piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Part 36 Offer: derisory or genuine?

The case of Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd  [2016] EWHC 167 deals with two interesting questions: (1) does a Part 36 offer have to reflect an available outcome in the litigation to be valid? (2) when is it a genuine attempt to settle liability?  The case concerned a defective roof at the racecourse at Epsom. The claimant offered to settle the issue of liability on the basis that the defendant would “accept liability to pay 95% of our client’s claim for damages to be assessed.” The issues of liability were ultimately resolved by consent wholly in the claimant’s favour. The claim was pleaded at in excess of £5m. The judge endorsed the remarks of Henderson J in AB v CD  [2011] EWHC 602  in which he drew the distinction between a genuine offer or ‘merely a lightly disguised request for total capitulation’. A request to a defendant to submit to judgment for the entirety of the relief sought by the claimant was not an ‘offer to settle’ within the meaning of Part 36. An offer to settle had to contain some genuine element of concession on the part of the claimant to which a significant value could be attached in the context of the litigation. Henderson J considered in the context of a road traffic accident that the offer of 95:5 was derisory. In Huck v Robson [2003] 1 WLR 1340 the Court of appeal held that although no judge would apportion liability 95:5, that was irrelevant. The offer reflected the fact that most claimants prefer certainty to the ordeal of trial and uncertainty about its outcome. They did not think it was merely a tactical step to secure the benefit of the incentives provided by the rule but provided the defendant with a real opportunity for settlement. In Jockey Club Racecourse Edwards-Stuart J. found that, although the Part 36 offer of a 95:5 split was not an outcome available to the court, it did not prevent it being a valid offer. Nothing had been changed by the addition to rule 36.17(5) of subparagraph (e) which requires the court to consider whether the offer was a genuine attempt to settle the proceedings. The judge then went on to consider whether it would be unjust to order the consequences which flow from a failure to better a Part 36 offer. He did not order the consequences to flow from 21 days after the date of the offer but allowed the claimant to have costs on the indemnity basis from the earliest date after that by which “the Defendant could reasonably have put itself in a position to make an informed assessment of the strength of the claim on liability”. That conclusion sits uneasily with the comments of the Court of appeal in its harsh decision in Matthews v Metal Improvements Co Inc [2007] C.P. Rep. 27 where the judge was criticised for deciding the case on the basis of reasonableness. The answer to the two questions I posed above is: (1) a Part 36 Offer does not have to reflect an available outcome in the litigation to be valid although this is less likely to be an issue in personal injury where contributory negligence can reduce a finding that a defendant is liable. (2) A genuine attempt to settle liability is one where the offer is not derisory and is one in which there is ‘some genuine element of concession on the part of the claimant, to which a significant value can be attached’. This will depend on the facts of each case although in the context of a personal injury claim an offer of less than a 5% reduction would be risky where the value is not high.

Autumn Statement for PI Lawyers

The government has released a summary of the Autumn Statement with 20 Key Announcements, the last of which will be of great interest to personal injury lawyers. It reads as follows: “20. People will no longer be able to get cash compensation for minor whiplash claims To make it harder for people to claim compensation for exaggerated or fraudulent whiplash claims, the government is ending the right to cash compensation. More injuries will also be able to go to the small claims court as the upper limit for these claims will be increased from £1,000 to £5,000. This means that annual insurance costs for drivers could fall by between £40 to £50 a year.” George Osbourne anticipates these changes “will remove over £1bn from the cost of providing motor insurance” and expects insurers to pass on that saving to consumers. There had already been speculation over the last week that the government was going to introduce its previously shelved plan to increase the small claims limit for personal injury claims when the insurance fraud taskforce reported next month. What is surprising though is the reference to “ending the right to cash compensation”. It is as yet unclear what it meant by this. Footnote 55 to the Autumn Statement gives some clarification by explaining that “Claimants will still be entitled to claim for ‘special damages’ (including treatment for any injury if required and any loss of earnings) but entitlements for general damages will be removed.” It will be interesting to see though how it will be decided that a case falls into the category in which there is no entitlement to general damages. Elsewhere in the Autumn Statement is a statement that the government will reduce the excessive costs to insurers of whiplash claims by “removing the right to general damages for minor soft tissue injuries”. This would seem to cover more than just whiplash injuries. There may also be interesting arguments where multiple injuries are involved. These problems are unlikely to be straightforward and may result in substantial argument, inevitably using court time. It seems likely we will have to wait for the report of the insurance fraud taskforce, due before the end of the year, for further details.  Keen readers who can’t wait until then might be interested in the research briefing published in advance of last Wednesday’s debate in Parliament. Otherwise, watch this space!

