Guide to Personal Injury Claims Procedure

Guide to Personal Injury Claims Procedure Second Edition John McQuater LLB, LLM Head of Litigation, Atherton Godfrey Solicitors

Published by Jordan Publishing Limited 21 St Thomas Street Bristol BS1 6JS Whilst the publishers and the author have taken every care in preparing the material included in this work, any statements made as to the legal or other implications of particular transactions are made in good faith purely for general guidance and cannot be regarded as a substitute for professional advice. Consequently, no liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in this work. John McQuater 2015 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. Crown Copyright material is reproduced with kind permission of the Controller of Her Majesty s Stationery Office. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN 978 1 84661 234 3 Typeset by Letterpart Limited, Caterham on the Hill, Surrey CR3 5XL Printed in Great Britain by Hobbs the Printers Limited, Totton, Hampshire SO40 3WX

CONTENTS Foreword to the First Edition Preface to the Second Edition Association of Personal Injury Lawyers (APIL) Table of Cases Table of Statutes Table of Statutory Instruments Table of Protocols v vii ix xxxix lxv lxvii lxxvii Chapter 1 Protocols 1 1.1 Introduction 1 The Pre-Action Protocol for Personal Injury Claims 1 Portal protocols 2 Other protocols 3 Practice Direction Pre-Action Conduct 3 Professional duties 3 1.2 Dealings with the client 3 Funding 4 Initial advice 4 Further advice 4 1.3 Dealings with the defendant 5 Initial contact with the defendant 5 Dealings with the defendant s insurers 5 Dealings with the defendant s legal representatives 6 1.4 Case plans 8 Format of the case plan 8 Proportionality 8 Workflow 8 Review 9 1.5 Letter of claim 9 Early notification 9 Protocol requirements 9 Copies 10 Liability 10 Quantum 10 Funding 11 Further matters 12 1.6 Acknowledgment of the letter of claim 13

xii APIL Guide to Personal Injury Claims Procedure 1.7 Response to the letter of claim 13 Timescale 13 Liability admitted 14 Claimant s response 14 What is an admission? 14 What is liability? 15 Can an admission be withdrawn? 16 Costs consequences of an admission 18 Liability denied 19 Primary liability admitted (and contributory negligence alleged) 19 Liability not dealt with 20 1.8 Experts 20 Joint selection of experts 21 Range of experts 21 Naming of experts 21 Objections to experts 22 Further experts 22 Questions to experts 23 Cost of expert evidence 23 Defendant s expert evidence 23 Expert advice 24 Privilege 24 Consequences of the PI Protocol for future case management under the CPR 25 Tactics 25 1.9 Obtaining documents and giving disclosure 26 Obtaining documents 26 Data Protection Act 1998 26 Freedom of Information Act 2000 28 Who should obtain documents? 28 Medical records 29 Documents supporting the schedule 29 Other documents 30 1.10 Rehabilitation 30 1.11 ADR 31 Types of ADR 31 Advising the claimant of ADR 31 Engaging the defendant with ADR 31 When to issue and when to pursue ADR 31 Sanctions for failing to follow ADR 33 1.12 Resolution 34 Settlement 34 2003 Fixed recoverable costs (predictable costs) 34 Scope 34 Amount 35 Exceptionality 36 Timescale 36

Contents xiii Indemnity principle? 37 Success fee? 37 Part 36 37 2010 RTA Protocol fixed costs 37 Profit costs 37 Disbursements 38 Success fees 38 Indemnity principle? 38 2013 fixed costs for the protocols 38 Non-fixed costs 39 Approval 41 Finality 41 1.13 Stocktake 41 1.14 The RTA Protocol 43 Overview 43 Stages 43 Communication 43 Costs 43 Preamble 43 Aims 44 Rules 45 Which protocol? 45 Scope 45 Road traffic accident 46 Use of a motor vehicle 46 Value 47 Soft tissue injury claim 47 Excluded 49 Importance of scope 49 Stage 1 50 Claim notification form 50 Insurer acknowledgement 51 Insurer response 51 Admission of liability 53 Defendant s account 53 Destination of claims exiting in Stage 1 53 Costs of Stage 1 54 Stage 2 54 Evidence 54 Medical expert evidence 54 Non-medical expert evidence 57 Witness statements 58 Specialist legal advice 58 Interim settlement pack and interim payments 58 Settlement pack 59 The total consideration period 61 Offers and costs 63 Withdrawal of admissions 63

