is required for a particular type of costs order to be made following judicial scrutiny, and those where it is not. This is consistent with the overriding objective to allow matters to be resolved expeditiously, save expense and manage court resource effectively, so that parties are not forced through time-consuming and expensive court processes unless absolutely necessary ….
” … The offer … was not totally worthless in terms of both costs protection and an incentive to the claimant to settle. It stopped recovery by the claimant of their costs from expiry of the relevant period 21 days after the offer had been made. Acceptance of the offer also saved the defendant from paying the significant costs of completing expert evidence, trial preparation and trial.”
Validity Of Pre Issue Part 36 Offer And Service By Email
“…regardless of whether the sum due from the Claimant to the Defendant pursuant to the 2016 Costs Order fell properly to be described as a counterclaim, it is in my judgment clear that it was a matter that was outstanding between the parties at the time the offers were made, and a liability which both the parties understood needed to be set off against any liability established by the Claimant against the Defendant in these proceedings … there is nothing which expressly precludes the inclusion of terms in a Part 36 offer as long as the offer meets the requirements set out in CPR Part 36.5(2). CPR Part 36.2(2) expressly preserves the ability to make an offer to settle in whatever way a party chooses, albeit that if rule 36.5 is not complied with, the offer will not have the costs consequences provided for at rule 36.17: Calonne Construction Limited v Dawnus Southern Limited [2019] EWCA Civ 754 at [44] per Asplin LJ. It was therefore open to the Claimant to include a term in the offer addressing its liability under the 2016 Costs Order as long as the offer complied with the requirements of CPR Part 36.5.”
CPR 46.9(4) | Deducting A Success Fee From A Protected Party’s Damages
“There is no dispute, as I see it, that it is for the court to determine what is reasonable for the protected party to pay having regard of the presumptions that apply in CPR 46.9 (3), and as I have already noted the Court of Appeal have not removed the need for informed consent. Whilst it may be the case the reason for the presumptions applying (and that this is not a simply claim on a contract) lies not in any presumed undue influence, as now defined, but in more general concerns, it is nevertheless clear that I am required to determine the reasonableness of the costs claimed; it is also clear that the approval or agreement to the success fee is relevant only insofar as it is informed and even then it only gives rise to a presumption. Indeed as Mr. Mallalieu acknowledges solicitors do in any event have obligations to provide clients with costs information and to treat clients fairly (see Belsner, inter alia [80]).”
Fiduciary Duties And Informed Consent Considered | Court Of Appeal Decision
“…in my judgment the judge was wrong to think that the Client’s informed consent was required in this case because of the wording of Part 46.9(2). Part 46.9(2) is and was irrelevant to the formation of the CFA in this case. This conclusion may seem strange because, in theory, section 74(3) and Part 46.9(2) could have applied to this CFA, had county court proceedings been issued. It might have been said that, since the parties could not have known when they entered into the CFA whether, in future, proceedings would be issued, the conclusion is illogical. That, in my view, is just one unsatisfactory consequence of the fact that the current legislation takes no proper account of the fact that many claims are pursued in online pre-action portals without proceedings being issued. It cannot mean that statutory provisions applicable only to contentious business can be applied to non-contentious business.”
Costs Estimates And The Relevance Of A Costs Budget As Between Solicitor And Client
“The best indication of what the Claimant is likely to have done, had an estimate been provided in good time, is what the Claimant did do on 17 April 2020, which was to continue to instruct the Defendant. Nor do I have any idea of what the Claimant’s costs, following a change of solicitor, might have been, so it is not possible to limit the cost recoverable by the Defendant to any such figure.”
Statute Bills | Electronic Signature And Delivery By Email
“…the electronic signatures on the emails were electronic signatures for the purposes of s.69(2B). The question then arises as to whether the emails were letters for the purposes of s.69(2A)(b)…. the purpose of s.69(2A) is to convey to the client that the bill has been authorised by the solicitor. That can be done by either a signature on the bill or a signature on the communication that accompanies the bill. In my experience solicitors’ bills are sent to clients either by post, usually with an accompanying letter, or by email. Sometimes they are sent by both means. It would, as Mr Griffiths submits, be absurd if a solicitor, sending a bill by email, were required to send, as another attachment, a letter in pdf form which contained no more information than that contained in Mr Weinberg’s email.”
Discretion Applied In Mixed QOCS Claim
in this case the arguments in favour of a costs-neutral outcome do not consist only of the fact that Mr Arshad had an unsuccessful personal injury claim. He was the victim of negligence, although suffering loss of a kind which I have ruled was not reasonably foreseeable. The situation arose in part because of the defective nature of the Council’s policy. He was then also the victim of treatment which, for no apparent good reason, was different from that of other drivers in an analogous position. Meanwhile the fact that he had an unsuccessful personal injury claim, though not entitling him to automatic protection, still provides some protection under the rules by subjecting enforcement to the discretion under CPR 44.16. It does seem to me that the personal injury element was a substantial part of the claim. That claim failed not because it lacked factual merit, but because of the legal issues around claims for psychiatric harm which are challenging for lawyers, let alone for litigants in person.