By Robert Dunn.
Many Claimant firms will indicate a dispute regarding a head of loss on the Court Proceedings Pack (“CPP”) Part A Form, yet will indicate on the Claim Form that it is no longer in dispute. A focus on the Claim Form will give a good idea of what offers, if any, the Claimant has accepted.
I have come across a few occasions, in which Counsel has seen ‘8 months’ and assumed this was the prognosis. It can be embarrassing to find out in the hearing that the prognosis was in fact 8-months ‘post-examination’, or even worse, to not realise at all.
Judges, or opponents, sometimes ask for a transfer to Part 7. Be sure to know the narrow circumstances when that is possible; CPR PD 8B Para 7.2, and that complexity or PSLA settling is insufficient to justify a transfer; Phillips v Willis EWCA Civ 401.
A common situation arises, where the Defendant alleges documents were uploaded at Stage 2, which have not formed part of the CPP. It is important to know the common arguments. The Claimant will say ‘tough’, and that the Defendant should have disputed the CPP within 5 working days (RTA Protocol, 7.67). Defendant Counsel should look for evidence of this. The Defendant can also say there is an equivalent breach on the Claimant’s part, in failing to include the Stage 2 evidence (RTA Protocol, 7.64(2)(a)).
CPP Part B Offers do not have to equal the total of the CPP Part A Offers. However, they should not seek to better the sum total of the Stage 2 Offers. Again, see if the Defendant has challenged this (RTA Protocol 7.67), and also, if the Stage 2 Offers made reflect this Part B Offer.
A Defendant is bound to their comments at Stage 2. However, closely check what was raised. Particularly in hire claims, whilst the focus may have turned to rate or period, if need is pleaded, the burden would fall to the Claimant to prove this. If this has slipped under the Claimant’s radar, it may be possible to have the whole claim dismissed.
As a Claimant, be aware that if the value of the claim exceeds £10,000, increased Stage 2 costs can be awarded, which may not all have been already paid.
This is often obvious. Yet, there are cases where vehicle accidents occur in a workplace context. That may entitle the Claimant to increased costs, under the ELPL Protocol.
CPR 45.19 now allows a Claimant to recover, inter alia, a DVLA Fee and Engineer’s Report, if evidenced and justified. Judges usually disallow translation fees, and other disbursements unless they are a particular feature of the dispute (CPR 45.19(2)(e)).
10. Beating Part 36 Offers
You can often work out before a hearing whether one party (or both) is at risk on the CPP Part B Offers. If so, it’s worth working out the number of days on which interest would be calculated, so that swift calculations can be done at the end of the hearing. You can even get apps, which calculate the ‘days between’, and even the interest itself.