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Introduction
Welcome to the July edition of Liability
Brief.
In this edition Khalid Mahmood reports on
a recent Court of Appeal decision on Part 36 offers and,
in our feature article, Kate Prestidge provides
practical advice on dealing with claims brought by
litigants in person.
You will have heard about
the Health and Safety Review being undertaken by Lord
Young. The aim of the review is to look at health and
safety culture and legislation and investigate the rise
of a compensation culture over the past decade. At the
invitation of Lord Young, we have already provided our
thoughts on the issues being considered. This is
part of a wider strategy at Kennedys to engage with
senior politicians to put across views on behalf of our
clients, in particular following on from the Jackson
costs report. We will be monitoring the progress of
this important review, and will keep you updated.
Readers who have an interest in health and
safety prosecutions will be interested to learn that the
Law Society's judicial review challenge to the
restriction of payment of successful defendants’ costs
to legal aid rates has been approved. Kennedys’ Health,
Safety & Environment team has been involved in
strenuous objection to the new scheme, during its
consultation phase and in the run up to the Law
Society’s application. View
our briefing on the decision.
I am also
delighted to announce that we have now opened the doors
of our Sheffield office, based at the flagship Sheffield
Digital Campus. View
map.
The Sheffield office will be led
by Partner, Suzanne Liversidge, an active and inspiring
role model within the region's business community.
Within the next month the office
will welcome 70 people, including 12 partners and
58 members of staff.
The team in Sheffield will advise clients
within the insurance, commercial, mining, retail,
engineering and public sectors. They also have extensive
expertise in employers’, public and motor liability, as
well as retail, costs, occupational disease work and
contentious and non-contentious construction.
I
hope you enjoy reading this month’s edition and, as
always, welcome your feedback.
Richard
West
Head of Liability Division |
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Feature Summary
Case
Law:
Gibbon v Manchester City Council; Reeves v
LG Blower Specialist Bricklayer Ltd
25.6.10
Court of Appeal holds that
Part 36 offers are open for acceptance until they are
withdrawn; also money is the main factor in deciding the
success of a Part 36 offer.
Read
more
Feature
Article:
Litigants in
person
The recent
Court of Appeal decision in Kinsley v Commissioner
of Police for the Metropolis [2010] may have left
defendants and insurers wondering whether it is worth
spending time defending claims brought by litigants in
person. Is there a way forward?
Read more
Legislation/civil
procedure:
Guideline hourly rates finalised
Read
more
Ministry of Justice consults on court
closures
Read
more
News
in brief:
Coalition Government to review regulatory
measures inherited from the previous
administration
Read more
Courts report rise in personal injury
claims
Read
more
FSA publishes consultation on tracing
employers’ liability insurers
Read more
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| Case
Law |
Gibbon
v Manchester City Council; LG Blower Specialist Bricklayer Ltd
v Reeves 25.6.10
Court
of Appeal holds that Part 36 offers are open for acceptance
until they are withdrawn; also money is the main factor in
deciding the success of a Part 36 offer.
Mrs Gibbon
was injured when she tripped and fell in a playground.
Liability was admitted and a number of Part 36 offers were
made, including a Part 36 offer by her to accept £2,500 made
on 18 November 2008. She subsequently rejected an offer of
£2,500 made by the Council. On 26 February 2009 the Council
wrote to her solicitors formally accepting her earlier offer
of that amount.
Mr and Mrs Reeves were in dispute with
a building contractor, LG Blower Specialist Bricklayer Ltd
(Blower) over a contract to carry out improvements to their
home. Negotiations took place, including an offer by the
Reeves before proceedings were issued of £8,023.14, which
was repeated post-proceedings on 15 May 2007 as a Part 36
offer, as well as a subsequent Part 36 offer of £8,188.38. The
Reeves made an early payment on account of £649.36 on account
of plumbing work. On 9 January 2008 they withdrew all
their offers apart from the May offer. At trial Blower was
awarded £8,375.94. The District Judge ordered the Reeves to
pay half Blower’s costs from 8 January 2008.
Held:
- In relation to Mrs Gibbon’s claim, the language of Part
36 is clear. A Part 36 offer may be accepted at any time
unless the offeror has withdrawn it by serving notice of
withdrawal on the offeree. Part 36 proceeds on the footing
that an offer is on the table and available for acceptance
until the offeror himself chooses to withdraw it.
- Regarding the Reeves’ claim, Carver v BAA
[2008] was considered. The Court of Appeal noted the
criticism of Carver by Lord Justice Jackson in his
final report, on the grounds that it introduced an unwelcome
degree of uncertainty into the litigation process. The
District Judge was right to proceed on the basis that the
judgment was more advantageous to Blower than the Part 36
offer. He was therefore faced with the task of exercising
his discretion, taking into account the general rules about
costs contained in Part 44. His order was well within the
ambit of his discretion.
- The Court of Appeal also expressed the view that there
is no reason why a party should not make more than one Part
36 offer and leave it to the other party to decide which, if
any, to accept.
