Setting The Standard In Advocacy
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LPC Law's Essential News Publication Linking you to legal updates, articles and news uploaded to our website each month.
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03 Legal Update: Duties Of Solicitors 04 Legal Updates: Each Side Must Look After Itself & 14th Edition Of The Judicial College Guidelines Published 05 Legal News: Debt Pre-Action Protocol Comes Into Force 06/07 Mediation Monthly 08 Wedding Bells!
October 2017
Lord Justice Jackson’s judgment in the matter of Thomas v. Hugh James Ford Simey Solicitors [2017] EWCA Civ 1303 examines a solicitor’s duty to advise their clients of claims and will be of interest to all practitioners. The Defendants had represented the Claimant in a personal injury claim – several heads of special damage were not pursued after the Claimant informed the Defendants that he did not have the evidence to support such claims and “was not too bothered at all” about pursuing them. The Claimant subsequently sued his former solicitors for professional negligence, claiming that the heads of special damages unclaimed totalled over £16,000.00 and he would have pursued these had he been properly advised as to their value. He argued that his former solicitors should have probed the potential special damages claims in more detail in the hope of changing his mind. The claim was dismissed by the judge at first instance (Mr Recorder Cameron) and the Claimant appealed. Jackson LJ (with whom Henderson LJ agreed) agreed with Mr Recorder Cameron that it was not the role of a solicitor to “tempt” their client in to making claims, and dismissed the appeal. Jackson LJ noted that the question was whether the solicitors had discharged their duties, with reference to the retainer, to advise and pursue such claims as were appropriate – they had done so and were not required to pursue the matter once the Claimant had “shut down” such lines of enquiry. It was also emphasised that the Court must adopt a “realistic standard” when assessing the performance of solicitors under a “high volume, low cost” scheme.
Duties Of Solicitors
Pete Blackmore Advocacy Manager (Midland, Wales, Northern & North-Eastern Circuits)
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Legal Updates
Late Filing of Costs Budgets and Relief from Sanctions - A Stark Warning
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Legal Update
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The Debt Pre-Action Protocol (DPAP) will apply to claims issued from 1 October 2017. DPAP applies to any business (including sole traders) seeking repayment of any debt from an individual (also including sole traders). Potential claimants will be required to send a “Letter of Claim” to their debtors providing prescribed information regarding the debt and allowing them 30 days to respond before issuing proceedings. Upon receiving the “Letter of Claim”, debtors will be able to use the enclosed reply form to admit the debt, dispute it or request further information and documentation. Depending on the debtor’s response, the potential claimant may be required to allow them further time to seek debt advice or to disclose certain documentation and information to them. Under DPAP, the parties are also expected to consider attempting to resolve any disputes using Alternative Dispute Resolution. Finally, where no agreement can be reached after an exchange between the parties, the potential claimant should provide the debtor with 14 days’ notice of their intention to issue proceedings. The DPAP may be viewed in full here. To view an article on this topic by Luke Berry, an advocate on the South-western Circuit, please click here.
14th Edition Of The Judicial College Guidelines Published
Each side must look after itself
The 14th Edition of the Judicial College Guidelines for the assessment of General Damages in Personal Injury cases was published on the 14 September 2017. They replace the 13th Edition, which was published two years ago. Although legislation for fixed compensation for whiplash injuries is anticipated in the near future, the 14th Edition appears to provide for an increase in awards of roughly 5% for minor neck and back injuries (compared to the 13th Edition). It should be noted, however, that the introduction contains a warning to Judges against taking an approach where the length of time for which any symptoms are suffered is treated as the critical factor when assessing an award for a minor injury as this approach “takes insufficient account of the other factors by which the quantum of awards for minor injuries falls to be assessed, and may obscure the fact in many cases that recovery may not occur at an even pace over time”. 14th Edition of the Judicial College Guidelines Published 15/09/2017 The 14th Edition of the Judicial College Guidelines for the assessment of General Damages in Personal Injury cases was published on the 14th September 2017. They replace the 13th Edition, which was published two years ago. Although legislation for fixed compensation for whiplash injuries is anticipated in the near future, the 14th Edition appears to provide for an increase in awards of roughly 5% for minor neck and back injuries (compared to the 13th Edition). It should be noted, however, that the introduction contains a warning to Judges against taking an approach where the length of time for which any symptoms are suffered is treated as the critical factor when assessing an award for a minor injury as this approach “takes insufficient account of the other factors by which the quantum of awards for minor injuries falls to be assessed, and may obscure the fact in many cases that recovery may not occur at an even pace over time”. 14th Edition of the Judicial College Guidelines Published 15/09/2017 The 14th Edition of the Judicial College Guidelines for the assessment of General Damages in Personal Injury cases was published on the 14th September 2017. They replace the 13th Edition, which was published two years ago. Although legislation for fixed compensation for whiplash injuries is anticipated in the near future, the 14th Edition appears to provide for an increase in awards of roughly 5% for minor neck and back injuries (compared to the 13th Edition). It should be noted, however, that the introduction contains a warning to Judges against taking an approach where the length of time for which any symptoms are suffered is treated as the critical factor when assessing an award for a minor injury as this approach “takes insufficient account of the other factors by which the quantum of awards for minor injuries falls to be assessed, and may obscure the fact in many cases that recovery may not occur at an even pace over time”.
