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Eversheds Sutherland’s Corporate Claims Bulletin May - 2022

  • United Kingdom
  • Personal injury claims litigation - Personal Injury Bulletin

30-06-2022

1. Richins v Birmingham Women’s and Children’s NHS Foundation Trust [2022] EWHC 847 (QB)

The Claimant brought an action for damages arising out the stillbirth of her son on the 7th July 2008.  Clearly this involved the judge considering evidence of matters that took place 14 years before trial.

The judge considered the difficulties of assessing evidence after this length of time. In particular the difficulties caused by the fact that documentary evidence was not always reliable.

The judge held that the passage of time in this case had affected the ability of all the lay witnesses to now recollect the detailed chronology of events of 06 and 07 July 2008 with accuracy. The judge noted that the Claimant will have relived the events multiple times since 2008 both in her own mind, but also when discussing with friends and family and when pursuing her complaints with the Defendant and in her interactions with her various solicitors. That gave rise to the risk that her recollection had been corrupted over time. The most contemporaneous documentary record of the Claimant’s account appears in a letter of complaint she sent to the Defendant, date stamped received on 02 December 2008.

The Defendant’s evidence also had many issues in that some of the staff could not remember the incident. The judge noted that much of one of the midwife’s witness evidence was based on her usual working practices as opposed to her actual recollection.

The judge found that there were breaches of duty. These involved a failure to take samples at certain times, meaning test results that should have been available, were not. However the Claimant failed to establish that these breaches would have made any difference to the outcome.

The Claimant’s case failed on the issue of causation. The Claimant asked the court to apply Claimant Benevolence to the reconstruction of the hypothetical. This involves the drawing of adverse inferences where the Defendant fails to call a witness who would otherwise be available to give evidence, or where the Defendant has failed to adduce documents that should be available, or where the reason such evidence is not available is due to the Defendant’s breach of duty.

However, the judge was not persuaded such a concept could provide a bridge to causation in the face of the Claimant’s own expert evidence. The medical evidence did not demonstrate that it was probable, as opposed to possible, that the child would have been safely delivered.

The judge stated that the standard of care afforded to the Claimant was negligent, however she failed to prove that this caused the stillbirth. He noted that the need to establish causation on the balance of probabilities can be a cruel concept in cases of medical negligence, but that loss of a chance of something that was not the probable outcome will not suffice. As a result, the Claimant’s case failed.

2. Match Group LLC & Anor v Muzmatch Ltd & Ors [2022] EWHC 1023

This is another case of a party breaching an embargo on a draft judgment in the decision of Nicholas Caddick QC.

The parties had received a draft judgment subject to the usual embargoes on disclosure. The Claimant became aware that journalists were aware of the terms of the draft. It transpired that, in advance of the date for the judgment to be handed down, the Defendant had sent out a press release, itself said to be subject to an embargo. The judge was investigating how the breach occurred and what steps should be taken as a result.

The judge was clear that no blame at all attached to the Defendant’s solicitors who had given appropriate warnings.

The Defendants themselves were not blameless. The Defendants prepared a press release in relation to the judgment. This was not deemed as improper behaviour by the Court. However, Mr Ahmed, one of Muzmatch’s employees, emailed 10 journalists offering to provide them with a copy of the embargoed press release in advance of the hand down, provided those journalists agreed to comply with the embargo. Another of the Defendant’s employees sent messages via Twitter to 6 of those journalists stating something similar.

While the judge felt this breach was a serious one he decided that it was sufficient to accept the Defendant’s apology as resolving the matter. The Claimant also confirmed that it did not intend to initiate formal contempt proceedings. The judge stated that despite the mistake to email the journalists, the Defendant went to great lengths to emphasise that the journalists should respect the embargo and should not publicise the story until after the handing down of the judgment.

3. Storey v British Telecommunications Plc [2022] EWCA Civ 616

The Court of Appeal allowed an appeal against an order striking out a personal injury action. The court was fairly critical about the evidence that had been placed before it by the Defendant.