Fixed costs in RTA, EL and PL multi track claims

A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA. The value of the claim was pleaded at £5,000 to £15,000. The Defendant alleged that the accident had been staged by the Claimant and the claim was allocated to the multi track. At a CCMC a district judge ordered that “CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.” The Claimant appealed. CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled "Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols - Fixed Recoverable Costs". Paragraph (1) provides as follows: "Subject to paragraph (3), this section applies where a claim is started under (a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol"); or (b) .... the EL/PL Protocol but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B." The judge found that the text of this rule is clear and states that section IIIA of Part 45 will apply when a claim is started under the RTA Protocol but no longer continues under that protocol or the stage 3 procedure set out in the Practice Direction 8B. The Claimant argued that the district judge’s ruling breached Article 6 of the European Convention of Human Rights as claimants' solicitors would not be willing to risk expending substantial sums in costs without certainty of recovery and would be unwilling to act on a ‘no-win no fee’ basis with such uncertainty. HHJ David Grant rejected this argument saying that the provisions of CPR rule 45.29J provided a material safeguard against such injustice. That rule allows the court in exceptional circumstances to allow costs greater than the fixed recoverable costs at the end of proceedings. The judgment of HHJ David Grant is well-written, compelling and seems right on the rules as they have been drafted. Many claims start out on the EL/PL and RTA protocols but are subsequently moved to the multi-track when it becomes clear that there are much more complicated issues and that the value might be more than originally anticipated. The rules and this judgment are likely to have far-reaching consequences although the provision in the rules for fixed costs to include 20% (RTA claims) and 30% (EL/PL claims) of the damages may go some way to mitigating the harsher consequences in claims which start out as low value but end up as high value. Stuck between the Scylla of paying very high court fees and the Charybdis of a fixed costs regime for a claim which starts under the relevant protocols, claimants’ solicitors will want to exercise great caution. Whether the rule committee intended or foresaw all of this is open to question.

Are there discernable trends in the RTA claims sector?

How effective have recent reforms been in reducing the number of road traffic injury claims and their associated costs? The Institute and Faculty of Actuaries reports there has been a slight rise in claims by 1.7% between 2013 and 2014 which is less than suggested by the portal where claims notifications are back to pre-LASPO* levels. Average costs of claims are also increasing again (by 3%). These conclusions are drawn by the Institute’s interim findings on 2014 data. The number of claims fell by 9.9% between 2012 and 2013 which is consistent with MoJ Portal Statistics. The reduction in average costs in 2013, following the introduction of LASPO, was 15%. Understandably, however, the Institute says that the long-term effects of legal changes (such as those introduced by LASPO) remain uncertain. The turnover of authorised personal injury claims management companies reduced from £455m in the first quarter of 2012 to £354m in the same quarter in 2013 and then to £238m in 2014. However the first quarter of 2015 saw turnover rise by 30% to £310m. Meanwhile motor insurance premiums have risen by an average of 2% per year between 2008 and 2015. That said, the first quarter of 2015 has demonstrated a reduction of 0.5%. Such reports will undoubtedly be watched carefully by all sides for trends and the government will want to tighten the system if it does not think it reducing costs can claims enough. At the moment the long term trends are not readily discernible. This may mean that the system will remain as it is for at least the short term. The report is packed with further data: Average car mileage per year has fallen by 11% since 2003 The total number of licensed cars has risen by 13% since 2003 The total mileage driven in 2014 is back to the 2003 level Congestion has increased year on year since 2011: the average speed in 2014 was 24.1 mph In 2014 there was a total of 194,477 casualties as a result of road traffic accidents In 2014, 1775 were killed, 22,807 were seriously injured and 169,895 slightly injured Pedestrians, pedal cyclists and motorcyclists account for disproportionately more casualties than would be expected given the distance travelled Liverpool remains the claims capital of the UK with 55% of claims arising out car accidents involving damage to property of another driver also involving a claim for personal injury (the national ratio is just above 30%). The lowest ratio of personal injury claims to property damage claims is in Scotland (20%) The highest ratios are in the North East (33%) and the North West (43%) The full report can be viewed via this link *LASPO - Legal Aid, Sentencing and Punishment of Offenders Act which came into force on 1st April 2013

Costs budgeting: are incurred costs untouchable?

