AWARE

Keoghs Insight

Author

Elaine Ibbotson

Elaine Ibbotson

Partner

T:0247 665 8234

Excerpts from the Keoghs Casebook

AWARE12/03/2019
Fraud Aware March 2019

The civil procedure rules provide the framework in which litigation is conducted. In two recent cases we have seen examples of how overlooking the rules can have costly consequences for a claimant’s legal representatives and in what way the rules can be applied to ensure defendants can recover costs.

Costly shortcuts

Litigation inevitably has the potential to become hostile, with arguments over legal concepts and interpretation of evidence, however in amongst the crossfire it is important to remember the basic requirements of the civil procedure rules. Keoghs has seen a number of cases in which problems with the claimants’ ability to speak English has arisen at trial. It is understandably tempting for legal representatives to get by with the assistance of family members, or perhaps claims intermediaries to smooth over the communications with a claimant or witness who has a limited command of English. However, this kind of corner-cutting can and will be exposed at trial if the formal CPR requirements are not complied with.

Our fraud ring team secured a wasted costs order against a claimant firm in this scenario. The claimant, who was unable to speak fluent English, attended trial but with no interpreter arranged by his solicitors. More importantly, there were no translation clauses in his witness statement and no indication in the medical report that translation had taken place during the medical examination. Indeed at trial there was no evidence that translation of any of the court documents had been properly considered.

This is a surprisingly common situation which leads to some variation in judicial approach. Some judges take pity on the claimant who has had the misfortune of inadequate legal representation. This approach leads to trial adjournments to enable the omissions to be rectified. However in this case, the judge took a hard-line approach and saw the inadequacies in the preparation of the claimant’s case as a breach of the claimant’s solicitor’s duty to the court. They had a duty to ensure that the trial was capable of proceeding and it was their negligence which prevented the trial being effective.

The claim was dismissed given that the trial could not proceed but there was an extra sting in the tail for the claimant’s solicitors who were also ordered to pay our wasted costs in the sum of £3,000.

The perils of undue optimism

For claimants, the introduction of qualified one way costs shifting significantly reduced the costs risks involved in personal injury litigation. Claims could be brought safe in the knowledge that in the event the claim was defeated, there would be no automatic liability to pay a successful defendant’s costs. From the insurer’s perspective there was a concern that the reduction of the financial stakes could encourage a ‘have-a-go’ culture amongst those involved in accidents. There have been some very unusual attempts to bring claims which fall in that grey area between misunderstanding or mis-application of the law and outright dishonesty. Litigants in person can be forgiven for not constructing a viable claim but it is much rarer to see such shortcomings where a claimant is represented.

In one such case dealt with by our motor fraud team, the claimant sought to recover damages for psychological injury after an accident involving a vehicle hitting her garden wall. Despite the fact that nobody was physically injured in the incident, the claimant still pursed the claim – seemingly on the basis of what could have happened, had she been standing next to the wall at the time. The claimant’s own medical evidence failed to confirm any recognised psychological injury and the claim was always doomed to fail.

Despite all this, proceedings were issued and although Keoghs suggested to the claimant’s solicitors that they may wish to reconsider their position prior to any defence costs being incurred, they elected to bat on. Keoghs therefore filed a defence which pointed out the absence of both a valid cause of action and any viable medical evidence. Soon after the claimant discontinued.

The claimant clearly thought that would be the end of it but our client elected to pursue an application to dis-apply the claimant’s QOCS protection using the provisions of CPR 44.15 (a). This rule enables costs orders to be enforced where the claimant has disclosed no reasonable grounds for bringing the proceedings.

This is a provision that is rarely seen in claims arising from road traffic accidents, however this was a classic example of there simply being no case to answer and a clear waste of time and costs.

It would appear that the claimant’s solicitors recognised they made a bad call in seeking to run the claim and agreement was reached that they pay our client’s costs in full.