Not complying with Court orders could be fatal to your claim

Things have changed over the last few months and sadly you not complying with a Court Order could be fatal to your claim.

What does complying with a Court Order mean.  Simply if the Court has provided you with directions of how to conduct your case i.e. :-

• “Both Parties to exchange List of Documents by the 5th May 2014 (or whatever date set down by the Court)
• Both Parties to exchange witness statements by the 6th June 2014 (or whatever date set down by the Court)   etc.”

AND YOU DO NOT DO WHAT THE COURT HAS ASKED YOU TO DO, BY THE TIME THE COURT HAS ORDERED YOU TO DO IT, YOU MAY LOSE YOUR OPPORTUNITY TO DO IT ALL.

Think about it, its quite simple really, if you don’t bother to submit your Statement by the date ordered by the Court, and you then apply to the Court to ask for permission to submit your Statement late, and, the Court refuses, that is your case over and done with no matter how good your claim.

So what happened well CPR 3.9 happened on the 1st April 2013 and the Courts were directed to consider “all the circumstances of the case, so as to enable the Courts to deal justly with an application for relief of sanction” (a relief of sanction is you making an application to the Court if you have missed complying with a direction, rule or order of the Court) however the Judges would now only consider two questions when deciding whether they should grant your application for relief of sanction) (give you extra time to comply with their original Order).  The questions the Judges HAVE TO  consider are:-

1. Can litigation be conducted efficiently and at a proportionate cost;
2. The necessity of  enforcing compliance with rules, practice directions and orders.

Judge Lewison giving his Judgment in the Court of Appeal in the case of Perry v. Brands Plaza Trading 2012 EWCA Cov 224 said the following:-

“Courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non compliance is inflicting on the civil justice system.   The balance therefore needs to be redressed”

Judge Lewison’s comments have proved influential and in the subsequent cases of Venulum Property Investments Ltd and Space Architecture and others 2013  Mr Justice Edwards-Stuart cited Judge Lewinson by stating that he regarded the new addition to sub-paragraph (f) to the overriding objective “as requiring the court to take a more robust approach when exercising a discretion to extend time for service of a claim form or particulars of claim

Venulum v, Space Artchitecture was a professional negligence claim in which the claim form had been served in time but the particulars of claim had not.  An application was made to extend the time of service of the PoC.

Mr Justice Edwards-Stuart found 3 factors where of particular importance in considering whether the application for relief of sanction should succeed:-

1. There had been an unexplained delay of 5 years before the Claimant had instructed solicitors.
2. On the information and documentation before the Court the Claimant’s claim was not a strong one.
3. The claim was a vaguely pleaded claim for bad faith

The Judge stated the following:-

“In my judgement when the circumstances are considered as a whole particularly in the light of the stricter approach that must now be taken by the Courts towards those who fail to comply with the rules following the new changes to the CPR, this is a case where the Court should refuse permission to extend time”

Shortly after this case the Judges considered the matter of non compliance again in the case of Fons HF v. Corporal Ltd 2013.   This matter involved a late application to extend time for service of witness statements only three weeks after the deadline! Although the application was successful the Judge presiding gave this stern warning that he had:-

“come very close to refusing an extension to either of the parties” and referred to the fact that the “amended Civil Procedure Rules now require the Court to pay close attention on the failure of parties….a failure to comply with a rule direction or order is itself a clear breach of the overriding objective and is likely to result in severe sanctions”.

So you can see the Courts are taking a much stricter approach, however if you are unfortunate enough to miss a direction etc set down by the Court you may still be able to obtain relief from sanction if you :-
Make an application as soon as possible after you realise your error and attach a copy of the document you were supposed to serve etc and a clear and detailed Statement in support of you application explaining why there has been a delay. The Court will consider that there are unforeseen factors which can lead to delays, but do substantiate your explanation with any physical evidence you may have i.e. copy of sick note from your GP.

To avoid the stress of making such an application COMPLY WITH THE COURT’S DIRECTIONS and if you can’t apply to the Court PRIOR TO THE EXPIRY OF THE COURT’S ORIGINAL ORDER and seek the consent of your opponent.

