The long winding road for an Unless Order

Brief overview

• Claim is issued on a non-PI civil lit claim.
• Defence is filed (which is filled with ridiculous points and an eye watering 100% contributory negligence claim).
• We suspect that D’s solicitor is on delegated authority and not in contact with their Principal’s insured. D’s solicitor has signed the defence.
• Reply to Defence is file (and kept short, due to my style being to not replead the entire claim, but note D’s errors).
• Part 18 Questions are put to D. We demand the Replies be signed by a statement of truth of their named client.
• D’s solicitor asks for a 2 week extension on our 21-day request. This is granted.
• After 5 weeks, and no Part 18 Replies, we apply for an Unless Order
• In the meantime, D/Q’s were filed and the claim was stayed.
• Due to the delights of our system, we had to file updated D/Q’s following the stay (!)
• After 4 (yes four) weeks, despite numerous telephone calls to the Court and being assured the application was with the duty Judge at the County Court Money Claims Centre, the claim is transferred to a South East Court.
• We telephoned the Court in the South East and asked for our application to be prioritised and was told as a new claim it is likely to be at the bottom of the pile. I do not have an issue with this as they have inherited this problem.

So here we are, over 11 weeks from making a Part 18 Request, and over 4 weeks since making our application for a 7 DAY UNLESS ORDER.

D’s solicitor remains silent in response to our letters and voicemails. We are not optimistic of them signing our consent order. We are even less optimistic on getting the Unless Order in July 2015.

A trainee in our office is running a book (maximum bet £5 -odds of 5/1 before 7 July; 3/1 between 8-15 July; evens between 16-23 July; all money to charity if the Order arrives 24 July onwards).

Over and out.

Legal Orange

The merry go round of recovering money back from the Court

Background

Our client was brought in as a Part 20 Defendant.

We had a good argument for summary judgment / strike out.

The application for SJ/strike out was made to the County Court Money Claims Centre. The fee was £155.

What happened next?

We received a Court Order saying the claim had been transferred to Southampton. We had no notice of transfer, and were advised that our client to quickly complete the D/Q’s that were due. Note here, the Court sent no notice, nor could tell us the return date!

Then what?

Southampton transferred it to Winchester.

What’s the problem?

The County Court Money Claims Centre stated that the fee for our client’s application had to be paid to Winchester. We agreed (as what else could we do?) and raised another duplicate cheque and asked for our original cheque to be returned.

Then….?

The claim settled (we had a hearing for our client’s application, both sides got nervous 3 days beforehand and we settled VERY cheaply at 5 to 10% of the potential exposure to our client).

And…?

The Court transferred it again upon allocation from Winchester to Worcester.

At this point we asked the Money Claims Centre for our cheque.

They demanded to know whether we had proof that both cheques had been banked, and requested copies of the front and backs of both cheques to show they were cashed and had a Court stamp.

My accounts department has confirmed both cheques have been cashed. By HMCTS. ON THE SAME DAY.

I am waiting to hear back regarding the fronts/back, etc.

This will probably end in a formal complaint to HMCTS.

Oh what’s that? None of this is billable work!!!

Over and out.

Legal Orange.

DOING DEFENCE DIFFERENTLY

Agree with this!

Kerry Underwood

 

 

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.

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It appears the good Judges sit in Norwich County Court

After the last month of ‘interesting’ CMC decisions, we had an application to set aside default judgment against our client. Some of our fee earners were at risk of leaving their faith in attending hearings.

The other side was a LIP. Sadly they were so awful in their handling of the pre-litigation claim stage; their insurer pulled cover due to their notification clause.

We managed to get the application dismissed, and the Judge was willing to assess quantum at the hearing based upon a witness statement we filed in advance (our stupid client sent us another statement 90 mins before the hearing so it wasn’t all plain sailing!!!) We also received our costs in full which is always nice.

