Application Process

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Application Process

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Pre-action Disclosure Applications

Hindsight is a wonderful thing. But it is not something that parties or the courts are entitled to use on an assessment of costs. However, hindsight can most definitely inform the way in which we act in the future.

In our experience, Pre-action Disclosure Applications are an area of litigation that is often overlooked, but we consider that there is much scope for not only avoiding them in the first instance but, if unavoidable (or not avoided), reducing the amount they cost the insurance industry.

Avoid them

These applications are seen by many claimant firms as a serious revenue stream but they are very often fully avoidable.

An application will frequently be made at the first available opportunity, much in the same way that substantive proceedings will be issued at the first available opportunity in a motor case that would, but for the issue of proceedings, be captured by the fixed recoverable costs regime in CPR 45 Section II.

Consequently, defendants should be proactive in providing the information and/or documentation requested. Many firms have adopted the practice of including requests for information and documentation in their standard letters of claim (the PIPAP template letter is the same) but because the letters are pro-forma, the request is often overlooked/not addressed or not taken seriously.

If there is a difficulty in providing the information, or if difficulty is anticipated, then a request should be made as soon as possible for an extension of the time for providing the information. That will stand a defendant in good stead when it comes to the costs of the application in the event one is made.

If not avoidable/avoided

If the application is not defended (some are – e.g. premature issue) then it will, most likely, settle by consent prior to any hearing. The costs of these applications are usually met during the claim and not, for example, left over to the end of the claim. If they cannot be agreed, then they will be summarily assessed by a district judge, usually at a telephone hearing.

The costs of such applications are, except on the rarest of occasions, agreed by the insurance company file handler. Because ‘Costs’ has been outsourced for so many years, file handlers have simply not had to deal costs assessments and, with appropriate respect to them, the approach which seems to be adopted to assessing those costs involves little more than reducing the sum claimed by a certain percentage and seeing if the claimant’s solicitors accept.

So, in order to assist those reading this article who do have to deal with these applications, we thought it would be useful to set out the things that you should look for when presented with a claim for costs of an application for Pre-action Disclosure:

• Was the application issued reasonably? Were you given notice of the intention to issue the application? If not, then you should not have to pay for the costs of it. If you were given notice, was the application issued after the expiry of any deadline you were given? If no deadline was given, did they wait a reasonable amount of time (usually 14-21 days’ notice would be appropriate, depending on the particular facts of the case);
• Proportionality: this is an indistinct concept of the CPR because it is not defined. However, it is a constituent part of the overriding objective of the Civil Procedure Rules and, therefore, as relevant to the costs of an application for Pre-action Disclosure as anything else. If the costs of the application are disproportionate, then they should be assessed by reference, not only  to what is reasonable but also to what was necessary (see Home Office v Lownds);
• The court fee is £75 (currently: the fee may change from year to year). You may also be asked to pay £40 to discharge a consent order fee. The order will usually be for the purposes of vacating any hearing that has been listed, giving directions for the disclosure of the evidence set out in the application notice (if you have not provided it in the mean time) and to enshrine an order for costs;
• Time spent: such application notices are pro-forma and if a pro-forma document has not been used, it should have been. Anticipate 18-30 minutes of time to draft the application plus a couple of letters. Also, you should allow for say 12-18 minutes for the preparation of the schedule of costs (if one has been prepared);
• Hourly rate: Who is dealing with the case at their offices? Is the category of fee-earner who drafted the notice the right category of fee-earner to deal with the claim? For example, a grade A fee-earner should not be dealing with a low value, rear end collision, RTA. Who in fact prepared the notice? Who is it signed by? Use the SCCO Guideline Rates for summary assessment. A grade C rate is usually appropriate. The rate to apply to the costs is the cheaper of either where the solicitors are based or the claimant’s local court (per the case of Wraith v Sheffield Forgemasters);
• Success fee:
  • CPR Rule 44.3A(1) provides that The court will not assess any additional liability until the conclusion of the proceedings, or the part of the proceedings, to which the funding arrangement relates;
  • Also, a success fee is only payable under a CFA or CCFA in the event that a ‘win’ is achieved, and ‘win’ is normally defined as being ‘an agreement or order to pay damages’;
  • Consequently, a success fee is not recoverable at the stage of an application for Pre-action Disclosure. So, you should not pay a success fee on the costs of an application for Pre-action Disclosure if one is claimed (although it may be claimed and paid at the end of the case if the claimant does ‘win’).

Double recovery

Something else to look out for in respect of the costs of these applications is an attempt to claim the costs again at the end of a claim. Keep an eye out for the court fee(s) appearing in a statement of costs for summary assessment as that will give you an indication as to whether the other costs have been included too.

In the event the claimant’s claim is funded by way of a CFA, then the success fee that you were not previously able to pay on the costs of the application by reason of CPR 44.3A(1) may be claimed at the conclusion of the claim by reason of CPR 44.3A(2).