GOOD LUCK,

by Deborah Aloba

of Affordable Law For You

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Negotiate, Litigate or Mediate?

By Russell Evans, Manager of Resolve UK[i]

If you have come to this website it is likely that you are involved in a dispute and seeking assistance. It is likely that you have not been able to negotiate a successful resolution of your dispute, have not been able to convince your opponent of your position or legal rights and are unable to satisfy your opponent of the remedies or redress to which you believe you may be entitled.

You may feel that your words have fallen on stony ground and that your attempts to negotiate have been frustrated. Maybe of course you have simply not been heard. There may also be a gulf between you not only in understanding but perspective.

You are probably feeling frustrated. What can you do? You collect your thoughts. You can of course try again and hope for a more positive response. You may however feel that you have reached an impasse. There is of course the option of litigation. Sometimes you may have no choice.[ii]

Litigation of course may bring its own ordeals and demands, including the need to prepare court papers, the need to attend at court before a judge and the need to facilitate argument and advocacy in your cause. Added to this process is the work of preparing and collating evidence, obtaining and finalising witness statements and invariably a good deal of stress and delay. Litigation is usually both lengthy and costly. The outcome is also out of your hands. Control ultimately rests in the hands of the judge and the judge’s decision will be handed down and imposed on the parties. Litigation in consequence has often been likened to a war focusing on a fight between the parties.

Mediation by contrast is a very different process. Mediation is both party and solution focused. In a mediation the parties to the dispute appoint an independent professionally qualified mediator to assist them. The mediator assists the parties to review their dispute, to consider options, to facilitate discussions and to explore and ultimately find solutions. The mediation typically takes place over the course of 1 day. It may last a few hours or may be longer where there is a more complex and involved dispute. A solution which is agreed by the parties is usually found. Indeed mediation has an 80 % success rate.

Mediation is far quicker and far cheaper than litigation. Mediation is also a private and confidential process. Parties to the mediation can have separate confidential discussions and meetings with the Mediator. Indeed the mediation process is flexible and can adapt to suit both case and party needs. It is not hemmed in by the formality of a court room.

Mediation can be used both before and after the commencement of court proceedings.

The Courts, the Judiciary and Government all support and recommend the use of mediation as a highly effective mechanism for resolving disputes.

Here is what Lord Justice Ward had to say in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come’

Courts also now routinely consider the reasonableness of conduct of the parties to a dispute and proportionality when making cost orders. Indeed the courts can impose adverse cost orders on a party who fails to mediate. Here is what Lord Justice Rix had to say in the Court of Appeal case of Rolf v De Guerin (2011) EWCA Civ 78:

‘Parties should respond reasonably to offers to mediate or settle and…their conduct in this respect can be taken into account in awarding costs.’

Judges are in fact required to consider the use of mediation under the Civil Procedure Rules.

Under the Ministry of Justice Scheme to which Resolve UK belongs the cost of mediation can start at just £50 or £100 per party for lower value claims. Under the scheme there is a sliding scale depending on the size of the claim. For claims below £50,000 the mediator’s fee is fixed at a maximum of £425 per party for a half day appointment.[iii] Some low value claims can even be dealt with over the telephone. In most cases a mediation venue will be required. Mediation rooms can be provided by Help4Lips.

Mediation has a wide variety of uses. By way of example it can be used to resolve:

• Property disputes including claims as to ownership as well as boundary and construction disputes

• Disputes about wills and probate and claims for inheritance

• Insurance claims – fire, flood and theft as well as personal injury

• Business and trade disputes including disputes between business owners, partners, directors and shareholders

• Employment claims including grievances and claims for discrimination and unfair dismissal

• Family disputes including financial division and child access

There are of course many other types of disputes where mediation can assist. It is impossible to list all here. If you would like to resolve your dispute Mediation could be right for you.

[i] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk

[ii] There are defined time limits for bringing court actions and tribunal claims.

[iii]  Scale as at July 2013

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Litigants in Person: Guidelines for Lawyers

The Bar Council, CILEx and the Law Society have prepared  guidelines to  assist lawyers when dealing with litigants in person. diyLAW is convinced that reading these guidelines will also be extremely useful for LiPs to get a better understanding of the way the Law works.

