Civil Justice Tutorial III i. What is proportionality and why is it so “new” in the Civil Procedure Rules? To extent does it different proportionality
a. under the EHCR (Campbell case) to assess different right sets of rights b. after the Jackson reforms? Jackson is just in relation to costs – cases that are justly and in relation to proportional costs focus on the system as a whole

Campbell v Mirror Group Newspaper Ltd (Costs) HL (2005)

A model sues a newspaper for breach of confidence. The case go through HC and CA. On appeal to HL, Campbell solicitors and barristers work on a CFA basis (95% success fee for solicitors, 100% success fee for barristers. She wins case (3,5000 compensation awarded) + costs (1, 086, 295 inc. success fee of 279, 981)

The claimant appealed against the denial of her claim that the defendant had infringed her right to respect for her private life. She was a model who had proclaimed publicly that she did not take drugs, but the defendant had published a story showing a picture of her leaving a drug addiction clinic, along with details of her addictions and the treament she had received.

Held: The law of confidence is now better characterised as misuse of private information. “The need to be free to disseminate information regarding Miss Campbell’s drug addiction is of a lower order than the need for freedom to disseminate information on some other subjects such as political information. The degree of latitude reasonably to be accorded to journalists is correspondingly reduced, but it is not excluded altogether.” Having made her virtue public, it was proper to disabuse the public of her virtue, but that did not excuse the powerful way in which it had been done, and which had failed to maintain the balance required.
Lord Nicholls explained the article 8 ambit of private life: “Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.”

* Reforms introduced as a result of Lord Woolf’s review of civil procedure require that proportionality have a “central role” in the resolution of civil litigation * The underlying goal is to increase access to justice by making litigation less expensive and by ensuring that litigants use no more of the system’s resources than their case requires * Lord Woolf summed up the essence of proportionality in the following words: “The achievement of the right result needs to be balanced against the expenditure of time and money needed to achieve that result we find it in in the CPR: i.i.2 section 2 make reference to the rules in the exam when you looking at a new system you have to look at the old system and the justice system was based on merits * Proportionality is a general principle in law which covers several special (although related) concepts. The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in constitutional law, as a logical method intended to assist in discerning the correct balance between the restriction imposed by a corrective measure and the severity of the nature of the prohibited act * Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, e.g. by assigning an alternative route for the march. Proportionality exists as a ground for setting aside administrative decisions in most continental legal systems and is recognised in England in cases where issues of EC law and ECHR rights are involved. However, it is not as yet a separate ground of judicial review, although Lord Diplock has alluded to the possibility of it being recognised as such in the future. At present, lack of proportionality may be used as an argument for a decision being irrational * The one central, fundamental, difference between the Jackson reforms and previous reforms is that they were conducted with a specific aim; an aim which differed from previous reforms. That aim was set out in the terms of reference set by Clarke MR in 2008 when, with the support of the Ministry of Justice, he commissioned Sir Rupert Jackson to carry out a fundamental review of litigation cost (the Costs Review). The express aim was to make recommendations to render costs proportionate; to ensure that litigation was conducted at no more than proportionate cost. As Clarke MR put it, the review was for the first time intended to, and was being carried out in, accordance with the "principle of proportionality". In this the Costs Review differed from previous reviews. Previous reviews had been predicated on the aim of reducing litigation cost and time, so that no more than necessary cost and time was incurred in the production of a judgment on the substantive merits of the claim. The Costs Review did not have this aim. Its aim was set for it by an acceptance of the terms set by the Woolf Reforms and the commitment to proportionality, which it recommended be introduced into English civil procedure and which was given concrete effect structural by the introduction of, for instance, case tracks which matched procedure to the value and importance of claims (structural proportionality). It was more importantly given concrete effect through the introduction of the overriding objective in CPR 1, which was to guide the operation of the CPR, and which gave expression to the new commitment to proportionality. Costs were now to be limited to what was proportionate.

The Civil Procedure Rules (CPR) is the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales. They apply to all cases commenced after 26 April 1999, and largely replace the Rules of the Supreme Court and the County Court Rules.The CPR was designed to improve access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of civil procedure, the CPR commence with a statement of their “Overriding Objective”, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies.