The Claimant brought an action alleging that he had suffered injury to his hearing as a result of the use of a headset due to acoustic shock. The court gave permission to both parties to rely on the report of an acoustic engineer. Neither party served a report. The Defendant made an application to strike out the action on the ground that, without an expert report, the Claimant’s case was bound to fail. That application was refused by a Deputy District Judge but allowed by the Circuit Judge. The Claimant appealed that decision.

Lady Justice Andrews noted that the Defendant had adduced evidence that the headset that the Claimant was using had been tested after the incident and no fault had been found. However, it became clear at the Court of Appeal stage that the evidence referred to a different headset.

The Judge commented on the fact that this fundamental error was not noticed before the witness statements were finalised or before the application for summary judgment was made. She was also shocked that the error was not rectified by BT until the case reached the Court of Appeal, and even then the correction was not volunteered but had to be extracted by the Court.

The Court of Appeal went on to allow the Claimant’s appeal. Expert evidence was not essential to the Claimant’s case and it was possible for the Claimant to succeed without such evidence. A relevant factor was the fact that the Defendant had lost, or disposed of, the relevant evidence in any event. The relevant data about the noise on the relevant date or the headset itself could not be provided to the expert in any event due to BT’s actions.

 4. Park v Hadi & Anor [2022] EWCA Civ 581

The Court of Appeal upheld a decision granting a Claimant relief from sanctions. The initial application had been made informally, during the course of an application, the Defendant’s appeal against that decision did not succeed.

The Claimant brought an action alleging he had been underpaid following the sale of a business to the Defendants. The Defendants applied for strike out. At the Defendants’ application the judge made a series of peremptory orders. The Claimant did not fully comply with those orders. At the resumed hearing the judge granted the Claimant relief from sanctions. The Claimant had not made a formal application. The judge also refused the Defendants’ application for an order that the Claimant pay the outstanding costs into Court by way of security of costs.

The Defendants appealed the judge’s orders granting relief from sanctions and refusing to order that the Claimant pay the outstanding costs into Court.

The Court of Appeal refused the Defendants’ appeal. It was possible for a Court to make an order granting relief from sanctions and such an order had been appropriate in the current case. The judge was also entitled not to require the Claimant to pay the costs by way of security.

The Judge stated that ‘an application for relief should be made (and usually is made) by a Part 23 application notice supported by a witness statement. It is, however, clear that the Court has discretion to grant relief from sanctions in two situations:

1) Where (as in the present case) no formal application notice has been issued, but an application is made informally at a hearing;

2) or where no application is made, even informally, but the court acts of its own initiative.

The Court, therefore, should initially consider why there has been no formal application notice, or no application at all; whether the ability of another party to oppose the granting of relief (including, if appropriate, by the adducing of evidence in response) has been impaired by the absence of notice; and whether it has sufficient evidence to justify the granting of relief from sanctions (though the general rule in CPR r32.6 does not impose an inflexible requirement that the evidence be in the form of a witness statement.) It follows, from the need for those initial considerations, that the discretion will be exercised sparingly.

If, however, the initial considerations lead to the conclusion that relief might justly be granted, the court will then go on to follow the Denton 3-stage approach. It will, no doubt, very often be the case that factors relevant to the initial considerations are also relevant to the Denton stages. The judge was entitled to find that he had sufficient evidence to enable him to determine that informal application, and it would have been a needless increase in costs and delay to adjourn so that a formal witness statement could be filed.

The appeal was therefore dismissed.

5. Ince Gordon Dadds LLP v Mellitah Oil & Gas BV [2022] EWHC 997 (Ch)

Mr Hugh Sims QC, sitting as Deputy High Court Judge, refused the Defendant’s application to set aside a default judgment obtained for solicitor’s costs. The judge held that the Denton principles applied to such an application and, in the exercise of his discretion, it was not appropriate to set aside the judgment. The Defendant’s slow conduct of the application to set aside the judgment was a relevant factor, as was its failure to provide detailed information on the basis upon which the bill of costs would be challenged.

