Civil Litigation – Weekly Case Update
Our Weekly round up of cases from the Civil Litigation team
CPR 7.4 – service of Particulars of Claim can vary under certain circumstances.
ALTIATECH LTD -and- BIRMINGHAM CITY COUNCIL  EWHC 1371 (TCC)
The claim in question was a challenge to a decision made in relation to procurement. The issue in this instance was whether the Particulars of Claim were served in accordance with the regulations and rules, specifically CPR 7.4, and if they were served late whether an application for relief from sanctions could be granted. The position is summarised neatly in three paragraphs of the judgment.
§78. Both sides agree that sub-paragraph (1) provides for 14 days in which the Particulars of Claim must be served, being 14 days from service of the Claim Form. However, the Authority argues first that this must be read subject to sub-paragraph (2), which, as far as it goes, is obviously correct. However, the Authority goes on to say that sub-paragraph (2) is to be interpreted as here imposing a shorter time period of 7 days from the last day for service of the Claim Form. That is because Regulation 94(1) says that is when the Claim Form must be served, being 7 days from the date of issue. The usual position, of course, as prescribed by CPR 7.5, is that a domestic Claim Form can be served up to four months after issue. Accordingly, in the usual case one would expect 7.4(2) to come into play only where a claimant has chosen to serve the Claim Form towards the end of the four month period.
§79. The notes in the White Book at 7.4.3 describe the combination of sub-paragraphs (1) and (2) of CPR 7.4 as a “trap for the unwary”. This is because a claimant will then not have 14 days to serve the Particulars of Claim if, for example, the Claim Form itself was served, say, 10 days before the end of the four month period. The Particulars of Claim must themselves be served by the end of that four month period as well, even though this is less than 14 days from the date of service of the Claim Form. One can nonetheless see the logic for this, where the claimant has a long period in which to serve the Claim Form but choices to leave it until the last moment. The logic is less clear where Regulation 94(1) applies, since on any view a claimant only has a very short period to serve the Claim Form, namely 7 days from the date of issue.
§80. Moreover, and as Altiatech points out, there is a particular trap for the unwary here because what needs to be done within the four month period in order to constitute timely service of the Claim Form is that it should, for example, be posted onthe last day as opposed to being served bythe last day, under the usual rules. See CPR 7.5(1). On the other hand service of the Particulars of Claim if by post is deemed to occur only two days after posting, – see CPR 6.26. Accordingly, if CPR 7.4(2) requires in the PCR context that the Particulars of Claim be served no later than the time required for service of the Claim Form, which is 7 days after issue, the Particulars of Claim must be posted only five days after issue, even though the Claim Form itself could be posted on the seventh day. However, even without that anomaly, the effect would be that the time for service of the Claim Form and the Particulars of Claim would be the same in all cases.
The Judge considered the position and decided that the effect of Regulation 94(1) and CPR 7.4(2) is that the Particulars of Claim must be served within 7 days of the issue of the Claim Form.
The court went on to consider the Claimant’s retrospective application for relief from sanctions and an extension of time for service, which was granted.
A copy of the Judgment can be found here.
Details of the costs of a Medical Report Organisation should be provided in addition to details of an expert’s fee note.
NORTHAMPTON GENERAL HOSPITAL NHS TRUST -and- LUKE HOSKIN (administrator of the estate of Pippa Hoskin deceased)
The claim in this action was settled when the Claimant accepted the Defendant’s Part 36 offer. The Claimant’s solicitors drew up a bill of costs and served it on the Defendant on in the hope that costs could be agreed without the need for detailed assessment proceedings. All but two items were agreed – two non-fixed medical reports, invoiced in the sums of £5,400 plus VAT, and £8,775 plus VAT.
Invoices for both amounts were provided by Premex Services Limited, a medical reporting organisation. It is instructed by solicitors to provide medical reports. It maintains a panel of medical experts to whom it offers quick payment terms and other services. In exchange for those favourable payment terms and services, the experts provide reports at a lower cost than they would charge if directly instructed by solicitors.
The Defendant solicitor’s requested a breakdown of the items, but this request was rejected by Premex (and in effect by the Claimant’s solicitors) whose position was that the invoiced amount was both reasonable and proportionate, and therefore no breakdown was required. Detailed assessment of the costs was ordered.
During the period of assessment, the Defendant issued an application seeking an order that the Claimant provide the breakdown that had previously been refused. Some weeks after that, the Defendant then served points of dispute in respect of the bill, requesting details of the sums charged by the expert, and those charged by Premex. The first instance Judge refused the Defendant’s initial application, a decision which was subsequently appealed.
The single issue for determination was as follows: ‘Is a receiving party required to provide a breakdown in its bill between the cost of an expert report and the costs of a medical reporting organisation (“MRO”) approached to provide the report, or is it permissible for the receiving party to submit a bill which simply includes the fee charged by the MRO to provide the medical report?’ If a breakdown is required, then it follows that a Judge should make an order for a breakdown, if asked.
Claimant counsel submitted that there was no requirement for a breakdown of Premex’s fee, and that if there was such a requirement, the PD would spell it out. Defendant counsel submitted that in order to conduct a detailed assessment the Judge needs to be able to distinguish between agency fees and expert fees. PD 47 facilitates that exercise in plain and clear terms. Premex is not an expert and so its invoice cannot sensibly be regarded as an expert fee note.
The appeal Judge determined that the language of PD 47 is very clear and admits of no doubt. Paragraph 5.2 applies if the receiving party is asking the paying party to pay for the cost of an expert. If that is the case, then the receiving party is required to provide a copy of the expert’s fee note(s). The effect is that the precise cost charged by the expert (recorded in the fee note) is known.
‘Without the fee note the paying party cannot make a rational, evidence based decision, about whether to accept that aspect of the bill, reject it or make a counteroffer… If, as here, the paying party seeks to recover the fees of a medical reporting organisation in addition, it seems to me the same points apply. If the paying party (and potentially the court) is to make a decision about MRO fees it needs to understand what they are.’
With regard to the order, it was decided that the Deputy District Judge at first instance was wrong to refuse the order sought. If the paying party is entitled to receive the breakdown (as was found), as a general rule it is entitled to an order vindicating that right.
A copy of the Judgment can be found here.