FUNDING, COSTS AND FATAL ACCIDENT CLAIMS: SOME PARTICULAR POINTS TO WATCH

 Here we look at some particular points relating to the funding of fatal accidents. These matters are considered in more detail in the 3rd edition of Fatal Accident Litigation which will be published shortly by Jordans. Details available here.

 THE PORTALS AND  LOW VALUE  PROTOCOL

It would be unusual for a claim involving a fatal accident to fall within the Pre-Action Protocol for Low Value Claims. Paragraph 4.5 of  the Protocol expressly excludes a case “where the claimant or defendant acts as personal representatives of a deceased person”.

 QUALIFIED ONE WAY COSTS SHIFTING

Qualified one way costs shifting (QOCS) applies to claims under the Fatal Accidents 1976 and to claims “which arise out of death or personal injury and survive for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provision) Act 1934. (CPR 44.13(1)(b) & (c). The rules make it clear that the word claimant means a person bringing a claim to which that section applied or an “estate on behalf of which such a claim is brought”.

 MESOTHELIOMA CASES

There is an exception for mesothelioma cases which were not, initially, subject to the new conditional fee agreement rules, an attempt to revise this section was successfully challenged in R(on the application of Whiston) –v- Secretary of State for Justice [2014] EWHC 3044 (Admin).

 CONDITIONAL FEE AGREEMENTS CONDITIONAL FEE AGREEMENTS AFTER APRIL 2013

Conditional fee agreements are probably the most common means of funding fatal accident litigation. Important matters to consider in fatal cases include:-

  • Ensure that the person entering into any agreement has power to issue proceedings (that is they are the Executor or will be the administrator).
  • It is possible for an action to be brought by a dependant on behalf of other dependants. In these circumstances it is prudent to consider the position of all potential dependants as it is possible that, in a case where a conditional fee agreement is signed after April 2013, that a part of the success fee may be deducted from the damages that will be apportioned to them.

 SUCCESS FEES AND DEDUCTIONS FROM DAMAGES

Section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 amended s.58 of the Courts and Legal Services Act 1990. This prevented the recovery of success fees from defendants and gave power for a maximum limit to be imposed on a success fee which must be expressed as a percentage of the description  of damages awarded.

This is described in the Conditional Fee Agreements Order 2013

“5.—(1) In relation to the proceedings specified in article 4, the percentage prescribed for the purposes of section 58(4B)(c) of the Act is—

(a)in proceedings at first instance, 25%; and

(b)in all other proceedings, 100%.

(2) The descriptions of damages specified for the purposes of section 58(4B)(d) of the Act are—

(a)general damages for pain, suffering, and loss of amenity; and

(b)damages for pecuniary loss, other than future pecuniary loss,

net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions.”

 APPLYING THE DEDUCTION FROM DAMAGES IN FATAL CASES

In fatal cases:

  •  It is possible to have a claim for pain and suffering prior to death and the additional liability can be deducted from that.
  • The claim for “loss of solatium” may well come within this definition.
  • The claim for “past pecuniary” losses most probably includes a claim for past loss of services as well as financial dependency.
  • It is not clear whether the statutory bereavement award comes within this definition. However the bereavement award was increased by 10%, in line with the increase in general damages. (SI 2013 No.510). As I recall this was specifically in line with the 10% increase in damages for pain and suffering that took place at the same time.

 FUNDING FOR ATTENDING THE INQUEST

It is important to note that the costs of attending an inquest are potentially recoverable in a later fatal accident action. In Steward & Howard v The Medway NHS Trust  Master O’Hare held that the costs of attending the inquest in a fatal accident claim were recoverable in a clinical negligence case. At para 11 of the judgment he stated:

‘Costs of an inquest can be of and incidental to other actions … I think they are so in this case. I note that legal aid in this case was granted only for the purposes of a noting brief, i.e. authority to attend the inquest as an observer. Nevertheless, I hold it was reasonable for the claimants in this case to have sought to play a larger role, as they did, in that inquest. In other words to make submissions, and to cross-examine witnesses. Of course that cross-examination would always be under the control of the Coroner. I think it was reasonable for them to have had a full say in the findings of fact made by the Coroner’s Court.’

Note that the judgment does not say that representation at the Coroner’s Court may be reasonable in every case. Attendance at the Coroner’s Court may have to be justified on the facts in the assessment of costs.

This general approach was followed in Roach –v-Home Office [2009] EWHC 312 (QB)  Davis J held that costs incurred prior to proceedings are capable of being recovered as costs, And that “Costs of attendance at an inquest are not incapable of being recoverable as costs incidental to subsequent civil proceedings.”

  • There was no justification for disallowing costs if there was participation in the inquest.
  • It remained a matter for the costs judge to decide what amount of costs (if any) are allowable as costs of an incidental to the civil proceedings.
  • If the costs of attending the inquest are so large as to be disproportionate this should be considered by the costs judge.
  • The judge declined to set out rules of general principle and stated that each case should be judged on its own facts.

In Lynch –v- Chief Constable of Warwickshire Police, Warwickshire County Council and Coventry and Warwickshire NHS Trust [Senior Courts Costs Office 14/11/2014, Master Rowley] the court considered the case where there was a lengthy inquest. It was held that:

  • The costs of the entire legal team attending an inquest “stood Roach on its head”.
  • Instead of being a cost effective means of gathering evidence it became a disproportionately way of doing so.
  • The costs of attending were disproportionately high and were reduced.
  • Attendance at the inquest may be justified but it had to be of benefit to the civil claim.

 

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