piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Costs Budgets and Unallocated Part 8 Claims issued before 22 April 2014

Some further clarity as to when to file costs budgets can be gleaned from the decision of Mr Justice Hickenbottom in the case of Kershaw v Roberts & Anor  [2014] EWHC 1037 (Ch). Here it was argued on appeal from the county court that the first directions hearing in a Part 8 Claim should be treated as the “first CMC” for the purposes of CPR 3.12-14 and thus costs budgets must be filed in advance.   It was argued that whilst the claim had not been allocated to the multi-track, this was inevitable as it was commenced by way of Part 8.   The learned judge however dismissed this argument, holding that the claim was not allocated to the multi-track until the district judge specifically allocated it to that track during the course of the county court hearing. IT was held that “consequently, that hearing itself was not – indeed could not have been – a CMC… The notice of the hearing did not refer to it as a CMC; and it seems to me clear that the court, in sending out that notice, never intended the hearing to be a CMC.”   This guidance is however of somewhat limited scope in that it only really applied to unallocated Part 8 Claims. This is because, on 1 April 2014 (the same day as the hearing of Kershaw), the Civil Procedure Rules Committee made amendments to the CPR by the Civil Procedure (Amendment No 4) Rules 2014 (SI 2014 No 867). Which are due to come into force on 22 April 2014. From that date, the costs management provisions of CPR Rule 3 Section 2 and CPR PD 3E (including costs budgets) will not automatically apply to any Part 8 claim. Those provisions will only apply if the court makes a positive order that they should (as expressly confirmed by new Rule 3.12(1A)).

'Plebgate', budgets, relief from sanctions and a new kind of justice

The Court of Appeal have now finally had their say on the Jackson Reforms: "...we hope that our decision will send out a clear message". The message is that a "new more robust approach..." has arrived. Failure to file a costs budget in time will result in parties being "treated as having filed a budget comprising only the applicable court fees" and relief from sanctions will only be granted where there has been a "trivial breach" or where there is a "good reason". The new approach "will mean that from now on relief from sanctions should be granted more sparingly than previously". Mr Mitchell's case (Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1526) provided the perfect vehicle for the Court of Appeal. The Sun newspaper had reported that Mr Mitchell had engaged in a foul mouthed rant against police officers. Mr Mitchell issued proceedings alleging defamation on 7th March 2013. A CMC and costs budget hearing was fixed for 18th June 2013. On 17th June Master McCloud sent an e-mail to the parties' solicitors noting there was no budget for the claimant. The budget was filed that afternoon with an estimated figure of £506,425. Master McCloud ordered that the claimant be treated as having filed a budget comprising only the applicable court fees and she adjourned the CMC and budget hearing to another date at which any relief from sanctions application would be heard. That date involved her moving another hearing which had been listed to deal with claims arising out of "asbestos-related diseases". At that hearing she refused the application for relief from sanctions. Amongst other things she said there was no evidence of particular prejudice to Mr Mitchell, she took account of the Master of the Rolls' speach on the Jackson Reforms which said that a tough approach was required so that justice could be done in the majority of cases. She said that the stricter approach under the Jackson reforms had been central to her approach. The Court of Appeal upheld her decisions. As to confining the claimant to court fees, it said that CPR 3.14 (confining the defaulting party to court fees) was not just directed to the case of a party who does not file a budget at all. Budgets being filed in time (7 days prior to the hearing) was important in order to enable the hearing to be conducted efficiently and for discussions to take place beforehand. The judge was therefore not wrong to apply the sanction. As to relief from sanctions, the Court of Appeal said that the provision in 3.14 "unless the court otherwise orders" involved the same considerations as relief from sanctions under CPR r.3.9. All the circumstances of the case should be taken into account but more weight should be given to the two factors listed in the new rule (directed at efficiency, proportionate cost and compliance with rules etc.). The Master of the Rolls cited and endorsed his speech on the Jackson Reforms about a more robust approach and taking account of the failures to comply on other court users (illustrated, as though almost by design, by vacation of the hearing of the asbestos-related claims). Guidance was given by the Court of Appeal: relief will only be granted where the default is "trivial" for example where there has been a failure of form rather than substance and where a deadline has been narrowly missed. Where it is not trivial the burden is on the defaulting party to persuade the court to grant relief and it will need a "good reason". Examples given were a document not being filed due to a party or solicitor suffering from a debilitating illness or an accident or where later developments in litigation show the period for compliance was unreasonable. Merely overlooking a deadline on account of work or otherwise was unlikely to be a good reason. A key point for practitioners in difficulties is that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief made after the event. The Court of Appeal found the perfect case to make their point. It involved a politician from one of the parties currently in government and which is presiding over the reduction of resources in the court system. The vacating of the asbestos-related claim illustrated the knock on effect of inefficiency and failure in one claim on other litigation. However the decision is extremely harsh: failure to comply by 7 days on the part of his solicitors has meant that Mr Mitchell will be unable to recover the costs of his action if he is successful. Those costs are estimated to be £506,425 - which suggests that the sanction is hardly proportionate to the breach. One wonders whether there is not in fact a much more appropriate sanction. Mr Mitchell's solicitors have said that they will carry on and that he will not be affected financially by the judgment. But in other cases it might well lead to a claim for professional negligence - a step which would clog up the court system with more complicated satellite litigation. Are judges really to second guess what impact a failure might have on the court system as a whole when for the most part they have little evidence to assist them with attaching weight to this factor?The Master of the Rolls said in his speech that "the achievement of justice means something different now" - the extremity of this decision begs the question whether one would still define it as "justice" or just a hard form of utilitarianism.  Photo courtesy of freefoto.com (Photographer: Ian Britton)

