Legal Watch:Property Risks & CoverageAugust 2014

Issue 008

In This Issue:

• Costs in multi-party disputes

• Summary judgment and relief from sanctions

• Injunction for nuisance where property uninhabitable and whether order requiring payment of success fee and ATE premium breaches human rights

• Summary judgment against building contractor for defective workmanship of sub-contractor

• Guideline hourly rates – update

• Part36

• Guidance on instructing experts in civil claims

Contact UsIf you would like any further information on the cases or articles featured in this issue, please contact:

Robert Dell

T: 0844 245 4473

E: robert.dell@plexuslaw.co.uk

Andrew Wallen

T: 0207 469 6286

E: adw@greenwoods-solicitors.com

Marise Gellert

T: 0207 469 6249

E: msg@greenwoods-solicitors.com

IntroductionRather than being a lighter issue for August, this has turned

out to be a bumper issue, although probably not one for

poolside reading!

There appears, at first blush, to be something of an emphasis

on costs this month, with three decisions that were about

costs and an update on guideline hourly rates, although the

case of Coventry v Lawrence also looks at nuisance issues.

We also cover the case of Iliffe v Feltham which deals with

summary judgment and contractual liability for fire damage,

proposed changes to Part 36 and the new guidance on

instructing experts in civil claims.

Thanks go to Robert Dell, for his article on Harrison v Shepherd

Homes and to Andrew Wallen, for his articles on Beecham

Peacock v Enterprise and Coventry v Lawrence.

01

Costs in multi-party disputes

The case of Andrew Harrison & Ors V (1) Shepherd Homes

Ltd (2) National House Building Council (3) NHBC Building

Control Services Ltd [2014] EWHC 9999 highlights the

difficulties and challenges that the parties and courts face in

dealing with legal costs in multi-party disputes where some,

but not all, defendants are found liable.

The factsThe claimants, who were owners of properties constructed

between 2001 and 2004, brought a claim against Shepherd

Homes, the NHBC and NHBC Building Control Services

Limited, in relation to foundation defects of the properties.

The claim proceeded to trial against Shepherd Homes only;

the claims against the NHBC parties having been stayed

before any substantive steps against them were taken.

The trial was treated as a “test” case involving 10 properties,

the intention being that once the court had given a judgment

in the case, the same conclusion/principles could be applied

to other properties with damage/defects on the same estate

of houses.

It was held that Shepherd Homes were liable to the claimants

in contract and under section 2 of the NHBC Buildmark

Policy, which applied to each property. The court held that

Shepherd Homes should pay 95% of the claimants’ costs of

dealing with the claim against Shepherd Homes.

The 2014 judgment deals solely with the issue of who would

be liable for the claimants’ costs of pursuing the NHBC

parties and the NHBC parties’ costs?

The claimants argued that:

• Their conduct throughout was entirely reasonable

• Shepherd Homes should pay the claimants’ costs

of pursuing the NHBC parties, as they were the

unsuccessful party (relying on CPR 44.2(1)(a))

• A Sanderson order should be made, whereby an

unsuccessful party pays not only the costs incurred by

a successful claimant but also any costs liability that

claimant may have to a successful defendant and the

claimant’s costs of pursuing the successful defendant

Shepherd Homes submitted that:

• They should not be responsible for any costs incurred

between the claimants and the NHBC parties

• The NHBC parties should be treated as unsuccessful

parties (because they carried out remedial work to the

properties after the issue of legal proceedings) and bear

the relevant costs

• Alternatively, the NHBC parties were not successful, so

there could be no Sanderson or Bullock order (where

an unsuccessful defendant is ordered to pay the costs

of the successful defendant to the claimant) requiring

Shepherd Homes to pay the NHBC parties’ costs

• The NHBC parties argued that:

• The correct position was that the claimants should

discontinue the claim against the NHBC parties

• This would make the claimants liable for the NHBC

parties’ costs

• If there was to be no discontinuance, the claims against

the NHBC parties should be fully particularised and

liability determined by a trial

Applicable principlesThe judge considered the applicable principles:

