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Bc Disease News a Weekly Disease Update 31 March 2017 Edition 179 BC DISEASE NEWS A WEEKLY DISEASE UPDATE CONTENTS PAGE 2 Welcome Welcome PAGE 3 Welcome to this week’s edition of BC Disease News. Unravelling ‘Issue Based In the last week, Elizabeth Truss has announced the launch of the much awaited, Costs Orders’: Lyons v Fox Government consultation on how the discount rate should be set in the future. Williams LLP [2017] EWHC Elsewhere, the SRA have intervened into the practice of Asons Solicitors, closing 532 (QB) the firm with immediate effect and suspending the practising certificate of Director Kamran Akram. PAGE 4 In this week’s feature, we look at the construction of one of the most commonly pleaded statutory duties in asbestos claims, s.63(1) of the Factories Act 1961 Truss Announces Launch of (preceded by s.47(1) of the Factories Act 1937) and consider what needs to be Consultation into Discount shown in order to establish liability under this section. Rate Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. PAGE 5 As always, warmest regards to all. Asons Solicitors Become Coops Law SUBJECTS PAGE 6 Issue Based Costs Judgment – Discount Rate Consultation Launched – SRA Closes Assignment of CFAs Asons Solicitors – Regulator Drops Investigation Of S&G – Cabin Air Quality Research - Factories Act 1961/1937 – An Introduction To S.63/47. PAGE 7 ASIC Investigation into S&G Dropped Cabin Air Quality Studies Published Page 9 Feature Mesothelioma Series: Part 7: Factories Act 1961/1937 – s.63 PAGE | 2 not successful on every last issue Unravelling ‘Issue Based ‘… have regard to all the cannot, of itself, justify an issue- Costs Orders’: Lyons v circumstances including (but not based costs order. limited to): 5. The courts recognise that in any Fox Williams LLP [2017] i) conduct – sub- litigation, especially complex paragraph (4)(a): commercial litigation but EWHC 532 (QB) ii) partial success – sub- including personal injury litigation, paragraph (4)(b); and any winning party is likely to fail on It is well known that the default position in iii) offers to settle – sub- one or more issues in the case civil claims is that the ‘costs follow the paragraph (4)(c)’. (possibly issues on which the losing event’, i.e. the losing party pays the winning party could have taken steps to party’s costs, but not all instances are so Helpfully, the judge also outlined and protect himself, at least to an black and white. ‘Issue based costs orders’ summarised the main propositions derived extent, to costs liability). That point are made in ‘suitably exceptional’ cases from the authorities on issue based costs is frequently made… when a party obtains a judgment, orders, which are listed in the White Book at 6. In considering the circumstances ultimately in favour of their defence or para 44.2.7 as: of the case the judge will have claim, but fails to succeed in arguments regard not only to any Part 36 made during trial proceedings, resulting in ‘1. The rules themselves impose no offers made but also to each a reflective, ‘proportionate’ assessment of requirement to the effect that an party’s approach to negotiations awards undertaken by a judge, as was issue-based costs order should be (insofar as admissible) and previously demonstrated in the authority of made only “in a suitably general conduct of the Multiplex Constructions (UK) Ltd v Cleveland exceptional case”, and none is to litigation … However, the court Bridge UK Ltd [2008] EWHC 2280 (TCC). be implied, although “there needs should not approach r.44.2(4)(c) to be a reason based on justice” on the basis that it supports a Issue based costs has been most recently for departing from the general special “near miss” rule that may considered in the High Court case of Lyons rule, and that the question of the be invoked to penalise a v Fox Williams LLP [2016] EWHC 532 (QB), in extent to which costs of a successful party in costs, because, which the claimant brought an action in particular issue are to be to do so, would be to seek to use professional negligence against the disallowed should be left to the r.44.2(4)(c) to give to “near miss” defendant, a firm of solicitors, for advice in evaluation and discretion of the offers an effect similar to Part 36 respect of his Accidental Death and judge. offers, and would introduce an Dismemberment (AD&D) policy with his 2. The reasonableness of taking unwelcome degree of employer, EY. The claimant was failed points can be taken into uncertainty… unsuccessful at first instance, receiving zero account, and the extra costs 7. In assessing a proportionate costs damages. In subsequent proceedings in associated with them should be order the judge should consider respect of costs, it was argued that the considered. what costs are referable to each order made