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Legal Aid Costs Etc Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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A more recent version of these Legal Aid Costs Etc notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our BPTC Civil Ligitation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

STAYS, DISCONTINUANCE, COMPROMISE, FUNDING AND CIVIL LEGAL AID Discontinuing Litigation What?
C who claims more than one remedy, and abandons part of claim for some remedies, but continues with others, is not taken to discontinue all/part of his claim per r38.1.

When?
The Claimant may discontinue:

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Whole (r38.1)

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Part (r38.1)

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Against All Ds (r38.2(3));

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Against Some Ds (r38.2(3);

At any time.

Procedure to Discontinue

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Permission is not required, except:

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If interim injunction has been granted, permission needed (r38.2(2)(a)

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If party has given undertaking to court (r38.2(2)(a));

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If C has received interim payment, permission or D's consent in writing (r38.2(2) (b));

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Where more than 1 Claimant, need permission or written consent of all Cs (r38.2(2)(c))

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Where person under disability, if it amounts to settlement or compromise.

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Notice of Discontinuance filed and served (r38.3(2))

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All copies of NoD must have (relevant) written consent attached (r38.3(2));

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C must state in NoD he has served NoD on every other party r38.3(2).

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The Defendants whom discontinuing against must be identified (r38.3(4));

Challenging Discontinuance

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D may challenge within 28 days of service of Notice per r38.4.

Effect of Discontinuance

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The Proceedings are terminated on the date it is served on D. (r38.5(1)).

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C is liable for D's costs upto and including date of service of notice of discontinuance, unless court orders otherwise per r38.6(3).

o

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An order is deemed to be made in D's favour on the standard basis per r44.9.

(This rule doesn't apply to SCT) - If only part of claim is discontinued, C is liable for D's costs in relation to that part, but only liable to pay at the end of the claim. But court may order these costs be paid immediately after agreed, or after assessed by court per r38.6(2).

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If liable to pay straight away, it must be paid within 14 days after the agreement/assessment of costs.

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Failure to pay gives grounds for imposing stay until costs paid per r38.8.

NB: The fact C would have succeeded is not good enough to vary the usual costs rule. Need to show change of circumstances to which C himself has not contributed.

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If discontinued after DS filed, C is not allowed to commence new proceedings against same D arising out of the same or substantially the same facts as the original, unless Court gives permission per r38.7. If permission is granted, court will give directions for issuing second claim (r25.2(3)).

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r38.8 - If proceedings are partly dismissed, and C is liable to pay costs under r38.6, or LSA 2007 payment, and fails to do so within 14 days, court may stay the remainder of proceedings until C pays whole of costs.

Stays (r3.1(f)) - Stay the whole/party of any proceedings/judgment either generally or until a specified date or event

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The court has an inherent jurisdiction to stay AND under the CPR.

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Court has general case management power to stay whole/part of case (r3.1(2)(f)). This power derives from s49(3) SCA 1981 which allows HC/CoA to stay proceedings where it thinks it's fit to do so.

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A stay on proceedings; or a stay on judgment (prevents any steps being taken to enforce)

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Examples

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Occur when Pt 36 offer accepted.

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Often consent orders, and Tomlin orders too.

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When making references to CoJ(EU),

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PI claim close to limitation period without sufficient medical evidence,

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Claims issued without complying with relevant pre-action protocol because solicitor is instructed shortly before expiry of limitation period, so a stay may be granted in the early stages of proceedings to enable the steps of the protocol to be completed.

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Stays to enforce compliance with security for costs,

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Refusal of reasonable request for medical examination,

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r26.4 - Stay for ADR, application made in writing, when filing the DQ. It will be stayed for one month if all parties request, or 1 month or such other period as court thinks appropriate (if not all request) . Claimant obliged to tell court if claim settles. If nothing, at end of stay, court will give direction for Case Management as it thinks appropriate.

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r26.4A - Stay for referral in County Court (SCT) to Mediation Service, but doesn't apply to RTA/PI claims. IF all parties agree on DQ, their claim will be referred to mediation. It is automatically stayed, subject to permission to apply for judgment of unpaid balance of settlement agreement, or restored for heraing of full amount claimed, unless parties agree to discontinue claim or dismiss claim.

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Stays on forums non conveniens,

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stays until resolution of connected pending criminal proceedings.

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r15.10 - Where Defence DS states money claimed has been paid, court will send notice to C requiring him to state in writing whether he wishes to continue. If fails to respond within 28 days, claim automatically stayed. Any part may apply for stay to be lifted.