• CPR.44.2 (1)(a) gives the court discretion as to whether

costs are payable by one party to another

• CPR 44.2(2) confirms the general rule was that

the unsuccessful party would pay the costs of the

successful party

• The court would have regard to all the circumstances

02

(including the conduct of the parties which includes

whether it was reasonable for a party to raise, contest

or pursue a particular allegation or issue and the manner

in which a party has pursued or defended its case)

The judge considered whether a Sanderson order or a

Bullock order was appropriate. Some of the issues to be

considered were whether the causes of action relied upon

against the defendants were connected with each other;

whether the claimants’ conduct in joining and pursuing a

claim against a successful defendant was reasonable and

whether one defendant had put the blame on another

defendant.

After considering the background and history of the claim

the judge concluded that this was not a classic case for

a Sanderson or Bullock order and rejected the parties’

suggestion that the court should give directions to determine

liability between the claimants and the NHBC parties. The

judge held that there could be no justification for using the

court’s resources or for the parties to “spend time and costs

on such a wholly disproportionate and futile exercise” and

that it could not be proper to do so under the overriding

objective.

The judge held that there could be no justification for...the parties to “spend time and costs on such a wholly disproportionate and futile exercise” On that basis the appropriate order between the claimants

and NHBC parties was that there should be no order as to

costs; the judge felt this did justice between those parties

where “all that has happened, apart from the strike out/

summary judgment application is that the parties have

complied with the pre-action protocol. The proceedings

have not had to proceed any further because of the good

sense of the parties in staying those proceedings” and

because the NHBC parties were neither successful nor

unsuccessful defendants.

The judge did not consider it necessary to decide whether to

make an order that Shepherd Homes should pay the NHBC

parties’ costs by way of a Sanderson or Bullock order. He

recognised that decision meant that the claimant would

not recover costs spent pursuing the NHBC parties, so the

judge considered whether those costs were recoverable

from Shepherd Homes. The judge had discretion to order

Shepherd Homes pay the claimants’ costs of pursuing the

NHBC parties and held that it was appropriate that the

costs incurred by the claimants in dealing with the NHBC

parties should be paid by Shepherd Homes. The primary

reason for this was that Shepherd Homes had, throughout,

encouraged the claimants to involve the NHBC parties and

bring claims against them.

CommentIn multi-party claims, settling the substantive claim is often

only half the battle. In long-running and complex matters,

such as Harrison, the issues of apportionment and payment

of costs can sometimes be as complex as the underlying

claim and may require the involvement of the courts to

resolve them.

This situation most often arises where a claimant has

brought proceedings against a number of parties (not

uncommon in property and construction litigation) and

perhaps only succeeded against one of them. Naturally the

‘innocent’ defendants, against whom there is no liability, feel

aggrieved at their unnecessary involvement and expect the

claimant to pay their legal costs.

The claimant on the other hand, will adopt the view that

were it not for the party to whom liability does attach, there

would have been no claim or proceedings and consequently

the unsuccessful defendant should meet all costs incurred

by the claimant in pursuing all defendants.

03

Such a situation is often dealt with in a Sanderson or a

Bullock order, either when the parties are able to reach

agreement on the issue or when the court is asked to make

an order.

Claimants in particular should always have in mind the cost

of a scattergun approach by pursuing claims against multiple

defendants. This can be a costly exercise if a defendant is

able to argue that their involvement was neither reasonable

nor appropriate. A claimant should not assume that the

costs of pursuing defendants who successfully defend a

claim, or against whom there is no finding of liability, will

be recoverable from the defendant who is ultimately liable.

Likewise, defendants who find themselves one of several

parties in a dispute should not assume that their costs will

be paid by the claimant or liable defendant, when a claim

is settled prior to any finding on liability and without the

agreement of all parties.

