Legal Watch: Property Risks & Coverage April 2014 - Issue 004
Introduction This month thanks go to Keith Gaston for his article Mitchell
In This Issue:
– so where are we now?, to Alison Heard for her article on Co-Operative Group Ltd v Carillion & Vibropiling Ltd and
• National Property Risks and Coverage Conference
to Christopher MacQueen for his article on Stephen West,
• Welcome new colleague
Carole West v Ian Finlay & Associates. • Mitchell – so where are we now? • Permission to withdraw or substantially amend admissions refused
Contact Us If you would like any further information on the cases or articles featured in this edition, please contact:
• Net contribution clause effective limitation on liability • Minor trespass did not justify a mandatory injunction
Keith Gaston T: 0844 245 4956
• Changes to court fees
E: keith.gaston@plexuslaw.co.uk Alison Heard T: 0207 469 6236 E: arh@greenwoods-solicitors.com Christopher MacQueen T: 0207 469 6267 E: cmq@greenwoods-solicitors.com Marise Gellert T: 0207 469 6249 E: msg@greenwoods-solicitors.com
Events Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months: MBIG Seminar | 22.05.14 | Royal College of Physicians
National Property Risks and Coverage Conference A final thanks to all those who supported our first National Property Risks and Coverage Conference held at the London Stock Exchange in April. The very positive feedback both on the day and subsequently, has been tremendous and demonstrates that there is a real appetite for this kind of high-level symposium in our sector. So, we are confidently looking forward to the second such event next year! The best way to assure an early allocation of space is to watch out for further announcements in this newsletter early in 2015. Richard Houseago Head of Property Risks and Coverage
Welcome new colleague Nathan Rehbock Nathan was admitted as a solicitor in Australia in 2006. In Australia, Nathan worked in a general insurance litigation practice and represented the interests of global insurers, Lloyd’s of London syndicates, large Australasian insurers, self-insured publicly-listed companies and local authorities across a number of sectors including building and construction, mining, claims against professionals, sporting and recreational claims, and claims resulting from catastrophic weather events. Nathan moved to London in February 2013 and has joined us after some time spent working in-house for an insurance services provider.
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Mitchell – so where are we now? Everybody has heard about, and understands, the effect of the Jackson reforms but what about the Mitchell decision in particular? Let us see. It is widely known that the Jackson reforms became effective on 1st April 2013 but one aspect of this is the new rules for costs budgeting. These are not an entirely alien concept after a widespread pilot scheme. However under the new rules it is a requirement under CPR 26.3(1) that a costs budget is filed at least seven days prior to a CMC or (if earlier) by the date specified on the notice of allocation (N149C). In Mitchell v News Group International [2013] EWCA Civ 1526 the claimant’s solicitors’ failure to achieve this led to the automatic sanction that costs were disallowed save for court fees, an effective penalty of c.£0.5m.
“The impact of this dramatic change of culture – ‘procedural compliance’ – may ultimately impact most of all upon clients.” Golden rules for lawyers and clients 1. The meaning of ‘justice’ has changed. Justice is no
However, the impact of the Mitchell decision has gone far
longer between the parties - any impact upon the
wider than this.
courts and hence other court users will be regarded as
For those who still hanker for practice pre-1999 the present climate must indeed be unsettling. Back then one could issue a Writ of Summons for £60, which could be served up to a year later. Quaint rules existed going back 200 years as to whether throwing a writ over a wall or at a defendant’s feet constituted good service. How things have changed –
being of the utmost seriousness once you are under the relief from sanctions jurisdiction (CPR Part 3.9(1)). Strict compliance with rules is now to be regarded as the paramount feature of the “overriding objective”. 2. Take rules seriously – gone are the days when directions were regarded as mere guidelines, and rightly so.
whether entirely for the good is strictly speaking outside the
3. Know when ‘sanctions’ for the purposes of CPR 3.9(1)
scope of this article. What must be understood is that the
are applicable – this is not restricted to orders which
effect of the new approach is to place new demands most
provide for a specific penalty such as ‘unless orders’.
immediately upon not just lawyers, but also witnesses and
The dramatic effect of this was seen in recent costs
especially expert witnesses.
decisions – Long v Value Properties & Another [Master
The impact of this dramatic change of culture – ‘procedural compliance’ – may ultimately impact most of all upon clients.
