The Civil Liability Act 2018 prescribes the way that the Lord Chancellor sets PIDR, which must be reviewed every five years in England and Wales. Currently there is a single PIDR set at -0.25% which was set at the first review in 2019. For this second review, the Lord Chancellor must consult HM Treasury and an expert panel before setting the rate, but he is not bound by their recommendations.

A call for evidence on the introduction of dual or multiple rates was issued on 17 January 2023. It closed on 11 April 2023. A further call for evidence seeking data to inform the review opened on 16 January 2024 and closed on 9 April 2024. The formal review process must begin by 15 July 2024. The review period ends after 180 days, i.e. by January 2025 at the latest, when the Lord Chancellor will announce whether the PIDR will remain the same or change. The review period creates uncertainty as there are various options as to the outcome.

To achieve this outcome it is noted that the Lord Chancellor wants to understand more about the “claimant universe” and to ensure that claimants whose awards are only for relatively short periods of time are not potentially exposed to higher levels of investment risk. This objective will be achieved through consultation with a wide range of insurers, solicitors, legal bodies and accountants via the call for evidence. The replies to the call for evidence will enable the Lord Chancellor to establish the viability of introducing either a dual or multiple PIDR in England and Wales.

An expert panel has been appointed to bring additional expertise to the rate review process and comprises of members with experience in managing investments, consumer matters relating to investments, working as an economist and working as an actuary. The panel will consider what additional data, views and expertise they need to provide the advice to the Lord Chancellor. The panel is not limited in the factors that it can take into account or the parties that it can consult.

In order to understand more about the “claimant universe”, the call for evidence wants to understand more about the representative claimant, i.e. “one whose characteristics aim to reflect the ‘average’ of those in the claimant universe, and on whom the core modelling of claimant outcomes is based. Since this ‘averaging’ approach is adopted, the core modelling cannot capture perfectly the impact of the variation between claimant characteristics”. Whilst the definition is somewhat opaque, the call for evidence seeks to clarify matters through specific questions about the various heads of loss, impact of inflation on heads of loss and term over which awarded (life or fixed term).

There are, however, significant challenges to compensators and claimants alike in identifying the “representative claimant”. The response to the call for evidence must be evidenced led, but there are limitations with the capture of MI as when a claim is resolved via Part 36 or negotiations, or at a JSM or mediation the parties usually do not agree the length of the award for future loss or the awards for the various heads of loss. Consequently the MI is not necessarily reflective of any clearly agreed settlement terms as solicitors for the claimant and defendants will not record the awards for future loss in a consistent way. Only 1% of cases proceed to trial which means that it is only in those very few cases that there is clear guidance on the breakdown of the award for future loss.

They want to understand the nature of the investment advice provided to claimants noting that “Specific evidence from experienced industry stakeholders in this area will provide the expert panel with clear and helpful data.”

The call for evidence covers questions around a dual rate by duration model, like that which has been operated in Ontario since 1999. In Ontario there is currently a short-term rate of 1% and long-term rate of 2.5%. The switching point period is fixed at 15 years. Perhaps surprisingly when England and Wales is considering the possibility of a dual rate, there have been calls in Ontario for change given the difficulty in calculating the long-term rate for 15 years into the future.

The panel is looking to obtain information about financial advisor fees, fund or investment, management fees and other associated costs, e.g. transaction charges and tax. Compensators just do not have this sort of information. Having paid a lump sum, the compensator has no further contact with the claimant. Many claimant firms, especially those with investment arms, will no doubt have access to it and should be required to provide it in a suitably anonymous format.

Claimant representatives are generally very critical of the proposed dual rate, flagging concerns that it may lead to satellite litigation.The possibility of introducing multiple rates where differing rates are applied to different heads of loss is also covered in the call for evidence. This is the system adopted in the Republic of Ireland where the discount rate for pecuniary loss is 1% and for future care costs is 1.5%. Claimants favour this approach on the basis (they argue) that the model would have flexibility to better tailor the PIDR to the needs of claimants and protect against future earnings inflation or adverse market conditions, including those claims which involve a large future care costs element.

Conversely, compensators are reticent about this approach. The profile of the claims in Ireland is vastly different to that in England and Wales with much lower claims volumes. It is anticipated that the introduction of multiple rates will result in increased complexity, longer settlement times and higher costs with significant potential for satellite litigation and the effect of delaying settlement for the claimant.

T: +44 (0)117 918 2648 M: +44 (0)7725 642687
E: ejackson@dacbeachcroft.com

There has been the highest number of business failures since then, with retail only beaten by construction to the top spot. We can all think of the high street names impacted such as Wilko, Cath Kidston, Paperchase to name but a few, with a report suggesting insolvencies in retail jumped by 52% in the 12 months to Q3 of 2023.

The sector is large and diverse, ranging in the size and structure of businesses, what is sold and to whom, from the daily essentials to luxury goods, to the manner in which sale takes place, whether in person or online. It accounts for 5% of total economic output in the UK with retail sales in 2023 worth £510 billion and covers 2.7 million jobs, which is 8.6% of UK employment.

With demand up for beauty-based spending, stores are now offering experiences rather than simply products, a beauty makeover rather than a traditional makeup sale. This is part of the retail sector’s fightback against the increased competition arising from online retailing, with the successful stores using one to complement the other.