Jackson’s Reform of Proportionality Change One: Further reduction to legal aid
Change Two: A new test of proportionality and costs management
Change Three: CFAs, DNAs and QOCS
Change Four: General increase in damages awarded
Change Five: Offers to settle Tracks System – great example for proportionality

Small Claims Track – the district judges allocate 3 hours for each case 6 or 7 per day because the dispute is not worth a lot of money – much like tribunals – very informal courtroom – no need for lawyers
Claims with a value of not more than £10,000 (the amount increased on 1 April 2013) are usually allocated to the Small Claims Track unless: the amount claimed for pain, suffering, and loss of amenity is more than £1,000.00.; or the cost of the repairs or other work to residential premises claimed against the landlord by a tenant is estimated to be more than £1,000 - whether or not they are also seeking another remedy - or the financial value of any claim in addition to those repairs is more than £1,000.
A claim for a remedy for harassment or unlawful eviction relating to residential premises will not be allocated to the Small Claims Track even if it meets the financial limits.
Fast Track – district judges and circuit jduges – some used fixed costs how long the advocate gets paid in court – no incentive – ideally to stay at one day – complex
Claims with a financial value of no more than £25,000 (£15,000 for claims issued before 6 April 2009), for which the Small Claims Track is not the normal track are usually allocated to the Fast Track unless: the trial is likely to last for more than one day; oral expert evidence at trial will be in more than two fields; or there will be more than one expert per party in each field.
Multi Track – multi day, the cases that require evidence – 3, 4 , 5 months
Any case not allocated to either the Small Claims- or the Fast Track is allocated to the Multi Track. No real restrictive on the parties

Sir Rupert Jackson:
First, he identified the reforms carried out to Conditional Fee Agreements (CFAs) as a consequence of the Access to Justice Act 1999. These reforms had nothing whatsoever to do with the Woolf Reforms. They were effected not as a measure to decrease costs, but rather on the one hand as a replacement for legal aid, which was withdrawn for personal injury claims, and on the other hand to increase access to justice for those individuals who would not have previously qualified for legal aid in any event.

II. Case Management: CPR 1. 4 Court Duty to Manage Cases

1. The court must further the overriding objective by actively managing cases 2. Active case management includes – a. Encouraging the parties to co-operate with eachother in the conduct of the proceedings b. Identifying the issues at an early stage; c. Deciding prompotly which issues need full investifgation and trial and accordingly diposing summarily of others d. Deciding the order in which issues are to be resolved e. Encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure f. Helping the parties to settle the whole or part of the case
Zuckerman Article:
III. reforms of the late 1990`s – woolf reforms and the access of justice - don`t blame woolf
IV. What are the differences between Conditional Fee Agreements and Contingency Fees Agreements?
Which type is best suited to provide access to justice to a large number of litigants
Funding agrreements work
Conditional Fee Agreements:
CFAS remain legal. However, a costs order may not include payment of any part of a client success fee.
A CFA is an agreement whereby a solicitor and a client can agree to share the risk of the litigation by coming to a financial arrangement whereby part or sometimes all of the solicitors’ fees will only be payable by the client in the event of success. If any of the defined success criteria agreed when the CFA is entered into is achieved (i.e. the case is won) a success fee will be payable by the client in addition to the normal fees.
If none of the defined success criteria is achieved – the loosing party pays the success fee – borderline extortion (i.e. the case is lost or an agreed level of damages is not awarded) a client will only pay reduced solicitor fees, or no solicitor fees, subject to the terms of the CFA.
With most CFAs for commercial disputes, all disbursements (including counsel fees and expert fees) and expenses are payable by the client in any event.
Massive burden on the defendant side – the government cut the legal aid budget – stop funding them – no win no fee type of agreements