xiv APIL Guide to Personal Injury Claims Procedure End of Stage 2 64 Destination of claims exiting in stage 2 64 Costs of Stage 2 65 Exits 65 Stage 3 65 Venue 65 Documents 65 Hearing 67 Costs of Stage 3 67 1.15 The EL/PL protocol 70 Preamble 70 Aims 70 Parties 70 Scope 70 Definitions 70 Employers liability claim 71 Public liability claim 71 Excluded 71 Communication 72 Stage 1 73 Introduction 73 Notification 73 Content 73 Acknowledgement 74 Insurer response 74 Admission of liability 74 Stage 2 75 Introduction 75 Evidence 75 Stage 3 76 1.16 Destination of ex-protocol claims 76 Introduction 76 Discontinuing under the RTA Protocol and the EL/PL Protocol 77 Entry into the PI Protocol 77 Letter of claim 78 Liability 78 Quantum 78 ADR 78 Stocktake 78 1.17 Sanctions 79 The RTA Protocol and the EL/PL Protocol 79 The PI Protocol 79 The Practice Direction Pre-Action Conduct 79 Sanctions on the claimant 80 CPR 45.24(1) and (2) 80 CPR 45.24(3) 82 Sanctions on the defendant 82

Contents xv ADR 83 Pleading compliance 83 Chapter 2 Issue and Service 85 2.1 Introduction 85 2.2 The CPR 85 The overriding objective 86 The case management powers of the court 88 Time 88 When the parties may vary time limits 89 When the parties may not vary time limits 89 Sanctions and relief from sanctions 90 Statements of truth 91 Part 36 93 Workflow 93 2.3 Review before issuing 93 Compliance with the Protocol 94 Compliance by the claimant 94 Compliance by the defendant 94 Issues 95 Claimant s identity and status 95 Children and protected parties as claimant 95 Deceased claimant 96 Bankrupt claimant 96 Anonymity 97 Defendant s identity and status 99 Children or protected parties as defendant 99 Deceased defendant 99 Bankrupt defendant 100 Limited company as defendant 100 Partnership as defendant 103 Business name of individual as defendant 104 Unincorporated association as defendant 104 Transferee of undertaking as defendant 105 Insurer as defendant 105 Costs of preliminary applications 106 Indemnity 106 Road Traffic Act 1988 106 Motor Insurers Bureau 107 Identifying insurers 107 Resolving indemnity issues 108 Alternatives to indemnity 109 Arrangements for service 110 ADR 110 Part 36 111 Offer to settle liability 111 Offer to settle the whole claim 111

xvi APIL Guide to Personal Injury Claims Procedure Withdrawal or change of claimant s offer 111 Acceptance of defendant s offer 111 Risk assessment 111 Costs and proportionality 112 2.4 How and where to issue 113 The key documents 113 Where to issue 113 Jurisdiction 115 2.5 The claim form 116 Claimant s details 116 Defendant s details 117 Details of the claim 118 Valuation 118 Human rights 119 Particulars of claim 119 Statement of truth 119 Address for service 119 Sealing 120 Date of issue 120 2.6 Particulars of claim 120 Procedural requirements 121 Part 16 121 Practice Direction to Part 16 121 Practice Direction Pre-action Conduct 122 Factual background 122 Negligence/breach of duty 122 Evidence 123 Quantum 123 Pain, suffering and loss of amenity 123 Aggravated and/or exemplary damages 123 Other non-pecuniary claims 124 Provisional damages 124 Expenses and losses 124 Periodical payments 124 Statement of truth 125 Format 125 2.7 Medical report 125 Report disclosed with the particulars of claim 126 Format of report 126 Extent of disclsoure 126 Accuracy and amendment 127 Subsequent exchange of expert evidence 128 Further medical evidence 128 Other expert evidence 128 Permission 128 Tactics 128 2.8 Schedule of expenses and losses 129 Format 129

Contents xvii Content 130 Preliminaries 130 Past expenses and losses 130 Future expenses and losses 131 Interest 131 Damages for pain, suffering and loss of amenity 131 Summary 132 Statement of Truth 132 Tactics 132 2.9 Funding 133 Additional liabilities 133 Notice 134 Change 134 Recoverable clinical negligence ATE premium 134 Other claims 134 Sanctions 135 Legal aid 135 Other funding 136 2.10 Service 136 Warning! 136 How to serve the claim form 137 What is service 137 Methods of service 138 Further requirements 138 What needs to be served? 139 The appropriate step to serve 139 Extending time for service 140 Agreeing an extension of time 143 Setting aside an extension of time 143 Deemed service of claim form 143 Where to serve the claim form 144 Address for service given by the defendant 144 Address for service not given by the defendant 145 Service at an alternative place or by an alternative method 148 Prior to attempting service 148 After attempting service 148 Special rules 149 Error of procedure: CPR 3.10 149 Dispensing with service 150 Service of the claim form out of the jurisdiction 151 Who should serve the claim form? 152 Notification on service of the claim form 152 Documents requiring service 153 Claim form 153 Particulars of claim (and accompanying documentation) 153 Notice of funding 153 Response pack 153 Tactics for service of the claim form 154