Rowley SCCO 13th January 2014] and Williams & Georgiou v Wayne Hardy t/a Hardy Builders [Master Hurst SCCO 2014]. In the Hardy case the Senior Costs
Many institutional and corporate clients have some inkling
Judge, Master Hurst assessed the receiving party’s
that things have changed, but perhaps the extent to
costs at nil following a failure to serve a Statement of
which this will impact upon them directly has not yet been
Costs on time in advance of a Detailed Assessment
sufficiently realised.
hearing. What would previously have been regarded as insignificant breaches were held not to be ‘minor’ and resulted in severe sanctions being enforced.
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4. Relief from sanctions is likely to be granted sparingly
aggressive stance following another party’s non-compli-
and certainly not routinely - generally only for causes
ance. This decision appears to have been widely favoured
outside the law firm’s control. But where such a cause
from both “claimant” and “defendant” standpoints.
is the client or an expert how will the jurisdiction be operated? Little authority yet exists, but it would be best to presume that such behaviour is unlikely to be regarded favourably. 5. Even when there is no specified sanction, ensure that offices have systems with mutual cross checking. 6. Plan ahead – major directions such as disclosure, witness statements and experts’ reports require
Most significantly, the Civil Procedure Rules Committee has approved a Statutory Instrument due to come into force by early May 2014 enabling parties to agree a 28day extension of time in most situations. This will provide some greater flexibility and, it is hoped, primarily will assist hard-pressed court offices and judges at first instance. It does not amount to a wholesale rewriting of the principles arising from Mitchell.
significant forward planning, often weeks and even months, even in relatively routine cases. 7. Communication to and from clients and experts at the right stage is critical. Lawyers must give clients clear notice and an explanation of what is needed and when, and understand that they will have other pressures and priorities. Equally clients cannot hand litigation cases
“this subject will remain an active feature of the litigation landscape”
over to lawyers and expect to take no further notice. Clients must appreciate that it is in their own interests
The right approach to all parties will be to tighten up
to provide necessary assistance, whether documents,
systems to ensure compliance and talk to your witnesses.
witnesses or instructions in a timely manner.
To parties in default, the sooner you apply the better but if
8. Instructions to experts and counsel should now specify
you receive a request for an extension of time it would be
the criticality of compliance. This must be understood
wise to appreciate the risks of taking an inflexible stance.
and agreed, and experts especially must immediately make clear immediately if they are aware of any reasons whereby they cannot provide a report in time, or if instructions are in any way deficient.
Where next?
Nevertheless, this subject will remain an active feature of the litigation landscape and further decisions will continue to be published. One might ask “if in 1977 it was wrong that a party could act with complete disregard for discretion, be struck out and restart an action, is it not equally wrong that in Kaneria v Kaneria & Ors [ 2014]
There is no doubt that courts have been overwhelmed in
EWHC 1165 (Ch) a discrete application for an extension of
some instances by the numbers of applications made fol-
time incurred costs of £80,000?”.
lowing the decision in Mitchell. Certain judges have railed against the strictest of views, imploring parties to take a ‘reasonable’ stance rather than seeking tactical benefit. Regretfully this has often been a forlorn hope and appears unlikely to change soon. In Summit Navigation v Generali Romania [2014] EWHC 398 (Comm) a party was criticised for having taken an unduly
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Permission to withdraw or substantially amend admissions refused What matters does a court take into account when
or in relation to, the vibro works which are the subject of
considering an application to withdraw or substantially
these proceedings, whether such claim is for damages/or
amend admissions which have been previously made on
contributions and/or costs or otherwise, save that nothing
expert advice and support by a statement of truth? That
in this indemnity will make Pennine liable where Pennine’s
was the issue considered by the Technology & Construction
breach of contract and/or negligence and/or breach of duty
Court (TCC) in Co-Operative Group Ltd v Carillion JM Ltd
is not the cause of the loss in respect of which the claim is
(formerly John Mowlem & Co Ltd) and Pennine Vibropiling
made.”
