Legal Watch: Property Risks & Coverage August 2014 Issue 008
Introduction Rather than being a lighter issue for August, this has turned out to be a bumper issue, although probably not one for
In This Issue:
poolside reading!
• Costs in multi-party disputes
There appears, at first blush, to be something of an emphasis
• Summary judgment and relief from sanctions
on costs this month, with three decisions that were about
• Injunction for nuisance where property uninhabitable and whether order requiring payment of success fee and ATE premium breaches human rights
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.
• Summary judgment against building contractor for defective workmanship of sub-contractor • Guideline hourly rates – update • Part 36 • Guidance on instructing experts in civil claims
Contact Us If 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
Costs in multi-party disputes The case of Andrew Harrison & Ors V (1) Shepherd Homes
• A Sanderson order should be made, whereby an
Ltd (2) National House Building Council (3) NHBC Building
unsuccessful party pays not only the costs incurred by
Control Services Ltd [2014] EWHC 9999 highlights the
a successful claimant but also any costs liability that
difficulties and challenges that the parties and courts face in
claimant may have to a successful defendant and the
dealing with legal costs in multi-party disputes where some,
claimant’s costs of pursuing the successful defendant
but not all, defendants are found liable.
The facts The claimants, who were owners of properties constructed
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
between 2001 and 2004, brought a claim against Shepherd
parties (because they carried out remedial work to the
Homes, the NHBC and NHBC Building Control Services
properties after the issue of legal proceedings) and bear
Limited, in relation to foundation defects of the properties.
the relevant costs
The claim proceeded to trial against Shepherd Homes only; the claims against the NHBC parties having been stayed
• Alternatively, the NHBC parties were not successful, so there could be no Sanderson or Bullock order (where
before any substantive steps against them were taken.
an unsuccessful defendant is ordered to pay the costs
The trial was treated as a “test” case involving 10 properties,
of the successful defendant to the claimant) requiring
the intention being that once the court had given a judgment
Shepherd Homes to pay the NHBC parties’ costs
in the case, the same conclusion/principles could be applied
• The NHBC parties argued that:
to other properties with damage/defects on the same estate
• The correct position was that the claimants should
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.
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
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
Applicable principles The 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
of pursuing the NHBC parties, as they were the
the unsuccessful party would pay the costs of the
unsuccessful party (relying on CPR 44.2(1)(a))
successful party • The court would have regard to all the circumstances
01
(including the conduct of the parties which includes
sense of the parties in staying those proceedings” and
whether it was reasonable for a party to raise, contest
because the NHBC parties were neither successful nor
or pursue a particular allegation or issue and the manner
unsuccessful defendants.
in which a party has pursued or defended its case)
The judge did not consider it necessary to decide whether to
The judge considered whether a Sanderson order or a
make an order that Shepherd Homes should pay the NHBC
Bullock order was appropriate. Some of the issues to be
parties’ costs by way of a Sanderson or Bullock order. He
considered were whether the causes of action relied upon
recognised that decision meant that the claimant would
against the defendants were connected with each other;
not recover costs spent pursuing the NHBC parties, so the
whether the claimants’ conduct in joining and pursuing a
judge considered whether those costs were recoverable
claim against a successful defendant was reasonable and
from Shepherd Homes. The judge had discretion to order
whether one defendant had put the blame on another
Shepherd Homes pay the claimants’ costs of pursuing the
defendant.
NHBC parties and held that it was appropriate that the
After considering the background and history of the claim
costs incurred by the claimants in dealing with the NHBC
the judge concluded that this was not a classic case for
parties should be paid by Shepherd Homes. The primary
a Sanderson or Bullock order and rejected the parties’
reason for this was that Shepherd Homes had, throughout,
suggestion that the court should give directions to determine
encouraged the claimants to involve the NHBC parties and
liability between the claimants and the NHBC parties. The
bring claims against them.
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
Comment In 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.
complied with the pre-action protocol. The proceedings have not had to proceed any further because of the good 02
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.
03
Summary judgment and relief from sanctions In Beecham Peacock Solicitors LLP v (1) Enterprise
evidence that BPS had started using the insurance prior to
Insurance Co PLC (2) Isle Of Man Insurance Co Ltd (3)
becoming a member of F’s panel.
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
Judgment i) Strike out
the ATE insurers who had underwritten the polices. It also
The court was not prepared to strike out B’s claim. In
considered whether to grant B relief from sanctions for failing
essence there were too many questions to make the matter
to provide disclosure and exchange witness statements as
suitable for summary judgment.
ordered.
Background A “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
“...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. 04
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.