xviii APIL Guide to Personal Injury Claims Procedure Service of other documents 155 Claimant s address for service 157 Advising the client 157 Advising experts 158 2.11 Pre-action applications 158 Types of pre-action application 158 Pre-action disclosure 158 Criteria 158 Jurisdiction 159 Discretion 160 Procedure 161 Other remedies 161 The RTA Protocol and the EL/PL Protocol 162 Costs 162 Pre-action inspection of property 163 Criteria 163 Procedure 164 Costs 164 2.12 Sanctions 164 Primary limitation period 164 Children and protected parties 165 Death 165 Fatal accidents 165 Defective products 165 Injuries on water 166 Injuries in the air 166 Human rights 167 Protection from Harassment Act 1997 167 Fraud, concealment or mistake 167 Foreign limitation law 168 Date of knowledge 168 Extension of the limitation period 169 New claims in pending actions 170 When is the action brought? 171 Chapter 3 Defence 173 3.1 Introduction 173 3.2 Time limits 173 Acknowledgement of service 174 Defence 174 Extension of time 174 Extending time for the acknowledgement of service 174 Extending time for the defence 175 3.3 Defendant s address for service 176 3.4 Defendant s funding 176 3.5 Jurisdiction 177 Action required 177

Contents xix Meaning of jurisdiction 178 Default 178 3.6 Content of the defence 179 General requirements 179 Dealing with breach of duty 180 Dealing with causation 181 Low velocity impact claims 181 Other claims 183 Dealing with law 183 Dealing with quantum 184 Medical report 184 Schedules 185 Dealing with the statement of value 185 Pleading a positive case 186 Bare denials 186 Res ipsa loquitur 186 Statutory defences 186 Convictions 187 Fraud 187 Contributory negligence 190 Limitation 190 Mitigation 190 Statement of truth 190 Protocols 191 New matters 191 Resiling from admissions 192 3.7 Further information 192 Pre-CPR 192 CPR 192 The court s approach to further information under the CPR 193 Scope 195 Compliance 196 Failure to file a defence 196 Tactics 196 3.8 Review of the defence 197 3.9 Action following review of the defence 199 Ensuring compliance with CPR 16.5 and the Practice Direction 199 The real issues 199 Request for further information under Part 18 200 Admission of facts 200 Applying for judgment or strike out 200 Part 36 201 Statement of truth 202 Further evidence 202 Interim remedies 202 Interim payments 202 Other interim remedies 202

xx APIL Guide to Personal Injury Claims Procedure Joinder of parties 203 Notice to produce 203 Case management directions 203 3.10 Sanctions 203 When to apply for default judgment 204 Procedure for obtaining default judgment 204 Setting default judgment aside 205 Chapter 4 Allocation and Case Management 209 4.1 Introduction 209 4.2 Allocation (and transfer) 210 The tracks 210 Scope of the tracks 210 Scope of the small claims track 210 Scope of the fast track 211 Scope of the multi-track 211 Differences between the tracks 212 Case management 212 Costs 212 Matters relevant to allocation 214 Value 214 Complexity 215 Views of the parties 215 Circumstances of the parties 216 Other matters 216 4.2.5 Transfer 217 4.3 Case and costs management 217 Routine case management 218 Stay 218 Venue 218 Parties 220 Judgment 220 Split trial 221 Further Statements of Case and further information 225 Disclosure and inspection 226 Exchange of witness statements 227 Permission to use and exchange expert evidence 227 Schedules and counter schedules 231 Periodical payments 231 Listing/further case management 232 Trial window 232 ADR 232 Costs of routine case management 233 Non-routine case management 234 Parties 234 Summary judgment 234 Interim payment 235