How do you get around costs budgeting? One might have thought by incurring considerable costs before the CCMC: Practice direction 3E 7.4 states that the court may not approve costs incurred before the date of a budget. In CIP Properties Ltd v Galliford Try Infrastructure [2015] EWHC 481 Coulson J came up with an order which would prevent parties to litigation trying to get around the process. In the recent case of GSK Project Management Ltd v QPR Holdings Limited [2015] EWHC 2274 Stuart-Smith J made a similar order (will it become known as a ‘Coulson Order’ or a ‘CIP Order?) In GSK Stuart-Smith J was managing the costs in a dispute over works carried out at Queens Park Rangers’ Loftus Road ground. The claim was essentially for £805,675 of unpaid sums due under the contract and there was a counterclaim for defective works. The claimant’s costs budget was for £824,038 and it stated that over £310,000 had been incurred already. The budget therefore exceeded the sums at stake. The defendant’s budget was £455,554 in total although, as the judge commented, a comparison was not appropriate because of the very different hourly rates; comparing the hours was therefore more illuminating. ‘Broad brush’ or detailed approach? Stuart-Smith J commented that experience in the TCC had shown that most costs budgeting reviews can and should be carried out quickly and with the application of a fairly broad brush. He said that ‘only exceptionally will it be appropriate or necessary to go through a Precedent H with a fine tooth-comb, analysing the makeup of figures in detail.’ This, however, he considered an exceptional case because the aggregate sum was so disproportionate to the sums at stake and the length and complexity of the case. Proportionality: The judge’s starting point was that a case would have to be wholly exceptional to render a costs budget of £824,000 proportional for the recovery of £805,000 plus interest. It was not. There were no novel or difficult issues of law, there was only a handful of witnesses, trial had only been listed for 4 days and it was not a document heavy case. He took the view that good reason would need to be shown to justify more than half the figure of £825,000 on proportionality grounds. Reasonableness: the judge rejected the submission that his starting point should be the other party’s budget as parties have different roles and responsibilities. However he accepted he should have regard to it as it ‘may provide useful indicators’. The judge rebuffed a submission that the Defendant had underestimated the resources necessary for the litigation with the comment that such a submission would “probably require evidence and not mere assertion”. That evidence was not available. Pre-action costs: the lesson to draw from the judge’s comments is that if pre-action costs/hours are high then a judge is likely to expect solicitors to be ‘well on top of the case by the time of issue’. If little progress has been made the judge is likely to consider the time has ‘not been reasonably or proportionately incurred.’ The judge said that if he could approve pre-action costs he would have approved £13,500 rather than the £43,067 incurred. Issue/statements of case: the incurred costs for this phase were £246,908. The judge was very critical of the lack of explanation of what had been done during the hours billed given they were so high. He ultimately concluded that £115,000 would have been a reasonable and proportionate expenditure on this phase. Remaining phases: the judge took a hatchet to the remaining phases of the budget on the basis of what he considered reasonable and proportionate. By the time he had finished he had reduced it to £422,622 which, as “it turns out” (he observed), was almost exactly the same as his first assessment of proportionality of the sums being estimated. He then rounded the budget up to £425,000. The court’s difficulty: The problem for the judge was that his £425,000 would have involved substituting his figures for incurred costs which he was not entitled to do. The judge referred to the options Coulson J had set out in CIP Properties (AIPT) Limited v Galliford Try Infrastructure Limited [2015] EWHC 481 (TCC) namely: Order a new budget Declining to approve the claimant’s costs budget Set budget figures and allowing the relevant party to take their chances on incurred costs Refuse to allow any further costs Coulson J settled on (iii) but identified the difficulty: it potentially enabled the claimant to ride roughshod over the budgeting process. The incurred costs were untouchable (£310,000 in GSK ) in the budgeting process but if they were allowed on assessment, they would potentially enable the claimant to exceed the budget set at the CCMC. Coulson J’s way around this was to say effectively to any subsequent costs judge, “if you assess the costs incurred above my figure then you will have to reduce the amount for later work because my estimate will need to be adjusted accordingly.” He put it in a more judicial way setting out the figure he approved for each phase and making the following comment: “I take that figure into account when assessing each element of the prospective/estimated costs dealt with below. To the extent that the claimant recovers more than £x.xx on assessment under this head, it would mean that more work had been legitimately done in the earlier stages of the case than I thought, which would in turn mean that less remained to be done in the future. Thus the prospective costs figures approved below would fall to be reduced by an equivalent sum.” Stuart-Smith J adopted the same approach and stated “in this way the incurred costs/approved costs budget will be a total of £425,000.” He referred succintly to “97(a) of CIP Properties”. The judge concluded by describing the costs estimate as “grossly excessive” being overstated by almost 100%. He made the claimant pay the costs of the issue and ordered the claimant’s solicitors to bring the terms of the judgment to the attention of any paying client who had retained them and to notify the court when it had been done.