04

Summary judgment and relief from sanctions

In Beecham Peacock Solicitors LLP v (1) Enterprise

Insurance Co PLC (2) Isle Of Man Insurance Co Ltd (3)

Mount Grace Insurance Ltd [2014] EWHC 2194 the High

Court considered whether the claimant firm of solicitors (B)

was entitled to recover the disbursements it had incurred

on behalf of its clients, in failed personal injury claims, from

the ATE insurers who had underwritten the polices. It also

considered whether to grant B relief from sanctions for failing

to provide disclosure and exchange witness statements as

ordered.

BackgroundA “claims farming operation”, Freeclaim IDC plc (F), had

operated as agent to the insurers, E, X and a third company,

who underwrote the ATE polices. B was a successor firm to

Beecham Peacock Solicitors (BPS) who had taken out the

ATE insurance on behalf of its clients. The first and second

applicant insurance companies (E and X) applied to strike

out B’s claim for indemnity, primarily on the basis that B

was not a party to the ATE policies. In practice a strike out

application is a summary judgment application made by the

defendant.

E’s policy appeared to exclude BPS’ right to enforce the

contract under the Contracts (Rights of Third Parties) Act

1999 (the 1999 Act), although X’s did not purport to do so.

However, there was in existence a procedures manual which

was stated to form part of the contract between the insurer

and panel solicitor. The manual placed certain obligations

on the panel solicitors when requesting payment under the

policy.

E and X sought to strike out the claim on the basis there

was no contractual relationship between B and the insurers.

In addition, both E and X maintained that in breach of

the Conditional Fee Agreements Regulations 2000 (the

2000 Regulations) B had failed to declare its interest in

recommending the insurance policy, although there was

evidence that BPS had started using the insurance prior to

becoming a member of F’s panel.

Judgmenti) Strike out

The court was not prepared to strike out B’s claim. In

essence there were too many questions to make the matter

suitable for summary judgment.

“...there were too many questions to make the matter suitable for summary judgment.” There was clearly reference within the insurance

documentation to a contractual relationship between BPS

and E. There was also a realistic prospect that such similar

documents would exist as between BPS and X. Further,

whilst the 1999 Act was probably excluded from E’s policies,

there was no such exclusion within X’s policies.

B had also submitted that, by paying the disbursements,

it was entitled to subrogate directly against E and X. The

court held that the payment of the disbursements did not

discharge the insurers’ liability under the policies, such that

any subrogated claim would have to be brought in the name

of the clients.

In addition, B argued that the insurers had been unjustly

enriched by failing to indemnify under the terms of the

ATE policies. Again this was rejected by the court on the

basis that the clients themselves remained liable for the

disbursements that B had legitimately incurred, and since it

was a condition precedent to such liability that they covered

the insureds’ liability for those disbursements, so that the

insurers had not been unjustly enriched.

05

The submissions in respect of the 2000 Regulations that the

CFAs were unenforceable for non-disclosure of B’s interest

in recommending the policies, were also not sufficient for

the court to give summary judgment. There was evidence

that the policies, which had been approved by the Law

Society, were overwhelmingly selected because of their

quality and not because they played a significant part in B’s

business. Accordingly, there was a realistic prospect of B

making out its argument.

ii) Relief from sanctions

Both sides had failed to comply with the directions for

disclosure and exchange of evidence. Plainly, therefore, both

sides were in default. B had maintained that it anticipated

a further CMC being listed prior to the dates in the agreed

directions for disclosure and exchange of evidence. In

addition, an internal dispute between the defendants had

caused their default. E and X had submitted that they would

now not get assistance from F, but that was due to the

internal dispute which pre-dated the default and could not,

on that basis, be said to be attributable to the default.

In the circumstances, the court was satisfied that there was

no prejudice to the defendants for any delay and since both

parties had made applications for relief, albeit after the CMC

itself, it was appropriate to grant such relief. Whilst CPR 3.9

made clear the importance of compliance, in circumstances

where both sides were in breach and there were also good

reasons for that delay, relief from sanctions was justified.

CommentThe judgment highlights the difficulty that a defendant may

face in succeeding in a strike out application. Where there is

evidence of complex issues from both sides, that needs to

be evaluated by the court to ascertain whether the claimant

has a realistic prospect of success, summary determination

will not be appropriate.