Ltd (Third Party) [2014] EWHC 837 (TCC).
Background The dispute arose out of the development of a supermarket site for the claimant (the Co-Op). The site had been developed by Cliveden Estates Limited who had engaged John Allen Associates Limited (John Allen) as civil and structural engineering consultants for the development. John Allen employed Carillion JM Limited (Carillion) as the main contractor to carry out the works. Carillion engaged Pennine Vibropiling Limited (Pennine) as sub-contractor to undertake specialist work known as “vibro replacement”, to stabilise what were considered to be poor ground conditions at the site. Trading at the supermarket started within a few weeks of the practical completion certificate being issued. The Co-Op alleged that the supermarket floor slab suffered from excessive settlement and the ground improvement works carried out had been ineffective.
Procedural position In August 2007 the Co-Op issued a claim form against John Allen. John Allen brought a Part 20 claim against Carillion who, in turn, brought a claim against Pennine.
The Co-Op’s claim against John Allen was dismissed in September 2010. The Co-Op served particulars of claim against Carillion in January 2012, alleging breach of duty in that Carillion failed to exercise reasonable skill and care in the performance of the works and was otherwise in breach of contract, including failing to check Pennine’s work was properly carried out, and in April that year Carillion issued Part 20 proceedings against Pennine. Pennine served its defence in the Part 20 proceedings in December 2012 and in February 2013 Carillion served its defence in the main proceedings. In summary, in spite of the 2009 compromise agreement, Carillion and Pennine were unable to agree that Pennine should take over conduct of the defence so each party went their own way and appointed separate engineering experts and the litigation continued. It was not until early February 2014 that settlement and a stay of the Part 20 proceedings was reached by way of a further compromise agreement, the terms of which have not been disclosed, but Pennine have now taken over the conduct of the defence of Carillion in the main action. The pre-trial review, at which the defendant’s application was heard, took place on 7 March 2014 and the trial is listed
In March 2009 Carillion and Pennine reached a compromise
to start on 19 May 2014.
agreement whereby Pennine agreed to:
Defendant’s application
“indemnify Carillion and hold Carillion harmless against John Allen’s claim in these proceedings for any claim which ... Co-Op ... might bring against Carillion arising out of, 06
The defendant’s application was issued on 3 March 2014 and was supported by a witness statement from its new
solicitor (who previously acted for Pennine) explaining
litigation, disproportionate use of court resources and the
that the defendant’s original expert had recently become
impact of any strategic manoeuvring.
ill and would have to be replaced and that steps had been taken to involve another expert from the same firm as the original expert.
However, following the second
compromise agreement it was now proposed that Pennine’s engineering expert should replace Carillion’s expert and that
Discussion on amendment The following observations were made by the TCC judge, Mr Justice Akenhead:
amendments were being sought in order “to flesh out the
• The application had been made at a relatively late stage
defence to reflect the views of Pennine’s expert”. The point
of the proceedings, within 8-9 working weeks before the
was made by the defendant that “many of the proposed
trial
amendments would be familiar to the claimant from the
• The application was unsupported by evidence
statements of case in the Part 20 proceedings”. It was also
• This sort of exercise is disruptive at this stage of a case
said by the defendant that the application was being made
• The application related to the withdrawal or qualification
in good faith.