The Claimant firm of solicitors had obtained a judgment in default of defence. The judgment was for unpaid costs and totalled $1,412,296.43. Judgment was entered on 25 Jan 2021 and an application to set aside was made on 17 Marcy 2021. The sole ground for setting aside initially was that there was a real prospect of successfully defending the claim. At the application submissions were also made that there was “some other good reason” why the judgment should be set aside.

The judge looked at the interaction between setting aside default judgment and the Denton criteria. It is generally accepted that an application under CPR 13.3 to set aside a judgment in default of defence is an application for “relief from any sanction” within the meaning of CPR 3.9. It therefore requires, when exercising a discretion, the consideration of the 3-stage test as laid down in Denton.

The judge found that the Defendant had not provided compelling evidence that the bills were unreasonable. Indeed the Defendant’s evidence was lacking. The Defendant needed to establish “special circumstances” in order to challenge the bills which were rendered 12 months previously.

The judge found that there may be an arguable defence and counterclaim. However this was very weak.

The judge also rejected the Defendant’s submission that there was “some other reason” for judgment to be set aside. The Defendant submitted that unnecessarily aggressive conduct on the part of a person who obtained a default judgment was relevant not only to the exercise of discretion but also could constitute “some other good reason”. The judge held that it did not constitute “some other good reason”.

The judge then considered whether it was an appropriate exercise of his discretion to set aside the default judgment. He concluded that it was not.

The judge looked at whether the Defendant made the application promptly. In Gentry v Miller it was confirmed that this question is to be assessed from the date the person applying to set aside first had knowledge of it. Here it was 28 January 2021 when IGD served CMS with a copy of the sealed order. The application was not made until 17 March 2021 – over 6 weeks later.

The judge deemed that the application had been made promptly. However, considered a number of other factors.

Serious and significant?

It will normally be expected that a failure to submit a defence in time will be considered to be serious and significant, at least where the party was properly served in time and had sufficient time to acknowledge service or enter a defence. Here, the Defendant received the relevant Court documents around 10 days before the relevant deadline. The judge held that the failings on the part of the Defendant were also serious and significant given that they failed to respond at all to an email on 03 December 2020 enclosing the letter of claim which invited them to accept service via a firm of solicitors.

Why the default occurred?

It occurred on the basis of the Defendant’s own evidence, based on its officer’s own incompetence. The judge declined to accept that internal disorganisation is a good reason, or is not a factor against the Defendant in this instance. However, this was not a deciding factor on its own.

All the circumstances

The need to conduct litigation efficiently – a significant factor against the Defendant was their failure to prosecute this application after it was issued. The judge noted the Defendant’s solicitors failure to obtain instructions to enable the application to be proceeded with.

In relation to the need for compliance with court orders the judge noted that of particular concern was that the fact that the Defendant served, very late, evidence during the course of the hearing was in breach of an undertaking given to the court and to the Claimant. The Defendant undertook to:

“notify the Claimant and the Court (1) within 7 days of the fact of an award in the arbitration references” but it failed to do this over many months.”

The judge dismissed the application to set aside default judgment.

6.  Sinha v Taylor & Ors [2022] EWHC 1096 (Comm)

This case considers the inferences to be drawn when a Defendant does not file witness evidence. In this case, there were also issues with the Defendants’ disclosure.

The Claimant brought a claim for damages alleging that the Defendants made fraudulent representations which induced him to invest £200,000 into a company. The action was defended.  However the Defendants did not file any witness evidence.   The Claimant stated that the Defendants’ disclosure list was inadequate.  The response from the Defendants’ solicitors was that they no longer represented the Defendants. The Defendants appeared in person at trial.

