General liability newsletter November 2018

The latest general liability news coming out of the courts.

This edition covers: 

Claimant’s costs are subject to set-off against Defendant’s costs under QOCS

RPC recently represented a Defendant in a successful application for enhanced costs recovery in a QOCS case. In a reserved judgment made on 27 September 2018 in David Anthony Ellis v Mr Ian Hancock trading as Mullions Restaurant (unreported) His Honour Judge Ralton sitting at the County Court at Bristol ordered that the Claimant’s costs incurred before the expiry of a Part 36 offer which the Claimant failed to beat at trial were subject to set-off against the Defendant’s costs incurred after the Part 36 offer had expired.

There is no such thing as an interim costs budget

One might think that if it was not possible to reliably ascertain whether expert evidence might be needed at trial because this depended upon issues that could not be determined at the time a costs budget was prepared, that it would reasonable to leave the trial and trial preparation parts of the budget blank and ask the Court to consider these at a later costs and case management conference (CCMC).

Pleadings are not evidence

In Kimathi and others v Foreign and Commonwealth Offce3 (2 August 2018, Stewart J) the High Court dismissed the Claimant’s application to Court to exercise its discretion under Section 33 of the Limitation Act 1980 to allow his claim (a test case in a group action) brought out of time to proceed.

Issue-based costs orders and how to get them

In a clinical negligence claim the High Court made an issue-based costs order after the Claimant, whose claim was otherwise successful, abandoned her arguments over consent and pre-operative issues which had taken up two days of trial time. In Amanda Jayne Welsh v Walsall Healthcare NHS Trust4 (High Court 28/09/2018) the Claimant was awarded 85% of her costs on the basis that it had not been reasonable for her to pursue the arguments she had abandoned.

A stay of proceedings stays all aspects of the claim

On 16 October 2018 the Court of Appeal clarified whether a stay of proceedings applied to the time allowed for service of the Claim Form.

A Company’s vicarious liability of its Managing Director can extend to social events

The “close connection” test to determine whether an employer was liable for its employee’s wrongdoing which took place outside the normal course of business has received further scrutiny by the Court of Appeal in Clive Bellman (a protected party by his litigation friend Susan Thomas) v Northampton Recruitment Limited

Civil Liability Bill moves on

On 23 October 2018 the third reading of the Civil Liability Bill was approved by the House of Commons. The Bill provides for fixed awards of damages for relatively minor whiplash injuries; for the small claims limit to be increased to £5,000; and for the way the discount rate for calculation of future losses is calculated. The Bill will now proceed for Royal Assent.