Comment The 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. 05
Injunction for nuisance where property uninhabitable and whether order requiring payment of success fee and ATE premium breaches human rights In 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
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
fee and ATE premium infringed the European Convention
Judgment
on Human Rights 1950 (the ECHR). This article focuses on
The Supreme Court considered the first two issues minor in
the second hearing and the judgment handed down on 23
nature. As long as the house remained uninhabitable, there
July 2014.
was no reason that the injunction should “bite”. The finding of liability in nuisance was as a result of the appellants’
Background
inability to acquire quiet enjoyment of the house. As long
The respondent, R, owned a house close to a motor sports
then there was no justification for maintaining the injunction
stadium and racetrack owned by W and occupied by C and
which would cause harm to C and M with no concomitant
M, where they had held motocross events since 1975. R had
benefit to R.
purchased the house in 2006 and thereafter complained to the council about the noise levels. Noise abatement notices were served by the council thereafter.
as use and, therefore, quiet enjoyment was impossible
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
The matter then came to the High Court to consider
considered that such an application would have prospects
injunctive relief. However, prior to trial a fire had rendered
of success and therefore C and M should be granted the
the house uninhabitable. At trial the judge found C and M
ability to apply without having to wait for the house to be
liable in nuisance and granted a noise-limiting injunction to
reinstated.
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
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.” 06
The Court of Appeal went on to state that in order for a
The
landlord to be authorising a nuisance they “must either
circumstances, taking steps to mitigate a nuisance cannot
participate directly in the commission of the nuisance,
be said to be authorising it. It was counter-intuitive of the
or they must be taken to have authorised it by letting the
appellants to argue that that W had done nothing to prevent
property.”
the nuisance and then argue that the fact he took steps to
Although this was a motor sports stadium and racetrack,
court
also
found
that,
absent
very
unusual
reduce the nuisance should render him liable.
the court held that it was not inevitable, upon letting of the
The remaining points were all based upon W’s leading part
stadium and racetrack, that the activities undertaken by C
in fighting off the risk of nuisance abatement by the local
and M would amount to a nuisance. On that ground, W, the
authority. The court found that any landlord whose premises
landlord, could not be liable. Those activities which were
were being lawfully used would wish to protect his tenants’
undertaken by C and M could clearly be undertaken in such
ability to continue with their activities, as this would clearly
a way that did not amount to a nuisance.
affect the value of his property. Further, since W was a
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:
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
• Did nothing to stop or discourage the nuisance
pay 60% of the success fee and ATE premium. Success
• Had erected a hay-bale wall to keep the noise down
fees and ATE premiums are permitted by the Courts and
• 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...”
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.
07
“Such a declaration could likely allow the “victims” of those provisions...to claim compensation from the government.” Comment Clearly 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!
08
Summary judgment against building contractor for defective workmanship of sub-contractor Having suggested above that summary judgments will not
Building Contract with Contractor’s Design 2005, Revision
be granted easily, one was granted against the defendant
2, 2009 would apply.
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.
Background
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 subcontractor, Affleck Mechanical Services Limited (A) to carry out the design and installation of the wood burning stove and steel flue.
This claim related primarily to a dispute about whether there
The claimants (through their architect) suggested in what
was a contract in place, such that the main contractor was
was initially to be regarded as a draft ‘email of intent’ that
then held liable for the negligence of the sub-contractor(s)
the phase 3 works should be split into two parts, with phase
in installing a steel flue too close to combustible material,
3a to include an immediate instruction to place an order
which then ignited when a wood burning stove was used,
with A to allow it to carry out the relevant works.
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)
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
• Phase 3 – the final and relevant stage, which included
the steel flue, which resulted in the flue being installed
the supply and installation of a two-way log burning
impermissibly closely to combustible material, which ignited
stove with heat exchanger and all necessary insulated
when the steel flue became heated after the operation of
stainless steel flues, which passed through the
the wood burning stove. The chimney from the log burner
roofspace of the house
passed through the roof, which was a timber construction.
The fire happened during phase 3, when the house was
The manufacturer’s instructions were that 50mm separation
almost completed.
was required between the exterior of the chimney and any
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 09
combustible material.
The issues The 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
Judgment Contractual 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
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
Although initially the contract might have only been for
be prepared to make that finding without the assistance of
“phase 3a works”, they included the installation of the
experts on the basis of the photographs appended to the
log burner and flue and the contract was subsequently
claimants’ expert’s report.
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
010
The judge noted that there was no expert or other evidence
The costs saving to the parties if summary judgment is
to the contrary and no realistic prospect that evidence to the
successful can be substantial, as the costs of preparation of
contrary would emerge or be accepted at a full trial.
and attendance at a full trial are saved but it is not something
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.
Comment Just 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”.
011
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.
Guideline hourly rates – update We 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!
012
Part 36 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.
013
Guidance on instructing experts in civil claims The Civil Justice Council (CJC) has finalised and published
defer from doing so) on any matter within the experts’
its guidance for the instruction of experts in civil claims
competence.”
2014.
Whether this guidance will lead to a flurry of applications to
The guidance will take effect from September 2014,
cross-examine experts as to their instructions remains to be
replacing the current protocol for the instruction of experts
seen.
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.
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