Seeing as our last time out saw a SJE forced on our client, in a claim where they have a solid defence (but not quite good enough for summary judgment) and another hearing where we ran out of time on multi-track cost budgeting when the Judge treated it like a detailed assessment hearing, we were getting very aggrieved.

Thanks to Norwich County Court for regaining our trust. Also credit to East Anglian Chambers who we had not used before and turned out to be a good set.

Over and out.

Legal Orange.

Don’t forget the basics!

Twice this week our office has been instructed in cases where insurance company’s policyholders have been brought in as Part 20 Defendants.

Twice the Part 20 Claimant has failed to carry out Companies House searches. One of the companies has been in administration for nearly 3 years!

Are the basics being missed? The documents show they were prepared respectively by a trainee and a FILEX. Hopefully they are being supervised.

We have pointed out that our client’s are incapable of being sued until they have been restored to the register. This is actually a relatively expensive process (with Court fees only increasing).

Due to the lateness of the instruction on one file, we requested an extension – having just a copy of the pleadings and a 1-page referral form by the insurer. At the bare minimum we needed to get through a telephone call with our new client and read the insurance company’s file (I think a loss adjuster attended site and has some background documents).

Our request was refused by the Part 20 Claimant, so we filed a 4 paragraph defence and served it with an application for strike out / summary judgment.

Hopefully it does not go to a full hearing. They will probably have a month in which to restore the company. That is sufficient time for us to prepare our client’s position and look at potential settlement. On the plus side we will get our costs of the application and give the other side a black eye (most defendants doing this type of thing will be on a fixed fee or low hourly rate so we want to grind them down until it becomes unprofitable).

Worst thing about it?

Both claims have at least 60-70% prospects against our client due to the contractual indemnities involved. If they had done the basics right, we probably would have had to pay out more to their clients!

DON’T ALLOW STANDARDS TO SLIP!

Over and out.

Legal Orange.

The growing problem of a lack of standing to bring a third party claim arising from insurance claims?

Typical example

“A” decides to purchase an asset. They buy it on finance and “B” (the financier) holds an interest in the asset. Transfer of ownership from B to A only happens after completion of the final payment.

What happens if the asset is damaged in the period when B owns it, but A is leasing it?

The typical situation described above sees the asset covered by insurance. It is often the case that one party is named, but sometimes the interest of the other party is noted on the policy.

So what happens next?

The insurance company checks to see if the incident was caused by a third party. If there is a right of recovery they will instruct solicitors to exercising their right of subrogation.

The issue is that the insurer can only pursue the claim based upon stepping into their policyholder’s shoes. This means that any agreement between A and B relating to finance has to remain in play. It cannot be side stepped. Therefore if a third party is pursued, they should look at whether either A or B has standing to bring the claim.

What’s the problem?

For a more detailed explanation, look at Complex Loss Structure/Theory, but in short there is a serious risk that only pure economic loss may apply. This, in light of the Spartan Steel decision, means the right of recovery maybe lost to insurers. Party A might only have an insurable interest,and B will not have suffered loss in most situations as the finance agreement normally means they receive insurance monies or full payment in the event of destruction of the asset.

Why is this a problem?

Nobody owns anything!! There is so much financing in the market, few people are owning assets they use. Even Fernando Torres was bought for Liverpool by the Royal Bank of Scotland! These issues with claims are only going to be on the rise. Keep an eye out on this.

Over and out.

Legal Orange.

The “Hatton Garden Heist” and the legal position of recovering losses

So I saw a “solicitor” on the news commenting on this who looked like a muppet and gave incorrect advice.  I felt obliged to correct them with this article.

The Hatton Garden “heist”

We all saw it on the news. A break-in by sophisticated thieves across the bank holiday weekend. Security boxes taken and a CrimeWatch segment. All round it is a fun read, but tragic to those who suffered losses.

So what is the legal position?

Well those with insurance can make a claim against their policy. It may not be straightforward as they will need to persuade the loss adjuster of the extent of their losses. If you kept something expensive in there, I hope you have some proof in support of your loss. I can only hope they declared the high value items within their policy schedule.