Contents xxi Preservation and inspection of property 238 Specific disclosure 239 Clarification of Part 36 Offers 239 Costs of non-routine case management 240 4.3.3 Costs management 240 Timetable 241 4.4 Obtaining appropriate case management directions 242 Claimant s directions questionnaire 242 Stay 242 Settlement 243 Compliance with the Protocol 243 Experts 244 Proposed directions 244 Applications 244 Other information 245 Draft order 245 Costs estimate 245 Case summary 246 The defendant s directions questionnaire 247 Stay 247 Compliance with the Protocol 247 Experts 248 Proposed directions 248 Application 248 Other information 248 Costs budget 249 Consultation and negotiation 249 4.5 The case management conference 250 Reasons for a case management conference 250 Preparation and tactics 250 Telephone hearings 251 When to use telephone hearings 251 Arranging a telephone hearing 252 Preparing for a telephone hearing 252 Format and objectives of a case management conference 253 Scope of the hearing 253 Costs of case management hearings 254 4.6 Action on receipt of case management directions 254 Review of directions 254 Planning implementation of the timetable 254 The defendant 255 Experts 255 Keeping to the timetable 255 Varying the timetable 256 Variation of or additional directions 256 Reviewing costs budgets 256 4.7 Sanctions 256 General approach 257

xxii APIL Guide to Personal Injury Claims Procedure Default with directions questionnaire 257 Default with costs budgets 257 Chapter 5 Disclosure 259 5.1 Introduction 259 CPR disclosure 259 Disclosure (CPR 31.2) 259 Document (CPR 31.4) 259 Standard disclosure (CPR 31.6) 260 Search (CPR 31.7) 260 Control (CPR 31.8) 260 Copy documents (CPR 31.9) 261 Continuing duty (CPR 31.11) 261 Specific disclosure (CPR 31.12) 261 Reliance (CPR 31.21) 262 Use (CPR 31.22) 262 CPR inspection 262 Right to inspect documents (CPR 31.3(1) and (2)) 262 Specific inspection (CPR 31.12(1)) 265 Inspection of mentioned documents (CPR 31.14(1) and (2)) 265 Copying (CPR 31.15) 265 Withholding inspection (CPR 31.19) 265 Authenticity (CPR 32.19) 265 Content (para 27.2 Practice Direction to Part 27) 266 5.2 Early and late disclosure 266 Disclosure under the PI Protocol 266 Pre-action disclosure 267 Statutory rights of disclosure 267 Notice to produce documents 267 Is the document mentioned? 268 Is privilege waived? 268 Does CPR 35.10(4) apply? 270 Disclosure in stages 270 Limiting or dispensing with disclosure 270 5.3 Duties with disclosure 271 Preservation of documents 271 Searching for documents 272 Confirming the duties 273 5.4 Scope of disclosure in personal injury claims 274 The claimant 274 The defendant 274 Non-parties 275 5.5 Dealing with standard case management directions 275 Disclosure by the claimant 275 Disclosure by the defendant 276 Inspection of the claimant s documents by the defendant 277

Contents xxiii Inspection of the defendant s documents by the claimant 278 Specific disclosure 278 Specific inspection 279 Organisation 279 5.6 Surveillance documents 279 Timing of disclosure 279 Timing of inspection 280 Case management directions 281 Privacy and admissibility 282 Weight 282 Expert evidence 283 Tactics with surveillance evidence 284 Ensuring disclosure is required by the defendant 284 Directions for disclosure of surveillance documents 284 Reviewing the surveillance evidence with the claimant 285 Challenging the evidence 285 Seeking all surveillance evidence 285 Challenging admissibility 286 Regulatory issues 286 Obtaining expert evidence 286 Ensuring admissibility is resolved before review by experts 287 Clarifying the defendant s case 287 5.7 Medical records 288 Disclosure of medical records 288 Inspection of medical records 289 Medical records as evidence 290 The evidential nature of medical records 290 The evidential weight of medical records 291 Tactics with medical records 292 Pre-action disclosure 292 Medical experts 293 Fast track claims 293 Multi-track claims 294 Controlling disclosure 294 Questions to experts 295 Applications for disclosure 295 Summary 296 5.8 Electronic documents 296 General provisions 297 Personal injury claims 297 5.9 Non-party disclosure 297 Procedure 297 Conditions 298 Application by the claimant 298 Application by the defendant 298

