Can claimants rely on EC (Rights against Insurers) Regulations 2002 post-Brexit?

In short, yes.

European Union Withdrawal Act 2018, the Brexit implementation act, saved the vast majority of European Law.  European-derived law, decades of it, has been adopted as UK law and its linkage to Europe severed.

s2 EUWA 2018 Saving for EU-derived domestic legislation

  • EU-derived domestic legislation, as it has effect in domestic law immediately before [IP completion day]1 , continues to have effect in domestic law on and after [IP completion day]1 .
  • …”

EC (Rights against Insurers) Regulation 2002/3061 to give it it’s full name is a piece of secondary legislation brought in to give effect to European Law pursuant to s2(2) European Communities Act 1972.  It is incredible useful as it provides a direct cause of action against an insurer (in road traffic accident cases), i.e. avoiding the need to necessarily sue the at fault driver.

The European Union (Withdrawal) Act 2018 has repealed the  ECA 1972, the enabling act, and that would ordinarily mean secondary legislation made under it would fall away.  However, the vast majority of Europe-derived law, with exceptions, have been preserved.  This is explained in the Government Explanatory Note to the EUWA 2018 s2:

20 By only repealing the ECA, some EU law that currently applies in UK law by virtue of the ECA would cease to have effect. As outlined by the Supreme Court in Miller4, the ECA is not itself an originating source of EU law, but is rather the ‘conduit pipe’ through which EU law flows into UK domestic law.

“21 As set out in paragraph 18 of these notes, section 2(1) ECA provides that directly applicable law (such as EU regulations) has effect in UK law without the need to pass specific UK implementing legislation. If the ECA were repealed and no further action was taken, this directly applicable EU law would cease to apply in UK law, leaving gaps on the statute book.

“22 Other types of EU law (such as EU directives) have to be given effect in the UK through domestic laws. As set out above, this has frequently been done using section 2(2) of the ECA, which provides ministers, including in the devolved administrations, with powers to make secondary legislation to implement EU obligations. If the ECA were repealed and no further action was taken, all of the secondary legislation which has been made under it would fall away and cease to be part of the UK statute book, leaving significant gaps.

“23 To avoid such gaps, the Bill converts the body of existing EU law into domestic law and preserves5 the laws we have made in the UK to implement our EU obligations. After this, because the supremacy of EU law will have ended, Parliament (and, where appropriate, the devolved legislatures) will be able to decide which elements of that law to keep, amend or repeal once the UK has left the EU. This body of converted EU law and preserved domestic law is referred to in the Bill and these notes collectively as ‘retained EU law’.

“…

“24 This approach means that, as a general rule, the same rules and laws will apply on the day after the UK leaves the EU as before:

the Bill converts directly applicable EU law (e.g. EU regulations) into UK law;

it preserves all the laws which have been made in the UK to implement EU obligations (e.g. in EU directives);

…”

The 2002 Reg is pleaded differently by different solicitors and barristers, here is my short version:

The 2nd Defendant is directly liable to the Claimant in its capacity as the 1st Defendant’s insurer pursuant to Regulation 3 of the European Communities (Rights against Insurers) Regulation 2002.  Should the 2nd Defendant take any issue in this regard, the Claimant reserves his right to plead further and in detail.

Europe is dead! Long live Europe!

Fixed Costs and Recovering Costs of Counsel’s Advice

Finsbury Food Group PLC v Scott Dover [2020] EWHC 2176 (QB)

… in the context of fixed costs under Section IIIA Pt 45 (low value personal injury claims).

Claimant solicitors had generally accepted counsel’s fees had to be painfully extracted from their fixed profit costs. HHJ Lambert has made it reasonably plausible to recover counsel’s fees on quantum, e.g. ahead of a settlement, in addition to the solicitors fixed profit costs subject to reasonable justification / amount – it is not capped at £150.

The question considered:

“1. This appeal from the Order of Master Brown of the Senior Courts Costs Office raises a single and narrow issue: whether CPR 45.29I (2)(c) fixes the quantum of counsel’s (or a specialist solicitor’s) fee for an advice on valuation of the claim at £150 plus VAT in accordance with CPR 45.23B (read with Table 6A) or whether the fee for such an advice falls outside the fees fixed in CPR 45 and is subject to assessment. As both parties accepted, the issue for my determination is unlocked by the proper statutory interpretation of CPR 45.29I(2)(c) viewed within the context of the fixed costs regime prescribed by CPR 45.” [HHJ Lambert]

i.e. what does Pt 45.29I(2)(c) mean / is it limited to £150?