The law Before considering the application in detail, the court reminded itself of CPR Part 1, that the court always needs to keep only in mind the overriding objective. Insofar as the withdrawal of admissions and amendments are concerned, CPR Part 14 states that “permission of the court is required to amend or withdraw an admission”. The
of admissions. One stark example being “It is admitted denied that...”
“permission of the court is required to amend or withdraw an admission”
court therefore, has a discretion in considering whether to allow the withdrawal of admissions.
The judge noted:
Guidance as to the exercise of such discretion was given in
“There can be no doubt that some important original
Sowerby v Charlton [2005] EWHC Civ 1610 when the Court
admissions made by the Defendant are withdrawn and
of Appeal approved the comments of Mr Justice Sumner in
others seriously modified and re-written”.
Braybrook v Basildon Thurrock University NHS Trust [2004]
A pertinent point made in his judgment was that:
EWHC 3352, which set out some of the matters to be considered as:
“Although Pennine has, as the result of its settlement with the Defendant, taken over the Defendant’s defence of these
(a) The reasons and justification for the application which
proceedings, Pennine must and must be taken to have
must be made in good faith
known at that time that the Defence contained important
(b) The balance of prejudice to the parties
admissions in effect against the interests of Pennine and
(c) Whether any party has been the author of any prejudice they may suffer
that there was at the very least a real risk that, unless permission to amend was given so that such admissions could be withdrawn or seriously modified, it would have
(d) The prospects of success of any issue arising from the
to live with the consequences of those admissions. The
withdrawal of an admission
proceedings to date have been conducted as between
(e) The public interest in avoiding, where possible, satellite
Claimant and Defendant on the basis of the currently, unamended Defence.” 07
Noting that it is an understandable requirement that this type of application must be made in good faith by the applicant, the judge was not satisfied that the application was so made. In particular, it was in Pennine’s interests to alter Carillion’s defence so that Pennine could try to avoid having to indemnify Carillion. An example was a clear pleading in the defence that Pennine’s design errors were a material cause of the cracking which Pennine were now seeking to delete. The judge said this was: “a clear case on causation by the Defendant and no good reason is put forward for drastically altering that case other than that the new Pennine broom is being deployed.” As to the proposed amendment to the defence to advance a new case on causation, it was held that it was much too late with the trial such a short time away, witness statements having already been exchanged and the expert evidence substantially advanced and to seek to introduce a new cause of action at this late stage was “highly disruptive and prejudicial.”
Comment This decision provides a clear warning that applications to withdraw or substantially amend admissions must be made in good faith and in sufficient time, so that the amended pleading can be addressed by both/all parties’ witnesses and experts.
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“no good reason is put forward for drastically altering that case other than that the new Pennine broom is being deployed.”
Net contribution clause effective limitation on liability Business projects require different specialist skills as they
Prior to the issue of proceedings Armour became insolvent.
travel from the planning stage through to implementation.
The Wests brought a claim against IFA, who was found
While some companies have the resources to implement
at first instance to be liable for the whole amount of the
every part, the more common position is for a company
damages. IFA appealed the decision on the grounds that
to rely on specialist contractors. So, what happens when
the NCC contained within the agreement should have
damage occurs as a result of more than one contractor’s
limited its liability to only that part which was caused by its
failure? Well, the usual position is that both contractors are
own ‘blameworthiness’.
‘jointly and severally’ liable for all of the damage regardless of each contractors’ relative ‘blameworthiness’, but is this fair?
The appeal At first instance, the judge held that the NCC did not limit
This is the question the Court of Appeal had to answer in
F’s liability to the Wests for its own breach of duty where the
the case of (1) Stephen West (2) Carole West v Ian Finlay
other party liable was Armour.