xxiv APIL Guide to Personal Injury Claims Procedure 5.10 Statutory rights of disclosure 299 Data Protection Act 1998 299 Data 299 Data controller 299 Personal data 299 Processing 300 Rights 300 Enforcement rights 300 Access to Health Records Act 1990 301 Freedom of Information Act 2000 301 The duty to confirm or deny 301 Exceptions 302 Public authority 302 5.11 Bundle of documents 302 Working bundle 302 Trial bundle 302 5.12 Sanctions 303 Automatic sanctions 303 When to rely on automatic sanctions 303 When not to rely on automatic sanctions 304 Application to enforce directions for disclosure and inspection 304 General case management 304 Specific disclosure or inspection 304 Non-disclosure 304 Destruction of documents 305 False disclosure statements 305 Admission of authenticity 305 Agreement of content 306 Chapter 6 Factual Evidence 307 6.1 Introduction 307 What is factual evidence? 307 Witnesses of fact and documentary evidence 308 Witness of fact and opinion evidence 309 Witnesses of fact and legal argument 312 Witnesses of fact and conclusions on issues 313 Witnesses of fact and partiality 314 What factual evidence does the claimant need? 314 Burden of proof 314 Identifying witnesses 315 Adverse inference 316 Disclosure of factual evidence 318 Sequential for exchange of witness statements 318 Issues 318 Simultaneous exchange 318 Sequential exchange 319

Contents xxv Subsequent exchange 319 6.2 Preparing witness statements for exchange 320 What is a witness statement? 320 Format 320 Style and content 321 Interviewing witnesses 323 Witness summaries 324 6.3 Dealing with exchange of witness statements 325 Planning 325 Implementation 326 Extension of time 326 6.4 Review of witness statements following exchange 327 Admissibility 327 Credibility 328 Excluding evidence? 330 Statements of Case 330 Advising the client 331 Further action 331 Organising the file 332 6.5 Hearsay evidence 332 Hearsay evidence given by a witness in oral evidence 333 Hearsay evidence given by witness statement only 333 Other hearsay evidence 333 6.6 Other factual evidence 333 Factual evidence for Part 33 334 Real evidence 334 Investigative Evidence 334 Procedural requirements of Part 33 335 6.7 Sanctions 335 Sanctions for failing to disclose factual evidence 336 Sanctions under Part 32 336 Sanctions under Part 33 337 Relief from sanctions 337 Strike out or exclusion of factual evidence 339 Strike out 339 Excluding evidence 339 Costs sanctions 340 Sanctions on witnesses 340 Sanctions on professionals 341 Chapter 7 Expert Evidence 343 7.1 Introduction 343 Background to the CPR 343 The claimant s problem 344 The defendant s perspective 347 The claimant s solution 348 Overview 350

xxvi APIL Guide to Personal Injury Claims Procedure 7.2 Preliminaries to expert evidence 350 The issues 351 Expert or factual evidence? 352 Expert advice or expert evidence 353 Obtaining information from the defendant? 355 Expert evidence 357 Single expert 357 Permission and/or facilities? 358 7.3 Admissibility and reliance 361 Admissibility: Civil Evidence Act 1972 361 The Act 362 What is admissible expert evidence? 362 What is inadmissible opinion evidence? 364 Reliance: the Protocol and the CPR 365 The Protocol 366 The CPR 367 What is reasonably required (Part 35)? 368 What is just (CPR 1.1)? 370 Timing 377 7.4 Use of experts in personal injury claims 377 Primary liability 378 Road traffic 378 Employers liability 382 Occupiers and public liability 388 Highways 390 Consumer protection 391 Animals 391 Foreign accidents 393 Professional negligence 393 Contributory negligence 394 Fault 394 Causation 394 Quantum 396 Medical evidence 396 Employment evidence 398 Care evidence 398 Accountancy and actuarial evidence 400 Statistical evidence 400 Occupational therapy evidence 401 Speech and language evidence 401 Accommodation evidence 401 Assistive technology evidence 402 Financial evidence 402 7.5 The expert 402 Who is an expert? 402 Who is a suitable expert? 403 Duties of an expert 406 Advice 406

Contents xxvii Evidence 406 Choosing an expert 408 The function of an expert 409 The expert s report 409 7.6 Claimant s expert 411 Preliminaries 411 Joint expert? 412 Court permission? 412 Obtaining facilities 413 Approaching the expert 414 Instructing the expert 414 Funding arrangements 415 Reviewing the report 416 Relying on the report and privilege 417 Following disclosure of the report 418 Updating the expert 418 Change of opinion 419 7.7 Single (joint) experts 419 When will there be a single (non-joint) expert? 419 Joint selection and joint instruction of experts 420 When to jointly select experts 420 When to jointly instruct experts 422 When will there be a single joint expert? 424 The consequences of having a single expert 425 Instructing a joint expert 425 Reviewing a joint report 425 Updating a joint expert 426 7.8 Defendant s expert evidence 426 Preliminaries 426 Pre-issue 427 Post-issue 427 A stay 427 Type of expert 428 Examination by a medical expert 429 Tests and investigations 429 Parties 430 Conditions 430 Request for facilities to obtain or for permission to rely upon expert evidence? 431 Further facilities 432 Second expert 433 Supplemental report 434 Scope of any stay 435 Permission 435 7.9 Seeking and resisting permission 435 Initial expert evidence 436 Corresponding expert evidence 437 The general approach 437