Have we started yet? Commencement of contested hearing and CFA uplifts

When a trial begins is of obvious import to any litigant where one or more party is funded by a conditional fee agreement which provides for an uplift per CPR 45.16 and 45.17. Mrs Justice Slade in a recent appeal from Master Campbell held that a contested hearing on the issue of liability had yet to commence before a subsequent settlement.   The facts of James v Ireland [2015] EWHC 1259 (QB) are unusual but not exceptional.   On the first day of a three day trial of a personal injuries case, the claimant successfully applied for an adjournment of the issue of quantum, it being intended that the issue of liability would proceed. Unusually however, late evidence disclosed by the defendant that hitherto unidentified independent witness. To allow for a statement to be taken from the same by the claimant, the matter was adjourned to the following day. The judge asked counsel what to read overnight. The next day it was revealed that attempts to contact the elusive independent witness had been unsuccessful. Nevertheless, the case was adjourned to the afternoon so that attempts could continue. These attempts were also fruitless, however given the likely importance of the witness the case was stood out. The judge reserved the matter to himself for a hearing at a later date. This hearing never took place as the claim was settled.   Had the liability trial commenced? The master held that it had. Counsel had entered court. Reading had commenced. Submissions had been provided and considered as to the adjournments. Thus, it was held that the claimant was entitled to the 100 percent costs uplift.   The defendant appealed, arguing that the master erred by failing to hold that nothing in the heard proceedings constituted a core event, such as would indicate that the liability trial had begun (Cutler v Stephenson and Manchester City Council [2008] EWHC 3622 (QB); Gandy v King [2010] EWHC 90177 (Costs)). It was further submitted that the judge would have held that the case was part heard had he considered the trial to have begun, rather than ordered it to be relisted reserved to himself. The claimant argued that the trial had begun as the judge had done pre-reading and that the submissions on the quantum aspect of the case would not have required further elucidation to open as to liability.   The Defendant’s submissions found favour with Mrs Justice Slade who held that a final contested hearing of the liability issue was not triggered by the commencement of any hearing of any nature related to the same. The hearing which was commenced was akin to a case management hearing, as the same did not consider any aspect necessary to determine the question of liability. The reading undertaken by the judge was held to have been prudent use of court time rather than a substantive consideration of a core issue. She held further that the transcripts actually supported the contention that the judge was unaware of the scope of the main issues of the case as to liability when the matter was stood out.

