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Tougher regime imposed on lawyers under the new civil procedure rules

Date: (14 February 2013)    |    

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The new civil procedure rules has been published yesterday and it imposes a tougher system on lawyers who fail to comply with case management orders.

A senior lawyer from a law firm said that the lawyers who apply for relief from sanctions under the new rules would no longer be able to take advantage of a list of mitigating circumstances.

Under section 1 of the Civil Procedure (Amendment) Rules 2013, replacement rule 3.9 (l) states the court would “consider all the circumstances of the case”, but also the need “for litigation to be conducted efficiently and at proportionate cost” and “to enforce compliance with rules, practices, directions and orders”.

However, the senior lawyer said that the position had moved in favour of lawyers who fail to meet time limits on costs budgeting.

Parties will have to file their costs budgets by the date specified in the allocation questionnaire under rule 26.3(1), or, if no date was specified, seven days before the first case management conference. Currently there is 28 days blanket limit after the service of the defence for filing of costs budgets.

The new rule on proportionality in costs, set out in clause 44.3, which has already been the subject of much debate, will not apply to “cases commenced before 1 April 2013”, but the expert said it would apply to all previous work a solicitor may have been doing until that time before proceedings are issued.

But he said it was surprising that in Qualified One Way Costs Shifting (QOCS), was not applicable to pre action disclosure.

Former justice minister Jonathan Djanogly said in a ministerial statement in July that there would be no means test for personal injury claimants seeking protection by Qualified One Way Cost System (QOCS), but claimants who failed to beat part 36 offers to settle by defendants would lose protection.

Subsequent to the publishing of the draft Legal Aid, Sentencing and Punishment of Offenders Bill a ministerial statement had made it clear that a regime of QOCS was to be introduced in all personal injury matters and it would be applied regardless of the financial means of the parties and the regime would arise in both first instance and appeal proceedings.

The principle of QOCS in most cases is that if a claimant loses a personal injury claim they need not pay the defendants costs but if he wins his personal injury case he has to pay the costs.

Clause 44.13 makes it clear that QOCs do not cover applications for pre-action disclosure or applications ‘where the claimant has entered into a pre-commencement funds arrangement’.

 

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