The Senior Courts Costs Office has given guidance on the proper approach to challenging the result of Provisional Assessment.
Robert Patterson is an Associate in the Clarion Costs Department. He can be contacted on 0113 336 3337 or by email to Robert.Patterson@clarionsolicitors.com.
HMCTS are consolidating the work of the courts and tribunals into fewer buildings. It has been announced that from Monday 30 March 2020 there will be a network of priority courts that will remain open during the coronavirus pandemic to make sure the justice system continues to operate effectively.
Fewer than half of all court and tribunal buildings will remain open for physical hearings, with 157 priority court and tribunal buildings remaining open for essential face-to-face hearings. This represents 42% of the 370 crown, magistrates, county and family courts and tribunals across England and Wales.
To help maintain a core justice system that is focused on the most essential cases there will be open courts, staffed courts and suspended courts.
The Judiciary recommend that you check which courts are open before you travel. For information regarding the category of each court please follow this link.
Lord Chancellor Robert Buckland has said that it is vital that we keep our courts running. and that:
“An extraordinary amount of hard work has gone into keeping our justice system functioning. Technology is being used creatively to ensure that many cases can continue. Not everything can be dealt with remotely and so we need to maintain functioning courts.
These temporary adjustments to how we use the court estate will help ensure that we can continue to deal with work appropriately in all jurisdictions whilst safeguarding the well-being of all those who work in and visit the courts”.
Staffed courts will support video and telephone hearings and progress cases without hearings and ensure continued access to justice.
The remaining courts and tribunals will close temporarily and these measures will be kept in place for as long as necessary.
You can find out more about our services here or you can contact the Costs and Litigation Funding team at CivilCosts@clarionsolicitors.com.
In October 2019 proposals to reform the Damages Based Agreement (DBA) Regulations were published. Here I give a brief rundown of what the new proposals mean.
The Law Society has recently published a more detailed analysis of the key points which can be viewed here.
The Bar Council has today given further guidance to its members that advocates should not attend hearings in person unless they are “genuinely urgent” and cannot be done remotely. However, it is anticipated that such a hearing will be a rare occurrence.
My standing advice is that where a hearing is listed, practitioners should contact the court as soon as possible and ask for guidance. I recently wrote to the County Court at Huddersfield and asked what procedures are currently in place; I received a response today stating that “all hearings will be adjourned: you will be contacted before the hearing”.
The situation continues to develop rapidly and therefore it is likely that the position in relation to hearings will change.
Should you have any questions, you can contact the team at CivilCosts@clarionsolicitors.com.
It is 10 years since the SCCO last increased the guideline hourly rates. Andrew McAulay looks at the rates, and how you can make the most of them.
Andrew McAulay is a Costs Lawyer and Partner at Clarion. You can contact him at AndrewMcAulay@clarionsolicitors.com or by phone on 0113 336 3334.
His Honour Judge Graham Wood has released guidance for all business conducted in the Liverpool and Chester County Courts and the Cheshire and Merseyside Cluster for Civil Work.
All small claims track lists will be vacated until after 4th May, and orders will be sent out accordingly. It is considered that it would not be practicable to have these matters, in most of which the parties are unrepresented, proceed by telephone or remotely. Because of the way these cases are listed, there is likely to be significant personal contact between individuals and court staff, which is not justified in the circumstances. New dates will be sent out in due course.
The default position for all fast track and multi-track cases will be that they shall be vacated for a minimum period of four weeks from 25th March 2020. The position will be reviewed for the period thereafter. It is considered that insufficient safeguards can be introduced for the majority of trial work to ensure social distancing and negligible contact with staff and other court users. As it is the default position, it will be clear from orders vacating, (a judicial order subject to CPR 3.3 (5) ) that parties can apply for a variation and the reinstating of the trial. However it is only in the most exceptional cases that any such order will be varied and it will be incumbent on the parties to demonstrate that safety can be assured and social distancing preserved and that continuation of the trial is consensual between all parties and advocates.
Trials listed within a window up to 1st June will be vacated and parties will be notified of the new trial window in due course. Any payment of the hearing fee will also be deferred to a later date.
Committals (including arrest cases for ASBI and gang breaches) and injunctions will remain listed in court but may be subject to vacating after assessment by a judge.
Oral renewals will be heard from 30th March remotely. Litigants in person will be given a number to dial into, in the absence of any representative, but if a party is legally represented it is expected that the responsibility will lie with the lawyer to set up as usual. Arrangements are being put in place to have full appeals proceed remotely in straightforward cases, although it is likely that more complicated heavy documented appeals will be stood out.