Costs Budgeting: reforms on their way…

Jackson L.J. delivered a speech on costs budgeting on Wednesday. For many of us engaged in CCMCs who encounter inconsistency, courts overwhelmed by the volume of hearings, unnecessary costs incurred and often the thinly disguised frustration of judges with the process, his conclusion that ‘costs management works’, may come as a surprise. His proposals for reform, including fixed costs in some multi-track cases, may not. In his speech he gave 7 benefits of costs management (see below) but he also dealt with objections and problems and made recommendations. I pick out a few: First, he mentioned the costs of the process in low value multi-track cases which he defined as up to ‘about £50,000’. Leeds District Judges recommended fixed costs for such cases and Jackson L.J. endorsed the recommendation for fixed costs in the lower reaches of the multi-track ‘strongly’. Secondly, the issue of judicial inconsistency, unduly long hearings and micro-management he thought should be dealt with by better compulsory judicial training. Thirdly, the problem of the wide variation in the forms of costs management orders he recommended should be dealt with by a standard form of costs management order. Fourthly, he thought that the time for filing and exchanging budgets should be increased so that they are lodged 14 days before the CCMC although there must be a discretion for the court to specify a different period. Fifthly, he was of the view that Precedent H could be improved but he recognised that solicitors had been developing their IT systems for the purpose of completing Precedent H and therefore he did not want to make successive changes. Sixthly, the problem of delays and backlogs of CCMCs he thought should be tackled by repealing PD 3E which says that courts will generally make a costs management order under rule 3.15 where costs budgets are filed and exchanged. The PD should be replaced with a judicial discretion on whether to make a costs management order and criteria to guide its exercise. Seventhly, he acknowledged the backlog of clinical negligence cases in London and suggested that all London Clinical negligence cases with CCMCs listed between October 2014 and January 2016 be released from costs management and called in for short old-style CMCs. He thought a similar solution might be required in Birmingham and Manchester. Eightly, he addressed the issue of incurred costs and the practice of doing as much work before the CCMC in order to shelter costs within the ‘incurred’ column. He did not think that it was appropriate for judges at detailed assessments to treat absence of ‘comment’ on incurred costs as approval. He suggested powers to comment on incurred costs, summarily assess them or set a global figure for any phase to act as an incentive not to put forward excessive incurred costs. In clinical negligence cases he thought that there was a need to introduce pre-action costs management. Ninthly, Jackson L.J. expressed concern about the increase of court fees introduced in March 2015. He thought they should be disregarded when considering whether a party’s costs are proportionate. These are just some of the areas touched upon in Jackson L.J.’s speech which can be read in full by following my hyperlink. He ended his talk by arguing that Costs Management was in the public interest. He thought that lawyers disliked it because it meant more work and required us to develop new skills. He predicted that within the next 10 years costs management would be accepted as an entirely normal discipline and people would wonder what all the fuss was about. For the time being Costs Budgeting is here to stay – but reform is now overwhelmingly likely to occur and we can expect to hear from the Coulson Committee in due course on what form the new rules are likely to take.   The benefits of Costs Management (refered to above) Both parties to litigation know where they stand financially It encourages early settlement It controls costs from an early stage It focuses attention on costs at the outset It stops CMCs from being formulaic leading to debate about what is really required It is fair to give your opposition notice of what you are claiming It prevents losing parties from being destroyed by costs  

Insurers’ proposals for further reform to the PI sector

The Association of British Insurers' website recently set out its top 10 insurance and savings priorities for the next parliamentary session. The most striking of these for personal injury lawyers is the proposal for “Modernising the civil justice system to get compensation to claimants rather than lawyers.” The ABI fleshes this out by suggesting increasing the small claims track limit for PI claims, considering a reduction in the current 3-year limitation period and using fixed legal fees to address the rise in industrial deafness claims and ensuring people suffering from asbestos related conditions get compensation quicker. Another of the ABI proposals which would also affect the PI sector is a proposal for “Cracking down on the behaviour of Claims Management Companies” by requiring them to comply with a more robust regulatory regime and stopping nuisance calls and texts. Some consider that pressure from the insurance industry played an important role in bringing about some of the reforms which occurred in the last parliament. The themes in the proposals are familiar and are not new. Indeed the last government consulted on some of these matters. However the ABI clearly wants to keep these issues on the agenda and it will be interesting to see what pressure is exerted in the next parliament for further reforms which could have far reaching consequences for PI lawyers and litigants. The whole list can be viewed on the ABI Website

