Step 1 - The Civil Procedure 1998

Step 2 - Funding your claim

(Inc conditional fee agreement)

Step 3 - Preparing your claim - gathering the evidence

THE CIVIL PROCEDURE RULES 1998

The Civil Procedure Rules which came into effect on 26 April 1999 introduced far reaching changes to the conduct of civil litigation.  The Court assumed a far greater role in the management of civil litigation.  The initiative was largely removed from the litigants themselves, in favour of the procedural judges.  Any party failing to comply with the Court’s directions, without good reason, risks stiff penalties, such as a wasted costs order.  Accordingly, it is important that your case is well investigated and prepared before proceedings are commenced, in order to reduce the risk of being penalised.

Under the Civil Procedure Rules (CPR) the courts overriding objective will be to deal with cases “justly”.  This is defined as embracing the following aims: 

ensuring that the parties are on an equal footing;

saving expense;

dealing with the case in ways which are proportionate –

- to the amount of money involved;

- to the importance of the case;

- to the complexity of the issues;

- to the financial position of each party;

ensuring that it is dealt with expeditiously and fairly; and

allotting to it an appropriate share of the court’s resources.  While taking into account the need to allot resources to other cases.

 All parties have a duty under the Rules to help the court achieve these aims.

Under the new regime, the courts will have greatly increased powers to manage and control proceedings, including the power to disallow the admission of certain evidence and to penalise the parties for non-compliance with its directions.

Commencement of Proceedings

It is our policy to commence proceedings as soon as possible within the 3-year limitation period.  In a claim for personal injury you are obliged to file a medical report at court, before it will issue the proceedings.

If you start the proceedings, you are called the “Claimant”, and your opponent the “Defendant”.

If your claim is valued at less than £50,000.00 it will usually be commenced in the County Court by issuing a Claim Form.  Claims worth in excess of £50,000.00 tend to be brought in the High Court.  It is necessary to set out the basic facts about your claim in a formal document called the Particulars of Claim.  This is usually served at the same time as the Claim Form.

Statements of Truth

The CPR require that the following documents that have been prepared by you or on your behalf are formally verified by a “statement of truth”.

The Claim Form,

Particulars of Claim or Defence,

Witness Statement, which sets out the evidence that you will give if the case proceeds to a hearing,

Any application notice, these are used to seek interim orders and directions on your behalf within the proceedings.

It is important that you are satisfied that these documents contain a full and accurate statement of your case, since any subsequent changes are likely to affect your credibility as a witness.  Accordingly we will ask you to check these documents very carefully before they are filed at court or served on your opponent.  Any intentional inaccuracy is likely to leave you exposed to a court fine or event a term of imprisonment.

Service of Proceedings

We will advise you when the proceedings have been served on the Defendant (your opponent) and when we expect to receive the Defence (usually within 14 days of service).

Sometimes the Defendant will ask for more time, and can obtain an additional 14 days as of right by filing an acknowledgement of service form.  The Defence is the Defendants formal response to your claim.  Once this is received we will forward it to you and advise you accordingly.

If liability is admitted

If the Defendant admits blame for the accident or fails to file a Defence in time we will apply for an interlocutory or a default judgment, this settles the issue of liability.  The amount of your entitlement to compensation is left to be decided either by the court or by negotiation with the Defendant.

If liability is disputed

If the Defendant denies liability and sets out an arguable case in the Defence, then the Court will send out an allocation questionnaire to all the parties.  This form is intended to assist the court decide how to deal with the case.  We are required to complete and return your questionnaire together with a court fee to the Court within 14 days.  Any delay is likely to result in a court penalty.  It is also open to us to ask for further information or clarification of the Defence, if necessary.

Directions

On returning the allocation questionnaire form, either party can for any specific directions they need, including a stay of the proceedings for up to one month, to try to settle the claim.  The court can, of its own initiative, grant time for the parties to mediate or undergo alternative dispute resolution procedures if there is a chance that the parties can settle their differences amicably.  The court will then decide how to allocate the claim within one of the three different procedural tracks: small claims, fast-track claims, or multi-track claims.

Allocation of claims

This procedure enables the court to apply the overriding objectives of the CPR, which includes managing claims in a way that is proportionate to its value and complexity and applying the other principles set out at the beginning of this leaflet.

Minor injury claims will be dealt with informally and expeditiously within the Small Claims Track.  Usually, this involves the court issuing simple directions for disclosure of documents and evidence and later, setting an early hearing date.  The Court can give notice of its intention to deal with the claim without any one attending a hearing, with the parties’ consent.  Only minimal solicitor’s costs are awarded under this system.