**Simmons and castle case

QOCS: those types of cases, generally the defendant is the insurance company -

Contingency Fee Agreements (called Damages-based agreements) are now legal for most claims provided that they specify a. The claim or proceeding or parts of them to which the agreement relates; b. The circumstances in which the representative payment, expenses and costs or part of them are payable; c. The reason for setting the amount of payment at the level agreed, which in an employment matter, shall include having regard to, where appropriate, whether the claim or proceedings is one of several similar claims or proceeding
Contingency fee agreements have always been allowed in non-contentious work. Pre-issue work is classed as non-contentious and therefore can be carried out under a contingency fee agreement.
However once the case is issued then that pre-issue work retrospectively becomes contentious and thus the contingency fee agreed is of no effect. The solution is to enter in to a conditional fee agreement and a contingency fee agreement from Day One. The agreement with the client will be that the contingency fee agreement operates until proceedings are issued at which point it drops away and the conditional fee agreement is deemed to have been in place from the beginning. This is achieved by a bridging agreement. Absent contractual agreement with the other side there is no right to costs pre-issue and therefore it does not matter that the conditional fee agreement is not in place. Costs are only payable by agreement; if they are agreed then there is no problem and if they are not agreed then proceedings will need to be issued at which point the conditional fee agreement comes in to force with effect from the beginning of the case.
The potential problem is that fees on an hourly basis, even with a success fee, may be significantly less than the contingency fee would have been. That will depend upon a combination of the settlement figure and the contingency fee percentage on the one hand and the time spent and the hourly rate on the other hand. Thus where there is a contingency fee agreement you should have a high hourly rate in the conditional fee agreement.
Solicitor and own client rates can and should be very much higher than the rates that you are likely to recover on a between the parties basis.
This is for two reasons:
(i) to maximize the alternative “take” to the contingency fee; and
(ii) to maximize the indemnity costs received if, as a claimant, you match or beat your own Part 36 offer.
Introduction
Part 36 CPR provides that one party may make during the proceeding an offer to settle with cost consequences
14 days, penalities, cost shifting – it moves the costs woolf did but Jackson modified * If the offer is rejected * And if the judgement is not better than the offer * Then the costs judge will impose all the legal costs from the moment at which the offer was made on the party who has refused the settlement
Whilst there is no prohibition against a party making an offer to settle in any way it chooses, there can be damages, costs, interest and tactical advantages in making a formal offer to settle which complies with the rules of court (a “Part 36 offer to settle”).
Part 36 offers to settle in the prescribed form aim to encourage parties to try and settle a dispute. They set out the costs and other consequences that a party will face if it refuses a reasonable offer to settle.
Making a Part 36 offer to settle should not be regarded as a sign of weakness but an appropriate way of putting pressure on an opponent to settle.
What is a Part 36 offer to settle and when can one be made?
To be compliant with the rules of court, a Part 36 offer to settle must:
Be a genuine offer to settle
Be made “without prejudice except as to costs” (it cannot be referred to the Judge having conduct of the proceedings until the conclusion of the matter)
Comply with the strict requirements of Part 36 of the rules of court.
Part 36 offers to settle can be made in the following instances:
In both money (including claims for provisional damages) and non-money claims
In respect of the whole or part of the claim or in relation to an issue that arises
In respect of liability alone, thus leaving the issue of the amount of any damages to be dealt with later
In respect of counterclaims and any additional/third party (Part 20) claim.
Part 36 offers to settle can be made by both a claimant and a defendant in a dispute, at any stage of a dispute before or after proceedings have commenced and in appeal proceedings.
Part 36 offers to settle can be made prior to the commencement of court proceedings.
How can a Part 36 offer to settle be made?
If you are a claimant making a Part 36 offer to settle it must:
Be in writing
State on its face that it is intended to have the consequences of Part 36
Specify a period for acceptance of not less than 21 days within which the defendant will be liable for the claimant’s costs if the offer is accepted (the “relevant period”)
State whether it relates to the whole of the claim or to part of it or to an issue that arises in it and, if so, to which part or issue
State whether it takes into account any counterclaim
Contain sufficient information to allow the offeree to consider the offer which will be necessary where the offer relates to a non-money claim.
If you are a defendant making a Part 36 offer to settle, it must also:
(in the case of an offer to pay a sum of money) State that the offer is to pay a single sum of money
State that the sum will be paid at a date not later than 14 days following the date of acceptance.
An offer to settle a money claim will be treated as inclusive of all interest (subject to CPR 36.3(3)).
Clarification of a Part 36 offer to settle
Clarification within seven days of service of an offer to settle can be sought to enable a party to consider the offer properly.
Accepting a Part 36 offer to settle
Part 36 offers to settle must be accepted in writing and can be accepted without the court’s permission, provided that acceptance is not within 21 days of trial or the trial has not started
If, as defendant, you do not pay the sum offered within 14 days (or such other period as has been agreed) of the date the offer to settle being accepted, the claimant can enter judgment against you for the unpaid sum (i.e. the amount of the accepted offer to settle)
