Harmans Costs Brief - Summer 2016

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The sun is out and it feels like summer is finally here!

Gary Knight asks who would be a Costs Judge these days following several decisions being overturned on appeal. You can read all about them below. There's also analysis of another recent interesting case in the Court of Appeal plus details about our recent office move.

Costs Brief will be taking a break next month but we'll be back in the autumn with the latest industry news. Wishing you all a lovely summer!

Many thanks, Harmans Costs
For even more news and comment visit our website
Costs Judges overturned on Appeal, Partner Gary Knight investigates

It is perhaps not the best of times to be a costs judge with their decisions being overturned on appeal.

Foskett J sitting with the senior costs judge Gordon-Saker overturned three decisions made by costs judges when dealing with 3 conjoined appeals – Kai Surrey (A child and protected party) v Barnet & Chase Hospitals NHS Trust, AH (A protected party) v Lewisham Healthcare NHS Trust and Mehmet Yesil (A child and protected party) v Doncaster & Bassett Law Hospitals Foundation Trust [2016] EWHC 1958 (QB).

On three separate occasions costs judges had, when considering whether it was reasonable to have switched from Public Funding to a CFA with ATE, found that it had been unreasonable disallowing the additional liabilities.

The original challenges before the costs judges had included reference to the fact that Litigation Friends had not been advised that the switch shortly before 1 April 2013 would deprive the Claimants of the 10% uplift on general damages provided in Simmons v Castle [2012] EWCA Civ 1039.

The Defendants, effectively the NHSLA, argued that the decisions to switch to CFAs were based on “materially unreasonable advice” and that a reasonable person in the position of the Litigation Friend would have been likely, when considering the method of funding switch, to attach significance to the fact that the Claimant would lose the 10% uplift with the Defendants placing reliance on Montgomery v Lanarkshire Health Authority [2015] UKSC 11, where the Supreme Court had reviewed the law on informed consent in the context of a medical practitioner’s duty to inform a patient as to the risk involved in proposed treatment.

In each matter the costs judge accepted the Defendant’s submissions disallowing success fees and after-the-event insurance premiums.
Read more details from Gary about the overturned decisions here.
Our Aylesbury and Chelmsford teams have just relocated to team up together in larger modern offices in Waltham Abbey, Essex.

Harmans chose Waltham Abbey due to its prime location on the Essex and Hertfordshire border and its short distance from London. With excellent road and rail links and a quick 30 minute train journey into the capital, Waltham Abbey felt like the perfect spot for our teams to consolidate and join forces!

With immediate effect our new address is:
Suite 114, M25 Business Centre, 121 Brooker Road, Waltham Abbey, Essex EN9 1JH
Our new telephone number is 01992 807935 and our new fax number is 01992 807936
Our new DX number is 54303 Waltham Abbey.

We would be very grateful if you could update your records immediately
Failure to comply with a direction or order of the Court can still be fatal notwithstanding the softening of the Courts stance post Denton -v- T H White Limited [2014] EWCA Civ 906.

The Court of Appeal considered the matter of Suiaya Jamadar v Bradford Teaching Hospitals NHS Foundation Trust [2016] on 21 July 2016.

The Claimant had received negligent treatment resulting in the amputation of one of his legs. Proceedings were commenced and the Defendant initially denied liability thus form N149C pursuant to CPR r26.3 was sent by the court to the parties stating the case was defended and the matter was considered suitable for allocation to the multi track. Shortly thereafter the Defendant admitted liability, a judge revoked N149C and judgment was entered for the Claimant with damages to be assessed.

The parties received notice of case management in accordance with which the Defendant provided a costs budget but despite requests from the Defendant the Claimant did not provide a costs budget at or before the CMC.

At the hearing the district judge gave directions which included provision for five experts for each party with an anticipated 5 day trial to deal with quantum.

So what happened next? Find out here.
Civil Courts Structure Review: Final Report

The Lord Chief Justice and the Master of the Rolls, as Head of Civil Justice, asked Lord Justice Briggs to carry out a review of the structure of the courts which deliver civil justice.

Lord Justice Briggs retained his strong support for the creation of an online court for claims worth up to £25,000 although he has changed his position to say that parties should be able to recover a limited amount of legal costs.

But he has challenged solicitors and barristers to overcome the problems they see with providing unbundled advice, rather than full retainers, in lower-value cases.

You can read the full report by clicking the link below:
Liz Truss appointed Secretary of State for Justice and Lord Chancellor

It has just been announced that Liz Truss, MP for South West Norfolk and until today Secretary of State for Environment, Food and Rural Affairs, has been appointed as the new Secretary of State for Justice and Lord Chancellor, taking over from Michael Gove.

Truss becomes the first female Lord Chancellor in the thousand-year history of the role.

Court fee increases in force from 25 July 2016

A number of court and tribunal fee increases came into effect on 25 July 2016:

SI 2016/807 - The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Explanatory Memorandum
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