Most personal injury claims over £1,000 in value will be allocated to the Fast Track.  If this procedure is selected, the Court will then issue directions for the future management of your claim after considering what the parties have stated in their allocation questionnaires, with a timetable for each step clearly set out.  In a typical case, these steps are likely to include:- 

disclosure of documents	within 4 weeks
service of written witness statements	within 10 weeks
exchange of evidence from experts	within 14 weeks
listing questionnaires sent out by the Court	within 20 weeks
filing of the list questionnaires by the parties	within 22 weeks
notification of the hearing date by the Court	within 24 weeks
the hearing date itself	within 30 weeks

The court timetable must be strictly adhered to, failure to do so is likely to incur financial and other penalties.  Only in exception cases will the court allow expert witnesses to give evidence in court.  Instead the Court will encourage the use of jointly instructed single experts, who will report to the curt and whose reports will be read out at the hearing.

A Fast Track hearing is given a maximum of one day for the hearing, often much less time.  The court will encourage the parties to focus on the issues in dispute and to limit the evidence before the court where possible to simplify and accelerate the management of the case.

In more complicated claims, for example where several experts are likely to be required or where the value of the claim is likely to exceed £15,000, the Court will probably allocate your claim to the Multi-Track procedure.  This track provides for a more flexible to the management of the case approach by the Court.  The Court will usually issue directions immediately in most cases and then fix a case management conference or pre-trial review appointment, to help the parties and the court decide on the most appropriate means preparing the case for trial.  The Court will probably require you to attend a case management conference and or a pre-trial review.  The parties will still be encouraged to try to settle their differences.  if this is not possible the court will try to list the claim for a final hearing within a year of

Your duty to search for and to disclose documents

This topic has already been covered in our leaflet: First steps in a Typical Personal Injury Claim.

Interlocutory applications

During the course of your claim, it is possible to ask the Court for specific directions in order to assist the preparation and progress of your claim generally.  The standard directions set out above are usually sufficient for most personal injury claims.  A party losing an interlocutory application is likely to face an immediate costs order, which will be payable within 14 days.

Immediate Costs Orders

In all interlocutory applications and final hearings lasting less than one day, the Court is likely to make a summary assessment of costs at the hearing itself.  Accordingly, most fast track cases will be subject to summary costs assessments.

Continuing Negotiations

We will review the merits and value of your claim as your claim progresses and further evidence is gathered and exchanged we shall continue our dialogue with the opponent and try to settle the claim without the need to trouble you with a Court appearance.  The majority of claims settle without proceeding to a hearing.

Defendant insurers often like to make a Part 36 payment into Court after exchange of expert evidence.  The payment is intended to reflect the value that they put on your claim and this has important costs consequences that we will advise you about, as and when this occurs.

Part 36 offers to settle and payments

These important topics are covered in a separate information sheet.  It is sufficient to mention here that it is open to a Defendant to put you at risk as to the costs, once proceedings have been started, by paying into court such sum as is believed to be sufficient to compensate you.  If you reject the payment and proceed to a hearing the judge will not know about the payment.  If you fail to beat the payment at trial or obtain a less advantageous award, then you will be ordered to pay the Defendant’s costs from the latest date when you could have accepted the payment, unless the court considers this to be unjust.

Preparation and listing for trial

If it is not possible to settle your claim without proceeding to a hearing then we will contact you and any other witnesses (including any experts whose attendance at court is required) before applying to the Court for a hearing date. We will to find out which dates are inconvenient.

Because a substantial proportion of your legal costs will be incurred in the final preparations for and in attending the trial itself, we will carry out a further review of the evidence, the merits and review the value of your claim at this stage.  If your claim is allocated to the Fast Track, the court will take the initiative by sending out a listing questionnaire to the parties.

The hearing

We will arrange for you to be represented at the hearing.  The Court will consider the evidence and reach a decision on liability, and on the value of your claim.

If you are successful, the Court will assess the value of your claim and include this in the judgment.  The usual rule is that the loser pays the winning party’s costs.

In a Fast Track case, the hearing is restricted to a maximum length of one day.

Steps following the hearing

Monies received under a judgment or paid out of Court in your favour are paid to this firm.

We will account to you for these monies subject to payment of our costs and expenses.  If you are a private client our costs will be calculated in accordance with your agreement with us.  The position is different in respect of legally aided cases, which is rarely the case nowadays, since legal aid for personal injuries claims has been largely abolished.