Failure to file costs budgets: a recent example in practice

Pursuant to CPR 3.12 and 3.13, unless the Court orders otherwise all parties (unless they are litigants in person) in a multi-track case commenced after 1st April 2013 must file and exchange costs budgets. The date for doing so will either be prescribed by the Notice of Proposed Allocation served by the Court pursuant to CPR 23(1) or, in the absence of a specific date, they must be exchanged and filed 7 days before the first CMC. The sanction for not filing a budget is contained in CPR 3.14 and is extraordinarily draconian: "Unless the Court orders otherwise, any party which fails file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees". This sanction grabbed the headlines recently in the Andrew Mitchell MP case (Mitchell v  News Group (2013) EWHC 2355), since his solicitors failed to file a budget on time and Master McCloud applied CPR 3.14 to its full effect (albeit only by analogy since the claim was a defamation action not strictly governed by the new Part 3 regime). She also gave permission of her own motion for the Claimant to appeal to the Court of Appeal. In Maisuria v London Borough of Ealing (Uxbridge CC, 18th September 2013, unreported) the Defendant did not file a costs budget until the day before the first CMC. However, when the Court sent out the CPR 23(1) notice of proposed allocation, the Defendant  completed the attached directions questionnaire indicating that the appropriate track was in dispute. The Defendant's case was that, based upon the existing medical evidence, the time estimate for trial (1 day) and the pleaded claim for special damage, it was a fast track case. The directions questionnaire contained a box stating that parties should file a costs budget in precedent H if the claim was "likely to be allocated to  the multi-track". The Defendant did not think it was likely, or indeed that the evidence supported a claim in excess of £25,000, and therefore elected not to do so. Shortly before the CMC, the Claimant served additional expert evidence indicating that his injury had not recovered in accordance with the original prognosis and was more serious than had been anticipated. In light of this deterioration, the Defendant accepted that the case should now be allocated to the multi-track and filed a Costs Budget on the day before the CMC. The Claimant argued that, by analogy with the Andrew Mitchell MP case, the Defendant should be limited to a costs budget comprising its Court fees, pursuant to CPR 3.14. DDJ Sofaer concluded, however, that the Mitchell case was distinguishable on its facts. Whereas in that case the reasons for not filing a budget related to the solicitors being under pressure of work and experiencing unexpected delays, in this case there had been a genuine jurisdictional dispute as to whether this was a multi-track case at all, and the Defendant had been served with the relevant evidence late in the day. The Court had a discretion built in to CPR 3.14 ('Unless the Court orders otherwise') and it was not necessary for the Defendant to make a separate application for relief from sanction. Accordingly, the Court approved the Defendant's (and Claimant's) budget and did not apply the sanction.

CPR 3.14 - How Explicit and Draconian?

