Low value personal injury

Transcription

1 Low value ersonal injury i claims: Extended ortal rules key facts The 65 th udate to the Civil Procedure Rules comes into force on 31 July Full details of the changes can be found below but the major changes relate to costs. These include: extension to the Low Value Personal Injury Scheme to EL/PL cases fixed recoverable costs for claims which exit the Protocols caing defence costs in fixed costs cases new rules relating to the alication of Part 36 in cases that no longer continue within the Protocol As anticiated the new rules come into force on 31 July 2013 and will aly to claims where a Claims Notification Form (CNF) is submitted under the Protocols on or after 31 July Tye of claim c Value CNF Accident date d RTA 1k - 10k On or after On or after 30/4/2010 Over 10K - 25k On or after On or after EL/PL accident 1k- 25k On or after On or after EL disease 1k- 25k On or after N/A The new rules can be accessed through the Ministry of Justice website at htt:// rules/civil

2 Transitional rovisions The old Pre Action rotocol for RTA claims (in force until 31 July 2013) will continue to aly in resect of RTA claims where the CNF has been submitted before 31 July The extended rotocols Procedure Withdrawal of Protocol admission Claims commenced in Portal that fall out at Stage 2 to be dealt with in Small Claims Track How imlemented CPR14 CPR27 Comment The rules alicable to the current RTA rotocol are alied to the extended RTA Protocol and the EL/PL Protocol. A defendant may withdraw an admission on causation within the initial eriod of consideration (15 days or any agreed extension to that eriod). After that time eriod or for any other Protocol admission, a defendant can only withdraw the admission with the consent of the other arty or, after commencement of roceedings, if the court orders. The rules alicable to the current RTA rotocol are alied to the extended RTA Protocol and the EL/PL Protocol. A defendant is liable to ay Stage 1 and 2 fixed costs roviding the claimant reasonably believed the value of the claim exceeded 1,000 Portal fixed costs CPR45.18 Table 6 (RTA Protocol) and Table 6A (EL/PL Protocol) set out fixed fees alicable (see below). A London weighting alies equal to 12.5% of the Stage 1 and 2 and Tye A fixed costs. VAT and disbursements are ayable in addition Settlement before roceedings issued under CPR45.23A Where there is a settlement after the Court Proceedings Pack has been sent to the defendant but before roceedings are issued under, and that settlement is more than the defendant s relevant Protocol offer, there will be an additional amount ayable equivalent to tye A fixed costs (i.e. 250) Secialist fee for additional advice CPR45.23B An additional Tye 3 fixed fee ( 150) is ayable where the claim is for more than 10k and additional advice from secialist solicitor or counsel and advice is reasonably required to value the claim. Table 6 - Fixed costs in relation to the RTA rotocol not more than 10, Stage 1 fixed costs 200 Stage 2 fixed costs 300 more than 10,000, but not more than 25,000 Stage 1 fixed costs 200 Stage 2 fixed costs 600

3 Table 6A - Fixed costs in relation to the EL/PL rotocol not more than 10,000 Stage 1 fixed costs 300 Stage 2 fixed costs 600 more than 10,000, but not more than 25,000 Stage 1 fixed costs 300 Stage 2 fixed costs 1300 Claims that no longer roceed under the extended rotocols Fixed Recoverable Costs for claims which no longer continue under the Protocols CPR45.29 The fixed recoverable costs are the same figures that were ublished in the Government s resonse to the consultation in 27 February 2013 with the excetion of Trial Advocacy fees which have been increased: 500 (u to 3,000) 710 (More than 3,000 but not more than 10,000) 1,070 (More than 10,000 but not more than 15,000) 1,705 (More than 15,000) A London weighting alies equal to 12.5% of the alicable fixed costs (including the Trial advocacy costs where alicable). VAT and disbursements are ayable in addition. Fixed costs for defendants Fixed costs on counterclaims Fixed costs on interim alications Escae- claims for an amount of costs CPR45.29F CPR45.29G CPR45.29H CPR45.29J Note: fixed recoverable costs do not aly to EL Disease cases that do not continue under the EL/PL Protocol. An order for costs in favour of the defendant shall not exceed the fixed fee that the claimant would have recovered, if successful, at the same stage of the roceedings. A London weighting alies equal to 12.5% of the fixed costs allowed. VAT and disbursements are ayable in addition. Fixed costs for defendants will not aly where a defendant establishes that one of the excetions to Qualified One Way Costs Shifting (QOCs) alies. Where there is an order for costs in favour of the defendant under Part 36 see below Where a arty succeeds on a counterclaim and is awarded costs of the counterclaim, the fixed costs regime will aly in the same way as if the counterclaim was the main claim, rovided the counterclaim includes a claim for ersonal injury to which the RTA rotocol alies. If the successful counterclaim does not include a claim for ersonal injuries 50% of the alicable Tye A and Tye B costs in Table 6 below is ayable. For examle where 7,500 is recovered on a counterclaim for non injury damages the fixed fee would be 500 (lus any London weighting VAT and disbursements) Where a arty obtains an order for costs on an interim alication the fixed fee will be 50% of the alicable Tye A and Tye B costs in Table 6 below (lus any London weighting VAT and disbursements) This only alies if the court considers there are excetional circumstances. If the court assesses the costs below a figure 20% greater than the fixed

