Case Summaries And Updates – April 2013

Pre-action Protocol - a cautious reminder about compliance

Webb Resolutions Ltd v Waller Needham & Green (a firm) [2012] EWHC 3529

Facts

In this case, the High Court departed from the normal costs rules that follow an offer to settle intended to have the costs consequences associated with Part 36 of the Civil Procedure Rules. The usual order is that the claimant will be entitled to recover its costs incurred beginning from the expiry of the relevant period (21 days after the offer was made) to the date that the offer was accepted. However, the Court departed from this usual position citing the claimant's non-compliance with the relevant pre-action protocol.

The defendant accepted a Part 36 offer a year after it was made on the basis that the offer could not properly be assessed before then as a result of the claimant's failure to deal with the Professional Negligence Pre-action Protocol - the claimant had not complied with the defendant's request for the pre-action exchange of documents.

Decision

The court decided that the costs would not have been incurred had the claimant acted reasonably and complied with the request under the Pre-Action Protocol and therefore the claimant was ordered to pay the defendant's costs for that period.

CR Comment

The decision by the High Court serves as a reminder that pre-action protocols should be adhered to as far as possible and that the court has a power to impose cost sanctions where the court considers that appropriate steps have not been taken.

Clarity from the Court of Appeal in relation to the 10% increase in damages

Simmons v Castle [2012] EWCA Civ 1288

Facts

The Court of Appeal provided clarification on the recommendations made by Jackson LJ for a 10% increase in general damages.

In summary, Jackson LJ has undertaken a review of the civil justice system. Amongst various other initiatives, Jackson LJ recommended that some general damages (damages that relate to non-monetary aspects of a claim such as pain, suffering and loss of amenity) be increased by 10% for all tortious claims. This change is due to come into force where judgment is given after 1 April 2013.

This case considered whether:

this increase in general damages should also apply in cases for breach of contract (and not just tort claims); and if the increase should apply to conditional fee agreements (it had already been decided that those who entered into a CFA before 1 April 2013 but were awarded damages after that date would benefit...