The notes in the White Book below Civil Procedure Rule 3.14 suggests the “rule is explicit and the consequences of failure to comply Draconian”. The rule itself provides that “Unless the court otherwise orders, any party which fails to file a budget despite being required to do so will be treated as having filed a budget comprising only the applicable court fees.” It has yet to be tested by way of an appeal to the Court of Appeal (despite the author’s best efforts on several occasions). However it would appear that guidance is likely to be forthcoming soon. In an interesting twist to an interesting case, the High Court limited costs awarded to Andrew Mitchell MP in his litigation against The Sun to applicable court fees only due to his "absolute failure" to discuss budget assumptions with the newspaper and failure to ask for additional time in advance. At a case management conference in June of this year, Mitchell and The Sun were ordered to exchange costs budges as per the new CPR regime. Mr Mitchell’s lawyers however failed to do so and thus the court, in accordance with the explicit and draconian wording of CPR 3.14, held that he would thus be "limited to a budget consisting of the applicable court fees for his claim". After hearing evidence about the reasons behind the non-compliance the sanction was not lifted. Master McCloud took a strict approach and is widely reported as holding that: “Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done…", and that "The court must now, as part of dealing with cases justly, ensure that cases are dealt with at proportionate cost and so as to ensure compliance with rules, orders and practice directions…" The Master noted that it would have been "far more likely" that the sanction would have been lifted against Mitchell before the reform of the CPR in this regard. However she said that in "the absence of authority on precisely how strict the courts should be and in what circumstances", and "[i]t will be for the appeal court to determine whether such a strict approach is appropriate". That appeal would be "on the basis that the severe nature of the sanction which I have imposed in giving effect to [the costs reforms] ... are of necessity not backed by specific authority on point, and the risk of injustice if I were adopting too strict an approach is such as to provide 'some other compelling reason' for an appeal to be heard”.

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com

Long live the Litigant in Person

Some of the readership may have heard there was a move by the Civil Justice Council to rebrand LiP’s “Self Representing Litigants”.   This is now not going to happen. Lord Dyson, Master of the Rolls has stated:   “The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf “   See the short practice guidance by following this link:   https://dl.dropbox.com/u/18097599/annex-a-practice-guidance_litigants-in-person-2.pdf   This sensible decision is welcome as it was important to clear this up before "J day" as it is widely expected that there will be many more LiPs as a result of the costs reforms.    

After pasties and caravans … CFAs and DBAs?

Is it just me or should we all be concerned about the way in which the legislation to implement Lord Justice Jackson’s recommendations is being introduced?   Why have there been so few announcements about what are, after all, radical and far reaching public policy changes? If we as legal professionals are unsure about the proposed changes, how can we properly advise the public after 1 April 2013?   Will legal professionals soon be joining bakers and caravanning enthusiasts in pointing out to the government the potential far reaching consequences of over hasty legislation?   In the foreword to his final report on costs in civil litigation dated 21 December 2009 Lord Justice Jackson wrote:   “ … I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice ...”   He went on to make a total of 109 separate recommendations some but not all of which have found their way into proposed new legislation. In particular the Conditional Fee Agreements Order 2013 (the CFA Order) and the Damages-based Agreements Regulations 2013 (the DBA Regulations) have now been laid before Parliament and were subject to a Motion to Approve debate in the House of Lords on 26 February 2013.   Both have been described by the General Council for the Bar (GCB) as “not fit for purpose”. The GCB also suggested that the proposed order and regulations “will deny access to justice, burden the courts’ time with unnecessary satellite litigation and limit the commercial use of DBAs”.    There are certainly grounds for concern. As we all know, the success fee under a CFA entered into after 1 April 2013 for proceedings at first instance will be capped at 25%. Article 5(2) of the proposed CFA Order provides that this will be 25% of “(a) general damages for pain, suffering, and loss of amenity; and (b) damages for pecuniary loss, other than future pecuniary loss” (my emphasis). However, in a lecture given on 29 February 2012, Lord Justice Jackson amended his view in response to submissions from a number of parties and proposed that the cap should be 25% of all damages. There must be a risk that in larger and more complicated cases which are difficult to cost budget and involve significant initial disbursements, limiting the cap to 25% of past losses will not promote “access to justice” as Lord Justice Jackson hoped but may in fact prove to be a disincentive to  taking on such cases in the first place.   Then there is VAT. As drafted, the proposed CFA Order provides that the “damages” to which the 25% cap applies are “net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions”. There is no exclusion for VAT. But if VAT is included in such damages there is not only scope for uncertainty (what happens, for example, if the VAT rate changes after the CFA has been entered into but before a bill of costs is rendered?) but in the larger and more complicated cases this may be a further reason why those contemplating taking on such cases may decline to do so on the grounds that the unpredictability of the risk will not be properly compensated by the level of the CFA.   The same objections apply to the proposed DBA Regulations. As presently drafted, the cap for DBAs is inclusive of VAT but exclusive of damages for future pecuniary loss. In addition, the DBA Regulations do not allow for “hybrid” agreements i.e. agreements under which some costs are recoverable if a “win” does not occur rather than no costs at all. This is again contrary to what Lord Justice Jackson recommended and may prove a disincentive to the use of DBAs particularly in commercial cases.   Access to justice may not be as newsworthy as Cornish pasties and static caravans but in resource-intensive cases, the government’s aim of protecting the damages recoverable by claimants may actually result in some claimants being unable to obtain legal representation and thus recovering no damages at all.       Image – cornishpasties.com

CFAs prior to 1st April 2013 - will the old or new rules apply?