Costs Budgeting - Time for change

Having at first hand experienced the heated battle of CCMCs, in which costs draftsmen and (usually) junior Counsel joust in front of a Master on the level of costs incurred thus far and those yet to come, it seems that change might be in the air. Lord Justice Jackson is preparing a speech / paper on costs budgeting, to be finalised by mid-May. He is looking, amongst other matters, at the circumstances in which the Court should decline to carry out costs budgeting (because of a concern at the delays being caused to listing generally by the new regime) and at whether there should be some sort of provisional costs budgeting exercise on paper.You will no doubt remember Ian Miller’s prediction on this very ‘blawg’ that costs budgeting was likely to be reformed or abolished in 2015. He may well yet be right. Claimants have got very good at shoehorning as much cost as possible into the “incurred” box, which is impossible to challenge, and Defendants have got very good at getting future costs disallowed on the basis that incurred costs are already too high. None of this makes for better value for the lay client, and only adds to the costs of litigation. The Personal Injury Bar Association has helpfully listed the other issues which those involved in the costs budgeting regime face:“(1)    The long listing delays caused by the new costs budgeting regime. (2)    The waste of money and time in budgeting cases through to the end of trial especially where liability has been admitted, quantum is relatively modest and it is highly likely that the case will settle without a trial after the exchange of expert evidence. (3)    The interplay between incurred costs and future estimated costs.  This is causing huge uncertainty and ought to be further clarified in the Rules. (4)    The extent to which hourly rates and times should be scrutinised at the budgeting stage.  Again, this is causing huge uncertainty and different courts are taking very different views. (5)    The difference between a costs management order being made and costs budgets being exchanged without a costs management order.   If costs budgeting is dispensed with altogether, then the other party has no costs information at all, because costs budgets have replaced the old estimates.”  Given all this, it is hard to imagine that there will be no change to the current system. We await Lord Justice Jackson’s pronouncements with interest…

New law - fundamental dishonesty in PI claims

The government brought into force last week a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice. In the case of Summers v Fairclough Homes Ltd  [2012] UKSC 26 the claimant was injured in an accident at work and claimed more than £800,000 from his employer. Surveillance revealed him to have grossly exaggerated the effect of his injuries. At trial he was found to have fraudulently misstated the extent of his claim but the judge declined to strike out his claim and awarded £88,716. The defendant appealed and the Supreme Court held that it had jurisdiction to strike out the claimant’s statement of case but that it would only be done in exceptional circumstances, not least as the judgment on liability amounted to a possession for the purposes of the ECHR. The claim was not struck out. Section 57 of the Criminal Justice and Courts Act 2015 looks as though it would have changed the outcome of Summers dramatically. Here are some of the ingredients and likely problems: ‘fundamental dishonesty’ - the defendant has to prove on the balance of probabilities that the claimant has been ‘fundamentally dishonest’  - a concept which the courts have been grappling with since its introduction in CPR Part 44.16(1) as an exception to the rules on qualified one way costs shifting. Considerable uncertainty remains as to the difference between ‘dishonesty’ and ‘fundamental dishonesty’. ‘primary claim or a related claim’ – the fundamental dishonesty must be ‘in relation to the primary claim or a related claim’. It will be interesting to see how far the courts will go in construing ‘a related claim’ which is defined at s.57(8) as “a claim for damages in respect of personal injury which is made (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim.” ‘application by the defendant’ - the court cannot dismiss the claim under s.57 unless an application is made by the defendant for its dismissal. ‘substantial injustice’ – the court ‘must dismiss the primary claim’ unless satisfied the claimant would suffer ‘substantial injustice’ if it were dismissed. Again, it is not clear what the difference is between ‘injustice’ and ‘substantial injustice’. How is a judge to decide? Would the depriving a claimant of £88,716 amount to a substantial injustice? It is likely that the courts will want to give very careful thought to the needs of the injured claimant (care, economic etc) and consider how well they will be met in the event that the money is not paid over. What will happen to claims for gratuitous care which a claimant is supposed to hold on trust for the providers of that care? They may have nothing to do with the claimant’s dishonesty and yet might find themselves deprived of thousands of pounds for the hours they have given. I anticipate that a large body of case law will quickly grow up around this section. Recording damages – the court must record the amount of damages it would have awarded the claimant and then deduct them from the amount it would otherwise have awarded the defendant in costs. The dismissal of the claim under s.57 must be taken into account in a sentence handed down in any subsequent criminal proceedings S.57 only applies to claims issued after 13th April 2015. Mr Summers may well have been £88,716 poorer had this section been enacted prior to the issue of his proceedings. It will be interesting to see how often section 57 is pleaded and what the courts make of the concepts of ‘fundamental dishonesty’, ‘substantial injustice’ and ‘related claims’.