This will cover interim applications, pre-trial reviews, applications to set aside etc, as well as costs and case management. All cases will now proceed by remote hearing. Parties are encouraged to cooperate in the mode of hearing (usually telephone) and the usual arrangements for telephone hearings will apply, with one party being directed to organise. It should be borne in mind that litigants in person are not to be excluded from the telephone hearing process, and lawyers are encouraged to ensure that unrepresented parties are aware of the process involved and can properly participate. If both parties are unrepresented, they will be contacted by the court with a number to dial into. There is active consideration being given to a new telephone system for hearings from BT which can be controlled by the judge, and full details will be supplied when this is up and running (BT Meetme).
It is proposed that these should now proceed by a remote method, preferably by Skype. There is to be liaison with local practitioners as to the processes involved, including the filing of the necessary documents to enable consideration by the judge, but the intention will be that where cases are block-listed they can be assigned to a particular judge (say 4 or 5 cases per hour) and counsel can still enter the video-conference as and when it is necessary to consider a particular case. This will still enable counsel to attend on other Skype conferences, in a virtual courtroom, in much the same way as happens now in actual courtrooms. These procedures will require the cooperation of practitioners to work efficiently. Current technical difficulties are being ironed out.
Whilst some housing work will continue (e.g. urgent ASBI injunctions, committals etc) in accordance with national guidance the default position will be that all possession claims and evictions will be vacated and postponed for at least three months. The current working date is 19th June, although this may change.
Oral examinations will be vacated. It is clearly inappropriate for members of staff and members of the public to be in such close association. Fresh dates will be provided after 19th June. Consideration is being given to moving attachments of earnings hearings and third party debt order hearings to a remote method, but this has not yet been finalised. For the time being, parties should assume that these cases will continue as before.
It is intended that separate guidance will be issued in relation to the BPC (mainly Chancery and TCC) work which is conducted in Liverpool, in line with national and regional guidance for these cases, which is likely to involve a substantial amount of remote hearing. Please consult that guidance when available. In relation to corporate and personal insolvency, consideration is being given to finding alternative methods of dealing with these cases, but for the time being please assume that they will continue as face-to-face hearings until notified to the contrary.
In the short-term infant approval hearings are being dealt with as telephone hearings. Parties should be aware of the need to ensure the judge has sight of the birth certificate and the CFO form by filing them at court 3 days prior to the hearing. However, over coming weeks in Liverpool at least I propose to adopt the new Birkenhead practice of having these hearings proceed as “paper hearings” to minimise the strain on the telephone capacity.
I am conscious that this is not a comprehensive list of all matters which proceed in the Liverpool and Chester civil courts at present and that there are various species of case, the method of hearing of which has yet to be resolved, and which will depend upon a number of circumstances. Both I and other senior judges are happy to receive representations about the best method of proceeding in the current climate. After all, we are all on a learning curve. Please send any suggestions my Diary Manager, Alison Blunsden, at alison.blunsden@justice.gov.uk.
The Bar Council has recently announced new guidance for barristers on attendance at Court and on “Key Worker” status.
Attending Court
HMCTS has informed the bar council that “listing officers are working urgently to let people know what is happening but a good ‘rule of thumb’ is that if the trial is underway, the default is to attend unless the court tells you otherwise, but if the trial has not started the default is to stay away unless told to attend”.
HMCTS is advising in the Magistrates Court, that ‘it is best to attend if you are expecting to work today’.
In my view, where a hearing of any kind is currently listed, practitioners should keep in regular contact with the court to confirm the status of the hearing. For more information about standing advice in relation to hearings as well as some hints for working from home and dealing with the practicalities of hearings you can view my Coronavirus Update video here posted Friday 20th March 2020:
Up-to-the-minute guidance is available from the Courts on the HMCTS website.
Key worker status updated
The government has acknowledged that legal practitioners are fundamental to the running of the justice system and The Department for Education has just issued further guidance on which legal practitioners come within the limited category of key workers whose children may continue to attend school or nursery whilst they deliver essential services:
Practitioners are responsible for deciding for themselves whether they fall within these categories.
Clarion continues to be open for business, with some changes in working practices to ensure that the safety of our clients and employees remains our top priority. Should you have any questions, you can contact the team at CivilCosts@clarionsolicitors.com
Coronavirus has caused widespread disruption. This brief update lets you know the Courts’ current approach, and how you can work effectively under lockdown.
Further information and our newsletter containing an explanation of how to sign documents electronically can be found here
Coronavirus (COVID-19) Edition
The Costs and Litigation Funding Team would like to assure you that during the current ongoing measures to prevent the spread of the COVID-19, whilst we work remotely, it is business as usual at Clarion. We are able to continue to provide our full costs service to you. The whole team (25 of us now) are well equipped to work from home and will have full access to email and paper/electronic files, as normal. Everyone will also be accessible by telephone. Our contact details can be found here.
The Court’s announcements
1. The Lord Chief Justice announced on the 18 March 2020 that telephone and video hearings are now the default position during the coronavirus outbreak and has provided guidance here.