What do you have to do to ensure that Parts 43 to 48 of the existing rules continue to apply to CFAs entered into before 1st April 2013? Do advocacy or litigation services have to be provided before 1st April 2013 or not? For the existing rules to continue to apply to CFAs entered into before 1st April 2013 what needs to be done prior to 1st April 2013 will depend on whether you are acting under a Conditional Fee Agreement or a Collective Conditional Fee Agreement (those are the two funding arrangements defined by rule 43.2(1)(k)(i) of the existing rules). If you enter into a Conditional Fee Agreement prior to 1st April 2013 specifically for the purposes of provision of advocacy or litigation services to a person in relation to the matter which is the subject of proceedings then the new rules (CPR r.48.2(1)(a)(i)(aa)) state that the old Parts 43 to 48 will apply (with modifications about which we are yet to hear). There does not appear to be any suggestion that advocacy or litigation services actually need to be provided prior to 1st April 2013. The story is different if you have a Collective Conditional Fee Agreement. In that case the new rules seem to state that, for the old rules to apply, you have to have provided advocacy or litigation services to the person by whom the success fee is payable prior to 1st April 2013. The drafters of the rules could have made it a lot easier to understand what they were getting at by actually referring to CFAs in r.48.2(1)(a)(i)(aa) and CCFAs in r.48.2(1)(a)(i)(bb). A bit more clarity is provided by the explanatory note to Article 6 of the Conditional Fee Agreements Order 2013 (http://www.legislation.gov.uk/ukdsi/2013/9780111533437) which states “Article 6 contains a transitional and saving provision. The effect of the transitional provision is to provide that articles 4 and 5 do not apply to a CFA entered into in respect of a claim for personal injuries, or to a collective CFA under which advocacy or litigation services are provided to a person in respect of that claim, before the day on which these regulations comes into force” (i.e. 1st April 2013). That’s my take on the current rules which are still being finalised. I ought to add, in the time-honoured fashion, that this does not constitute legal advice and liability for any reliance placed on it is disclaimed…

Post Jackson CPR Amendments published – a brave new world?

The Civil Procedure Rule Committee has published CPR amendments due to come into force on 1st April 2013. Some of the key provisions for PI practitioners are as follows:- Amendment to the Overriding Objective The overriding objective will become not just “to deal with cases justly” but also “at proportionate cost”; and the definition of “dealing with a case justly” will now include “enforcing compliance with rules, practice directions and orders”. This puts both costs and compliance with directions right at the heart of the Rules – with these changes it will become more difficult to point a judge to the overriding objective when asking him or her to overlook a breach of the rules. Relief from Sanctions Talking about breaches or rules and court orders, CPR 3.9 is to be revised taking out the familiar checklist. Instead, the court will consider all the circumstances, including specifically the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and court orders. As above, this does represent a significant shift in approach. Costs Management The amendments will introduce a comprehensive set of rules on cost management for multi-track cases, including costs budgets. These merit detailed consideration. There are some sanctions in the event that these rules are not complied with – for example, failure to file a costs budget will mean the litigant is treated as having filed a budget comprising only the applicable court fees (unless the court orders otherwise – see above). Increased Small Claims Track limit The Small Claims Track limit is raised to £10,000: but low value personal injury claims for general damages over £1,000 will continue to be Fast Track cases. The current rules regarding harassment; unlawful eviction relating to residential premises; and disrepair will remain. New Provisions relating to Disclosure These will include a requirement for parties to discuss and seek to agree a proposal in relation to disclosure meeting the overriding objective. Bonus for Claimants beating Part 36 offers In addition to interest on damages; costs on the indemnity basis; and interest on those costs, Claimants who beat their own Part 36 offers will be entitled to an “additional amount”, 10% of the sum awarded to the Claimant (where the claim is a money claim) up to £500,000 and 5% of the sum above that, up to a maximum £75,000. For non-money claims, the bonus applies to the sum awarded to the Claimant in respect of costs. Costs CPR 43 is revoked, and Parts 44 – 48 are replaced in full. That’s to say, all the existing sections of the CPR relating to costs are to be changed. Below are some of the key points from the new provisions:- Assessment of Costs When assessing costs, the court will “only allow costs which are proportionate to the matters in issue”. Costs that are disproportionate may be disallowed even if they were reasonably or necessarily incurred. Costs are proportionate if they bear a “reasonable relationship” to the sums in issue; the value of non-monetary relief; the complexity of the litigation; additional work caused by the paying party’s conduct; any wider factors such as reputation or public importance. This rule only applies to cases commenced after 1st April 2013. Qualified One-Way Costs Shifting This applies in personal injuries and Fatal Accident claims. It does not apply to pre-action disclosure. There is no means test: this is of general application. Qualified one-way costs shifting means that costs orders may be enforced against a claimant only to the extent that the aggregate sum of such orders does not exceed the aggregate sum of damages and interest made in favour of the Claimant. In practice, this will work as follows:-   a) Where a claim is dismissed, the Claimant receives no damages or interest. A costs order will be made in the Defendant's favour, but the Defendant will not be able to enforce the costs order against the Claimant to any extent.   b) The Claimant recovers damages, but fails to beat the Defendant's Part 36 offer. A costs order will be made in the Defendant's favour pursuant to Part 36. But this can only be enforced up to the total of the damages and interest payable to the Claimant. So if the Claimant is awarded £20,000 damages and interest, this figure provides a cap on the costs that can be enforced against the Claimant.   c) Interim costs orders have been made in the Defendant's favour, but the Claimant untimately succeeds. As above, the Defendant will be able to enforce its costs orders, but only up to the total of the Claimant's damages and interest. There are some exceptions, though:- Where proceedings have been struck out on the basis that a) they disclose no reasonable grounds for bringing the proceedings; b) the proceedings are an abuse of process; or c) where the Claimant’s conduct is likely to obstruct the just disposal of proceedings, there is no qualified one-way costs shifting. Where the claim has been found to be “fundamentally dishonest” the court may grant permission for the Defendant fully to enforce the costs order. Claimant’s Costs where there is a Damages-Based Agreement The Court will make the same costs order in the Claimant’s favour as if there were no damages-based agreement.

