25 November 2021

Master criticises 50k costs in 3k data claim

Master Thornett has criticised the level of costs in a 'very modest' data breach claim. In Johnson v Eastlight Community Homes Ltd [2021] EWHC 3069 (QB), the Claimant had sought over £50,000 including £15,000 of incurred costs and had suggested a two-day trial in the case where it is also making additional claims for alleged breaches under Article 8 ECHR, GDPR, the Data Protection Act as well as injunctive relief, the latter of which the master described as 'misconceived'
In his judgment, Master Thornett said the claim was factually straightforward. The Claimant is a tenant of the Defendant who requested her rent statement, which was inadvertently circulated to one-third party, who immediately notified the Defendant, and the emails were deleted. The Defendant admitted the breach, apologised, and reported the matter to the Information Commissioners Office.
The suggestion by the Claimant that this was a developing area of the law was dismissed by the master, who said he saw no basis for issuing such a claim that comes nowhere close to the £100,000 plus High Court value requirement under PD7A paragraph 2.1. He went on to say:

'Everything about this case has all of the hallmarks of a Small Claim Track claim that should have been issued in the County Court and so allocated. The suggestion that this is a developing area of law or where, even if the principle is established, requires an elaborate and complex legal argument is unrealistic if not, at least arguably, opportunistic.
Countless examples could be found daily in virtually every County Court in this jurisdiction where limited time and resources and the requirements of the overriding objective combine to oblige the pragmatic and proportionate application of the legal principle. The lure of adopting a more elaborate and expensive approach just because the subject matter can so permit is simply unacceptable. Put bluntly, the garment must be cut according to the cloth. So, accordingly, is potentially complex law applied proportionately in lower value claims in a way compatible to the limited resources those cases justify.
The only reason why the claim has been subject to a detailed legal argument is because the Defendant is appropriately concerned to defend resolutely a claim brought in the High Court where the future costs and time to be incurred by a social housing client would always be grossly in excess of the matter in dispute and with little clear prospect of recovery even if successful. Clearly, the Defendant in raising such a challenge, also has to act proportionately. However, the Claimant can hardly complain if the Defendant's response has been contextually proportionate to the very venue chosen by the Claimant in which to litigate.'

The Claimant's solicitors, Pure Legal went into administration on 2 November 2021.

19 November 2021

SRA proposes changes in power to fine

The SRA has opened a consultation that could lead to a shake-up of its powers to fine law firms for lower-level offences. The body oversees some 10,000 law firms and under the proposals, the income of the firms would be considered with fines up to a maximum of up to 5% of annual turnover being proposed for larger firms.

Other proposals include introducing a schedule of penalties from £800 up to £1,500 for offences such as failing to respond to the Anti Money Laundering risk assessment declaration. The aim is to speed up and streamline the process, which can often become administratively cumbersome.

30 September 2021

Signatory to a bill of costs must be capable of being identified

The person certifying a bill of costs must be identified, the High Court has ruled. Barking, Havering and Redbridge University Hospitals NHS Trust v AKC appealed a decision of Master Nagalingham who had refused to strike out a bill of costs for non compliance where the signature on the certificate was illegible and the signatory was not identified.

Mrs Justice Steyn DBE ruled that as a matter of ordinary interpretation '...bearing in mind the purpose of certification, it is implicit that the solicitor who signs the certificates must be readily identifiable on the face of those certificates...'. She also expressed her 'astonishment' that Irwin Mitchell for the receiving party had refused to identify the signatory to the bill, commenting ...'how little effort it would have taken to provide the name of the signatory for which the appellant had asked...'

17 September 2021

Solicitors must disclose recordings of discussions about retainers

Slater & Gordon has had its application for a stay in claims made by its former clients rejected. A group of claimants have brought claims against the firm over the extent of the charges that were applied against them and the enforceability of the retainers. The court dismissed SG's argument that the proceedings amounted to their former client's lawyers' trafficking litigation and exposing them to risk.

In his decision, Master Rowley also allowed a request by lawyers acting for the claimants for disclosure of recordings that were made at the time the retainers were entered into, ruling that they were relevant.

The full judgment is available here:

8 September 2021

Fixed recoverable costs to be extended with incentives for early settlement

The Ministry of Justice has published its long awaited response to the consultation on the fixed costs recommendations of Sir Rupert Jackson ('SRJ') made over 4 years' ago.

Fixed costs will apply to most civil cases (with a few exceptions such as clinical negligence) with a value up to £25,000. The fast track will be expanded, in line with the recommendation of SRJ, to add a new 'intermediate' track for cases between £25,000 and £100,000.

The proposals will also introduce greater incentives for early settlement with a 35% uplift for parties succeeding on a part 36 offer. There will also be an uplift of 50% in costs against any party engaging in unreasonable behaviour.

The proposed bands for complexity and the corresponding allowances proposed by SRJ back in 2017 are set out below and a copy of the the response can be found here:

3 September 2021

Court fees set to increase again

The Ministry of Justice is to press ahead with an increase in court fees. Although the increase will not be as dramatic as the bumper increases of 2016, it will still be seen as controversial against the backdrop of Covid and the serious deterioration in service.
Most practitioners who have had any experience of the courts service over the past 10 or more years will speak to the dramatic decline in the quality of the service, due largely to the savage cuts in staff numbers and the introduction of rushed, poor quality digitised court services.
The MOJ statement recognising that court users 'might sometimes be frustrated by the service they receive' will be seen by most as an understatement.