Further, in the post-Mitchell world, here is, once again, an

example of the court granting relief from sanctions. Where

both sides have defaulted with good reason and neither

has suffered prejudice it does appears that the courts are

now willing to take a more pragmatic approach.

06

Injunction for nuisance where property uninhabitable and whether order requiring payment of success fee and ATE premium breaches human rightsIn Coventry & Ors (Respondents) v Lawrence & Anor

(Appellants) [2014] UKSC 46 the Supreme Court considered

numerous issues. There were two hearings at which the

court firstly considered whether a nuisance existed and

then, secondly, whether it was appropriate to grant injunctive

relief and whether the entitlement to a recover a success

fee and ATE premium infringed the European Convention

on Human Rights 1950 (the ECHR). This article focuses on

the second hearing and the judgment handed down on 23

July 2014.

Background The respondent, R, owned a house close to a motor sports

stadium and racetrack owned by W and occupied by C and

M, where they had held motocross events since 1975. R had

purchased the house in 2006 and thereafter complained to

the council about the noise levels. Noise abatement notices

were served by the council thereafter.

The matter then came to the High Court to consider

injunctive relief. However, prior to trial a fire had rendered

the house uninhabitable. At trial the judge found C and M

liable in nuisance and granted a noise-limiting injunction to

take effect on 1 January 2012 or whenever the house was

habitable once more, whichever was the earliest. C and M

were also ordered to pay 60% of R’s costs.

The judgment was overturned by the Court of Appeal,

but then subsequently reinstated by the Supreme Court.

However, there were four issues remaining:

1. Whether the injunction should be suspended until the

house was habitable

2. Whether the parties should be able to apply to vary the

injunction immediately

3. The liability of W in nuisance

4. Whether the costs order infringed the ECHR

JudgmentThe Supreme Court considered the first two issues minor in

nature. As long as the house remained uninhabitable, there

was no reason that the injunction should “bite”. The finding

of liability in nuisance was as a result of the appellants’

inability to acquire quiet enjoyment of the house. As long

as use and, therefore, quiet enjoyment was impossible

then there was no justification for maintaining the injunction

which would cause harm to C and M with no concomitant

benefit to R.

The court accepted that C and M may wish to argue that

the court should discharge the injunction on the grounds

that damages would be an appropriate remedy. The court

considered that such an application would have prospects

of success and therefore C and M should be granted the

ability to apply without having to wait for the house to be

reinstated.

The first main issue

The court then went on to consider the liability of the

landlord, W, in nuisance. The court set out the case law,

stating that it was tolerably clear from the judgment in

Southwark London Borough Council v Mills [2001] 1 AC,

22A that where activities constitute a nuisance the general

principle is that “the...persons directly responsible for the

activities in question are liable; but so too is anyone who

authorised them.”

07

The Court of Appeal went on to state that in order for a

landlord to be authorising a nuisance they “must either

participate directly in the commission of the nuisance,

or they must be taken to have authorised it by letting the

property.”

Although this was a motor sports stadium and racetrack,

the court held that it was not inevitable, upon letting of the

stadium and racetrack, that the activities undertaken by C

and M would amount to a nuisance. On that ground, W, the

landlord, could not be liable. Those activities which were

undertaken by C and M could clearly be undertaken in such

a way that did not amount to a nuisance.

Therefore, if the claim were to succeed it must have

been based upon W’s “active” or “direct” participation.

The appellants maintained that W had participated in the

nuisance on five grounds, in that he:

• Did nothing to stop or discourage the nuisance

• Had erected a hay-bale wall to keep the noise down

• Co-ordinated the dealings with the local authority

• Appealed the noise abatement notice

• Co-ordinated the response to the appellants’ complaints

about the noise, often responding himself

The court found that doing nothing to discourage the

nuisance did not amount to “participating” in the nuisance.

Simply because a person has the power to act and does not

do so, it does not amount to authorisation.

“...doing nothing to discourage the nuisance did not amount to “participating” in the nuisance...”

