Setting The Standard In Advocacy
/lpc-law
LPC Law's Essential News Publication Linking you to legal updates, articles and news uploaded to our website each month.
The Advocator
Contents
@LPC_Law
A
Text
03 Legal News: Ministry Of Justice Publish Latest Civil Justice Statistics & Civil Liability Bill Begins Journey Through Parliament 04 Legal News: Being A Litigant In Person Is Not An Excuse 05 Legal News: The Definition Of Integrity 06 Changes To The licensing And Regulations Of HMOS 07/08 Mediation Monthly: To The Victor Goes The Hollow Victory?
April 2018
The Civil Liability Bill was read for the first time, in the House of Lords, on 20 March 2018. The Bill, which forms part of the Government’s sweeping whiplash reforms, will introduce a fixed scale of damages for whiplash injuries caused by the negligence of a driver and reforms to the Personal Injury Discount Rate. The Bill also provides for a prohibition on the settlement of whiplash claims without medical evidence. Whilst there has been no formal announcement for an implementation date, the Ministry of Justice has indicated that the reforms will be ready to come in to force in April 2019
Civil Liability Bill Begins Journey Through Parliament
The Civil Justice statistics for October – December 2017 have been published. They show a decrease of 12% in the number of county court claims being issued (reversing the previous trend for them to increase). This decrease appears to be a direct result of the Debt Pre-Action Protocol, as the data shows a marked increase in specified money claims being issued before October 2017 and, thereafter, a sharp decrease. Whilst the number of specified money claims has decreased by 17% year on year, the number of personal injury claims has continued to increase (9% year on year) and the number of claims being defended and proceeding to trial have also increased slightly (by 3% and 1% respectively by comparison). Interestingly, the statistics also show an 8% annual increase in the number of claims issued for return of goods. As a result, the courts appear to be busier overall, with a slight increase in the amount of time for claims on tracks to reach trial. The full report can be found here.
/03
Ministry Of Justice Publish Latest Civil Justice Statistics
Legal News
/04
Being A Litigant In Person Is Not An Excuse
The judgment of His Honour Judge Paul Matthews (sitting as a Judge of the High Court) inReynard v Fox [2018] EWHC (CH)is the first reported to cite the Supreme Court’s decision inBarton v Wright Hassall LLP [2018] UKSC 12. HHJ Matthews made clear that whilst the Supreme Court Judges had been split in their decision, they all agreed that being a litigant in person was not excuse for non-compliance with the rules of procedure, the exception being that a “special indulgence to a litigant in person might be justified where a rule was hard to find, difficult to understand, or it was ambiguous”. In the matter before HHJ Matthews, Reynard, a bankrupt former ski tour operator, had brought a claim for negligence against his Trustee in Bankruptcy. Reynard failed to bring the action within the bankruptcy proceedings in accordance with s.304 Insolvency Act 1986 and so the Trustee applied to the Court to strike out the claim. Reynard argued that, as a litigant in person, he lacked “detailed knowledge of the insolvency regulations”. HHJ Matthews expressed the view that s.304 was not a provision falling into the category that a “special indulgence” could be given and added that: “But even if being a litigant in person were some sort of excuse in general, it would not avail the claimant anyway in relation to the strike out application. The fact is that, if the court strikes out a claim under CPR r 3.4(2), it does not do so to punish the claimant. It does so because the claim as formulated is either not sustainable or it is not fair in the circumstances to proceed with it. Here we are concerned with the former. It is nothing to do with the claimant's being a litigant in person. It is simply that the kind of claim he or she has chosen does not apply on the facts of the case. You cannot successfully claim that an apple is an orange, on the grounds that you do not know the difference because you are a litigant in person. Defendants also have rights, including the right not to be made liable for causes of action which do not lie against them.” The Judge’s references to the rights of the Defendant appear to echo the comments of the Supreme Court in noting that conveying any advantage to a litigant in person must also be seen in the context of conferring a disadvantage to their opponent.
Pete Blackmore Advocacy Manager (Midland, Wales, Northern & North-Eastern Circuits)
/05
Although the events leading to the case The Solicitors Regulation Authority v. Malins[2018] EWCA Civ 366, are hopefully few and far between (a solicitor created a back-dated N251 notice of funding and e-mail in an attempt to cover up an error), the Court’s judgment is significant when considering the standards expected of professionals, including solicitors. Malins had challenged the result of a Solicitors Disciplinary Tribunal, on the grounds that the Tribunal had made findings of dishonesty in relation to charges where it was not specifically alleged (although it had been alleged that he had acted without Integrity). The Appeal was heard by Mr Justice Mostyn who found that it was impossible to separate the concepts of dishonesty and acting without integrity. Where dishonesty could not be proven the SRA could not side step the issue by alleging lack of integrity instead. Mr Justice Mostyn allowed the appeal and remitted the matter back to the tribunal for consideration. The SRA appealed this decision. Giving the Court of Appeal’s unanimous judgment, Lord Justice Jackson held that there was a distinction between the two concepts and that integrity was broader than honesty, being a “useful shorthand to express the higher standards one expects from professional persons”. Furthermore,the concept of integrity encapsulated the ethical standards of a professional and the expectation that the professional will be more "scrupulous about accuracy than a member of the general public in daily discourse”.