Many litigants in person feel the system is against them. This document is a substantial effort to ensure the process works for all parties, most particualy for LiPs. If you are a litigant in person we encourage you to read these guidelines and try and follow the process laid out in your case

Please click on this link to access the document: http://www.lawsociety.org.uk/support-services/advice/articles/litigants-in-person-new-guidelines-for-lawyers-june-2015/

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Litigants right to fear high legal costs, says government research

by Dan Bindman

of Legal Futures

The fears of litigants about the high cost of legal representation were borne out by their experience, government-commissioned research has found.

The qualitative research, carried out by Ipsos Mori for the Ministry of Justice, accompanied the government’s response to its court fees consultation and aimed to discover whether they would have been deterred from starting proceedings if fees were set at higher levels.

It questioned 54 civil claimants and family applicants, including individuals and small businesses, and covered those who were privately paying, funded by conditional fee agreements (CFAs) and legal aid, and litigants-in-person. As the government no doubt hoped, the survey concluded that most claimants did not consider court fees a barrier to taking a case to court.

However, a section on self-funded represented parties supported the argument that fixed fees in litigation could help to mitigate consumers’ fears about spiralling cost. The researchers said litigants often began with the perception that representation was expensive, a view that was reinforced when initial quotes were supplied.

They also found, in both civil and family cases, that self-funded claimants and applicants “tended to find that the final costs were higher than expected”, confirming their initial misgivings about price. The survey explained this was because “they had typically believed that the case would be completed sooner and would involve fewer court appearances, and less involvement from a solicitor”.

The researchers conceded that this might not be the view of the majority of civil litigants given that many settle before a hearing.

Fear of up-front costs drove many litigants to seek representation under a CFA and they reported that they would not have been able to afford representation if they had not found a solicitor willing to act for them on that basis.

Unsurprisingly, the researchers concluded that their findings suggested that “legal costs could be a potential deterrent to bringing cases to court for those who do not have sufficient earnings or savings to pay such costs independently”.

Among litigants-in-person, many claimants seeking relatively small amounts of money were content to proceed without representation, but some who wanted representation and could not afford to pay for it, decided to self-represent rather than drop their case.

In the above context, “low awareness” of court fees was common and they were not considered crucial in decision making. The fees “were perceived to be a relatively small element of the total costs of going to court”.

Please refer to the original article here.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

LiPs help LiPs with #DIYLAW

On 8th of December 2017 diyLAW attended the Civil Justice Council's  National Forum on "Access to Justice for Litigants in Person."

Here is a summary of our previous leaflets we presented at the Forum:

• leaflet 2013

• leaflet 2014

• leaflet 2015

• card 2016

• leaflet 2017

• leaflet 2018

The forum brought together 130 judges, lawyers, advice workers, academics, regulators, civil servants and others to discuss progress made on improving access to justice for litigants in person (LiPs). Please find the forum`s summary here published by the Civil Justice Council

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Landlord and Tenant – What does the bedroom tax mean to you?

Since 1 April 2013, new housing benefit rules mean you won’t be able to get housing benefit to pay for all of your rent if your home has ‘spare bedrooms’. This media has called this the ‘bedroom tax’.

If you’re a council or housing association tenant and are receiving housing benefit and renting a home that has more bedrooms than you need, it’s likely that your housing benefit will be reduced. The new limit on the number of rooms you can claim housing benefit for is based on the number of people living in your home.

If you have more bedrooms than the new rules say you require, you will be treated as ‘under-occupying’ your home and will get less of your rent paid for by housing benefit.

If housing benefit no longer covers the full cost of your rent, you will have to pay the rest of the rent yourself. This must be paid directly to your landlord. If you don’t pay the balance of your housing benefit and you get behind with your rent you could end up with a Notice for Possession being served on you.

So how much will your housing benefit be reduced by well:

• 14% will be taken off if you have one extra bedroom.
• 25% will be taken off if you have two extra bedrooms.