2. Lord Chief Justice announced on the 17 March 2020 that:
“The latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction. It is not realistic to suppose that it will be business as usual in any jurisdiction, but it is of vital importance that the administration of justice does not grind to a halt.
We continue to work closely with others in the justice system, including the Ministry of Justice and HMCTS, to work through the implications of the developing medical position for the operation of the courts.
Given the rapidly evolving situation, there is an urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible. Emergency legislation is being drafted which is likely to contain clauses that expand the powers in criminal courts to use technology in a wider range of hearings. The Civil Procedure Rules and Family Procedure Rules provide for considerable flexibility.
Our immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.
In all things Judicial Office Holders are advised to liaise with leadership judges and HMCTS.”
3. Liverpool County Court has released advice to litigants that most trials and hearings will remain listed, however designated civil HHJ Judge Wood QC has agreed that “any fast track or multi track trial can be removed from the list to be relisted after 1st June 2020 at the request of any party”. This does not require a consent order or application with fee. Whilst a brief explanation of the reason is necessary, the court will not require medical evidence nor will any request be refused simply because a party wants the matter to proceed. The Court expects trials to proceed only where all parties and witnesses are content for them to do so.
There have been instances where hearings in the Business and Property Courts have been adjourned, for example one hearing has been adjourned for “two months”, with a date TBC. The Judge rescheduled it out of his own initiative as a precaution.
We recommend that you check with the court if you have a trial or hearing listed within the next three months and what their current policy is.
Signatures
CPR 5.3 provides that “Where any of these Rules or any Practice Direction requires a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means”. For users of Adobe, documents can be signed by selecting “Fill and Sign” in the bar at the right of the screen then selecting “Sign” at the top of the Screen. This will allow you to add a picture to use as a signature; this could be a scanned version of your signature, or a photo taken on your phone.
Please follow this link (page 2 of the pdf) to find more guidance to assist with this.
Service
The rules for service and limitation are currently unchanged. However, parties may extend dates for compliance with Rules, and limitation amnesties, and it is likely that Courts will allow applications for extensions. Parties should bear this in mind before rejecting requests for extension out of hand. Also, the usual rules for electronic service apply, however it is likely that Courts will look favourably on applications to serve electronically and therefore parties should be sensible about accepting service electronically and only refuse if there is a genuine reason why service by electronic means cannot be accepted. At present, the Courts only accept email filing up to 10 pages, however it may be possible to arrange electronic filing with courts and practitioners should check with individual courts as many have already implemented alternative processes.
For large files, parties can agree to file and serve by other electronic means, for example using Dropbox or any other secure file-sharing software. If service is anticipated over the next three months, it would be wise to put procedures in place now, and to agree them with opponents, to enable the smooth progress of cases.
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The issue of whether a Court Fee is recoverable by the receiving party, when a fee remission was available, is a contentious one. However, in the recent case of Ivanoy v Lubble which was an appeal to a Circuit Judge, guidance has been provided.
This case was a low value Personal Injury matter which settled for £6,500 and the Court Fee in dispute was the Hearing Fee. The Defendant argued that the Claimant was eligible for a Fee Remission and so they should not have to pay the Court Fee as part of the Claimant’s costs.
There was a reported County Court case last year, Stoney v Allianz (2019), which had similar facts and the Court Fee was not recoverable as part of the Claimant’s costs.
In the present case, the Circuit Judge considered the issues and identified that under CPR 44.3 the burden of proof on a standard basis assessment, which this case was subject to, lay with the Claimant to prove that the costs incurred were reasonable and proportionate.
It was also confirmed that the Fee Remission scheme was designed to allow litigants of modest means to access justice and that Claimant’s could not use an argument that the scheme was unpredictable or a burden to the as a reason for not utilising the scheme.
However, the core argument centred around whether it was reasonable to expect the Claimant to use the scheme or whether this places a burden on the taxpayer which is unreasonable. This argument relates to one of public policy and whether the public purse or the Defendant bears the Court Fee. The Circuit Judge considered the relevant caselaw in relation to this issue along with CPR 44.3 and CPR 44.4; it was confirmed that “there are strong public policy grounds for saying that it is not unreasonable for a Claimant to preserve the public purse and direct the cost of wrongdoing on the tortfeasor”.
As such the Circuit Judge confirmed that it was not unreasonable for the Claimant to pass on the Court Fee to the Defendant rather than relying on the public purse by virtue of the Fee Remission scheme, subject to the Court being satisfied that the Court Fee was incurred by the Claimant.
This blog was written by Matthew Waring who is an Associate in the Costs and Litigation Funding Team at Clarion. Matthew can be contacted on 0113 288 5639 or at Matthew.Waring@clarionsolicitors.com