Recovery of costs

In the event of a successful outcome the trial judge will probably assess the amount of costs that the losing party is obliged to pay, at the end of the case and then direct that this should be paid, usualy within 14 days.  If your claim is a Multi Track case then the usual direction in the judgment will be that the Defendant must pay the Claimant’s costs within 14 days of assessment or agreement.  Upon receiving an order for costs in your favour, we will cost our file promptly and request payment from you opponent.  It is usual practice for the Opponent to object to the level of a Claimant’s costs and accordingly it usually takes 4-12 weeks to agree costs, where they have not already been assessed summarily at the hearing.  There is often a shortfall between the amount of costs incurred on your behalf and the amount of costs actually recovered from an opponent.  You will be obliged to meet this shortfall from your damages.  We will try to keep any shortfall to a minimum.

             <<no win - no fee

FUNDING YOUR CLAIM:  THE OPTIONS

This outline identifies the alternative ways of funding a personal injury claim.  We will discuss these alternatives with you in more detail before agreeing to act for you.

The basic position

You will be primarily responsible for paying this firm’s costs and any expenses incurred on your behalf, regardless of any order for costs against your opponent.  In litigation the usual rule is that the losing party pays the winning party’s reasonable costs and expenses of pursuing the claim.  Accordingly a successful party is generally entitled to recover the majority of their costs from the opponent either by negotiation or by obtaining an appropriate court order.  Were you to lose your case, then you would probably be responsible for paying your opponent’s costs.

Pursuing a claim at law can be an expensive process. Accordingly we will provide you with detailed information about our costs and the way in which they are calculated.

Obviously, our first concern will be to establish whether there are sufficient grounds to justify bringing a claim on your behalf; for the purposes of this leaflet we shall assume that there are.  The next step is to consider what is the most suitable method of funding the claim.

Simcox Associates currently offers the following alternative ways of funding your claim:

The traditional private client retainer

This is probably still the most common form of fee arrangement for solicitors and their clients.  Under this type of agreement you agree to pay the Firm for its professional services for the time spent on your case at an agreed hourly rate.

The hourly rate has two components: the hourly expense rate (which represents this firm’s overheads), and the uplift (which represents the profit element of our fees), which is based upon a percentage of the hourly expense rate. The percentage of the uplift depends upon a variety of factors, including the complexity of the case, its urgency, its importance to you and the skill involved.  In routine claims the uplift is usually a minimum of 50%.

The Firm’s current hourly expense rate for a senior solicitor with more than 8 years litigation experience is £123.33 per hour and for a junior assistant solicitor, for example, it is £83,33 per hour, excluding uplift of 50% in a typical case.  VAT is charged in addition at 17.5% of the total figure.  The hourly expense rate varies depending upon the seniority and experience of the lawyer handling your claim.

The hourly expense rate and the uplift which make up the hourly rate are also known as basic costs.  This term, is mentioned again under the heading: Conditional Fee Agreements.

Usually all expenses incurred by the firm on your behalf during the course of your case (these are called: disbursements) are paid either by you directly or by the firm and then refunded by you immediately afterwards.  We will try to estimate the disbursements which are likely to be incurred on your behalf, such as Court fees and expert and Barristers’ fees, at our initial interview.

It is common practice with privately funded clients for solicitors to ask for monies on account of costs.  These funds are paid into a “client account” in your name, the provide the firm with some security for costs and expenses incurred on your behalf.

It is usual to present privately funded clients with an interim bill every 3 or 6 months.  The interim bill is not an exhaustive statement of the full costs due at that date, but it is intended to broadly reflect the amount of work undertaken up to the date of the interim bill.  Interim bills are tendered on account of costs due; not in settlement of all the costs incurred up to the date of the invoice.

In the event of a successful outcome, we will make a claim against your opponent for the cost of pursuing your claim on the “standard basis” (this is a scale of costs regulated by the Courts).  The standard basis often results in a recovery of between 80% and 90% of the costs that you have actually incurred.  The difference lies in the fact that the Court’s policy is to restrict a losing party’s liability for costs: to the reasonable costs of the winner’s solicitors taking steps that progress claim; as opposed to all the costs of advising about the claim and attending you generally.

Example

Routine personal injury claim with 50% uplift - 10 hours work

With only an 80% recovery from the opponent on the standard basis  

We always try to minimise or avoid any shortfall in

recovery costs.  

Civil legal aid

Legal Aid has been withdrawn for personal injury claims in all but a few cases as from April 2000.

Legal expenses insurance cover

This is becoming an increasingly popular means of providing for legal costs. Many clients are unaware that they have the benefit of legal expenses insurance.  It is important that you should check whether you already have legal expenses insurance cover; either provided by a dedicated policy or legal expenses cover incorporated in one or more other insurance policies, for example; household or home and contents insurance, motor insurance, even some credit cards provide some legal expenses.