xxviii APIL Guide to Personal Injury Claims Procedure Proportionality 439 Range of opinion 440 Reasons for having a single expert 441 Reasons for having a corresponding expert 442 The sequence 444 Claimant s corresponding expert 444 Changing experts 445 No further permission required 445 Permission required 446 Unilaterally instructed expert 446 Jointly instructed expert 448 Using discarded expert evidence 449 7.10 Exchange of expert evidence 450 Sequential exchange 451 Simultaneous exchange 451 Preparing for exchange 453 Procedure for exchange 453 Consequences of exchange 453 Defendant s expert evidence 455 Organisation 455 7.11 Questions and answers 455 Questions 455 Scope 456 Disclosure 457 Copying questions 457 Answers 458 7.12 Expert discussions and joint statements 458 Instructions 459 Agenda 459 Discussion 460 Joint statement 460 Review 461 Advice 462 7.13 Written or oral evidence 462 Written evidence 462 Oral evidence 463 Summary 464 7.14 The forensic approach to expert evidence 464 7.15 Sanctions 468 Failure to obtain permission 469 Failure to comply with the court timetable 470 Failure to keep within the Statements of Case 470 Failure to comply with expert s duties 471 Failure to comply with the Protocol 472 Chapter 8 Applications 473 8.1 Introduction 473

Contents xxix 8.2 Case management powers 474 Power to strike out 474 No reasonable grounds or real prospects of success 475 Abuse of process 475 Non-compliance 477 Power to specify the consequences of non-compliance 478 Power to impose a condition 480 Power to extend or shorten time 481 Exclusion of the general power 481 Extending time of consent orders 481 Extending time of unless orders 482 Extending time of deemed orders 482 Power to vary or revoke orders 483 Power to rectify an error of procedure 485 Power to order a costs budget 485 Power to hold a hearing by telephone 485 Power to make orders on the court s own initiative 485 Power to manage cases generally 486 8.3 The timetable and applications 486 Changing the timetable 487 When an application is not required 487 When an application is required 487 Dealing with changes to the timetable 488 Enforcing the timetable 488 Is there a failure to comply? 489 Do sanctions already apply? 489 Should applicable sanctions be relied on? 491 Should an application be made? 491 Tactics 492 Varying or revoking case management directions 492 8.4 Making an application 493 When to apply 493 Where to apply 494 How to apply 494 Application notice 494 Draft order 495 Case summary 495 Evidence 496 Skeleton argument 496 Costs statement 496 Fee 497 Serving the application 497 Tactics 497 8.5 Receiving an application 497 Agreement? 498 Arrangements for the hearing 498 Cross-application 499 Evidence 499

xxx APIL Guide to Personal Injury Claims Procedure Costs 499 Tactics 499 8.6 How the court deals with applications 500 Without a hearing 500 When a hearing is not appropriate 500 By agreement of the parties 501 Consent orders 502 Hearing by telephone 503 Hearing in person 503 Tactics on dealing with applications 503 8.7 Hearing of applications 504 Agreement of an order 504 Preparation for the hearing 504 Presentation of the application 505 Deciding the application 505 8.8 Dealing with interim orders 505 Implementation 505 Re-listing 506 Applying to set aside 506 Appealing 506 Applying to vary or revoke directions 507 8.9 Costs of applications 507 The court s discretion as to costs 507 Costs Practice Direction 508 Part 44 508 Part 48 508 Practice Direction Pre-action Conduct and protocols 509 Part 36 and Calderbank offers 509 Costs orders 510 Claimant s costs/costs in any event 510 Defendant s costs/costs in any event 510 Claimant s costs in the case/application 511 Defendant s costs in the case/application 511 Costs in the case/application 511 Costs reserved 512 Costs thrown away 512 Costs of and caused by 512 Costs here and below 513 No order as to costs/each party to pay own costs 513 Assessment of interim costs 513 Costs statement 514 Base costs and additional liabilities 515 Adverse costs orders 515 Timescale for payment of costs 515 Enforcement 515 8.10 Sanctions 516 When sanctions apply 516