Our support was organised by Beci Trow and 15 members of staff volunteered for the run/walk, we were accompanied by other friends and family and the team effort was a great success. Employees contributed their own entrance fee with the company providing t shirts to wear.

Members of staff whom took part were: Kirstie Abbott, Paul Barke, Emily Candy, Lisa Corrado, Joanne Dale, Katia Farchica, Davina Hall, Adrian Jaggard, Antony Jaggard, Dawn Jaggard, Emma Johnson, Chris Newns, Nellie Selgjekaj, Linda Smith and Beci Trow.

Luckily the weather was on our side and it was a great day all round, we are looking forward to the next charity event!

Thank you very much for your sponsorship, we managed to raise over £700.00 for Sport Relief which provides help/funds at home and abroad.

In its seventh year, the CPD accredited conference aimed to provide those who attended with the latest industry knowledge and developments. The morning focussed on the incoming MOJ RTA claims process, and the afternoon turned to Lord Justice Jackson’s Final Report on Civil Costs.

Adrian Jaggard, Managing Director of Jaggards started off the day with an insightful and informative update on the new RTA process. Following on from Adrian’s presentation an open forum was held, where Kevin Westall from the Ministry of Justice joined the panel to answer queries from the floor.

Dan Cutts, President of FOIL, spoke about The Law Firm of the Future giving an insightful perspective on solicitors and their likely adaptation to the MOJ and Jackson reforms.

Graham Plumb, Claims Technical Manager of AXA Insurance, roused and entertained the audience with his wry presentation on an insurer’s perspective on the Jackson report.

In the afternoon, Professor Paul Fenn, Assessor for the Jackson Report, gave a much anticipated presentation on the economist’s perspective, particularly how some of the proposals were arrived at.

Robert Carter, Senior Partner at Taylor Rose Law examined some of the key planks of Jackson’s Final Report and considered whether they would be effective.

Matthew Hoe, Legal Director of Jaggards and Head of Strategy at Taylor Rose Law ended the day with a call to arms to insurers to pro-actively seek implementation of the Jackson recommendations.

Special thanks go to our guest speakers:

• Kevin Westall (Ministry of Justice)
• Dan Cutts (President: FOIL)
• Graham Plumb (AXA Insurance)
• Professor Fenn (Assessor, Jackson Report)

Jaggards and supervising solicitors, McCullagh & Co briefed delegates with the latest costs law updates and developments in this CPD accredited event.

Adrian Jaggard, CEO of Jaggards opened with a frontline update on the incoming Ministry of Justice reforms claims process. Robert Carter, Principal of McCullagh & Co gave a much anticipated presentation entitled ‘Judging Jackson: Jackson LJ’s Interim Report on Costs’. David Cooper, Legal Executive and Costs Lawyer, McCullagh & Co discussed ‘Costs Estimates and Costs Capping’; Matthew Hoe, Legal Director of Jaggards and Test Litigator at McCullagh & Co took us through the ‘Latest Developments in Costs Litigation’; and Stephen Hines, Solicitor at McCullagh & Co concluded the presentations with a piece on ‘Detailed Assessment Hearings: The Front Line’.

Special thanks go to our two guest speakers: District Judge Duerden, Regional Costs Judge from Bury County Court, who charmed the audience with his anecdotes of costs and his views as a regional costs judge; and Andrew Hogan, Barrister from Ropewalk Chambers, Nottingham, who spoke about what happens ‘When an ATE Insurer Refuses to Pay Out’. Their contributions, as were all speakers’ presentations, were very well received and served as an ideal ’shot in the arm’, hopefully to all delegates.

Feedback was universally positive and Judge Duerden has commented:

“I was very impressed by the quality of the presentations and the clear grasp of the subject of all the other speakers. It is most encouraging to know that there is such talent around in the field of costs. You are to be congratulated for putting on such a high standard conference and I am pleased to be associated with it.”

If you would like to feedback on the conference, please fill in this short questionnaire.

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  Adrian Jaggard opening the conference

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  Judge Duerden responds to a point raised during the Q&A session

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  Stephen Hines giving his presentation on detailed assessment hearings

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  The conference had a convivial and relaxing atmosphere, with lunch on the terrace

Sir Rupert Jackson published his preliminary report on 8 May in preparation for a public consultation exercise. He is being assisted with the review by a small group of ‘assessors’ who meet on a monthly basis to discuss issues and findings.

The panel of assessors comprises:

• Mr Justice Cranston
• Professor Paul Fenn
• Senior Costs Judge Master Peter Hurst
• Jeremy Morgan QC
• Michael Napier QC
• Andrew Parker
• Colin Stutt

Bypassing the civil procedure rules committee entirely, these rules were made by the Lord Chancellor personally under powers conferred by the Counter-Terrorism Act 2008 and insert a new part 79 into the CPR. Frankly, there is not much here of interest to civil practitioners as such, though it will undoubtedly be of interest to civil libertarians.