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r15.11 - If 6m expired since ned of period for filing DS, and no Defendant has f/s admission/DS/Counterclaim, C has not entered or applied for Default Judgment (Pt 12) or Summary Judgment (Pt 24), the claim shall automatically be stayed. Can apply to lift.

Directions Questionnaire is more than 14 days (SCT - r26.3(6)) or more than 28 days (FT/MCT) after the date on which is is deemed to be served, and defence to counterclaim must be filed on same date as reply usually per PD15(3). If claim has been stayed for filing to reply to DS under r15.10(3) or r15.11(1), any party may apply for the stay to be lifted.

Consent Orders

1. r40.6 - A court officer may enter and seal an agreed judgment if: a. None of the parties are litigants in person; b. Approval of court is not required by rule/PD/Enactment; c.

The judgment or order is: i. Amount of money including those to be decided by court; ii. Delivery up of goods with/without option of paying value of goods; iii.Order to dismiss proceedings in whole or part; iv. Stay on agreed terms whether in Schedule or elsewhere; v. Stay of enforcement of judgment; vi.Setting aside Default Judgment not satisfied; vii.

Payment out of money paid into court;

viii. Discharge from liability of any party;

ix.Payment/assessment/waiver of costs.

2. r40.6(6) - If the Judgment/Order is not in the above, the Court may make the order in the terms agreed, and may do so without a hearing.

3. It must be expressed as "By Consent" (r40.6(7)(b)) and be signed by the legal representatives of each party, or by the party if a litigant in person (r40.6(7)(c)) and be in the terms agreed.

Funding Litigation

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Solicitors are under a professional duty to warn clients of the cost of litigation, especially because if they lose they'll get an other side costs order.

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The usual rule is the loser pays the other sides costs (r44.3(2)).

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If a claim is successful, the other side will normally be ordered to pay costs BUT (even if they have the means to pay) thereis often a difference between (I) What must be paid by winner to their own solicitors which is usually assessed on the indemnity basis; and (ii) What winner can recover from the otherside, which is usually assessed on the less generous standard basis.

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Solicitors are only allowed to enter into funding arrangements which are legal and best suited to meet the client's needs. This is done in the "Client Care Letter" detailing the fee earner, their rates, the estimate of costs involved, arrangements for billing the client.

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Barristers must write a letter explaining the instructions, and the terms and basis of charging per r22 Core Duties.

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You must cease to act if it transpires Legal Aid funding has been improperly obtained per r25 Core Duties.

Types of Payment

1. Legal Expenses Insurance (BTE Insurance) a. Under Motor or Home Insurance Policies, costs incurred on behalf of the client will be met by the legal expenses insurer. b. Checking for BTE insurance should be one of the first tasks of a solicitor when taking on new instructions. c.

ATE premiums used to be recoverable as a civil cost, but recoverability was revoked by s46(2) LASPOA 2012. An exception applies for expert's report on liability and causation in Clinical Disputes (s58C Courts & Legal Services Act 1990). i. So if claim has value exceeding PS1000, costs orders in ClinNeg will include payment of the premium.

2. Champerty & Maintenance a. Solicitors can't take up case on the basis that payment will only be sought if the work is successful. b. Nor can they take payment out of profits ("profit sharing arrangements") known as "Champerty". c.

As these are illegal, the successful party cannot recover such costs from the losing party by reason of the indemnity principle.

There are two types of No-Win, No-Fee cases: CFA, DBA, as follows:

3. Conditional Fee Arrangements ("No Win, No Fee") a. C is only liable to pay solicitors only to the extent that he recovers from the unsuccessful party (Conditional Fee Arrangements (Miscellaneous Amendments) Regulation 2003). This removed most of the technical rules relating to format of CFA. Specific rules remain for non-PI cases that the arrangement must: i. Be in writing; ii. Relate to CFA permitted case (all civil proceedings, other than family) per Art 2 2003 Regulations; iii.Specify the success fee (a percentage uplift on the original fees), which must not exceed 100% of base costs. Further, in PI cases, it must not exceed 25% of the PSLA damages and damages for past pecuniary loss (net of sums recoverable by Social Security (Recovery of Benefits) Act 1997).

1. 100% means double the base costs of the litigation. So if have 2 50:50 cases; and win one... Get double fees, so don't lose anything! But if better than 50:50, the success fee should reflect this, so if prospects are 75%, success fee should be 33%.

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