Contents xxxi Relief from sanctions 517 Former CPR 3.9 518 Supreme Court 527 Evidence 528 Broader application of CPR 3.9 528 Chapter 9 Pre-Trial Checklists 529 9.1 Introduction 529 9.2 Checklists and listing 529 Purpose of the checklist 529 Date for filing the checklist 529 Pre-trial review 530 Listing 530 9.3 Stocktake 530 Issues and statements of case 531 Disclosure and inspection 531 Evidence 531 Schedules 532 Negotiations 532 Case management directions 533 Availability 533 9.4 The claimant s checklist 533 Format 533 Application 533 Costs estimates and budgets 534 Proposed timetable 534 Case summary 535 Other documents 535 Filing and service 535 9.5 The defendant s checklist 536 Reviewing the checklist 536 Defendant s costs 536 Defendant s timetable 536 9.6 Action following further case management directions 537 Further directions 537 Diarising 537 Further action 537 9.7 Sanctions 538 Chapter 10 Trial 539 10.1 Introduction 539 10.2 Trial bundle 539 Claimant s duty 539 Content 540 Indexation, tabulation and pagination 541 Indexation 541

xxxii APIL Guide to Personal Injury Claims Procedure Tabulation 541 Pagination 541 Format 541 Responsibility 542 Agreement 542 Filing and service 543 10.3 Case summary 543 When required 543 Format 543 Length 543 Drafting 544 Skeleton arguments 544 10.4 Witness orders 544 When to use 544 Service 544 Format 545 10.5 Counsel 545 Advice 545 Funding 545 Attendance on counsel 546 The brief 546 10.6 Advising the client 547 10.7 Final reviews 547 The 21-day review 547 The 7-day review 548 10.8 Judgment by the court 548 Terms 548 Reasons 549 Action 549 10.9 Costs at trial 549 Range of costs orders 549 Summary assessment 550 Detailed assessment 552 Interest on costs 552 Instructions on costs 553 10.10 Financial advice 554 Wills 554 Personal injury trusts 554 Pre-nuptial agreements 554 10.11 Enforcement 554 Pre-issue 555 Post-issue 555 Third Parties (Rights Against Insurers) Act 1930 555 Rights against other non-parties 556 Interest 556 10.12 Appeals 556 Appeal or application? 556 Permission 557

Contents xxxiii Time limit 558 Routes 558 Documents 559 Listing 560 Hearing 560 Error of law 561 Error of fact 562 Error of evaluation 563 Error of discretion 565 Procedural Irregularity 567 Bias, delay and other conduct 568 Fraud 571 Part 36 and ADR 571 Evidence 572 Funding 572 Costs 572 Following an appeal 572 Chapter 11 Settlement 573 11.1 Introduction 573 Ways of achieving settlement 573 Advice and instructions 573 General advice 574 Advice on offers received 574 Advice on offers made 574 Other advice and action 575 Objectives 575 Good faith and mistakes 575 Clarity and interpretation 576 Finality 577 Costs 577 11.2 Admissibility of offers 578 Open communications 579 Without Prejudice communications 580 Without prejudice except as to costs communications 582 Part 36 offers 583 Tactics on admissibility 584 11.3 Alternative dispute resolution ( ADR ) 584 Negotiation 585 Correspondence 585 Discussions 585 Joint settlement meeting 586 Costs 587 Early neutral evaluation 587 Arbitration 588 Mediation 588 Costs sanctions 590

xxxiv APIL Guide to Personal Injury Claims Procedure 11.4 Tactics 590 General tactics 590 Should the claimant make an opening offer? 592 The whole claim? 592 Liability? 592 Counter offers? 593 Best offer? 594 Extension of time? 595 Clarification? 596 Use of Part 36 or Part 44? 596 By the defendant 596 By the claimant 597 Agreeing issues? 598 Liability 599 Damages for pain, suffering and loss of amenity 599 Expenses and losses 600 Global quantum 600 Method of ADR? 601 Advice 601 Using the CPR 602 Part 36 602 Part 44 603 Differences between Part 36 and non-part 36 offers 603 11.5 Part 36 offers 605 History 605 The original Part 36 605 Amendments to Part 36 in 2007 606 Amendments to Part 36 in 2010 606 Amendments to Part 36 in 2011 606 Amendments to Part 36 in 2013 607 The Forensic approach to Part 36 607 The scope of Part 36 offers 608 Pre-issue offers 608 Post-issue offers 608 Offers in appeals 608 Offers in costs proceedings 609 Offers on the whole of the claim 609 Offers on part of the claim 610 Offers on an issue in the claim 610 Making a Part 36 offer 610 General requirements for form and content 610 Future pecuniary loss 614 Provisional damages 614 CRU 615 Interest 616 Offers on issues 616 Making multiple offers 616 Making offers with multiple defendants 617

