I am lifting a circular from the Forum of Insurance Lawyers who recently met with District Judges to gain an insight into their approach to the post-Jackson world. I make no apologies for this plagiarism as it is important to share their message with the profession.
David Johnson and Rachel Moore met with representatives of APIL and the Association of District Judges for their biannual meeting to discuss members’ comments on the county court system as well as the hot topics of the season such as Mitchell and costs budgeting. Some good practice points came out of the meeting that members may find helpful.
As you might expect, Mitchell was the primary topic on everyone’s minds. An unhealthy level of paranoia is creeping into litigation fuelled by reports that some claimant solicitors are refusing to answer telephone or email messages seeking perfectly proper extensions of time under CPR 2.11. As a result the number of court applications has risen substantially and this is putting immense pressure on the court system. The message from the District Judges is:
- Ask for a sensible and realistic directions timetable.
- Tighten up the terms on which experts are instructed and remind them of the timetable and sanctions for non compliance.
- Comply with the rules, practice directions and orders.
- If you are permitted to agree an extension of time under CPR 2.11, do so in writing and notify the court, and make sure that the remainder of the timetable is not affected. There is a move to encourage contact via email and directly to a docketed District Judge for the case and this will be brought in over the next few months.
- Where extensions of time are not permitted (situations covered by CPR 3.8, exchange of witness statements etc) then the proposed 28 day extension amendment to CPR 3.8 may assist. At the time of the meeting the full details were not available but the amendment has now been confirmed.
The meeting heard that there were considerable inconsistencies in the way that budgets were being prepared and considered by the court. Reports of “gold plated” budgets came from the District Judges with parties inflating the budgets in the knowledge that they will be reduced at a costs management hearing. As a general rule, costs management hearings were taking about an hour with the District Judges adding 30 minutes preparation. Again, the following guidance emerged from the meeting:
- Be realistic and accurate.
- Make sure that you use the correct version of Precedent H including the correct statement of truth.
- Discuss budgets with the other parties and try and narrow the issues ahead of the costs management hearing. Putting forward a single comparison document may be useful.
- Submit a core bundle to the court to avoid unnecessary paperwork.
- File an amended Precedent H budget following the costs management hearing.
There was some discussion over infant settlement approval hearings and attendance by the infant claims. The District Judges were divided as to whether they encouraged attendance by infants with some only requiring attendance for those over the age of 10, unless the case involves scarring.
The recovery of success fees from awards to protected parties generally is also currently under consideration as the position is unclear and some District Judges are reluctant to reduce awards made to protected parties.
Provisional Damage / PPO cases
As a final point, the District Judges asked practitioners to remind the court to mark up any file involving a provisional damage award or a PPO to ensure that the file was retained and not subject to their usual destruction policies.
I hope to create some original material of my own in the future. For now, please spread the word.
Over and out.