The court also found that, absent very unusual

circumstances, taking steps to mitigate a nuisance cannot

be said to be authorising it. It was counter-intuitive of the

appellants to argue that that W had done nothing to prevent

the nuisance and then argue that the fact he took steps to

reduce the nuisance should render him liable.

The remaining points were all based upon W’s leading part

in fighting off the risk of nuisance abatement by the local

authority. The court found that any landlord whose premises

were being lawfully used would wish to protect his tenants’

ability to continue with their activities, as this would clearly

affect the value of his property. Further, since W was a

councillor, this alone justified much of his involvement.

The second main issue

The court then moved on to consider the second main issue,

that of costs. At first instance C and M had been ordered to

pay 60% of the success fee and ATE premium. Success

fees and ATE premiums are permitted by the Courts and

Legal Services Act 1990 (the 1990 Act) as amended by the

Access to Justice Act 1999 (the 1999 Act).

C and M submitted that the recoverability of success fees

and ATE premiums was in breach of their rights under

Article 6 of the ECHR, which preserves the right to a fair

trial and accordingly that paragraphs 11.7-11.10 should be

disregarded.

The court held that if the respondents were correct then

the correct approach may well be for the court to grant

a declaration of incompatibility in respect of the 1990

and 1999 Acts. Such a declaration could likely allow the

“victims” of those provisions (i.e. those losing parties who

have paid success fees and ATE premiums in the past) to

claim compensation from the government.

Whilst it would be for the Supreme Court to make such a

declaration, the clear implications of such a declaration

meant it was only proper for the government to be permitted

the opportunity to make representations to the court.

Accordingly, should C and M wish to pursue this argument,

the matter is to be re-listed once the appropriate notice has

been given to the Attorney General and Secretary of State

for Justice.

08

“Such a declaration could likely allow the “victims” of those provisions...to claim compensation from the government.”

CommentClearly if the costs issue is pursued there are potentially

serious and costly ramifications for the government. Keep

your eyes on future issues of Legal Watch: Property Risks &

Coverage for updates!

09

Summary judgment against building contractor for defective workmanship of sub-contractorHaving suggested above that summary judgments will not

be granted easily, one was granted against the defendant

main contractor in the case of Honourable Edward Iliffe (1)

Teleri Iliffe (2) v Feltham Construction Limited (Defendant)

& Affleck Mechanical Services Limited (Third Party) [2014]

EWHC 2125.

BackgroundThis claim related primarily to a dispute about whether there

was a contract in place, such that the main contractor was

then held liable for the negligence of the sub-contractor(s)

in installing a steel flue too close to combustible material,

which then ignited when a wood burning stove was used,

leading to the almost total destruction of the claimants’

partly constructed house, on Green Island, in Poole Harbour.

The damages claimed were in excess of £3,500,000.

The claimants engaged a building contractor Feltham

Construction Limited (F) to build the house in three phases:

• Phase 1 – excavations, foundations and concrete work

and drainage

• Phase 2 – erection of the main house (which was to be

made of wood)

• Phase 3 – the final and relevant stage, which included

the supply and installation of a two-way log burning

stove with heat exchanger and all necessary insulated

stainless steel flues, which passed through the

roofspace of the house

The fire happened during phase 3, when the house was

almost completed.

As is only too often the way, no written contract in relation

to the phase 1 works was executed until after the practical

completion of those phase 1 works. The “Specification

for Phase 1”, the document on the basis of which F had

successfully tendered, had stated that the JCT Intermediate

Building Contract with Contractor’s Design 2005, Revision

2, 2009 would apply.

When it came to tendering for the phase 3 works, F did so

on the basis that those works would be a variation to the

phase 1 contract and in turn engaged the third party sub-

contractor, Affleck Mechanical Services Limited (A) to carry

out the design and installation of the wood burning stove

and steel flue.

The claimants (through their architect) suggested in what

was initially to be regarded as a draft ‘email of intent’ that

the phase 3 works should be split into two parts, with phase

3a to include an immediate instruction to place an order

with A to allow it to carry out the relevant works.

Ten days later the architect removed the word “draft”.