What about those without insurance?

There are 3 potential targets:

1. The thieves (haha – good luck with that!!)
2. The police (hmmmm, good luck with that, you have better prospects than the criminals – but it’s still under 51%)
3. The security company (this is worth a punt)

Bailor/Bailee law

Without seeing the contract, only general advice can be provided here. It would also help to know the alarm records, maintenance, etc.

It seems the security company relied upon (i) internal security; (ii) additional internal security; and (iii) external security. This is a fairly good measure. Expert advice from those in the industry would be needed, but it seems the measures taken by the security company appear to be standard for high value items.

The standard of care is difficult. There is nothing in the media to suggest that anybody asked for their items to be stored in a particular manner. However, while the parties may have been free to negotiate terms to that effect in the contract (for incorporation) I expect standard-form contracts were used by all of the customers.

Absent any contractual agreement that these goods would be stored in a certain manner, the common law duty of care of a bailee is to take reasonable care of a bailor’s goods. In determining what is reasonable, case law is clear that it does not look at the value of the items in isolation. It is determined by circumstances of each particular case. These tend to include:

1. The vulnerability of the commodity
2. Proper and convenient measures for expeditious working
3. Visibility of the equipment to the public
4. The surrounding area
5. Risk of detection and apprehension

So what would the claimant need to establish?

– the value of the item was attractive to thieves

– the normal storage of items within the industry

– the location of the premises was at risk of an elevated level of criminal activity

– the security measures were lax (e.g. activation of the alarm(s), CCTV, etc) and not a deterrent.

What is a big issue?

The response to the alarm activation is likely to be a contentious issue. If all the security company had to do was alert the keyholder(s) and the police – and this happened – then it may be hard to establish a claim. One would however think that a further enquiry would need to be made with the keyholder/police to follow up on what they identified from their attendance at site. If not, and there was an opportunity to prevent the theft, then there may have been a want of reasonable care. As the theft covered across days, this is where mileage maybe gained. It is not simply a case of a “smash and grab” where the window of time to respond is very short (e.g. 2-3 minutes) and a rapid responding police car would not have been able to prevent it.

Playing devil’s advocate this claim may be defended. It would be useful to know whether the security company  simply rented office space in the building. If so, this would prevent them from controlling some of the external and communal areas. They may also not have responsibility for the keyholder/police response.  Again, the paperwork would help to establish this.

Anyway, as always, email me if you want to formally instruct!

Over and out.

Legal Orange.

20 pieces of advice for trainees

Training contracts are not fun. Anybody who claims otherwise is either extremely lucky, or being mendacious.

4 rotations at 6 months per seat allows you a small period of time of time during which to learn enough to qualify.

My personal view is the best trainees turn out to be those who have previously spent time as a paralegal.