So, if you have one ‘spare bedroom’ and your rent is £100 per week, only £86 will count when your housing benefit is assessed. You will have to pay at least £14 to your landlord yourself.

If you have two or more ‘spare bedrooms’, and your rent is £100 per week, only £75 will count when your housing benefit is assessed. You will have to pay at least £25 to your landlord yourself.

So what can you claim housing benefits for now?  Under the new rules you can only claim housing benefit for:

• one bedroom for a couple
• one bedroom for a person aged 16 or over
• one bedroom for two children aged under 16 of the same sex
• one bedroom for two children aged under 10 (boys and girls are expected to share a room)
• one bedroom for any other child
• one extra bedroom if you or your partner needs an overnight carer to stay.

Severely disabled children who need their own room will not be required to share a room. However the decision will be made by the Council who should take into account the severity of a child’s disability, so you will need to provide medical evidence or proof of an award of disability living allowance if one has been made) and how regularly another child’s sleep would be disturbed if they shared a room, so you may need to provide DVD evidence of your severely disabled child’s sleeping patterns

If you became an approved foster carer in the last 12 months you can count a room for a foster child.

If your child or partner or lodger is a member of the armed forces who is serving away, providing they intend to return to your home, you can count their room and if your child or partner etc is a student and they are away from home studying, you can count their room providing they are only away temporarily (less than 52 weeks) and intend to return home.

You won’t be allowed to claim housing benefit for ‘extra’ rooms that are used for:

• children visiting a divorced or separated parent
• couples who use separate bedrooms because of illness or disability
• rooms used by disabled adults to store medical equipment.

If you or a member of your family are a disabled adult living in adapted or specially designed properties you may face cuts to your housing benefit, but it might not be practical or affordable for you to move.  It might be possible to claim a discretionary housing benefit, give us a ring or e-mail us and we can help you with making that claim.

Deborah Aloba

Affordable Law For You Limited

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

"Information to support your case" - obtaining it or having to disclose it

It is thought that ”information is power” and making information available to the court and the parties to a claim has long been an integral part of the litigation process. Historically, the court of equity was the initial conduit for the process of the disclosure of information, ”discovery” as it was. It used to be that, at common law, a party could not be a witness in his own case – neither the claimant nor the defendant could be their own witness (!). As a result, the earliest bills in Chancery sought discovery of facts relevant to the claimant’s (then called the plaintiff) case to assist in achieving fair and equal judgment. With the passage of time, although the aims of discovery were recognised as valuable for litigation, its development led to onerous obligations on both parties, in terms of time, risk and cost. Often, it became a weapon which was capable of producing, in equity, as much of an injustice as it initially sought to guard against.

   
Fast forward to the 21st Century and the reforms brought about by ”Access to Justice” and the Jackson recommendations. Discovery, now renamed ”disclosure”, is still considered a vital element of litigation. It is recognised that there are substantial overall benefits to the exchange of information at an early stage of the proceedings - ensuring equality of access to evidence and possibly facilitating early settlement when parties have clarification of the strengths and weaknesses of their case. Discovery was, however, also ripe for reform given the perceived problems with the often disproportionate costs involved (and the possible, resulting undermining of access to justice), the practicalities of putting together often formidable court bundles (which were then largely unlooked at during a trial) and the ever-increasing need to deal with information contained in an electronic format.

So, what is disclosure? According to the Civil Procedure Rules (the ”CPR”) , disclosure is merely a formal statement that a ”document exists or has existed”. And what is a document? The definition here includes ”anything in which information of any description is recorded” - written documents, audio tapes, videotapes, photographs, as well as electronic documents (emails, WP documents, and databases) are covered. Also covered is material not readily accessible (for example, electronic documents stored on servers and back-up systems) as well as electronic documents which have been deleted. However, it is important to appreciate that it is the information contained within the document and its relevance to the issue(s) in dispute that determines whether or not a document is disclosable. 