should take account of several 3. Where the circumstances of the issue and what costs are common lines of defence which had not succeeded. case require an issue-based order to several issues. It will often be These failings, it was contended, could be in the form of an order expressed reasonable for the overall winner regarded as ‘issues’, which para CPR 44.7.2 by reference to the costs of the to recover not only the costs of the White Book and CPR 44, describe as: issue, that is what the judge specific to the issues which he has should make; however, generally, won but also the common costs…’ ‘… anything upon which, standing because of the practical alone, a court could grant relief, difficulties which this causes, the In this particular case, the claimant but it may mean something less judge should hesitate before contended that there were two elements of than that. In any event, it has to be doing so and, where practicable, the case which placed them in the ‘partial something arising in the the order should be expressed as success’ bracket in CPR 44.2. The judge proceedings upon which one a percentage or with reference to agreed, finding that the claimant was not party can be said to have been a distance period of time. successful on the main issues but not every “successful”’. 4. There is no automatic rule line of defence raised by the defendant requiring an issue-based cost prevailed. However, it was also pointed out Turner J, at the High Court, clarified that order in the form of a reduction of that it was extremely detrimental to the when making a ‘different order’ and a successful party’s costs if he loses claimant’s appeal that, despite accepting departing from the normal approach, a on one or more issues…The mere two Part 36 offers in respect of costs, they judge must (per CPR 44.2): fact that the successful party was PAGE | 3 rejected a Calderbank offer of £500,000 to insurance premiums and settle the claim on 5 February 2016. Truss Announces taxpayers’. Launch of Consultation In refusing to make an ‘issue based cost There has been no indication of how, or if, order’ he stated at para 16: into Discount Rate the rate will change following this consultation. ‘In my judgment, despite the fact Yesterday, Liz Truss announced the launch that the defendant fought and lost of the much awaited, Government A summary of responses to the 2013 on certain issues, there are sound consultation on how the discount rate consultation paper ‘Damages Act 1996: reasons not to make an issue should be set in the future. The consultation The Discount Rate: Review of the Legal based costs order to reflect this. I follows the reduction of the discount rate Framework’ was also published yesterday note the following features: from 2.5% to -0.75% and hopes to devise a and can be accessed here. i) The over-arching result fairer framework, method and frequency was complete victory for for calculating and establishing the Elsewhere, The Damages (Personal Injury) the defendant on all discount rate. 1 The consultation period will (Scotland) Order 2017 was passed by issues; last six weeks, ending 11 May 2017 at which Scottish Ministers, mirroring the (-)0.75% rate ii) The issues upon which the point responses will be collated and for personal injury awards already adopted defendant succeeded published. 2 by England and Wales, and is scheduled to 3 were, by some margin, take effect from 28 March 2017. the most important ones The aim of the paper is said to be: and those upon which In future editions of BCDN, it is foreseeable the greater part of the ‘- To obtain evidence of how that we will report on the effects of this resources of time and claimants actually invest awards action taken by the Scottish Parliament. effort had been of damages for future financial What will be the impact on the Bill on expended by the parties; loss and how they are advised to Expenses and Funding of Civil Litigation (the iii) This was a commercial invest; legislative programme for civil justice case of a complexity - To invite views on what (if anything) reforms in Scotland? which almost inevitably should be done to make the meant that no side would system for the setting of the The full consultation document for the be successful on each personal injury discount rate better setting of the discount rate can be and every area of and fairer; and accessed here. dispute; - To obtain evidence on the use of iv) The defendants had not periodical payment orders and to Asons Solicitors Become taken a “kitchen sink” invite views on whether, and if so approach to the litigation how, their use instead of lump sum Coops Law as a whole as is awards of damages for future evidenced by the financial loss should be It was revealed last week that Asons settlement of issues which encouraged’.
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