The phase 3a works proceeded and A sub-sub-contracted

the design and installation of the flues to Docherty Chimney

Group Limited (D). A Mr Calloway of D carried out the

installation in late 2011. The log burner and its flues were

operational by the time of the fire and had been used several

times before the fire happened.

The claimants contended that the cause of the fire had been

F’s failure to comply with building regulations when installing

the steel flue, which resulted in the flue being installed

impermissibly closely to combustible material, which ignited

when the steel flue became heated after the operation of

the wood burning stove. The chimney from the log burner

passed through the roof, which was a timber construction.

The manufacturer’s instructions were that 50mm separation

was required between the exterior of the chimney and any

combustible material.

010

The issuesThe issues were whether:

• There was a contract between the claimants and F in

relation to the phase 3 works

• If there was such a contract, did F owe the claimants

any obligation in respect of the supply and installation of

the wood burner and stove?

• The claimants had proven, to the requisite degree of

certainty, that the fire was caused in the roofspace by

the defective installation of the wood burner or flue;

• F was contractually liable to the claimants if causation

were established as per (iii) above;

• If F was contractually liable, whether there was any

other compelling reason there should be a trial or any

compelling reason summary judgment ought not be

granted

JudgmentContractual issues

1. It was common ground that no contract in writing had

been executed. On that basis, any contractual consensus

had to have involved either an oral statement of offer

or acceptance or conduct which, viewed objectively,

demonstrated that consensus had been reached. The court

therefore looked to the documentary tender process, the

emails, the removal of the word ‘draft’, the minutes of a

site meeting and the fact that F carried out the works and

was paid for them in accordance with its tender. On that

basis, the court formed the clear conclusion that the parties

had entered into a contract which incorporated the terms

of the JCT Intermediate Building Contract with Contractor’s

Design 2005, Revision 2, 2009

Although initially the contract might have only been for

“phase 3a works”, they included the installation of the

log burner and flue and the contract was subsequently

extended to cover all of the phase 3 works. If the court was

wrong on the incorporation of the JCT standard form terms,

the contract was a contract for services to which the Supply

of Goods and Services Act 1982 s.13 applied under which

there was an implied term that F would carry out the works

with reasonable care and skill.

The court commented that “Where parties have carried out

work and been paid for them, the Court will scrutinise a

suggestion that they did so without there being a contract in

existence with care…”

2. F’s obligations in respect of the log burner and flue were

not limited to placing an order with A. F had contractual

responsibility for A’s acts and omissions. It mattered not

whether the cause was entirely attributable to the acts and

omissions of A and its sub-contractors, or, as was suggested

by Mr Calloway, whether F was directly responsible for

ensuring there was adequate separation around the flue: its

responsibility in contract would be the same.

“Where parties have carried out work and been paid for them, the Court will scrutinise a suggestion that they did so without there being a contract in existence with care…” Causation

The court found that there could be no doubt that the fire

had started in the roof space close to the stainless steel flue

from the log burner. The judge commented that he would

be prepared to make that finding without the assistance of

experts on the basis of the photographs appended to the

claimants’ expert’s report.

011

The judge noted that there was no expert or other evidence

to the contrary and no realistic prospect that evidence to the

contrary would emerge or be accepted at a full trial.

The evidence in support of the outbreak of fire being

associated with the installation of the flue in the roof space

was said to be “overwhelming”, given that that was the

opinion of three of the four experts, and the only other

causes of ignition, (a) an electrical fault and (b) a burning

brand entering the roofspace by an open upstand adjacent

to the flue, could be discounted as real possibilities.

The judge also held that the claimants’ workmanship case

against F was “overwhelming” once it was accepted that, in

the absence of any suggestion that the flue was inherently

unsuitable, the flue would not have started the fire if it had

been installed properly and with adequate separation.

The judge went so far as to say “The ignition of combustible

materials in close proximity to chimneys is a well-recognised

risk, which is why 50mm separation is a standard requirement

(and was a manufacturers’ requirement with this flue).”