It is possible, in certain circumstances, for this disclosure to occur before proceedings have even been commenced. There are specific pre-action protocols across a range of dispute types as well as a general Practice Direction covering pre-action conduct. In these, potential litigants are actively encouraged to disclose relevant documents informally at an early stage (albeit only those documents which support their claim). The objective is to provide parties with ”sufficient information …to allow them to understand each other’s position” . The aim is to aid the potential parties to make ”informed decisions about how to proceed and possible approaches to settlement, possibly avoiding litigation completely”. These pre-action protocols carry much weight with the court. Knowledge of the requirements suggested by them and subsequent compliance with those suggestions is an important consideration for any potential litigant. The court has a discretion to order sanctions against a party in the face of non-compliance – in relation to disclosure, refusing to release documents has led to cost consequences for the non-compliant litigant.

Additionally, the court has various statutory powers (depending on the court/tribunal or the nature of the claim) to order disclosure from a potential party to subsequent proceedings. Under CPR31.16, there are a number of criteria that need to be satisfied for the court to consider an order for what is called pre-action disclosure - the application is between the likely parties to subsequent court (rather than arbitration) proceedings, the documents are going to be disclosable in those proceedings in any event, pre-action disclosure would be beneficial in terms of fairness, assisting in resolution of the dispute without proceedings and the lessening overall costs. Even if these criteria are met, the court has further discretion as to whether to grant such an order. 

In exercising this discretion, the court will consider things such as the nature of the claim, its potential merits and the clarity of the issues involved, the costs (both in granting the order and the impact of not granting the order), the documents sought (their volume and nature), whether the information is available from other sources, and the previous conduct of the parties (this is where compliance or non-compliance with pre-action protocols in relation to disclosure may also impact positively/negatively on a litigant’s application).

  Any documents disclosed at this pre-action stage (whether informally under a pre-action protocol or by court order) can generally only be used for the purposes of the anticipated proceedings.

Once proceedings have been commenced, the court has a further power to order disclosure against a person who is not a party to those proceedings themselves. However, there are limitations as to when such orders may be made. The information sought must only be available from the third party. Additionally, the documents to be disclosed must be likely to support the applicant’s case or adversely to affect the case of another party to the proceedings and disclosure must be necessary to dispose of the claim fairly or to save costs.

Again, even if these criteria are satisfied, it is still the court’s discretion as to whether the order will be made. For instance, no order for disclosure against a 3rd party will be given if compliance would be injurious to public interest. Nor will it be given if the definition of the document or the class of documents is not sufficiently clear and specific in the application itself. The court will also consider the interests of the non-party to protect his privacy and the confidentiality of the documents against the interests of the party seeking disclosure. This is a remedy of last resort; such an order is not going to be given routinely as the court will need to balance the rights of the 3rd party against the need of the applicant in relation to the case (the ability for it to be dealt with fairly or to save costs).

There are other well-established situations (either pre or post the issue of proceedings) where an equitable remedy involving disclosure may be ordered against 3rd parties by the court in very specific circumstances, seeking to achieve very specific results. For instance, these include:-

(a) Norwich Pharamcal orders – where an application can be made for disclosure of documents and/or information from a 3rd party who, while a non-party to the litigation, is somehow involved or mixed up in the wrongdoing (innocently or otherwise), and
(b) search orders (formerly Anton Pillar orders) - a form of mandatory injunction from a master or district judge in the High Court. Such an order allows for entry to the defendant’s premises to search for, copy and remove documents and/or material in relation to the dispute. The aim is to prevent evidence being lost or destroyed. However, given the nature of the application and its potential impact, the application must be based on a very clear case with clear evidence of the document in the defendant’s hands as well its possible destruction.

In deciding whether pre-action disclosure or disclosure from a third party would be appropriate, the court is looking to balance finding a resolution to a dispute without recourse to actual proceedings as against assisting with an applicant’s nebulous claim. The court’s various powers in relation to requiring the disclosure of information (whether pre-proceedings between the parties or from a 3rd party) are important considerations for a potential litigant. Knowing and understanding the jurisdictional criteria that need to be established for any such order are important tools in the litigant’s arsenal.

Alison Bicknell

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

How a Judge sees the Litigant in Person issue

Litigants in Person

If you are not a litigant in person:

Many litigants in person become involved in litigation because they have no alternative and many others become involved in litigation because they think that they have no alternative.

