Winns’ winning streak at the Court of Appeal

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28 June 2016

Winns Logo (FC U)Winns have been working hard to make positive changes for claimant solicitors and help shape a more positive industry overall, after multiple wins at the Court of Appeal in a matter of months.

While headquartered in Newcastle, we’re hopeful that this recent winning streak has helped to advocate for more streamlined and user-friendly procedures for claimant solicitors up and down the country, and we continue to support the industry in any way we can.

Broadhurst v Tan

Smith v Taylor

In a joint two-case appeal, Winns led the above claimants to victory in March of this year, to secure a decision which confirms that where a Part 36 offer is beaten at trial, indemnity costs are payable rather than just fixed costs.

The appeals were lodged due to an ongoing tension between the rules within Part 45 and Part 36 which provoked conflict between claimant and defendant solicitors nationwide since the Fixed Recoverable Costs regime came into force in 2013.

While the defendant accepted that the claimant had beaten a Part 36 offer and were entitled to costs assessed on the indemnity basis, they submitted that those costs were fixed pursuant to Part 45.

Conversely, the claimants argued that indemnity costs and fixed costs were conceptually distinct and that indemnity costs were to be awarded in such cases rather than fixed costs.

The Judgment was handed down on 23 February 2016 and upheld the claimant’s position that indemnity costs should be awarded rather than fixed costs. This was a unanimous decision lead by the Master of the Rolls, Lord Justice Dyson and followed by Lord Justice McCombe and Lord Justice David Richards.

As well as a victory for the firm, the ruling was also of huge importance to claimant solicitors given the implementation of the Fixed Costs Regime and the proposed extension of “Fixed Costs” to cases valued up to £250,000.

It also encourages early settlement by reinforcing the need for defendants to seriously consider Part 36 offers made within litigation to avoid the penalties for failure to beat these at trial.

This judgment is a significant triumph for all claimant Solicitors given the government’s introduction of fixed fees in 2013 and recent proposals to extend this to cases worth up to £250,000, which has been suggested to take effect by next year.

The decision clearly encourages the parties to settle cases early but also provides the claimants with all of the benefits of Part 36 if they are forced to proceed to trial when reasonable offers have been rejected by the defendant.  This supports Lord Justice Jackson’s reported recommendations to incentivise parties to make and accept reasonable Part 36 offers.

As a result of the judgment, instead of receiving only the fixed costs to trial, which in an RTA are typically £2,655.00, the claimant is entitled to claim hourly costs on an indemnity basis from expiry of the relevant Part 36 offer.

The latter will be likely to be considerably more than the fixed costs and this should therefore incentivise defendants to consider reasonable offers rather than incurring the extra costs of proceeding to trial and risking indemnity costs.

Ghazala Bashey, Legal Director at Winn Solicitors, said: “This is a tremendous result for the firm and all claimant solicitors who will significantly benefit now and in the future as a result of our commitment, dedication and courage in taking these cases to the Court of Appeal.

“It is a just decision which provides the incentive to parties to settle cases early and avoid trial costs, thereby saving Court time and resources.”

Phillips v Willis

Heard on 22nd March 2016, the court saw Lord Justice Jackson overturn a judgment, which previously allowed delays and inefficiencies in the MOJ Portal, and rule for a more proportionate approach in dealing with cases at Stage 3 hearings.

This made the firm victorious in the first case that the Court of Appeal has considered regarding the terms of the RTA protocol and related court proceedings, since the MOJ Portal launched in 2010.

The appeal focused upon the interpretation of the Stage 3 portal rules and how they should be applied proportionately.

At first instance the District Judge held that, because personal injury general damages had already been agreed, the remaining pecuniary losses (£3,486 hire charges) were not suitable to remain in the Stage 3 process so he transferred the claim to Part 7 small claims track under rule 7.2 of Practice Direction 8B.

The judge also ordered directions including the filing of further evidence, payment of further court fees and the listing of a further hearing.

The appeal was brought because this type of decision was becoming routine in a number of county courts where general damages had been settled and only financial heads of claim remained outstanding.

This was then leading to considerable delays, injustice and disproportionate further costs being incurred by the parties in a large number of cases in restarting the case under the Part 7 small claims process.

Again, this triumph not only benefited the claimant in question, but also works to support claimants and claimant solicitors nationwide by voicing and challenging inefficiencies and obstructions to justice – something the firm committedly supports and will endeavour to support indefinitely.

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