4 exceeding fixed recoverable costs Secialist fee for additional advice recoverable costs, the arty will only recover the fixed recoverable costs or the assessed costs whichever is lower. This rovision does not aly within the ortal. CPR45.29I The fee is ayable as a disbursement where the claim is for more than 10k and additional advice from a secialist solicitor or counsel is reasonably required to value the claim as rovided for in the relevant Protocol. (The amount is equivalent to the Tye C fixed fee net of VAT) Success fees on transitional cases RTA claims valued at 1k to 10k arising from an accident on or before 31 March and EL Diseases cases submitted into the Portal after 31 July 2013 may have old world funding arrangements containing recoverable success fees and ATE remiums. The Protocols rovide that where alicable, any success fee must be aid as well as fixed fees and disbursements. The new rules rovide that the success fees in RTA cases that settle in the Portal will aly in the same way it would have alied rior to 31 March 2013, that is at 12.5% of fixed costs (net of any London weighting) subject to limited excetions where 100% success fee will aly on fixed fees (for examle where the claimant recovers more than the defendant s Protocol offer). The osition is more uncertain in EL Disease cases that settle in the Portal but it aears that EL fixed recoverable success fees will aly. Potentially this means that a work related uer limb disorder claim that settled at Stage 2 would recover a success fee equivalent to 100% of the Stage 1 and 2 fixed fees including any London weighting and any disease claim which concluded at a hearing would recover a success fee equivalent to 100% of all the alicable fixed fees. It is not clear whether this is what the architects of the reforms intended but if so, it creates a significantly more generous costs outcome for disease cases with old world CFAs that fall within the scoe of the EL/PL Protocol Part 36 where a claim no longer continued under the relevant Protocol Accetance of a Part 36 offer If a Part 36 offer is acceted within the relevant eriod the claimant will be entitled to the fixed costs as set out in the relevant table. If a defendant s Part 36 offer alies to art of the claim only and the claimant accets within the relevant eriod and discontinues the remainder of their claim, the claimant is entitled to the same fixed costs as above. If a defendant s Part 36 offer is acceted after the end of the relevant eriod, the claimant gets the fixed costs under the relevant table u to the stage the case had reached at the end of the relevant eriod, but must ay the defendant s costs from the end of the relevant eriod to the date of accetance, subject to caing (as below). If a defendant s Protocol offer is acceted after the date on which the claim leaves the Protocol, the claimant gets the alicable Stage 1 and Stage 2 fixed costs but will be liable for the defendant s costs from the date when the Protocol offer is deemed to be made until the date of accetance, subject to caing (as below). The level of fixed costs is to be calculated by reference to the amount of the offer acceted. Where arties do not agree the liability for costs the matter will be determined by the court. Where a defendant is awarded costs, the maximum amount of costs ayable by the claimant to the defendant is the difference between the amount of fixed costs alicable at the date of accetance less the costs to which the claimant is entitled. The arties are entitled to disbursements secified in the rules for any eriod in which they are entitled to their costs.

5 Costs consequences of a Part 36 offer following judgment If the claimant fails to obtain a judgment more advantageous than a defendant s Part 36 offer, then unless the court considers it unjust, the claimant gets the fixed costs under the relevant table u to the stage the case had reached at the end of the relevant eriod, but must ay the defendant s costs from the end of the relevant eriod to the date of judgment, subject to caing (as below). If the claimant fails to obtain a judgment more advantageous than a defendant s Protocol offer, then unless the court considers it unjust, the claimant gets the alicable Stage 1 and Stage 2 fixed costs but will be liable for the defendant s costs from the date when the Protocol offer is deemed to be made until the date of judgment, subject to caing (as below). The level of fixed costs is to be calculated by reference to the amount of the offer acceted. Where arties do not agree the liability for costs the matter will be determined by the court. Where a defendant is awarded costs, the maximum amount of costs ayable by the claimant to the defendant is the difference between the fixed costs alicable at the date of accetance less the costs to which the claimant is entitled. The arties are entitled to disbursements secified in the rules for any eriod in which they are entitled to their costs. If the claimant obtains a judgment at least as advantageous as their own Part 36 offer then, unless the court considers it unjust, they will be entitled to: Their costs u to the end of the relevant eriod, resumably in accordance with the relevant fixed costs tables (although this isn t exressly stated) Costs on the indemnity basis from the end of the relevant eriod Interest on damages at u to 10% above base for some or all of the eriod starting with the date on which the relevant eriod ended. Interest on the indemnity costs at u to 10% above base. An additional amount calculated as 10% of the amount (damages) awarded If you would like to discuss any of the issues raised in this udate, lease contact: Rob Williams, Partner on or [email protected] Judith Peters, Princial Litigation Suort Lawyer on or [email protected] David Ingleson, Partner on or [email protected] Nav Wilson, Associate on or [email protected] Sue Milne, Partner on or [email protected] Victoria Douglas, Associate on or [email protected] Mark Brenlund, Partner on or [email protected] Part of Weightmans resonse to the changes to civil litigation is the creation of an online Costs Calculator to allow for efficient and accurate assessment of the costs of the numerous otions available to claims handlers of Portal claims, be they motor or liability. This system will be released by the end of the week and accessible through Seak with your usual Weightmans contact or member of the SD team for further details.

6 This udate does not attemt to rovide a full analysis of those matters with which it deals and is rovided for general information uroses only. This udate is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans accets no resonsibility for any loss, which may arise from reliance on the information in this udate. The coyright in this udate is owned by Weightmans 2013 Data Protection Act Pursuant to the Data Protection Act 1998, your name may be retained on our marketing database. The database enables us to select contacts to receive a variety of marketing materials including our legal udate service, newsletters and invites to seminars and events. It details your name, address, telehone, fax, , website, mailing requirements and other comments if any. Please ensure you udate our marketing team with any changes. You have the right to correct any data that relates to you. You should contact James Holman, our Data Protection Officer in writing, at 100 Old Hall Street Liverool L3 9QJ.