While you are perfectly entitled to be as firm as the circumstances require you should be unfailingly courteous.

Try to find what the real issues are and address them. It is your duty to all litigants in person to do what you can to assist them with the mechanics of the process of litigation such as (to the extent that you are permitted) helping with the orderly compilation of hearing bundles.

Expect to feel that it is frustratingly as if the court is bending over backwards in favour of your opponent.

If you are a litigant in person:

Try to identify the real issues.

Address the issues in ordinary English – there is no such language as “Courtspeak”.

Don’t download statements of case from the internet without understanding what they say and being able to support what is said at a hearing – the judge will be looking at you not the website.

Remember that asserting something is not the same thing as proving it.

Always obey court orders and, if you may be late, immediately apply for an extension of time or an adjournment with your reasons and (where needed) the evidence for doing so.

Take a good note.

Above is an extract from Case Handling - An Illustrated View from the Bench by HH Nicholas Chambers QC published by Wildy, Simmonds & Hill Publishing.

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

What costs can you recover as a litigant in person?

diyLAW are grateful to Ishika Patel, one of our brilliant volunteers, for her article on Recovery of Costs for Litigants in Person. This is for general information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Rule 46.5 of the Civil Procedure Rules governs the recoverability of costs by a litigant in person, such as yourself. This article breaks this down. For the avoidance doubt, references to “you” mean a litigant in person.

You can recover costs for the periods you are/were a litigant in person for:

a)    Work carried out by you (that fall in the same categories of work that would have been allowed if the work had been done by a legal representative on your behalf);

b)    Disbursements (that fall in the same categories of disbursements that would have been allowed if made by a legal representative on your behalf);

c)     the payments reasonably made by you for legal services relating to the conduct of the proceedings; and

d)    the costs of obtaining expert assistance in assessing the costs claim.

So, this could include travel costs to court and even photocopying. But note these are not normally recoverable by a solicitor.

Does it matter what claims track I am on?

Yes, the track does have a bearing. Your case will either be heard on the small claims track or the fast track. Please note, this article does not cover information about the tracks.

Small claims track - Costs recovery is limited

Fast track – if you are awarded costs and can prove financial loss (see below), you should be entitled to two thirds of the fixed fast track trial costs.

a)    Work carried out by you

As explained above – you can recover costs for the same categories of work that would have been allowed if the work had been done by a legal representative on their behalf e.g. filing an application in court.

b)   Disbursements

What are disbursements?

Disbursements are typically the fees of for example, counsel and experts instructed by you, court fees or even fees for serving documents. They can also include fees of interpreters, translators, process servers, surveyors and estate agents but not travel agents' charges.

So, for example, if you hire an expert (i.e. a gun specialist – note this is different from expert assistance that we go into below), it is likely you can recover the cost for this as this is also a cost that a legal representative would charge their client for and probably would be recoverable.

They might also include the fees of a lay person granted a right of audience or right to conduct litigation (see below).

What are not disbursements?

Disbursements for the very work that a legal representative (if instructed) would have done e.g. the fees of loss adjusters engaged by the defendant's insurers before solicitors were instructed, in corresponding with the insured and the claimant's solicitor, obtaining witness statements and dealing with documentation. These were all tasks that would normally be carried out by solicitors, if instructed.

The costs of this type of disbursements would usually be recoverable under either:

• “work carried out by you”; or
• “work carried out by a qualified lawyer who is not on the court record” – e.g. payment for legal services (see below).

Costs of lay persons

The fees of a “lay person granted a right of audience” are in principle recoverable from the opposing party as a disbursement.

The fees of a “lay person granted the right to conduct litigation” are not recoverable from the opposing party.

Who is a “lay person granted a right of audience”?

A person who is granted the right to appear before and address any court, including the right to call and examine witnesses. Though you yourself may be granted this right, you may have someone do this on your behalf.

Who is a “lay person granted the right to conduct litigation”?