& Associates [2014] EWCA Civ 316 when considering the validity of a net contribution clause (NCC) within a construction contract. An NCC is a clause which seeks to limit a contractor’s liability to the proportion of the damage
The Court of Appeal rejected this construction of the NCC and found that it also included Amour. Therefore, it should have been considered by the judge at first instance.
which was caused by its own failure. In other words, if they
The Wests argued that the NCC was not enforceable
are liable for 50% of the damage, it seeks to limit their
because they were consumers and this was an unfair term
liability to 50% of the damages.
in a consumer contract and it was inherently unreasonable. The Court of Appeal rejected this argument, after careful
Facts The Wests purchased a property which required significant renovation. They engaged Ian Finlay & Associates (IFA)
consideration of the Unfair Terms in Consumer Contract Regulations 1999 (UTCC) and the Unfair Contract Terms Act 1977 (UCTA).
as their architect. IFA, in addition to its design duties,
Under UTCC there is a two stage test. This is:
was responsible for instructing and managing the main
1. Whether the clause would cause a significant imbalance
contractor, Maurice Armour (Contractors) Limited (Armour). The Wests also engaged a number of other contractors to do specialist works within the property (other contractors). IFA had no responsibility or interaction with the other contractors. Shortly after the works were completed the Wests discovered that there was serious damp ingress on the ground floor. Significant repair work was required, including the removal and reinstallation of the new kitchen.
between the parties; and if so 2. Whether the clause was included in good faith.
Significant imbalance The true effect of the NCC was to pass the risk of a contractor’s insolvency onto the Wests and away from IFA. This created a significant imbalance in the parties’ rights under the contract to the detriment of the Wests. The question was whether this imbalance was unfair? 09
In this case the Court of Appeal considered that there were
valid and binding. The judge at first instance should have
two types of contractors: the other contractors and Amour.
gone on to evaluate the apportionment of liability between
It had no hesitation in finding that it was reasonable for
IFA and Armour in a like manner to a contribution under s.
the Wests to bear the risk of the insolvency of the other
2(1) of the Civil Liability (Contribution) Act 1978. This section
contractors and that any other result would be unreasonable
states that the court should order a contribution ‘such as
and unexpected. However, in the case of Armour there was a
may be found by the court to be just and equitable having
weighing exercise to be undertaken between, on one hand,
regard to that persons responsibility for the damage in
the fact that the NCC was a usual clause in construction
question.’
and commercial contracts and, on the other, the fact that it
This exercise does not take into account the financial ability
was common practice for an architect to protect his position with insurance, but uncommon for a consumer client to obtain credit default insurance or a performance bond from the contractor. Nonetheless, the Court of Appeal found in favour of IFA and,
of the person from whom the contribution might be claimed to satisfy any claim against them. This may result in the successful claimant being left unable to recover from an insolvent contractor. The claim was remitted to the judge at first instance to undertake the apportionment.
in so doing, placed significant weight on the fact that Mr West was an investment banker who should have been alive to the fact that a contractor’s financial stability was a matter of importance.
Good faith
Comment NCCs are more likely to be valid in business to business transactions, where there is less argument about relative bargaining positions. There is likely to be a stronger argument that an NCC is an unfair term in most consumer
While technically not needing to consider whether the clause
contracts but each individual case will turn on its own facts.
had been placed in the contract in good faith (i.e. whether it
In this case, the court placed significant weight on Mr
was presented openly and fairly), as it had not found that the
West’s own commercial expertise (as a successful banker)
NCC caused a significant imbalance between the parties,
and on the relative inexperience of his architect (who was a
the Court of Appeal considered that given:
sole principal). However, in most consumer contracts that
a) The openness and clear presentation of the clause (it was
position will be reversed.