The judge considered the relevance of the absence of evidence from the Defendant and also the alleged defects in disclosure. He held that the absence of witness evidence was highly relevant, and he could draw adverse inferences. The absence of documentary evidence, however, may have some justification and no adverse inferences were drawn.

By CPR 32.10 if a witness statement or witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission. This prohibition amounts to a sanction within the meaning of CPR 3.9, and so an application for permission to call a witness for whom no witness statement/summary has been served requires an application for relief from sanction. No such application was made by the Defendants.

The judge held that any such application would have been very unlikely to succeed: the Defendants’ breach was both serious and significant, in the context of the case, since it affected all of their potential witnesses, and continued up to the day of trial; there was no good reason for it. The main reason appeared to be that the Defendants could no longer pay their solicitors; and to have permitted late service of witness statement or oral evidence without witness statement, would have been unfair to the Claimant in either requiring his counsel to cross-examine without proper preparation or necessitating an adjournment of trial.

The position at trial was that the judge heard oral evidence from the Claimant only. He did allow the Defendants to test and challenge the Claimant’s claim by cross-examination by opening and closing submissions. While on occasion the submissions of the Defendants strayed into giving evidence of factual matters, the judge made it clear that he would not be giving any weight to such matters.

Approach to the evidence – the judge held that he can draw adverse inferences from the absence of witness evidence from both Defendants. Their evidence would plainly have been material to the matters in issue. Their Case Management Information Sheet indicated that both intended to give evidence. The judge inferred that the Defendants could not have provided a credible response to the allegations of the Claimant.

The judge did not draw any additional inference from the lack of documents disclosed by the Defendants. By the time of these proceedings, the company had gone into liquidation. At every stage, including when represented by solicitors and counsel, the Defendants indicated that documents belonging to the company were no longer within their control. While the judge held the absence of documentation may be regarded as suspicious, it was not clear-cut that the Defendants acted improperly in the disclosure they gave and drew no inferences.

The Claimant succeeded at trial. The Defendants were held jointly and severally liable to pay back the £200,000 the Claimant had invested.

7. Borra v Commissioners for Her Majesty’s Revenue and Customs & Anor [2022] EWHC 1195 (Ch)

The judge was hearing an application in relation to bankruptcy proceedings. One of the witnesses was giving evidence remotely whilst abroad.

The judge was sceptical about the evidence of the witness in question. The witness gave evidence in the Telugu language via a translator, whose attendance had been arranged by the Claimant. The translator tended to enter into exchanges with the witness, rather than simply translating the words he said. It was apparent that there were occasions when the translator polished the witness’ answers, though he was repeatedly reminded, both by counsel and by the judge that he should do no more than translate the witness’ own words.

There were further issues with the witness’ evidence. PD 32 provides that a witness statement must be drafted in the witness’ own words, in the witness’ own language and it must describe how it has been prepared, whether face-to-face or over the phone for example. The statement of truth must also be in the witness’ own language. The foreign language witness statement must then be translated into English and both the foreign language statement and translation must be filed at Court. The translator must certify the accuracy of the translation and sign the original statement.

The witness statement had been prepared by a friend of the witness who he had told what to say. None of the requirements of the PD were followed. The judge held that the witness statements were plainly not written by him and the matters set out in them in relation to the operation of a loan scheme, the remuneration taxed and the calculation of the tax due set out in them bear no relation to the job or means of payment he described in his oral evidence.

The judge held that the difference between the statement and his oral evidence was so striking that the former cannot be his. He also doubted that the witness in fact signed the statement. He was asked to sign his name and then hold it up to the camera. It did not, superficially at least, look like the signature on the document, although the judge did recognise that it was not easy to see it clearly on the screen.

The judge did not accept his evidence.

8. Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240 (Ch)

This judgment provides an important lesson as to the need to comply with PD57AC and also the kind of material and comments that could be deleted by the Court.