Someone who is a protected party – i.e. a person who lacks capacity within the meaning of the Mental Capacity Act 2005 to conduct proceedings, who is unable to make decisions in relation to the matter by reason of an impairment or a disturbance of the functioning of the mind or brain, then they will someone conduct the litigation for that protected person. This may include a child too. They may not necessarily have a right of audience,

McKenzie Friend

This article does not cover a McKenzie friend in detail but it is important to bear in mind when considering costs. In brief, you have the right to “reasonable assistance” from a McKenzie friend. This generally is a "lay person". However, in principle a practising lawyer who is not on the record could act as a McKenzie friend.

McKenzie friends may assist you in court by making notes, quietly making suggestions and giving advice. However, they cannot address the court. They may assist you with advice or administrative matters out of court, but cannot manage or conduct the case, or sign court documents. Fees in this respect are not recoverable.

Once they are granted either of the rights above e.g. right of audience/right to conduct litigation, they are known as an “exempt person” under the relevant legislation, rather than a McKenzie friend and any fees are then recoverable

More information can be found here: http://mckenzie-friend.org.uk/index.html

c)    Payment for Legal Services

Legal services are not defined but has been interpreted to mean partial legal services i.e. legal advice or assistance that falls short of full representation, or services provided by or under the supervision of a qualified lawyer. So, if you seek legal advice and assistance from a non-lawyer, you cannot recover the cost under this.

d)   Expert assistance in costs claims

 These are costs for obtaining expert assistance in assessing costs claims.

 Who qualifies as an expert:

(a)   barrister;

(b)   solicitor;

(c)   Fellow of the Institute of Legal Executives;

(d)   Fellow of the Association of Costs Lawyers;

(e)   law costs draftsman who is a member of the Academy of Experts;

(f)    law costs draftsman who is a member of the Expert Witness Institute.

To prove loss, you should produce any written evidence relied on to support that claim to the court and serve a copy of that evidence on any party against whom you seek costs at least 24 hours before the hearing at which this issue may be decided.

Amount of costs allowed for work by you/proving financial loss

The amount of costs to be allowed for any item of work claimed, will be –

 a) where you can prove financial loss, the amount that you can prove to have been lost for time reasonably spent on doing the work; or

 b) where you cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46 of the rules.

The rate from 6 April 2015 was £19 per hour and is still applicable as of March 2018. Financial loss is a quantifiable loss that you have suffered as a consequence the time you spend on the litigation.

Note. There is a cap – as said above, you cannot recover more than two thirds of the amount that would have been allowed had you been represented (except in the case of disbursements).

A costs assessment is required. This should cover:

·         what items of work were done by you and what time was spent on those items.

·         in respect of each item, what time it was reasonable for you to spend (see below).

·         if all the items of work for which costs are recoverable had been undertaken by a solicitor, what would a solicitor's reasonable charges have been for doing such work.

You should prove financial loss claimed (keep receipts of your expenses) with written evidence and serve it on the other side at least 24 hours before an assessment hearing. Also see recovering pro bono costs below.

What do you mean by item of work?

This can be things like submitting applications to court for example, an application for summary judgment, or drafting documents for example, a defence.

What time is reasonable?

The amount of costs allowed for any item of work is related to their "time reasonably spent" on the work. There is conflicting case law on whether a litigant in person should be:

·         Allowed more time, where appropriate, than would be allowed to a solicitor for the same task

·         Limited to the time which would have been spent by a solicitor

You cannot always predict what a court will do, but it may be more inclined to allow extra time if appropriate. It will really depend on the circumstances.

There is also a requirement that the court should only allow costs that are proportionate to the matters in issue which you should bear in mind. So, don’t expect to be able to recover thousands of pounds of costs for something relatively simple.

Recovering Pro Bono Costs

What is pro bono costs?

Pro bono costs are just like normal costs identified above and are applicable for any period in which free legal representation was given i.e. where you are represented, whether wholly or partly, by a lawyer(s) working free of charge (pro bono). You must successfully win the case to be eligible.  