What trainees need to know

1. Your trainee supervisor may hate trainees. Try not to take it personally and don’t take it home with you. The issue is likely to be with them rather than you. Whatever you do, don’t cry in the office.
2. Be aware that other trainees in your cohort will lie to you. They are your competitors rather than your colleagues. Do not place much weight on their views. The people who really know what is going on will be the secretaries in the office.
3. Use precedents as much as possible but make sure you spend time learning how to amend them appropriately so you don’t spend your career addicted to standard form templates.
4. It’s ok not to want to qualify into any of your 4 seats. If you are desperate just to qualify and then go into something you like, you don’t need to commit to an area you hate.
5. Ask questions. Don’t suffer in silence. Nobody thinks you are the finished article yet. Just don’t ask the same question twice.
6. It’s ok to take notes (it doesn’t matter if you’re no longer in university).
7. Get to know the solicitor accounts rules. It’s almost more important than knowing the law at some firms!
8. If you have a chance, spend time in a compliance seat. It’s underrated. You will get to understand “good practice”. This will prevent you from allowing standards to slip and may help you avoid a professional negligence claim in the future.
9. Conveyancing is bloody boring. Get your non-contentious seat in employment instead (if you have an opportunity).
10. Never ask anybody over 40 in your department how they are. Their answer will only depress you.
11. Attend Junior Lawyer Division events. You may spend your career with these career. Try not to get drunk and make a fool of yourself at any dinners.
12. Set up a modest LinkedIn profile. You’re a trainee and haven’t achieved anything yet. Just explain what you have done so far. A down-to-earth profile is much better to read than a “trumpet blowing” profile. Don’t name drop a case you merely paginated a bundle for as one of your achievements.
13. Moving upon qualification is ok. Not everybody will presume you were not kept on. The goal is qualification. You have decades of work in front of you, so don’t over analyse the impact of moves you make so early into your career.
14. Don’t qualify into a dying area. Those moving into low value personal injury or asbestos claims are likely to be short careers.
15. Criminal law is the most interesting area of law, but remember at the trainee end you will be dealing with the dregs of society, as much relates to addiction related offences (e.g. the theft/burglary charges linked to addiction).
16. Get to your feet where possible. Even if it’s a tiny procedural application of an infant approval hearing. There is nothing worse than a lawyer who never attends court speculating on how a Judge is likely to decide. If your supervisor won’t let you speak then at least attend and watch other advocates in action.
17. The number of hours you are in the office will not automatically equate to how good people think you are. Don’t suffer from “presenteeism” and make sure you maintain a social life. Pulling a 14-18 hour day on a regular basis normally means a person cannot manage their work correctly.
18. Bring your old LPC textbooks in to work if you recently completed the course. You can use these to double check and reference as a comfort blanket.
19. Attend CPD courses. Some maybe useful, but it’s a good way to get out of the office. It also helps you with networking at a junior stage of your career. See number 2 above – trainees at these events are likely to be more honest with you about how their TC is going.
20. Brown nosing works. Everybody knows exactly what is going on, but for some reason it still ends in success. Just make sure you park your self-respect at the front door before the start of each day.

Over and out.

Legal Orange.

CFAS: NEVER NAME THE DEFENDANT!

A useful analysis on CFA decisions for litigation lawyers.

Kerry Underwood

 

The issues raised in this blog are dealt with in Kerry’s course Fixed Recoverable Costs and Portals – book here.

Four courts have reached four different conclusions in cases where the wrong defendant has been named in a conditional fee agreement; what all four decisions have in common is that each states that there is never any need to name a defendant and doing so risks all costs being lost.

In Hailey v Assurance Mutuelle Des Motards SCCO: CCD 1405291

the Senior Court Costs Office held that if the wrong defendant was named in a Conditional Fee Agreement then there was no valid retainer and thus the indemnity principle meant that no costs could be recovered.

However the court held that disbursements could be recovered as these were payable by the claimant in any event, win or lose.

I do not pretend to understand the logic of this decision…

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The diminishing need for instructing costs draftsmen for disputes that fall into the value band of provisional assessment claims

We have only instructed a costs draftsman twice in 2015.

Our litigation rates have been similar to previous years. This did not particularly bother us, however from time to time our in-house costs department bothers contacts us regarding potential instructions.

Having looked into a number of these files we noticed a common theme:

• The loss of a success fee (as we tend not to charge success fees to clients, save for some of the big ticket insurer work) has removed one of the central items which prevented a settlement;
• Most disputes now come down to time spent on activities and ‘solicitor-client’ costs;
• Band rates are not too difficult to negotiate as a lot of work takes place outside of London;
• All the above means the other side handle the costs in-house to also avoid the costs to their own client of appointing their own draftsman.

We have had 2 claims go to assessment. The first was local and resulted in success. The second is with the SCCO which has a mind blowing 6 month backlog so we will not find out the result for a long time.

This backlog has meant that some defendants have decided to increase their offers to pay out of their current year’s “pot” and avoiding assessment falling into their 2015-2016 figures.

I would be interested to know the trends of other litigators. Are they also finding a decrease?

Over and out.

Legal Orange.