Debt Pre-Action Protocol Comes Into Force
Luke Berry Advocate (South Western Circuit)
-Quote Author
The judgment of His Honour Judge Pelling QC, sitting in the High Court, in Higgins & others v. ERC Accountants & Business Advisers Ltd & Others [2017] EWHC 2190 (Ch) is a reminder to legal representatives that they are not obliged to point out each others’ mistakes. An issue arose about service of the Claim Form. HHJ Pelling QC found that good service of the Claim Form had not taken place and the Claimants argued that there was a good reason to allow service by other methods because the Defendants were seeking to take advantage of an error made by the Claimants’ solicitors, who, knowing that there was a “misunderstanding” about whether or not service had taken place, should have sought to clarify the position. HHJ Pelling QC rejected the Claimants’ arguments, noting that whatever duties there may be to assist with clear misunderstandings, this did not extend to “requiring a solicitor acting for one party to inform his or her opponent of an apparent error made by that opponent in the absence of instructions from his or her client to do so, when to do so might be contrary to the substantive interests of that solicitor's client”.
This month, Mediation Manager Laura-Pauline Adcock-Jones analyses comments on the enactment of the Mediation Act 2017 (“the Act”) in Ireland and whether its introduction in another jurisdiction will have any impact here in England and Wales. The Act, enacted on 2 October 2017, effectively obliges parties to consider mediation as an alternative to litigation and confirm such consideration to the Court in order to avoid any costs sanctions as a consequence of a lack of engagement. From practitioners’ perspectives, Irish colleagues will now have to give their clients mediation information and to advise on the pros and (now!) cons of not considering mediation. They then have to attest by court declaration that the same has been done. Irish mediators should look forward to an influx of work and parties should prepare to show willing to participate in mediation. If mediation is pursued, matters are effectively stayed for the purposes of limitation. Notwithstanding that this is an Act made in another jurisdiction, it nevertheless shows the continued trend within Europe for mediation to be seen as a real alternative to litigation in resolving disputes between parties. Attempts, such as the Arbitration and Mediation Bill, have been pursued in England and Wales and so it may not be too far in the distant future before we see mediation placed on a statutory pedestal within our own jurisdiction. For any questions regarding LPC Law’s mediation services, please contact Laura via mediation@lpc-law.co.uk or visit our Mediation page on our website.
Laura-Pauline Adcock-Jones Assistant Advocacy Manager
Mediation in the news
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Mediation Monthly
When Samantha Gould joined LPC Law and attended her first monthly social event, I explained to her my three rules for an easy going and harmonious office life (rules removed because of their potentially offensive content - Ed.). Move forward to Saturday 23 September 2017 and I find myself in the beautiful St Anne’s Chapel at Abbots Bromley School in Staffordshire, to celebrate the marriage of Sam and Adam Bell (LPC Law Advocacy Coordinator). This is certainly not the first relationship to have blossomed at LPC Law (ahem), but it was the first intra-office wedding that I have attended. Mr and Mrs Bell (!) hosted a fantastic day which will be remembered fondly by all in attendance. Particular highlights included the vintage roll top bath filled to the brim with beers and cider, more sandwiches, scones and cakes than could possibly be eaten and, of course, Bella the French Bulldog puppy making an appearance. The LPC Law contingent threw themselves into the party spirit, engaging in overly competitive Jenga, beanbag tossing and quoits. Whilst the music played, the dance floor was filled and, quite literally, we only left when the lights were turned off. It was a fantastic occasion which successfully celebrated the love between Sam and Adam. Everybody at LPC Law wishes them the best and knows that a long, happy and love-filled marriage awaits them. Jonathan Shucksmith Assistant Advocacy Manager
LPC Law are proud to host a free event in Canary Wharf on the 20 October 2017 with complimentary drinks afterwards. The programme will cover a Mock Mediation and Debate on Housing and Civil Matters. This event will involve a live Mediation simulation on a Landlord & Tenant dispute, including such issues as non-payment of rent, disrepair claims and breach of covenant by both the landlord and the tenant. The second half of the event will involve a lively debate involving members of LPC Law's Mediation Panel during which attendees will be encouraged to participate to discuss a consumer dispute scenario covering topics such as the Consumers Rights Act 2015, goods not being fit for purpose, non-legal needs of parties and legal and non-legal suggestions to resolve the dispute between parties. It is a must-see event for parties considering mediation to see the merits of such in practice. The event will be in the auditorium in our building from 2pm until 5pm. We shall then have an area reserved in a bar across the road from our offices 5pm to 7pm for networking / debrief after the event. If you would like to register for tickets, please visit the link below by Friday 13 October 2017. https://www.eventbrite.co.uk/o/lpc-law-14935919665 To learn more about Mediation Awareness Week please click here
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Wedding Bells!
Wedding Bells
Mediation Conference 2017