(c) the cost of any advice from a specialist solicitor or counsel as provided for in the relevant Protocol;

“25. … However, claims which have fallen out of the Protocol are a mixed bag. Some small straightforward claims may fall out of the Protocol as a result of the failure by the defendant to respond to the CNF. But there are other reasons for a claim falling out of the Protocol including notification by the claimant that the claim has been revalued at more than the upper limit; where liability remains in dispute and where contributory negligence is alleged. As Stewart J recognised in Ferri v Gill [2019] Costs LR 367, these factors are likely to be associated with a much greater level of complexity, so making quantification of the claim all the more difficult. I see nothing absurd in the costs of such an advice on valuation not being fixed in those circumstances. Indeed, it might be said that the converse is true. It would be odd if the same fixed fee were to be recovered for valuing a straightforward claim worth £15,000 as for a claim which, as it turns out, includes a high claim for loss of earnings or handicap on the labour market the quantification of which may involve considerable skill and expertise. Further, the costs allowed will not be unchecked. Just as in this case, they are subject to assessment and may be reduced on assessment.”

It must not be forgotten that recourse to counsel must be still be justified. The context of this case was a £70,000 settlement. I consider the following factors are likely to support such justification as referred in para 25, extract above:

  1. Value, a helpful threshold could be £10,000 by analogy with Pt 45.23B (although that value alone is unlikely to be sufficient);
  2. Liability in issue;
  3. Contributory negligence is alleged;
  4. High claim for loss of earning;
  5. Handicap in the labour market.

This decision should be applauded. Some external / counsel input on value (and ideally this would have been the case on liability too) is a cross check for fair outcomes where claimant solicitors can be under a lot of pressure from the limited profit costs recoverable and defendant insurers are ultimately motivated to payout the lowest possible sum…

In my experience, claimant solicitors want to pile high plain vanilla cases. More difficult cases on liability or quantum are relatively unwanted due to their challenging nature and lack of clarity on whether the costs of external / counsel support will be recoverable. After all, who wants to work for an indefinite number of days for the possibility of being paid an unknown sum of money? As a matter of risk assessment, it does not make sense. This is the breach that geeky junior counsel can fill (because we love the law whether we get paid or not… or something like that). Another assessment in my experience is that counsel involvement, albeit can push up a settlement, tends to bring it to that conclusion more swiftly – that says a lot!

Claimant 1 Defendant Insurer 0

Fixed Costs and Resolving Disputed Parts

Nema v Kirland [2019] EWHC B15 (Costs)

… in the context of fixed costs under Section IIIA Pt 45 (low value personal injury claims).

Even fixed costs can give rise to disputes between solicitors. If that happens, any application to deal with the disputed elements is by way of a Pt 23 Application, per Pt 36.20(11) and Pt 45.29H (and not by serving a bill of costs with a view to detailed assessment and thereby conflating the stakes). Commencing detailed assessment proceedings will result in a strike out.

“45. As for the procedure to be followed under CPR 36.20(11), although CPR 36.20(12) refers expressly to costs payable to a defendant it is evident from that provision that the court is under CPR 36.20(11) required to make an order which determines the amount of costs due, whether to a claimant or a defendant. That is neither summary assessment nor detailed assessment. It is a different, self-contained procedure. CPR 44.6 (which excludes orders for fixed costs and is subject to “any rule, practice direction or other enactment”) and the provisions of Practice Direction 44, addressing the choice between summary and detailed assessment, have no application. Any issues will be limited, as will the amount in issue. There is no need for a judge who has dealt with the case to deal with the costs dispute: as Mr Hogan says, where settlement has taken place under Part 36, it is unlikely that a judge will have dealt with the case.” [Master Leonard]

One can see the sense in this decision; it avoids the costs of resolving costs disputes in fixed costs cases proving more expensive than handling the underlying claim.

Master Leonard also observed:

  • The term “costs” is not always inclusive of “disbursements” where the context so requires;
  • There is no “deemed costs order” per Pt 44.9;
  • The suggested procedure is neither a form of summary nor detailed assessment.

“Fixed costs” does not actually mean the costs are entirely fixed; there is room for disagreement. There are elements of costs that are actually fixed (1), others to be calculated with a fixed formula (2), disbursements that are fixed as recoverable but the amount is open to dispute (3), others that are not fixed at all (4) and there there is also scope to justify entirely falling out of the fixed costs regime (5).

Looking at Table 6B, Pt 45.29C:

(1) and (2)

C. If the claim is disposed of at trial
Fixed costs. The total of—
(a) £2,655 (1); and
(b) 20% of the damages agreed or awarded (2); and
(c) the relevant trial advocacy fee (2)

Looking at 45.29I:

(1) Subject to paragraphs (2A) to (2E), the court—

(a) may allow a claim for a disbursement of a type mentioned in paragraphs (2) or (3); but

(b) will not allow a claim for any other type of disbursement.

(2A) In a soft tissue injury claim started under the RTA Protocol, the only sums (exclusive of VAT) that are recoverable in respect of the cost of obtaining a fixed cost medical report or medical records are as follows—

… (3):

(c) obtaining medical records: no more than £30 plus the direct cost from the holder of the records, and limited to £80 in total for each set of records required. Where relevant records are required from more than one holder of records, the fixed fee applies to each set of records required (3);

… (4):

(2C) The cost of obtaining a further report from an expert not listed in paragraph (2A)(b) is not fixed, but the use of that expert and the cost must be justified (4).