The judge was conducting a pre-trial review of an action due for a 6 day trial on 11 July. The Defendant had made an application to strike out the witness statement served by the Claimant. The application was successful in part.

There had been an earlier application in which the Claimant had been ordered to file a statement that complied with the rules. In light of this, the Claimant’s solicitors sought a further extension of time to consider their position but this was refused. The Claimant therefore applied by notice to extend time to serve witness evidence. This application was heard on 03 November 2021 when time was extended to 05 November 2021. A single witness statement on behalf of the Claimant was filed. The witness statement was considered by the Defendant to be “wholly non-compliant with” PD 57AC. Amongst other things, it did not contain the certificate of the witness required by para 4.1 of the PD, nor the certificate of the Claimant’s solicitor required by para 4.3 of the PD.

The Defendant’s solicitors wrote to the Claimant’s solicitors on 22 November 2021 to make a number of critical comments about the substance of the witness statement. No response was sent to this or the chaser letters in December 2021 and January 2022. In February 2022 the Defendant solicitors wrote again, making clear that if no satisfactory response were received, the Defendant would issue an application. No substantive response was received.

On 09 March 2022 the Defendant applied by notice for an order requiring the witness statement to be drafted in compliance or alternatively be struck out. On 29 April 2022 the following order was made at that hearing:

The Claimant shall re-draft the WS of Andrew Down so that it complies with PD 57AC by 4:00pm on 13 May 2022. If the Claimant fails to file and serve a re-drafted statement by that date the WS of Andrew Down shall stand struck out and the Claimant may not rely on any further evidence of fact in these proceedings without the permission of the Court.”

The Claimant was also ordered to pay 75% of the Defendant’s costs of that application.

At the pre-trial review the judge, was therefore, hearing the Defendant’s second application on this point. The judge found that the Defendant had some legitimate complaints and struck out parts of the Claimant’s statement.

The Defendant noted the following issues with the Claimant’s witness statement:

  • The amended statement seeks to take the Court through documents or derive a narrative from the documents;
  • it continued to argue the Claimant’s case;
  • it failed to set out how well Mr Down recalls matters and whether his memory had been refreshed by considering documents, and if so how and when, contrary to the declaration contained in the statement.

The judge made reference to the form of written evidence in civil proceedings, in particular that para 3.1 of the PD restricts the contents of the witness statement to matters of fact that need to be proved and evidence as to those matters which the witness could give if giving oral evidence in chief.

Para 3.4 of the Statement of Best Practice instructs the witness to refer to documents in the statement only where necessary. An example used by the judge was referring to a document in order to prove or disprove the authenticity of that document.

The judge made reference to various caselaw on PD57AC. He noted in particular, parties are urged to read PD57AC and follow the Statement of Best Practice. It should be used as a checklist by parties and their legal representatives.

The judge accepted that relevant general background information known to a witness is admissible in a statement by that witness. He did not accept the Claimant’s submission that the requirement that a witness statement be expressed in the witness’ own words means that the PD is being applied to statements which were not the product of the work of lawyers. The PD not only does not expressly or impliedly prohibit lawyers from drafting a WS, but para 3.13 of the Statement of Best Practice expressly states that legal representatives ‘may take primary responsibility of drafting’ the statement. The lawyer may guide the witness. If they do the drafting, they must prepare for it in an open way, ie by interview, and asking open and not leading questions, and they must draft it using the language and, if possible, the words of the witness.

The difference between language and words in this context is clear. The ‘language’ of a witness refers to a language system such as English, French etc. The ‘words’ of a witness refers to the vocabulary and language constructions which the witness normally uses in speaking or writing in his or her own language. The primary rule of evidence at common law was that it was to be given orally under oath by a competent witness called before the court. This remains the primary rule for evidence given at civil trials.