Claimant’s solicitors pay wasted costs in RTA case

  The defendant insurers in the case of Rasoul v Linkevicius (5th October 2012, Unreported), successfully obtained a wasted costs order against claimant solicitors in an RTA claim. The case is a warning to claimant solicitors in RTA claims where there is an allegation of fraud and parties/witnesses who do not speak English. For defendants it is a lesson in how clear allegations set out from early on can have devastating consequences.  The background facts are similar to those commonly encountered in practice. Following the RTA correspondence ensued between the claimant’s solicitors and the defendant insurers. A modest PI claim was made and the insurers questioned the bona fides of the claim. The Defence pleaded fraud clearly against the claimant. He served a witness statement which did not have an integral statement of truth – the statement appeared on a separate sheet of paper rather than being part of the body of the statement itself. Two witnesses provided statements with statements of truth. At trial the claimant gave no evidence as only spoke Kurdish and was illiterate. His statement had been in English and not translated. The husband and wife witnesses were Kurdish. The husband spoke reasonable English but had given his statement over the phone to a solicitor he had not met and at trial he said that his statement was a substantial expansion of what he told the solicitor. The other witness (his wife) spoke no English – her husband translated for her whilst the solicitor took the statement over the phone. She gave evidence that she had never spoken to the solicitor before the statement arrived. Unsurprisingly the case was dismissed and the judge referred to either the extreme incompetence on the part of the solicitors or an attempt to establish a case on fabricated evidence. The insurer made an application for a waste costs order against the solicitors. The judge made an order on the basis that there was no evidence of a proper signed statement from the claimant or the witness taken before proceedings were issued. Although an interpreter turned up at trial he was not allowed to be used as there had been no order relating to his attendance. The judge was critical that the witnesses were not seen face to face by the solicitors given the allegations of fraud. He concluded that proper competent work by the solicitors would have ensured that the case collapsed long before the trial took place. Defendants will be alert to the possibility of pursuing claimant solicitors where fraud has been alleged, there has been incompetence on the part of claimant solicitors which, had it not taken place, would have been likely to have meant the case would not have gone ahead. Claimants will want to see witnesses and take statements face to face where there are allegations of fraud. They must ensure that a proper ‘integral’ statement of truth is signed on the witness statement. If someone is unable to speak English it is essential that a translator is involved in the process of taking the statement, that the statement is translated, the translator makes an appropriate statement (see Practice Direction to Part 32) and the presence of a translator at trial is anticipated by a court order. Careful preparation needs to be undertaken so that solicitors can protect themselves by showing that a witness did give the evidence set out in the statement – even if they deny it at trial and seek to blame it on the solicitors.