Legal Watch:Personal Injury5th June 2014Issue: 021

In This Issue:

• Civil Procedure/Service Of Claim Form

• Jackson/Mitchell

• Plexus (Scotland): Taylor Review of Costs in

Scotland – The Scottish Government Responds

Civil Procedure/Service Of Claim FormThere has been a run of cases relating to the service of claim

forms and this continues with Kaki v National Private Air

Transport Co and another (2014) [Lawtel 30/05/2014]. Although

this is a commercial case it is of significance to personal injury

claims because any claimant, who falls foul of the rules as to

service of a claim form, could attempt to use cases such as

this as a way of circumventing the problem.

In so far as it is relevant to this report, CPR 6.15 states

(emphasis added):

1. Where it appears to the court that there is a good reason

to authorise service by a method or at a place not

otherwise permitted by this Part, the court may make an

order permitting service by an alternative method or at an

alternative place.

2. On an application under this rule, the court may order

that steps already taken to bring the claim form to the

attention of the defendant by an alternative method or

at an alternative place is good service.

The claimant/applicant applied for an order extending time

for service of the claim form retrospectively and/or directing

that the steps taken to bring the claim form to the attention of

the respondent/defendants amounted to good service and/or

dispensing with service of the claim form.

The claimant claimed for the return of US$4.4m paid to the

defendants under an agreement to purchase an interest in an

aircraft, or damages, on the basis that the agreement had been

repudiated by the defendants. There was an alternative claim

for conversion. The agreement was governed by English law.

The defendants were domiciled in Saudi Arabia. The claimant

sent a letter before action together with the claim form to the

address in Saudi Arabia stated in the agreement which was

the defendants’ registered address. The letter and claim form

were also sent by e-mail to a member of the defendants’ legal

department. The claimant also asked for details of an agent

for service in England. No response was received and the

claimant obtained permission to serve the claim form on the

defendants out of the jurisdiction. The claim form was sent

to the Foreign Process Section of the High Court for service

by the Saudi authorities. The claimant obtained an extension

of time to serve the claim form and sent the claim form and

order extending time to the Saudi address and by e-mail

to the defendants’ legal adviser. A further extension was

obtained while awaiting service by the Saudi authorities.

The claimant then obtained an order for alternative service

by delivering the claim form to the Saudi address and to

London solicitors. The order for alternative service was

amended to reflect a new Saudi address for the defendants.

The claim form was delivered to the London solicitors one

day after the time for service expired and to the Saudi

address three days later. The claimant obtained summary

judgment. The defendants then filed an acknowledgment

of service indicating that it intended to challenge English

jurisdiction and applied to set aside the judgment on the

basis that the claim form had been served after the period of

its validity had expired and that it had been unaware of the

date for the hearing of the summary judgment application.

Allowing the application in part, the deputy High Court

judge held that the court would not retrospectively extend

time for service of the claim form under CPR 7.6(3). The

key questions were whether the claimant had taken all

reasonable steps to serve in time and whether the application

for a retrospective extension had been made promptly. The

claimant explained why there had been delay in serving in

Saudi Arabia, including the timing of Ramadan, and that

he had not realised until the defendants’ application that

service had been effected a few days late. His case was

that he had done enough in the circumstances. However, he

had not taken all reasonable steps. For example he could

have served the London solicitors at any time rather than

trying to coordinate service on them and in Saudi Arabia.

It would have been a reasonable step to serve them first.

Furthermore, there had been delays in instructing agents in

Saudi Arabia and delays by the agents. The claimant had

not impressed on them the need for urgency. He must have

known that service on the London solicitors had not been in

time and that meant the application for an extension had not

been made promptly.

‘…the fact that the defendants had been well aware of the proceedings was a critical factor’The court could retrospectively validate alternative service

out of the jurisdiction; it was not necessary to show that the

circumstances were exceptional. The method of alternative

service could neither be explicitly permitted nor expressly

prohibited in Saudi Arabia. There was no doubt that by

sending the letter and claim form to Saudi Arabia and

e-mailing the defendants’ legal advisers, the defendants

had been fully apprised of the nature of claim after

permission to serve out had been granted and during the

period of validity of the claim form. It was not the claimant’s

fault that service through diplomatic channels had been

unsuccessful. Although not all reasonable steps had been

taken to serve a claim form within the period of its validity,

overall significant efforts had been made over a prolonged

period and the claim form had been brought to the attention

of the defendants, and it was right retrospectively to validate

the steps that had been taken as good service under CPR

6.15(2). The defendants’ objection was technical and the

claim was not time-barred. Requiring a new claim form

to be served would simply waste further time and costs.

The effect of the order was not tantamount to saying that

a failure to take all reasonable steps was a good reason

for retrospectively validating alternative service. Although it

was not of itself a good reason, the fact that the defendants

had been well aware of the proceedings was a critical factor.

It was not necessary to decide the application to dispense

with service. If the court had not retrospectively validated

service under CPR 6.15(2), it would not have rectified the

errors of procedure with regard to service generally under

CPR 3.10.

Jackson/MitchellThe case of Holloway and others v Transform Medical Group

(CS) Ltd and others (2014) EWHC 1641 (QB) looks at the

status of a cut-off date in group litigation and the impact of

Mitchell on an application to join claimants late.