The advantages of having a legal expenses insurance policy is obvious.  Although you remain primarily responsible to the Firm for payment of your fees on a private client retainer basis, your policy will indemnify you against this.  The legal expenses insurers will meet not only your opponents costs but also our own in the event that your claims fails or there is a shortfall in the costs actually recovered (see above for an explanation).

Because your entitlement to legal expenses insurance is contractual, there is no means assessment procedure, as with legal aid.  However, the indemnity is conditional on there being reasonable prospects of success in defending or bringing your claim.  You will need to study the terms and conditions carefully, these vary.

Because a legal expenses Insurer has a legitimate financial interest in the prospects of your claim, you will find that the indemnity provided will be subject to certain terms and conditions set out in your contract/policy of insurance.  For example, the Insurer usually stipulates that it can withdraw the indemnity if they or the Firm believe that there are no reasonable prospects of success and/or of beating an offer in settlement or payment into Court.  The insurance policy usually requires your solicitor to report regularly to the insurer on the progress and merits of the claim.

If you have legal expenses insurance you have a right to the solicitor of your choice once proceedings have commenced and many Insurance Companies are now prepared to allow you to choose your solicitor in any event

 Trade union funding

Some clients have the benefit of free advice and representation funded by their Trade Union.  Trade Unions, like many legal expenses insurers tend limit the number of solicitors authorised to act on their members’ behalf to a limited panel of approved solicitors.  

Conditional fee agreements

Conditional fee agreements provide a new way of funding a personal injury claim. 

Under a conditional fee agreement, Simcox Associates will not charge you for its services it you do not win your case.  This is sometimes referred to as the “no win-no fee” scheme.

If you win your case, then the Firm will charge you a supplementary fee over and above our basis costs (explained above), this is called the “success fee”.  The success fee is charged as a percentage of the Firm’s basic costs (explained above as the hourly expense rate and the uplift combined).

The success fee is subject to a maximum percentage rate of 100% of the basic costs.

If you win your case, you will be entitled to claim from your opponent the following:

- your damages

- your solicitor’s costs assessed on the standard basis plus VAT and disbursements, as explained above

In the event of a successful outcome, you would then be responsible to pay the following:

- our basic costs

- the success fee

- any expenses that we have incurred on your behalf.

In the event that the success fee is not recoverable from your opponent, we guarantee that the success fee will not exceed 25% of any damages recovered on your behalf.  Any sums deducted from your damages for contributory negligence, repayment of state benefits or otherwise will be discounted.

Example: A

of a relatively low value settlement involving 15 hours work

- 50% on expense rate

- 25% success fee on basic costs (i.e. expense rate + uplift)

- resulting in a net recovery of £2,000 damages

- with only an 90% recovery of costs from the opponent on the standard basis  

Basic Costs  

Note 1: Thus in the above example, you would receive £1,685.68 from your damages after deduction of the shortfall in the recovery of your basic costs and success fee including.  (Disbursements and the insurance premium, which are usually recoverable, have been left out of account)

Note 2: It is now possible to recover both the success fee and insurance premium from a losing party.  Disbursements are recoverable.

Note: 3 The above example illustrates the importance of limiting the amount of time we spend advising and assisting you generally, as opposed to progressing the claim.  We shall try to minimise the shortfall between our basic costs and the standard costs, by restricting our time to activities that actually progress the claim.  In many cases there will be no shortfall at all, which in this example would produce a further saving to you of £314.32, being 10% of the basic costs and success fee plus VAT thereon.

It is possible, (and, in fact, highly desirable if you do not already have legal expenses cover) for you to take out “an after the event” litigation insurance policy against the risk of your having to pay your opponent’s legal costs in the event that your claim is unsuccessful.  The premium varies but if you have been injured in a road traffic accident, it should be relatively inexpensive.

This firm has a policy of encouraging clients who with to instruct the Firm under a conditional fee agreement to insure against opponent’s legal costs.

Under the Access to Justice Act, litigation insurance premiums and success fees incurred under conditional fee agreements will be recoverable from a losing party, in addition to the basic costs and expenses of the litigation.  The effect of this will be to allow Simcox Associates to act for you on a “no win – no fee” basis and in the event of a successful outcome to recoup the additional costs of doing so from your opponents.  This legislation now makes conditional fee agreements a very popular alternative to the private client retainer.

Initial enquiry/fixed fee work

It is sometimes necessary to conduct preliminary investigations before fixing the percentage of the percentage uplift for a success fee. This is because the level of the success fee is governed to a large extent by the litigation risks undertaken by the Firm in taking on your claim.  Accordingly, if there are significant uncertainties present at the time we are initially instructed, it may not be in your