The Access to Justice Foundation

Pro bono costs can be claimed from the losing party and must be paid to The Access to Justice Foundation. They support free legal advice to those most in need by raising and distributing funds to advice agencies and other legal services throughout the country e.g. AdviceUK and the Bar Pro Bono Unit. Note that he Lord Chancellor prescribes the charity and this may be changed in the future.

Pro bono costs order

These pro bono costs orders are available in the:

·         County Court

·         High Court;

·         Court of Appeal; and

·         The Supreme Court

You can find more information here: http://www.atjf.org.uk/pro-bono-costs-orders.html.

Costs budgets

You are not required to file and exchange costs budgets unless the court orders otherwise. Case law suggests you may opt to file and serve a budget. Briefly, a costs budgets states likely cost to be incurred at each stage in the litigation process. The deadline for filing and exchange of costs budgets will be stated in the notice of proposed allocation sent to the parties after the defence is filed.

If you choose to instruct a solicitor after the costs management conference (for which the costs budget is submitted), there is no specific rule which requires you to file and serve a costs budget. However, there may be scenarios which could mean filing is required. Your solicitor should be able to advise to on this.

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This article is for information purposes only and should not be used as legal advice.

Ishika Patel

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

The death of the contingency fee agreements and the birth of the damages based agreement

After the 1st April 2013 expect a bit of a sea change in respect of how personal injury claimants are able to pay for legal representation.  For the last few years if you were a claimant it was more or less standard for you to enter into a contingency fee agreement “No Win No Fee” to fund your legal representation.

This meant that you were not charged an up-front fee but agreed to give your lawyer a certain percentage of the money received if you won or settled your case out of court.

The percentage of the damages that you had agreed to be paid to your solicitor in the event that you were successful at Court, etc. would then have been recoverable from the insurers and you would in most instances have received the full value of your claim.

In the event that you lost your case your lawyer would not receive a fee but you might still have had to pay the Defendant’s costs of the action.   Depending on the circumstances, these costs could be quite high.

Well from April 2013 all that changed and I am afraid the changes do not benefit you as a Claimant.   The Government have now decided that this relatively well tried and tested method of a Claimant being able to fund their personal injury claim is to be no more.

The main beneficiary of this decision is the Insurance Companies as they will not be liable to pay the proportion of the monies that you agreed to part with in the event that your case is successful.  This government in its wisdom have decided that Claimants should enter a Damages Based agreement with their legal representative.

A Damage Based Agreement is a contract which will be entered into between you as the claimant and your legal representative (usually but not always a solicitor).  The agreement sets out how you will pay your legal representative for the service and work they undertake when handling your case.

A Damaged Based Agreement is a type of “No Win No Fee” arrangement under which your legal representative is only paid if the case is successful and receives nothing if the case is lost.  This agreement binds you to pay your legal representative a percentage of your damages which is agreed between both of you prior to your claim commencing

What is the difference then, well, with a Damages Based Agreement the percentage of the damages agreed to be paid to your legal representatives from your compensation is not recoverable from the insurers yes that’s right NOT RECOVERABLE FROM YOUR INSURERS so in simple terms if your claim is worth £1000 and you have agreed to 25% of your damages being taken in the event that you win your case then you will get £750.

Now how have the government decided to ensure that you are compensated for this loss, it has recently been decided that the value of personal injuries will increase by 10%.

Now I know my math’s is not great but if I were a claimant and my case settled for £1100, and I had to pay my legal representative 25% that would leave me with £825.  Obviously as you can see you will receive some compensation but definitely not 100%.

You may well say it is not fair for a  legal representative to retain a portion of your compensation but with 20 years’ experience as a litigator I must point out that many cases have to be financially front loaded by solicitors.   Unless the client is willing to pay for disbursements upfront and these include copies of their GP’s and Hospital Notes which normally come to around £150 and their medical reports in support of their claim. (I recently had to obtain three medical reports on behalf of a client and the total fees for the medical experts came to £4,500) then it is the Solicitor who is financially compromised.

On many occasions once all the evidence is obtained, it becomes clear, that the Claimant has not got a claim which would be successful if it proceeded to trial and the Legal Representative is out of pocket.

We live in interesting times.

Deborah Aloba

Affordable Law For You Limited

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This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.