PD57AC did not change the rules of admissibility of evidence. It was not intended to prevent a witness from giving evidence of their own experiences or what they had seen or heard, done or said, even where there was a document before the court which recorded the same thing. The PD’s prohibition on ‘narrative’ was intended to prevent a lengthy discussion of documents in the bundle. For example, where a witness took part in a meeting they can give first-hand evidence of what happened and the fact that there is also a document before the court which also states what happened can be disclosed.

The judgment also identifies the issues with the paragraphs complained of. For example, in one of the paragraphs the witness does not assert any personal knowledge of the events described. This was deemed to be narrative derived from the documents which offends the PD.

The judge stated that:where (i) the Claimant is professionally represented by solicitors and counsel, (ii) the lawyers have already redrafted the witness statement once for non-compliance with the practice direction, and (iii) they have opposed the present application on the basis that the statement is already compliant with the practice direction, it would be inappropriate to impose a lesser sanction than at least withdrawing permission to the Claimant to rely on the offending words or paragraph. In my judgment, however, this is worse: the appropriate sanction here is to strike out the whole paragraph.”

The judgment continues to refer to the statement and the issues with the individual paragraphs. It helpfully outlines the requirements of the PD57AC.

Rather than strike out the whole witness statement, the judge struck out various paragraphs for non-compliance.

9. Lifestyle Equities CV & Anor v Royal County of Berkshire Polo Club Ltd & Ors [2022] EWHC 1244 (Ch)

This is another case which relates to PD57AC, however the judge stated that the PD should not be used as a weapon to remove 2/3 words from a WS.

The action concerned the use of signs and words relating to the Royal County of Berkshire Polo Club. The Defendants required “trade evidence” to establish part of their case in relation to usage of the words. The Defendants provided witness statements relating to trade evidence. The Claimants applied to strike out part of these statements as being in breach of PC57AC.

The judge refused the Claimants’ application. Trade evidence was necessary and admissible. The statements did breach the rules in various minor respects, however this did not warrant striking any part of the statements out.

10. MRA v The Education Fellowship Limited [2022] EWHC 1069 (QC)

Master McCloud held that it was not unjust for the usual principles in relation to costs to apply following a Claimant’s late acceptance of a Defendant’s Part 36 offer. The fact that the costs involved would eat heavily into the Claimant’s damages did not mean that it was “unjust” for the rules to apply. Further the fact that the Claimant had acted reasonably did not mean that the normal principles should not apply.

The Claimant who had autistic spectrum disorder and ADHD, had suffered abuse at the hands of a teacher employed by the Defendant. The teacher was imprisoned. The Claimant brought an action for damages for personal injury.

The claim form was issued on 07 June 2017 and served on 07 September 2017. On the 19 January 2018, the Defendant made a Part 36 offer to settle in the sum of £80,000. In February 2018, the Claimant’s solicitors asked for an extension of time to accept the offer. The Defendant did not respond to this request, the Claimant’s solicitors did not pursue the matter further. On the 02 April 2020 the Claimant accepted the Defendant’s Part 36 offer.

The Defendant declined to pay the Claimant’s costs up to the date of acceptance. The issue before the Master was as to what costs order should be made.

The Master considered the normal principles that the party who has accepted late is responsible for their own costs, and the other party’s costs, from 21 days after the offer was received up to the date of acceptance. The only exception was if it was “unjust” to do so.

The effect of CPR 36.17(5) is clear: the costs consequences favourable to the Defendant must apply unless it is unjust to so order. The burden is thus on the Claimant to establish that it is unjust within the meaning of the rule, to so order.

The judge ruled that it was not unjust to make the usual order for costs on the facts of this case. In making the decision to disapply the usual rules, the court does not approach this by asking whether the Claimant acted reasonably. 

The Claimant argued that the application of the rule would lead to a major deduction from their damages. The Master held that it was not permissible to take into account the degree of reduction of damages which arise from the operation of the rule in the ‘default’ form.