…(5):

45.29J

(1) If it considers that there are exceptional circumstances making it appropriate to do so, the court will consider a claim for an amount of costs (excluding disbursements) which is greater than the fixed recoverable costs referred to in rules 45.29B to 45.29H.

Claimant 1 Defendant Insurer 1

QOCS and Pre Action Applications

Waterfield v Dentality (t/a Dentality @Hoddeston) [2020] 11 WLUK 223 (13 November 2020)

QOCS does not apply to pre action, i.e. “pre issue” applications, so says HHJ Clarke in the County Court decision in the Waterfield case. THe case concerned GLO applications but it is likely to have wider impact in relation to Pre Action Disclosure applications per r.31.16.

It is not a binding authority but the persuasive value is likely to amount to the same thing in the County Court, apart from its reasoning, given the seniority of the judge and being pro-defendant/insurer (who are more likely to appeal points of law that are pro-claimant and have a wider impact on practice).

35. … I find that “proceedings” for the purposes of CPR 44.13 start when the court issues a claim form on the request of a claimant, and so the QOCS rules do not apply to pre-issue applications, including the pre-issue GLO application in this case.” [HHJ CLarke’s conclusion]

The judge substantially relied on r7.2 to define the scope of the “proceedings” to which QOCS applied per r.4413:

Qualified one-way costs shifting: scope and interpretation
44.13
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;

How to start proceedings
7.2
(1) Proceedings are started when the court issues a claim form at t
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part07#7.2he request of the claimant.

The specific rule relevant to Pre Action Disclosure application reads:

Disclosure before proceedings start
31.16
(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

As r31.16(1) reads, it fortifies HHJ Clarke’s decision; Pre Action Disclosure applications are clearly “before proceedings” which appears to be clearly sequentially before any “proceedings” which is a pre-requisite so far as r44.13 is cocerned.

Whilst I find HHJ Clarke’s reasoning compelling on the rules, standing back, it sits uncomfortably. In practice, it will mean, a wide array of pre action applications are taken off the toolbox of personal injury litigation; pre action applications each have their own purposes and making them practically unavailable is to take a brick out of the wall without replacing the overall balance of play.

The decision stands in contrast to the treatment of QOCS and Appeals (Wickes Building Supplies Limited v William Gerarde Blair [2020] EWCA Civ 17). Those handling low value personal injury claims under Section IIIA r45 will have the comfort of fixed costs applying (Sharp v Leeds City Council [2017] EWCA Civ 33).

Claimant 0 Defendant Insurer 1

Costs Case, news!

Today, in Horsham County Court.  Just saved my solicitors 30k in costs (arguing Pt 44 Standard Costs should not be allowed; only fixed costs under the RTA Protocol).  I think she might be happy when I tell her the news tomorrow.

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Taj Uddin, MA Oxon
Barrister, Clerksroom
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Costs Case: Medway Oil and Storage Company v Continental Contractors HL 1928

Medway Oil and Storage Company, Limited Appellants; v Continental Contractors, Limited, and Others Respondents. [1929] A.C. 88 1928

Principle: Where a claim and counterclaim are both dismissed with costs (or both succeed with costs) the extra costs attributable as a result of there being a counterclaim will only by payable by the counterclaimant.  Ordinarily, there is no cause for apportionment.

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Taj Uddin, MA Oxon
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Costs Case: Voice and Script International v Ashraf Alghafar CA 2003

Voice and Script International v Ashraf Alghafar [2003] EWCA Civ 736, Court of Appeal

Principle: Claimants will not benefit from incorrect allocation of cases, e.g. small claims cases in fast track, when assessing costs where the incorrect allocation was as a result of their own mistakes paying service to the importance of proportionality in the exercise of discretion on costs.

In this case, small claims costs were awarded on appeal where the Claimant had incorrectly valued his claim above the small claims threshold due to double counting and a failure to account for exchange rates.

Comment: this is distinct from a claim that is properly brought but subsequently falls below the relevant allocation threshold on inadequate evidence.

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Taj Uddin, MA Oxon
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Part 3 Costs Management

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Commentary and references on current civil procedure rules.

Section 2 of Part 3

Imbalance of funds is probably grounds for a case management order

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If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Part 44 General Rules about Costs

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Commentary and references on current civil procedure rules.

44.2(6)g

Awarding interest on pre-judgment costs will be unsual, e.g. in really long cases.

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If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)

Part 36 Offers to Settle

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Commentary and references on current civil procedure rules.

36.10

Multiple defendants. 1 defendant accepts Part 36 Offer.  Asbestos is a divisible condition and therefore the the recoverable costs are (1) common costs divisible by the total number of defandants) + (2) costs specifically incurred re specific defendant.

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If any readers have questions on this article, they will be happily received @ taj.uddin@gcp-barristers.com.

Taj Uddin, MA Oxon
Barrister, Guildhall Chambers Portsmouth
Practising in London and the South (Salisbury to Brighton, Oxford to IoW)