prominent on the third page of the agreement)
NCCs are common in construction and other commercial
b) IFA’s fair dealing in relation to it; and
of this case will encourage their increased use in consumer
c) The reasonable equality of bargaining power between the parties
contracts but it remains to be seen whether the outcome contracts. In future, NCCs may become the subject of significant debate as more contractors seek to incorporate and rely on them to limit their potential liability. At first blush
IFA was not guilty of any lack of good faith. This was despite
this may seem unfair on the claimant who may be left unable
the NCC and its effect not being expressly drawn to the
to recover against an insolvent contractor who shares
Wests’ attention, something which the Court of Appeal
liability but, as the court has pointed out, there are options
considered (and the RIBA guidelines suggested) would have
available to limit risk in these situations, such as credit
been good practice.
default insurance and performance bonds and if there is to be an increase in the use of NCCs in consumer contracts,
Effect of the clause The Court of Appeal held that, in this instance the NCC was 010
these financial instruments will undoubtedly become more commonly used.
Minor trespass did not justify a mandatory injunction Boundary disputes are almost always disproportionately
built on the boundary, thus constituting a party wall. They
expensive, both financially and emotionally and often arise
brought a counterclaim seeking declarations confirming
out of something relatively trivial, at least to the outsider
their ownership of all of the land on which their shed stood.
looking in.
They also sought, if necessary, rectification of the land
The Court of Appeal case of (1) Abdul Rashid(2) Parveen Akhtar v (1) Nadeem Ahmen Sharif (2) Gulzar Sharif [2014] EWCA Civ 377 is a perfect example of that.
Background The appellants, Mr Sharif and his mother, Mrs Sharif (the Sharifs) appealed against a decision in a boundary dispute in favour of the respondents Mr Rashid & Mrs Akhtar (R&A). The historical and geographical background to the claim is somewhat convoluted but, in simple terms the Sharifs and R&A had gardens at the rear of their properties which met at the end. Many years in the past, a wooden fence had run
registry plans or a declaration that they had an irrevocable licence to occupy the disputed land.
“Boundary disputes are almost always disproportionately expensive, both financially and emotionally”
along the boundary line between the rear of the properties, but R&A’s predecessor, Mr Hussain had taken down the
The judge at first instance formed the view that the crucial
fence and replaced it with a brick wall (referred to throughout
question was who owned the (now demolished) historic
the case as “the historic brick wall”). R&A subsequently built
brick wall.
a shed up against the historic brick wall. The Sharifs also decided to build a shed. They demolished the historic brick wall and built the back line of their breeze block shed along the line of the historic brick wall, so that their shed was then up against R&A’s shed.
First instance judgment Notwithstanding his evidence, the judge at first instance concluded that Mr Hussain had built the historic brick wall on his land, which was now owned by R&A. Therefore, by
R&A brought proceedings for trespass. Mr Hussain’s
building the shed on the wall’s foundations, the Sharifs had
evidence (given only by a written statement, due to ill-health)
indeed trespassed onto R&A’s land, by 225mm.
was that he had built the historic brick wall on the boundary between his back garden and the Sharifs’ back garden, and he had maintained it. The Sharifs maintained that R&A had consented to the building of the shed and that the historic brick wall stood on their land, both of which were denied by R&A. Their alternative case was that the historic brick wall was actually
She made an alternative finding to the same effect based on adverse possession, on the basis that the position of the historic brick wall had remained, unchallenged, for 19 years. A mandatory injunction was granted, requiring the Sharifs to reinstate the brick wall and remove the rear wall of their shed. It was implicit in the order that the Sharifs could then
011
rebuild their shed but with the north wall up against the
garden and R&A’s garden. They built a new and taller
restored historic brick wall. As the historic brick wall was
wall along the line of the demolished historic brick wall,
225mm wide, the effect would be to reduce the depth of the
meaning that they had effectively constructed a new
Sharifs’ shed by 225mm.
party fence wall which formed part of the structure of their new shed. R&A had objected and the Sharifs
The appeal The Sharifs appealed and the Court of Appeal held: 1. The judge at first instance was mistaken because Mr
were therefore not entitled to carry out such substantial works without serving the appropriate notices under the Party Wall etc. Act 1996 and following the statutory procedures to secure permission. The Sharifs had not
Hussain’s evidence was not that he built the historic
done that and on that basis their execution of the works
brick wall on his own land. He had been R&A’s witness
to the party fence wall did constitute a trespass.
