Mitchell not to be appealed
Mitchell v News Group Newspaper (2013) EWCA Civ 1537
Since the Jackson reforms, CPR 3.9 Relief from Sanction, has been amended considerably. For the first time since the amendments the issue has been considered by the Court of Appeal thereby setting judicial precedent for future cases.
The Claimant’s solicitors do not intend to take the matter to the Supreme Court.
By way of background Mr. Andrew Mitchell brought a libel action against the Sun newspaper in relation to their reporting of the ‘plebgate’ scandal.
During the litigation the Claimant’s solicitors failed to file a costs budget 7 days before the first case management conference in accordance with CPR 3.13 and instead filed their £500,000 budget 1 day prior.
As a consequence the Claimant’s solicitors were disallowed apart from recoverable court fees. This was despite no prejudice being caused to the Defendant.
The case was fast tracked to the Court of Appeal in order to provide the lower courts with guidance when interpreting the new CPR 3.9. The Court of Appeal refused relief from sanction with a particular emphasis being placed on the need for compliance with court directions.
The position is now unequivocally clear - All directions, court orders and CPR must be complied with.
It is clear from Mitchell that if it becomes apparent that it will not be possible to comply with an order or directions an application must be made to vary the order before the deadline expires.
Mitchell v News Group Newspaper (2013) EWCA Civ 1537
MOJ have confirmed the working panel will convene next month to start the process of creating independent medical panels to assess whiplash injuries.
This recommendation stems from the Government Response published by the MOJ in October 2013. Full response can be found here.
The response outlines that the government intend to take forward and develop this recommendation. The specifics of the scheme will become clearer during the consultation period and panels could be in place as soon as autumn.
The proposed medical panels would be made up of accredited medical experts who will assess Claimants who have suffered a soft tissue injury as a result of road traffic accident. It is expected that only reports compiled by an accredited expert will be acceptable.
It has also been proposed that a claim would not be able to proceed until the Claimant has been medically examined and a report compiled therefore effectively ending pre-medical offers. The MOJ consider this should deter those with exaggerated or unmeritorious claims. This proposal does not seem to consider each person’s individual circumstances and their possible wish for a quick settlement. It may also cost insurers more given that usually a pre-medical offer would be an under settlement of a Claimant’s injury.
It has also been suggested that the medical expert must be provided with a Claimant’s medical records at the time of examination or else the medical report will be of little value. This will delay settlement of a claim which is clearly listed in the Response as a benefit to the insurers in terms of investment opportunities and cash flow.
Further the report has recommended that the government consult on ways of requiring Claimant’s to provide more information in support of their claim e.g. having attended to see a medical practitioner. It is suggested that a presumption will be in place against claims without this support.
It will remain to be seen, following consultation with stakeholders, whether this will be reality. The extra demand on the NHS is immediately striking if every Claimant starts to attend their GP or hospital and medical records are requested in every case.
New Whiplash Panel
Can parties now agree extensions?
Following a hearing before Master Cook on 12th February 2014 new model directions for all matters in the Royal Courts of Justice have been approved by the Master of the Rolls, the President of the Queen’s Bench Division and the Deputy Head of Civil Justice. It has been expressly stated that this is an attempt to address, or in other words reduce, applications for extensions of time.
The hearing stated that parties may now agree extensions of time of up to 28 days without the need to apply to the Court. Furthermore, for even longer periods of extension, all the Court will require is the following:
An e-mail briefly explaining the reasons for the extension;
Confirmation that the extension will not prejudice any hearing date; and
A draft Consent Order in word format
We are hopeful the County Court will follow this direction.
It appears the Court have been inundated with applications to vary directions post Mitchell and this should save the Court’s time.
Samara v MBI & Partners UK Ltd
Demonstrates the Courts attitude to applications to set aside applications post Jackson
On Appeal against a first instance decision not to allow judgment to be set aside, the appeal courts set out that Jackson Reforms have universal application and that delay in making any application would be taken into account. Awaiting consent of the parties cannot be a factor in why delay has occurred.
The First Defendant having failed to file an acknowledgment/defence permission was granted to the Claimant to enter default judgment. A summary assessment hearing was set down to assess the Claimant’s costs. Shortly before the hearing the First Defendant’s solicitor sought the Claimant’s consent to the First Defendant filing a defence out of time. The Claimant refused. The matter proceeded to the hearing and judgment was entered for the Claimant in the sum of £363,421.47.
The Claimant’s solicitors requested payment within 14 days and threatened enforcement proceedings in default. Whilst the First Defendant did state they intended to set judgment aside it was not until over a year later, when the Claimant attempted enforcement, that they took action. The First Defendant’s solicitor agreed to suspend enforcement action on the condition an application to set aside was served by 4.30pm on 21st May 2013.
CPR Part 3 amended to allow parties to agree extensions of time
Source: Gordon Exall and Civil Litigation Brief - click here for orginal
The statutory instrument came into force on 5th June 2013. CPR 3.8 (3) has been amended to the following:
(3) Where a rule, practice direction or court order –
(a) requires a party to do something within a specified time, and
(b) specifies the consequence of failure to comply,
the time for doing the act in question may not be extended by agreement between the parties except as provided in paragraph (4).
(4) In the circumstances referred to in paragraph (3) and unless the court orders otherwise, the time for doing the act in question may be extended by prior written agreement of the parties for up to a maximum of 28 days, provided always that any such extension does not put at risk any hearing date.
Charity Fun Run
On 16 August 2014 23 staff from Rushton Hinchy Solicitors decided to blow the dust off our trainers and take part in the 5K Big Fun Run, Sefton Park, Liverpool. The reason we did this was to raise both funds and awareness of two charities particularly close to our hearts, namely Melanoma UK and The Brain Tumour Charity. Both of these charities are self funding and rely entirely on fund raising events such as this.
All 23 of us managed to cross the line in one piece and managed to hobble along to a nearby bar for post race food and drinks. Family and friends also came along to show their support and a great day was had by all.
A special mention goes out to all those who very kindly sponsored us and we are delighted to announce the grand total of £4000 was raised to be divided equally between the two charities.
Theo is just 8 months old and was born with Auditory Neuropathy Spectrum Disorder, a very rare form of deafness that is due to the fusing of his auditory nerves. He lives in a completely silent world, gaining no benefit from hearing aids. Theo is due to have pioneering surgery in Italy to give him a bionic ear which will give him a chance to hear for the first time in his life.
On the 13 February 2015, Rushton Hinchy Solicitors had a ‘wear red to work’ day in order to raise as much money as possible to contribute towards the surgery and aftercare that Theo requires, which is estimated to cost £90,000 with an additional £10,000 per year for speech therapy until he reaches the age of five.
A donation was made by all those who wore red and throughout the day cakes, biscuits and other treats were on sale for a small donation. It would be safe to say that all members of staff at Rushton Hinchy were happy to hear this news! Prizes were also awarded to those members of staff who made the most effort to colour themselves with as much red as possible.
The directors agreed to match the final donation figure and so this gave us all that extra incentive (to pile on the pounds)!
The grand total raised for the day was £500 and a special thank you goes out to all members of staff who contributed.
It really was a great day for all those involved and most importantly we hope to have moved Theo a step closer to living in a world of sound.
Please visit his website for further information: www.theoshope4sound.org
or find theoshope4sound on Facebook.