The Definition Of Integrity
There are several changes expected in October 2018 in relation to Houses in Multiple Occupation (HMOs). The Licensing of Houses in Multiple Occupation (Prescribed Description) (England) Order 2018 will amend and extend the description of HMOs required to be licensed by local authorities under s.55(2)(a) Housing Act 2004 (the Act) if the HMO: (a) is occupied by five or more persons; (b) is occupied by persons living in two or more separate households; and (c) meets— (i) the standard test under section 254(2) of the Act; (ii) the self-contained flat test under section 254(3) of the Act but is not a purpose-built flat situated in a block comprising three or more self-contained flats; or (iii) the converted building test under section 254(4) of the Act. The amendment removes the current requirement for the HMO to be comprised of 3 or more storeys before it must be licensed and extends licensing to purpose built flats where there are up to two flats in the block and one or both of the flats are occupied by 5 or more persons in 2 or more separate households, regardless of whether the block includes commercial premises. The Government previously announced that this extension to the mandatory licensing of qualifying HMOs would come into force in April 2018 but that there would be a 6 month grace period for landlords to obtain licenses. However, it has now been confirmed that the extension will come into force on 1 October 2018 and there will be no grace period for landlords who have not obtained a license by then. The Government also expects The Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) (England) Regulations 2018 to come into force on the same day. This draft statutory instrument has already been laid before Parliament and provides that licenses granted from 1 October 2018 must contain conditions that bedrooms exceed certain minimum sizes (a single bedroom for a person over the age of 10 will need to be greater than 6.51 metres square) and that landlords adhere to local refuse schemes.
v
/06
Changes To The Licensing And Regulation Of HMOS
/08
/07
In such circumstances, the Judge opined that “In my judgment, that would be a good time for the parties to engage in mediation. While I will not direct mediation against the parties' wishes, I remind all parties that an unreasonable refusal to engage in mediation might well prevent the winning party from recovering costs at trial. Armed with intelligible pleadings and the CCTV footage and weary from the battle of these applications, I consider that that would be an excellent opportunity to seek to mediate their differences”. The comment highlighted the inevitable result of a dispute settled by the Court; there is always a loser and there is always a winner, notwithstanding that the outcome might not be exactly what the winner envisaged. This case was clearly fraught with emotion given the allegations involved and the use of social media which served only to enflame the already tense positions of the parties who were concerned by any reputational ramifications. The Judge, echoing the historic sentiments of several of his brethren, gave his support for such cases being more suitable for resolution to be explored by the more cost effective and less confrontational avenue of mediation rather than through ongoing legal proceedings. If you would like to discuss particular requirements and available dates, please contact Laura via mediation@lpc-law.co.uk.
Laura-Pauline Adcock-Jones Mediation Manager
Mediation Monthly
Mediation Monthly – To the victor goes the hollow victory?
This month, Mediation Manager, Laura-Pauline Adcock-Jones analyses the comments made regarding mediation in the decision of Brown & Brown t/a Mable Hayes Hall School v A B [2018] EWHC 623 (“the Decision”) given on the 21 March 2018. The Decision was handed down by Mr Edward Pepperall QC sitting as a Deputy High Court Judge (“the Judge”) and involved an alleged incident between a teacher and a student who attended the school which was known as a specialist school for dyslexic children. Numerous causes of action were pleaded including, but not limited to, libel and harassment. The Judge was tasked with considering three applications; namely, the Claimant’s application to strike out the Defence or for summary judgment, and the Defendant’s applications to amend the Defence and to strike out “most of the Claimants’ claims” or for summary judgment. The Judge allowed elements of the Defendant’s application to amend their Defence and, in respect of the strike out applications, struck out one particular allegation within the Particulars of Claim and otherwise dismissed the Defendant’s application for summary judgment. The Judge afforded the Defendant an opportunity to file and serve an amended Defence, albeit with the caveat of an unless order in favour of the Claimant being able to enter judgment in the absence of an amended Defence, rather than strike out the Defence at that stage. Whilst, for the purposes of this article, it is not necessary to delve further into the substance of the Decision, it was of note that the Judge considered it prudent to add a “postscript” to the matter in which he expressed concern at the “significant cost already incurrent in these applications in a claim that….is nevertheless likely to be modest in value”. The Judge went further to say that “this case has the potential to be ruinous to the loser and provide little satisfaction to the victor” and ordered disclosure of CCTV footage of the alleged incident forthwith.
Mediation Monthly Continued