and if he had been willing to say that he had built the entire width of the historic brick wall on his own garden, his statement would surely have said so. The fact that he had had maintained it did not mean that it was built on his own land. Since the historic brick wall was 225mm thick and it went along the line of the former fence, the natural inference was that it was a party wall. Since it was a party wall dividing two gardens, rather than two parts of a single building, it was a party fence wall. The judge at first instance’s reference to adverse possession
Nevertheless, the Court of Appeal did not consider that it was as serious or as extensive a trespass as that which the judge at first instance had found. The Court of Appeal formed the view that if the appropriate notices had been served and the procedures under the 1996 Act followed, the rear of the Sharifs’ shed might well have ended up where it currently stood. On that basis, the mandatory injunction could not stand and the appropriate order was for damages in lieu of an injunction.
could also not assist R&A because the fact that a party
In light of the minor nature of the trespass, damages were
fence wall had stood for many years partly on each
assessed at £300.
party’s land did not give rise to a claim of adverse possession.
“if the appropriate notices had been served and the procedures under the 1996 Act followed, the rear of the Sharifs’ shed might well have ended up where it currently stood”
The costs order R&A succeeded in their claim but only to a very modest extent. The Sharifs had failed on their counterclaim but succeeded in part on their appeal, in that they remained liable for trespass but the remedy was damages (and minimal damages, at that) rather than an injunction. In those circumstances, the Court of Appeal took the view that the parties should bear their own costs of the action and of the appeal.
Comment Settlement proposals made by both parties were described by the Court of Appeal as “wildly unrealistic”. The costs order made by the Court of Appeal will, effectively have rendered
2. The consequences of this were that the Sharifs had actually demolished the party fence wall between their 012
both partial victories entirely pyrrhic and, once again, this demonstrates why parties engaged in boundary disputes of this nature should be discouraged from litigating.
Changes to court fees The Ministry of Justice is required to reduce its annual spending by over £2.5 billion by 2014/15 and it proposes to fund at least some of that reduction by recouping more of the cost of running the courts directly from court users, through increased court fees. Following the recent publication of the Ministry of Justice consultation paper “Court Fees: Proposals for Reform” with effect from 22 April 2014 there have, in some instances,
“many of the respondents to the consultation did not agree with the proposals for reform”
been quite substantial increases in court fees.
By way of two examples:
The full consultation paper can be found at:
• The fee for the issue of proceedings online for a claim
https://consult.justice.gov.uk/digital-communications/ court-fees-proposals-for-reform The consultation, which was in two parts, opened on 3 December 2013 and closed on 21 January 2014, which bearing in mind that period straddled Christmas and the New Year, was a very short consultation period. That might go some way to explaining why there were only 162 respondents but it does not explain why, despite the fact that many of the respondents to the consultation did not agree with the proposals for reform, the Ministry of Justice
between £15,000 – £50,000 has increased from £395 to £610, unless the claim is a money claim issued online, in which case it has increased to £550 • The fee for the issue of an application on notice has increased from £80 to £155 On the face of it, there is some good news, which is that consent order fees have only gone up by £5 and allocation and listing fees in the High Court and County Court have been abolished but the overall trend is upwards, yet further increasing the cost of litigation.
has pressed ahead anyway. Part one of the consultation, entitled “Cost Recovery” set out proposals to recover close to the full cost of the civil court system through fees, transferring more of the cost to the user and reducing the cost to the general taxpayer. Part two “Enhanced Charging” proposed setting some fees above cost to better reflect the value of those proceedings to the court user. Although the Court of Appeal fee changes will not be implemented on 22 April 2014 (due to the need for procedural rule change requirements) fees in the lower courts have now changed.
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