Comment:
The case of Gibbon highlights the
fact that the ordinary principles of contract law do not apply
to Part 36 offers. This allows parties to make several offers,
which will remain open for acceptance throughout the life of a
case, despite rejections and counter offers being made in the
meantime. It therefore provides parties with an opportunity to
settle cases by reviewing previous offers, which have not
formally been withdrawn, and reconsidering whether they now
appear attractive. In cases where such a review is being
considered, there will be a need for a balancing exercise
between the amount of offers still on the table and any
potential costs liability incurred in the period between those
offers, before accepting or withdrawing them.
Although
the judgment in Blower appears to close the door on
arguments raised in cases where the claimant has only narrowly
obtained an award more advantageous than a Part 36 offer, the
door may not be completely shut. In substantial cases,
practitioners may still want to consider requesting the court
to exercise its discretion under Part 44, particularly in
relation to conduct.
For further information contact
Khalid Mahmood,
Kennedys, 0121 214 8025.
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| Feature
Article |
Litigants
in person
The
recent Court of Appeal decision in Kinsley v Commissioner
of Police for the Metropolis [2010] may have left
defendants and insurers wondering whether it is worth spending
time defending claims brought by litigants in person. Is there
a way forward?
Kinsley v
Commissioner of Police for the Metropolis
Kinsley concerned a claim against the
Defendant for harassment:
- At an interlocutory hearing, the Judge granted an order
that, unless the Claimant provided specific disclosure, his
claim would automatically be struck out.
- At a subsequent hearing the Claimant made a without
notice application for an adjournment of the proceedings
generally. This application was refused by the Judge.
- Time under the unless order expired without the Claimant
complying with its terms and the claim was struck out.
It was held there was room for ambiguity in the
interpretation of time, and the automatic strike out was
unduly harsh. Most importantly, the Court of Appeal took into
account the Claimant’s honest belief that his application for
an adjournment preserved his position in relation to the
unless order. The appeal was allowed.
Tactics for defendants and
insurers
Defendants face the difficulty
of maintaining a strong defence against a litigant in person,
whilst meeting the courts’ expectations of assisting an
unrepresented party:
- This may be achieved by not entering into protracted and
unnecessary correspondence, advising early on that the
claimant should seek independent legal advice and using lay
terms as opposed to “legal jargon”.
- Defendants should also focus on tactical procedures
which could promptly dispose of a claim. These include
checking whether the claim is statute barred, obtaining
medical evidence promptly and considering early settlement
if the claim is meritorious. Defendants also need to be
alive to the issues of vexatious litigants and applications
for summary judgment, unless orders and early strike-outs.
In one recent case defended by Kennedys, an
application was made alongside the filing of the defence,
requesting that the claim be struck out and that summary
judgment (with costs) be granted. The application was brought
on the basis that the particulars of claim disclosed no
reasonable grounds for bringing the claim, that it amounted to
an abuse of process and also failed to comply with the
relevant parts of the CPR. We were successful in our
application and the claim was struck out. By bringing the
application early on in the proceedings, we prevented an
unmeritorious claim being pursued.
Conclusion
The
solution to dealing with claims by litigants in person is to
assess the merits of the claim:
- If the claim has merit, then an early reasonable offer
should be considered, even if the claim has not been
correctly presented. Litigants in person are not always
willing to negotiate or engage in settlement, and in this
instance the defendant should make its best Part 36 offer,
making it clear that from the date the offer expires, costs
in full will be sought. This will provide some costs
protection, even if it is only against any final award.
- On those claims which have no merit, consider the claim
as pleaded in full, make applications where appropriate and
provide the claimant with proper notice and an opportunity
to respond without the need to revert back to the court.
It is important to be firm but fair, and to remember
that, so long as your conduct is reasonable throughout, any
costs orders obtained can be set off against the damages if
the claim is successful.
For further information
contact Kate Prestidge,
Kennedys, 0845 838 4814.
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| Legislation/civil
procedure |
Guideline
hourly rates finalised
The
Master of the Rolls has considered a report from the Advisory
Committee on Civil Costs, and has accepted the recommendation
that the interim guideline hourly rates should be accepted as
the final hourly rates. View
further details.
Back to top |
Ministry
of Justice consults on court closures
The
Ministry of Justice is asking for views on whether to close
103 magistrates’ and 54 county courts that it says are
underused and inadequate in England and Wales. View
further details.
Back to top |
|
| News
in brief |
Coalition
Government to review regulatory measures inherited from the
previous administration
The
Reducing Regulation Committee has halted pending regulation
stemming from the Third Parties (Rights against Insurers) Act,
aimed at simplifying the procedure for claimants to claim
directly against the insurer of an insolvent wrongdoer.
Law Society Gazette 10.6.10
Back to top |
Courts
report rise in personal injury claims
The
number of personal injury claims filed in the High Court
jumped 32% between 2006 and 2008, research has
shown.
Law Society Gazette 17.6.10
Back to top |
FSA
publishes consultation on tracing employers’ liability
insurers
The
FSA proposes to require all insurers carrying out UK
commercial lines EL insurance to make certain policy and other
information available for tracing purposes. View
further details.
Financial Services Authority
15.6.10
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