Fixed Costs Update
Lord Justice Jackson’s report in relation to an extension to the current fixed costs regime is due for completion by 31 July 2017. The deadline (extended) for submissions was 30 January 2017.
LJ Jackson is now in the process of reviewing the submissions and touring the country to speak to practitioners. This is all part of LJ Jackson’s promise to listen to everyone and approach his report with an “open mind”. Jackson is due in Leeds on 6 February 2017, where I will be in attendance to share my views.
On 30 January 2017, the Department of Health published a consultation paper (https://www.gov.uk/government/consultations/fixed-recoverable-costs-for-clinical-negligence-claims) in relation to fixed costs for clinical negligence cases. The consultation period lasts for 12 weeks and proposes a mandatory scheme for all cases worth up to £25,000.00. The Department of Health is likely to push for implementation by October 2017, but I suspect that this will come into effect from April 2018 or will be superseded by LJ Jackson’s review.
Finally, legal commentators and experts are predicting that a full fixed costs scheme will come into force in October 2018, with the value being predicated at £75,000.00 or £100,000.00. We will keep you updated with developments.
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Case Management Refresher
Cost estimates are necessary for fast track claims when the fixed costs regime is not applicable and for non-budgeted cases
In accordance with CPR 28 PD6.1 (4), a cost estimate is required to be filed and served at the same time as the pre-trial check list. It is stated on the pre-trial checklist (N170) that ‘for legal representatives only: a cost estimate to be filed and served at the same time as the pre-trial check list is filed'. Therefore, for all fast track claims where there is not a fixed costs regime in place then a costs estimates should be filed. Furthermore, for non-budgeted multitrack claims a costs estimate should be filed. What is particularly interesting is that this captures those claims that are not automatically included in the costs management regime, e.g. claims over £10m.
Case management conferences and indemnity basis costs
In accordance with CPR 26 PD 6.6, the court can impose a costs sanction where a party has failed to file a directions questionnaire or failed to provide further information which the court has ordered. The court will usually order a party to pay on the indemnity basis the costs of any other party who has attended the hearing, summarily assess the amount of those costs, and order them to be paid forthwith or within a stated period.
In accordance with CPR 26 PD 12.5(2), Section VI of Part 45 (fast track trial costs) will not apply to a case dealt with at a disposal hearing whatever the financial value of the claim. So, the costs of a disposal hearing will be in the discretion of the court.
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Out of time: out of luck
In Featherstone -v- Bank of Scotland (High Court at Leeds, 01/02/17) the court refused to hear a request by the applicant for an oral assessment of the provisionally assessed bill because the request had been served 2 hours late. Under CPR 47.15 a request must be filed within 21 days of receipt of the notice of provisional assessment, in default of which a party must show ‘exceptional circumstances’. The applicant in this case failed to show any exceptional circumstances, and a late attempt to adduce evidence was denied on the basis that there was no application for relief from sanction. Accordingly the court found that the Applicant was bound by the result of the provisional assessment. To our knowledge, this is the first time such a judgment has been made in the High Court. Parties seeking an oral assessment should be careful to ensure that the request is filed and served within 21 days of the notice of provisional assessment, and those on the receiving end of such a request should check whether the requirements of service have been fulfilled. Clarion acted for the Respondent in the matter.
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