The cost consequences of accepting a Part 36 offer to settle, and when the court’s permission is required for acceptance, are addressed below.
Costs and consequences of acceptance
Generally speaking, if a Part 36 offer to settle is accepted within the relevant period:
The claimant is entitled to his costs of the proceedings up to the date of acceptance on the standard basis
The claim is stayed upon the terms of the offer.
If a Part 36 offer to settle is accepted after expiry of the relevant period:
The parties must agree the liability for costs or, failing agreement, the court decides liability for costs
The claim is stayed upon the terms of the offer.
The claimant’s costs will include any costs incurred in dealing with the defendant’s counterclaim if the offer to settle states that it takes the counterclaim into account.
If a party makes an offer to settle inclusive of costs, such offer will not be in accordance with Part 36, and it will be in the court’s discretion (not pursuant to Part 36) as to whether any costs or other advantages will be given to the party making the offer if the offer is unreasonably rejected.
Claimant’s Part 36 offers and enhanced damages
If a claimant’s Part 36 offer made after 31 March 2013 is not accepted and at trial the claimant obtains a judgment at least as advantageous as the terms of its own offer, the claimant will be able to claim an additional sum for damages in respect of a money claim or an additional sum for costs in respect of a non money claim. Such additional sum being 10% on damages or costs up to £500,000 and 5% on damages or costs above £500,000 up to £1m; equating to a maximum enhancement of £75,000 on damages or costs (depending upon whether the claim is a money claim or non money claim).
How to accept a Part 36 offer to settle
A Part 36 offer to settle is accepted by serving written notice of the acceptance on the offeror (CPR 36.9(1))
Service should be made on the offeror’s legal representative, if he has one, and the notice filed with the court (where proceedings are underway)
There are no formal requirements for the notice of acceptance. A letter identifying the claim number and title (where proceedings have been commenced) and the offer to settle to which it relates should be sufficient.
Date of acceptance
Although the Rules do not state when acceptance will be effected, date of acceptance should be taken to be the date the acceptance notice was served on the offeree or his legal representative.
When can an offer to settle be accepted?
Provided that the offer has not been withdrawn (see below), an offer to settle can be accepted at any time, subject to circumstances when permission of the court is required.
When is the court’s permission for acceptance required?
Permission of the court will only be required to accept a Part 36 offer to settle:
Where the claimant wishes to accept an offer to settle made by one or more, but not all, of a number of defendants and certain requirements are not satisfied '
Where the trial has started
In a number of other limited circumstances, in particular relating to personal injury claims.
Execution and enforcement
An offer to pay a single sum of money must, unless the parties have otherwise agreed in writing, be paid within 14 days of the date of acceptance (CPR 36.11(6)). If not paid within 14 days or the period agreed, the offeree may enter judgment for the unpaid sum (CPR 36.11(6) and (7))
For any other type of offer (e.g. an agreement to vacate premises, deliver up documents etc), the Rules provide that where such an offer is accepted and a party alleges that the other party has not honoured its terms, that party may apply to enforce the terms of the offer without the need for a new claim (CPR 36.11(8)).
Can a Part 36 offer to settle be withdrawn and what are the consequences?
Before expiry of the relevant period, a Part 36 offer to settle can only be withdrawn or its terms changed to be less advantageous to the offeree if the court gives permission (CPR 36.3(5))
The court’s permission is not required if the offeror withdraws the offer or changes its terms to be less advantageous to the offeree after expiry of the relevant period, provided that the offeree has not previously served notice of acceptance (CPR 36.3(6))
The Rules do not prescribe the grounds for permission to withdraw an offer. An offeror has to be able to show that there has been a sufficient change of circumstances so that it is just that he has the opportunity to withdraw/revise the Part 36 offer to settle
Withdrawal or a change in terms is affected by serving written notice to that effect on the offeree/his legal representative. Unless withdrawn by written notice the offer will not be deemed withdrawn and will remain open for acceptance. An opponent making a counter offer will not affect an offeree’s ability to accept a previous offer, if it has not been withdrawn by written notice
Once withdrawn, a Part 36 offer will NOT attract the Part 36 costs and interest consequences (CPR 36.14(6)(a)), although it may be possible to argue that they apply under the court’s general costs discretion (CPR 44.3).
In what circumstances should you consider making a Part 36 offer to settle?
They should at least be considered in all cases in order to achieve the best costs and interest on costs scenario if the matter has to proceed to trial
Claimants should consider making early Part 36 offers in order to resolve disputes and to potentially recover an enhancement on damages or costs of up to £75,000 pursuant to CPR 36.14(3) if the offer is not accepted and the matter proceeds to trial (for offers made from 1 April 2013)
The making of a Part 36 offer to settle can focus an opponent’s mind and, even if not accepted, may lead to a commercial settlement of the dispute. They increase the risk of proceeding with the litigation for the opponent
If accepted, a Part 36 offer to settle can avoid the time and potential irrecoverable costs associated with court proceedings
A Part 36 offer to settle will not be appropriate where a defendant does not wish to pay a claimant’s costs, or in respect of claims being dealt with on the small claims track.