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Civil Procedure Rules: Amendments

The latest round of amendments to the Civil Procedure Rules, which come into effect on 1 October, will be of interest to both claimants and defendants who are conducting litigation.

A couple of significant changes to the rules are being introduced, which are described below.

Boost for successful small claims litigants attending court

From 1 October, successful litigants who are either bringing or defending claims in the small claims court will be able to recover up to £90 in loss of earnings or expenses for attending the final court hearing. This is an increase of £40 from the previous £50 limit.

Litigants are sometimes put off court attendance because the cost of losing a day’s holiday or earnings is a disincentive. This change is likely to be welcomed by claimants, particularly those with lower-value claims such as consumer disputes or road traffic accident claims where damages are modest.

However, litigants should be reminded that, despite this increased limit, the power to award expenses remains at the judge’s discretion, so it is not guaranteed.

Certainty restored to Part 36 offers

One important amendment to Part 36 reasserts certainty relating to Part 36 offers and subsequent cost consequences.

Offers made under the terms of Part 36 help encourage settlement, but also give certainty as to who is the ‘winner’ of the case, as it is the winning party who is usually able to recover legal costs from the unsuccessful one.

Considerable doubt had arisen following the Court of Appeal case of Carver v BAA [2008]. In that case, the claimant had beaten the defendant’s Part 36 offer by a mere £51. Even though the claimant appeared to be the winner in this case, the court held that, in the circumstances, it would have been more advantageous for them to have accepted the defendant’s offer rather than proceed to court for an additional £51. Therefore, the claimant was not considered to have been the successful party and was unable to recover all their legal costs.

With the amendments to the CPR, “more advantageous” now means better in monetary terms by any amount however small, and “at least as advantageous” is also to be construed accordingly.

The result of these amendments will be that legal practitioners will now be able to advise their clients about the costs risk with much greater certainty.

Posted on Sep 28th, 2011 by Lyons Davidson

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