The Master then considered the Part 36(4) itself:

“In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of
the case including—

a) the terms of any Part 36 offer – this was clear and was a “high offer”. Time for acceptance was not extended by agreement as both sides knew;

b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made – this was early and well judged, but not so early that no reasonable evaluation could be made by the part considering accepting it, it was not an oppressive or ;ambushing’ offer expecting unreasonable feats of foresight on the Claimant’s part, given the extent of expert evidence available;

c) the information available to the parties at the time when the Part 36 offer was made – sufficient material was available to allow proper advice to be given to the Claimant and the Court as to the value;

d)  the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated – not relevant here; and

e)  whether the offer was a genuine attempt to settle the proceedings – the Master held it was and the contrary had not been alleged.”

The Master therefore held that it would not be unjust to allow the rule to apply, and the Defendant (subject to assessment) may make the relevant deductions from damages under Part 36.

11. AKV v Barking, Havering & Redbridge University Hospital NHS Trust [2021] EWHC 2607 (QB)

The Court of Appeal upheld the point that the name of each fee earner involved must be included in the electronic bill of costs. The judge had acted appropriately in striking out the original bill of costs and ordering the Claimant (receiving party) to file a compliant bill.

The Court was assessing the Claimant’s costs in a clinical negligence case.  The Claimant filed a bill partially on paper and partially electronically (as was allowed).  The Defendant applied to strike out the bill. The bill was not struck out by the costs judge. The Defendant appealed –  on appeal it was held that the bill did not comply with the rules and that it should be struck out and the Claimant ordered to file a new bill of costs.

The Defendant’s application was based on the fact that the signatory of the bill of costs could not be identified and the bill of costs failed to provide proper fee earner information.

On appeal to the High Court it was held that the failure to be able to identify the person who signed the bill meant it did not comply with the rules. The bill(s) were struck out and the Claimant ordered to file compliant bills.

The Court of Appeal upheld the decision of the High Court judge.

The paper bill was considered first. PD 47 does not state that fee earners must be named in a paper bill. The Court of Appeal held that the omission of the fee earners’ names rendered the paper bill deficient. However, the paper bill did not comply with para 5.11(2) of PD 47 because it failed to give the status of all fee earners. The Court of Appeal therefore held that the paper bill failed to comply.

The electronic bill was considered. There is a mandatory requirement that the fee earners who carry out the work are named. Any electronic bill, whether in Precedent S spreadsheet format or any other spreadsheet format, must include the name, the SCCO grade and, in so far as it adds anything to the grade, the status of each fee earner except possibly so far as the receiving party’s solicitors may have outsourced work to an agency.

Even if the electronic bill is properly considered to be in “any other spreadsheet format”, it should have contained as much information as a duly completed Precedent S and, in particular, the name, the SCCO grade and, where it added something, the status of each fee earner. I did not do so. It neither gave fee earners’ names nor specified their SCCO grades. The electronic bill therefore failed to comply with para 5.A2 of PD 47.

The Court of Appeal held that the High Court were entitled to strike out the existing bill of costs and order the Claimant to serve a replacement which complied with the CPR.

Other news

  1. Temporary halt to the use of claims portal

PD 51ZB was amended so that it would be compulsory for defendants to use the portal from 02 June 2022. However this has been delayed.

A tweet from HM Courts and Tribunal Services on 31 May stated that the date will be announced shortly.

  1. Form N180 Directions Questionnaire (Small Claims) has been amended

The key changes include:

  • A new section D, entitled “suitability for determination without a hearing”, which requires each party to indicate whether they consider that the claim is suitable for determination without a hearing and, if not, to give reasons why.
  • A new question E5, which asks whether the party, or a witness appearing on behalf of that party, is vulnerable in any way which the court needs to consider. If so, the party should explain in what way they or their witness are vulnerable and what steps, support or adjustments they wish the court and the judge to consider.
  • A reminder that the completed form must be sent to the other parties in the case.