DOING DEFENCE DIFFERENTLY

Don’t dumb down

• Senior lawyer intervention at start;
• A stitch in time saves nine;
• Is it in the right portal – employees, Crown servants and all that;

Part 36

• Immediate offer on liability where appropriate;
• Specials to date;
• Settle early – settle low;

• Consider “one good offer or go to trial” policy;
• Anything and everything.
• Claimant lawyers’ 25% more valuable the earlier the case settles

Portals

• Never let it out!
• Is contributory negligence ever worth it?
• Court fees: unintentional tax on defendants?

Fixed Recoverable Costs

• Extend by agreement;
• Has the Claimant got ATE;
• The Claimant’s solicitors 25% damages charge – making it work for defendants;
• Agreeing to waive the indemnity principle;
• Agreeing DBAs plus costs;
• Don’t make the claimant’s solicitor do unnecessary work;
• Less work, lower costs but more profit makes both parties happy;
• No more fattening up a file up like a pig for market.

Qualified One Way Costs Shifting

• Part 36;
• Special Damages;
• Fundamental dishonesty, QOCS and Section 57 Criminal Justice and Courts Act 2015;
• Strike out;
• Summary judgment;
• Discontinuance.

ADR

• Private mediation/arbitration;
• Settlement agreements;
• Waiving indemnity principle;
• Waiving small claims limit.

Settlement Agreements

• Based on employment cases;
• Fee paid by defendant;
• Dealt with only by qualified lawyer;
• No deduction from client’s damages;
• Agree never to engage in Third Party Capture – unacceptable

Voluntary extension of Fixed Recoverable Costs

• Seek to agree FRC on anything;
• Use Tables with % applying to higher sums;
• Agree to waive indemnity principles;
• Saving costs of dealing with costs;
• Certainty suits everyone.

Unnecessary Costs

• Issue fee;
• ATE insurance;
• Costs lawyers;
• Costs negotiators;
• Most expert’s fees.

Good firms

• Work collaboratively with good firms;
• Agree structure workable for us both;
• Settlement agreements;
• No technical challenges on costs/retainer;
• Fixed Recoverable Costs extension;
• No small claims limit.

Bad firms and Claims Management Companies, Claim Farms etc.

• Fight;
• Claim fundamental dishonesty to defeat QOCS;
• Defeat QOCS – apply to strike out;
• Use Section 57 – fundamental dishonesty;
• “Financial benefit of another” QOCS exception.

Relevant Blogs

• FIXED COSTS, ALL THE PORTALS AND FIXED RECOVERABLE COSTS

• QUALIFIED ONE WAY COSTS SHIFTING (“QOCS”)

• CONDITIONAL FEE AGREEMENTS, DAMAGES-BASED AGREEMENTS AND CONTINGENCY FEES

• INSURANCE – INTERPLAY BETWEEN ATE INSURANCE AND PROFESSIONAL INDEMNITY INSURANCE

• PORTALS AND FIXED RECOVERABLE COST: 76 FAQ’S

• PERSONAL INJURY: QOCS, S.57 and 10% UPLIFT

• CFAS: NEVER NAME THE DEFENDANT!

• EXAGGERATION = FRAUD – KEY COURT OF APPEAL CASE

• COSTS AGAINST LAWYERS

• DOES QOCS APPLY WHERE THERE IS A NIL SUCCESS FEE?

• JACKSON: 2 YEARS ON

• INDEMNITY COSTS

• PROVISIONAL ASSESSMENT

• NEW PART 36: APRIL IS AGAIN THE CRUELLEST MONTH

• WASTED COSTS AND NON-PARTY COSTS ORDERS

• WHIPLASH: ALL YOU NEED TO KNOW ABOUT COSTS

• PERSONAL INJURY REVOLUTIONIZED: CRIMINAL JUSTICE AND COURTS ACT 2015

• FIXED RECOVERABLE COSTS IN ALL CIVIL CASES UP TO £250,000

• PART 36: CLAIMANTS’ OFFERS AND COURT BIAS – ELSEVIER CONSIDERED