Over 1,000 women had brought claims for loss and damage

arising out of the use of allegedly defective implants,

manufactured by a French company (PIP), in breast

augmentation surgery. The defendants, the owners of

private clinics in which the surgery was carried out, resisted

the claims. In April 2012, an order was made that no claim

could be added to the group register without the permission

of the court after 4pm on 8 April 8 2013. The applicant/

claimants’ solicitors made the instant applications 10

months after that cut-off date. It was the defendants’ case

that the applications, properly analysed, were applications

for relief from sanctions under CPR 3.9.

The claimants argued that they were never part of the group

litigation order and so they had not disobeyed any order of

the court; therefore CPR 3.9 did not apply.

‘Were a cut-off date not a sanction, it would be difficult to see what purpose it served in the management of group litigation. CPR3.9 therefore applied’.Rejecting the applications, the High Court judge held that

the purpose of a cut-off date was to secure the good

management of the claims subject to the group litigation

order. It was difficult to characterise as something other than

a sanction, the consequences that those who had not joined

the group could not do so without the permission of the

court. Relief was available in the form of permission. Were a

cut-off date not a sanction, it would be difficult to see what

purpose it served in the management of group litigation.

CPR 3.9 therefore applied. The claimants’ solicitors had

failed to have the claims joined to the register before the

cut-off date; failed to make an application for an extension

before the cut-off date; and having taken the decision to

make the application, failed to do so until 10 months had

elapsed. Those failures were serious and sustained. There

was no good reason for any of them and nothing was done

to meet the deadline. All that was the responsibility of the

solicitors. Whether considered under CPR 3.9 or under

CPR 1.2, as framed in CPR 1.1(2), (the overriding objective)

the applications were hopeless. To grant them would be to

undermine the discipline of the litigation. The cut-off date

would be rendered meaningless. Such prejudice as there

might be proved to be to the claimants would be laid at the

solicitors’ door. Even before the changes in the CPR and

the shift of approach from Mitchell onwards, the conclusion

would have been exactly the same.

Plexus (Scotland): Taylor Review of Costs in Scotland – The Scottish Government RespondsOn Monday the Scottish Government responded to the

report presented in September 2013 by Sheriff Principal

Taylor. The intention is to implement the recommendations

incrementally, with varying degrees of further consultation

as required. At the centre of the process is a vision that:

The Scottish justice system will be fair and accessible,

cost-effective and efficient, and make proportionate use

of resources. Disputes and prosecutions will be resolved

quickly and secure just outcomes.

Damages-Based Agreements/QOCSUnder the banner of access to justice, damages-based

agreements (DBAs) will be introduced and it will be

interesting to see if they are any more popular in Scotland

than in England and Wales. Speculative fee agreements

(‘no win/no fee’) have been allowed for many years, but

added protection will be offered to those taking up either of

these agreements through qualified one-way costs shifting

(QOCS). Legal aid remains available for injury cases in

Scotland.

There will be exceptions to QOCS where the pursuer is

found to have acted unreasonably (‘unreasonably’ has

not yet been defined). DBAs will be subject to regulation

to provide protection for the public and there will also be

a cap on the level of success fees under both DBAs and

speculative fee agreements but with the solicitors entitled

to retain judicial expenses (costs recovered) in addition to

the success fee. It is not, however, proposed that members

of the public should receive independent advice on such

agreements.

Tenders (the equivalent of Part 36 offers in England & Wales)

will still be effective with QOCS but it is proposed that the

defender’s recoverable post-tender judicial expenses

should be capped at 75% of the damages recovered.

Referral FeesThe government agrees with Taylor that referral fees should

be permitted, subject to appropriate safeguards. Pending a

review of whether claims management companies should

be regulated, only solicitors will be able to pay referral fees.

The government proposes to consult with the Scottish Law

Society over the changes that will be needed.

CounselThere will be controls over the levels of fees payable to

counsel and also when counsel may be instructed. This is

particularly relevant given the anticipated transfer of most

personal injury cases to the sheriff court, where counsel are

not mandatory. This is aimed at achieving ‘equality of arms’

between claimants and insurers.

ImplementationIt is recognised that the implementation of these proposals

will require behavioural changes amongst the parties with

the need to encourage good claims to be progressed quickly

and for frivolous cases to be discouraged. Compulsory

pre-action protocols, to regulate pre-action behaviour are

regarded as being an important part of the new landscape

‘…the implementation of these proposals will require behavioural changes amongst the parties…’

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

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E: gro@greenwoods-solicitors.com

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With increasing regulation of solicitors the government is

taking the opportunity to review the extent to which claims

management companies should also be regulated. This

is seen as a way of levelling the playing field between the

two providers of services and improving the protection of

vulnerable clients from unacceptable practices.

Much of this will require primary legislation for which no

timetable has been given, although the indications are that

the necessary legislation will be taken forward as quickly as

possible. We may see earlier developments where issues

can be dealt with by the Scottish Civil Justice Council under

secondary legislation.

For further information on this article, please contact:

Cameron McNaught

Partner – Plexus Law Scotland

T: 0844 245 4802

E: cameron.mcnaught@plexuslaw.co.uk