Summary judgment

F’s submissions on this point were inextricably linked to its

submission that there was a danger of inconsistent findings

down the line, on the basis that its case against A was

expressed to be contingent upon the claimants succeeding

against it in the main action.

The judge concluded that the danger of inconsistent findings

was remote and accordingly, there was no unfairness in

giving summary judgment.

CommentJust as in the case of Beecham Peacock above, the judge

repeated the principles required for summary judgment

to be granted – that the defendant has no real prospect

of successfully defending the claim and there is no other

compelling reason why the case should be disposed of at

trial. ‘Real’ was interpreted as “not be so slim as to be false,

fanciful or imaginary”.

The costs saving to the parties if summary judgment is

successful can be substantial, as the costs of preparation of

and attendance at a full trial are saved but it is not something

to be entered into lightly. An unsuccessful summary

judgment application will, of course, have the opposite

effect, simply increasing costs at the early stages of the

claim and an unsuccessful summary judgment application

cannot, of course, be taken as an automatic indication that

the party who succeeded in resisting the application will

succeed at trial.

Very careful consideration should, therefore, always be

given to whether such an application should be made.

012

Guideline hourly rates – updateWe reported in the July issue that the Civil Justice Council

Costs Committee had submitted its report to Lord Dyson,

Master of the Rolls.

In what has been described by some as “a surprise move”

the Master of the Rolls has rejected recommendations to

amend the guideline rates.

In his official response, Lord Dyson criticised the “poor

evidential base” made available to the committee and has

advised that existing rates will be frozen, as to raise them in

line with inflation would be “arbitrary”.

However, not all of the recommendations have been rejected

and with effect from 1 October 2014, CILEx fellows will be

eligible for grade A rates if they are eight-years qualified.

Grade A currently only applies to solicitors. Qualified costs

lawyers will be eligible for grade B or C rates.

Further discussions are to take place with the Law Society

and the government.

Watch this space!

013

Part36

The Civil Procedure Rule Committee (CPRC) is to consider

how CPR 36 can be reformed to simplify it and to prevent

offers failing on ‘technical grounds’.

The CPRC agreed that the problem of undue technicality

should be addressed and the rules simplified, without losing

certainty.

Proposals include:

• Removing the need to formally withdraw a Part 36 offer,

allowing offers to be time limited, provided they are

capable of acceptance for at least 21 days

• Amending Part 36 to expressly allow for Part 36 offers

by counterclaiming defendants and other parties

• Taking steps to tackle what are considered to be

‘cynical’ claimant’s offers, for example by making offers

that are simply ploys aimed at obtaining the benefits of

Part 36 costs consequences in the expectation that the

offer would never be accepted

We will keep you advised of developments.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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Guidance on instructing experts in civil claimsThe Civil Justice Council (CJC) has finalised and published

its guidance for the instruction of experts in civil claims

2014.

The guidance will take effect from September 2014,

replacing the current protocol for the instruction of experts

to give evidence in civil claims, currently annexed to CPR

PD35.

The new guidance can be found at:

http://www.judiciary.gov.uk/wp-content/uploads/2011/03/

guidance-for-the-instruction-of-experts-in-civil-claims-2-2.

pdf

It is intended to help litigants, expert witnesses and

those instructing experts. The guidance, which is very

comprehensive and runs to some 18 pages, reminds

experts and those instructing them that some cases will be

governed by the specific pre-action protocols and some

may be ‘specialist proceedings’ (pursuant to CPR 49) where

specific rules may apply. Where they do not, this guidance

must be followed.

Of particular note is paragraph 54, which deals with the

expert’s mandatory statement of the substance of all material

instructions, the specific point is made that “The omission

from the statement of ‘off-the record’ oral instructions is not

permitted.”

Likewise, paragraph 78, which deals with experts’ joint

statements provides that the joint statement should

“include an express statement that the experts have not

been instructed to avoid reaching agreement (or otherwise

defer from doing so) on any matter within the experts’

competence.”

Whether this guidance will lead to a flurry of applications to

cross-examine experts as to their instructions remains to be

seen.