The Dekagram: 5th June 2023

• Published date: 08 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Professional Negligence
• Law Firm: Deka Chambers
• Author: Ms Linda Nelson and Richard Collier

Last week we were asking ourselves whether the courts' introduction of artificial intelligence is imminent. This week we read that the time it takes to bring a claim to trial has reached an all-time high of just under 80 weeks, up six weeks from a year ago. Although there has been an increase in the total number of claims issued in the first quarter of the year, the number of personal injury claims has reduced by 8% to 17,000, which may reflect the fact that during the pandemic there was less scope for fault related injuries, or may (alternatively) suggest that the drive to discourage claims has started to have some effect. In 2022 there were just over 17,500 barristers in practice in England and Wales...

Genuine and Sham Liability Settlement Offers: a Guide

Part 36 describes itself as a 'self-contained procedural code about offers to settle pursuant to the procedure set out in this Part' (CPR 36.1) and contains a balance of financial incentives to settle claims without recourse to litigation. It also applies to parts of claims: rule 36.2(3) provides that 'a part 36 offer may be made in respect of the whole, or part of, or any issue that arises in [a claim]'. It is therefore a legitimate and common occurrence that offers are made to settle the liability aspect of a claim, with damages to be decided by the court thereafter.

The benefit of making such an offer is of course that the offeror may be able to take advantage of the financial incentives set out in rule 36.17. Where judgment against a defendant is at least as advantageous to the claimant as the proposals contained in a claimant's part 36 offer, the court must, unless it considers it unjust to do so, order that the claimant is entitled to enhanced interest on the damages awarded, costs on an indemnity basis from the end of the relevant period, interest on costs and an additional lump sum (all set out in rule 36.17(4)). Rule 36.17(5) sets out the factors that the court must take into account when considering whether it would be unjust to make the 36.17(4) orders. Those factors include the stage in the proceedings at which the offer was made, the information available to the parties at the time the offer was made and the conduct of the parties.

When considering how to approach the issue of whether it would be 'unjust' to order the specified costs consequences, the courts have given the following guidance:

• A finding that it would be unjust is a departure from the norm and a judge must not therefore make that exception just because s/he thinks the costs regime itself is harsh or unjust. There has to be something about the particular circumstances of the case that takes it out of the norm (Downing v Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216);
• A finding that it would be unjust is therefore the exception not the rule and the burden of satisfying the court that it would be unjust is a heavy one/ a formidable obstacle (Smith v Trafford Housing Trust [2012] EWHC 3320).

An amendment to...