Contents xxxv Service 618 How to make a Part 36 offer 619 Failure to comply with form and content 619 Reviewing a Part 36 offer 620 Status of the offer 620 Clarification 631 Multiple defendants 633 Single sum of money 633 Decision 634 Format 634 Withdrawing or changing a Part 36 offer 635 Withdrawing a Part 36 offer 635 Changing a Part 36 offer 637 Tactics on withdrawing or changing a Part 36 offer 638 How to withdraw or change a Part 36 offer 639 Accepting a Part 36 offer 639 When permission to accept is required 639 When permission to accept is not required 643 Acceptance with multiple defendants 643 Acceptance with multiple offers 644 Acceptance after earlier rejection 644 How to accept a Part 36 offer 645 Ineffective acceptance 646 Action following acceptance 650 Effect of acceptance 651 Timescale for payment 651 Enforcement 652 Indemnity 652 11.6 Non-Part 36 offers 652 Making a non-part 36 offer 653 Reviewing a non-part 36 offer 653 Withdrawing or changing a non-part 36 offer 655 Accepting a non-part 36 offer 655 Enforcement 658 11.7 Reaching settlement 658 Agreement of an issue 658 Agreement of the whole claim 659 General action 659 If court proceedings have not been issued 660 If court proceedings have been issued 660 Finality? 661 CRU 661 11.8 Approval of a settlement 662 Pre-issue approval 662 Post-issue approval 662 Documentation for an approval hearing 662 The hearing 663 Professional responsibility 663

xxxvi APIL Guide to Personal Injury Claims Procedure Investment 663 11.9 Discontinuance 663 11.10 Sanctions 665 Chapter 12 Concluding the Claim 669 12.1 Introduction 669 12.2 Costs 670 Deemed costs orders 670 Deemed order in favour of the claimant 670 Deemed order in favour of the defendant 677 Other deemed costs orders 677 Interest 678 The court s discretion on costs 678 The discretion 678 The general rule 678 Departing from the general rule 682 Costs consequences of Part 36 offers 683 Preliminaries to costs consequences under Part 36 683 Costs consequences on acceptance of a Part 36 offer within the relevant period 684 Costs consequences on acceptance of a Part 36 offer after the relevant period 684 Costs consequences of a Part 36 offer on judgment (whole claim) 689 Costs consequences of a Part 36 offer on judgment (preliminary issue) 703 2007 transitional provisions 705 2013 transitional provisions 705 Circumstances relevant to the court s general discretion on costs 705 The conduct of all the parties (CPR 44.3(4)(a)) 706 Whether a party has succeeded on part of his case, even if he has not been wholly successful (CPR 44.3(4)(b)) 712 Any admissible offer to settle which is not an offer to which costs consequences under Part 36 apply (CPR 44.3(4)(c)) 713 Costs orders 721 Basis for the assessment of costs 723 Indemnity costs under Part 36 723 Indemnity costs under Part 44 723 The significance of indemnity costs 729 Assessment of costs 729 Fixed costs 730 Hourly rates 734 Time spent 734 Proportionality 735

Contents xxxvii Relevant factors in deciding the amount of costs 736 Costs estimates/budgets 737 The indemnity principle 738 Base costs and additional liabilities 738 Definitions 738 Information about the funding arrangement 739 Percentage increase 739 Insurance premium 744 Proportionality 744 Disclosure 744 Transitional provisions 745 Interest on costs 745 Methods of assessing costs 746 Summary assessment 746 Detailed assessment 748 Costs only proceedings 749 Payments on account of costs and interim costs certificates 749 Payments on account of costs 749 Interim costs certificates 750 Time for complying with an order for costs 750 12.3 Recovery of damages and costs 751 Availability of enforcement 751 Means of enforcement 752 Parties to enforcement 752 Retainer and instructions 752 Costs of enforcement 753 Costs of implementation 753 Interest 753 12.4 Unsuccessful claims 753 Legal aid 753 Non-legal aid funding made prior to April 2013 754 QOCS (qualified one-way costs shifting) 754 Technical challenges 755 Non-party costs orders 756 12.5 Private client work 756 Wills 756 Personal injury trust 756 Family law 756 12.6 Administration 757 Report 757 File closing 757 File retention 757 Payments 757 Recovery of costs 757 12.7 Conclusion 758 Index 759