Add to that the cost of living crisis and the way we shop has changed, with small basket regular shops being the preference to one big weekly shop.As well as our routine food shopping habits, our leisure shopping has changed too. There has been a shift from traditional stores to destination stores with greater emphasis on the in-store experience and provision of services.

What we can anticipate is that the state of constant change will continue for the retail industry and it is important for those businesses who have a high number of claims to identify where their claims arise from by the use of specific MI. This will allow them to pinpoint any hotspots so that they can drive improvements in and focus on claims defensibility where required. Sadly, the state of permacrisis is likely to continue for some time yet.

T: +44 (0) 191 404 4156 M: +44 (0) 7834 308465
E: showes@dacbeachcroft.com

​Following on from this, it is important that pet and other insurers that face such claims have their own procedures in place to ensure that cases are dealt with efficiently in order to minimise overall legal spend and, in the right circumstances, appropriate defences are maintained to ensure that it is only the actionable and appropriate cases where compensation is paid.

The reported increase in dog attacks has more recently culminated in a focus on attacks by XL Bullies, which has resulted in an amendment to the Dangerous Dogs Act 1991 under which XL Bullies are now identified as a banned breed and restrictions are placed on owning one.

For those that deal with civil claims involving injury caused by an animal, the key piece of legislation is the Animals Act 1971 (“the Act”), and over the past few years a battleground between the parties has been around section 2(2)(a), which is the first of the three hurdles the claimant has to get over to prove a civil liability against the keeper of the animal, which causes the injury under section 2(2) of the Act.

In Lynch v Ed Walker Racing [2017] a stable boy employed by the defendant was injured when a horse he was riding was spooked, causing it to whip round and fall over. The claim failed because the claimant could not prove section 2(2)(a), and in dismissing the claim, the judge relied on witness evidence heard during evidence that said that people rarely fell off a horse where it whipped and if they did injuries were relatively rare. Based on that the court held that it was unlikely an injury would be caused to a rider by a horse whipping round and if the injury was caused in that manner, it was unlikely to be severe. It should be noted that in this case the claimant failed to provide any expert evidence to prove that injuries can occur and will be severe in those circumstances.

In the 2012 cases of Goldsmith v Patchcott and Turnbull v Warrener, experienced horsewomen who were thrown off horses and suffered serious injuries had their claims dismissed, where the defendants could show the experienced horsewomen knew the horse they were riding could react in the way it ultimately did, but both went on to take that risk.

In this case, at the time of the accident an elderly dog named Max was being walked off the lead on a beach by his owner. On the same beach at that time were horses from a local stables that were being ridden by paying customers as part of a guided ride across the beach through a local stables.

Max had encountered horses previously and he had never before paid any particular interest in them. Horses from the stables in question had also never been particularly concerned by Max, albeit the stables (who appreciated that dogs were being walked off the lead on the beach) had a policy that if an off-lead dog approached any of its horses during a ride on the beach, then the group lead rider should stop the group and ask the owner to place the dog back on the lead.

The claimant, who was on holiday in the UK, and who was an experienced horse rider who had ridden to a high standard in his native country, booked the beach ride with the stables. When he arrived at the stables he was allocated an appropriate horse and to the experienced group, which consisted of other experienced riders and a lead rider who was employed by the stables.

T: +44 (0) 121 698 5356 M: +44 (0) 7713 392337 E: rrowe@dacbeachcroft.com

When the group arrived at the beach they could see that dogs, including Max, were off the lead but, as was normal, they proceeded across the beach. After some time on the beach the group passed Max and, whilst he had never previously taken any interest in the group, on this occasion he approached the horse at the back of the group, which was being ridden by the claimant.

On noticing Max, the lead rider stopped the group and as Max caught up with the horse being ridden by the claimant, the horse reared up in a particularly violent buck, throwing the claimant off. As a result, the claimant landed on his head on the sand and suffered serious spinal injuries.

In short, the claimant had voluntarily accepted the risk of what occurred.Given the claimant was participating in a group ride under the guidance of a lead rider at the time, it could be argued the decision extends further the scope of the section 5(2) defence.

• Policy documents may be unclear or there could be portfolio policies that are unclear as to who the insured is, who the correct defendant might be or even whether the property is covered under the policy;
• Getting instructions can therefore be difficult, with multiple entities potentially being the right defendant. In particular, watch out for Special Purpose Vehicles (or SPVs); these are used by parent organisations to acquire and finance assets. In our context this could be used to pool investment to purchase an office block. The SPV owner may have very little knowledge as to the day-to-day management of the property;
• There is potential for multiple parties to be involved and relationships are often complex. For example there could be the landowner, tenants, managing agents and subcontractors (such as cleaners) all involved; and
• In turn this means that claims often become document heavy with unfamiliar and complex documents such as leases, sub-leases, property management agreements, service agreements and other contracts. At the same time, there could be complex and sensitive relationships between the potential parties, which need to be managed.

A particular issue currently being seen across the industry is where policy extensions exist known as a “Managing Agent Extension.” Essentially, if the extension applies, where you insure the landowner/landlord, cover may have been extended under the policy for the policy to indemnify/hold harmless a Managing Agent. Therefore, even if you felt that fault for an accident lay with a Managing Agent rather than the landowner, you may not be able to redirect the claim.

• A landowner could face a claim under the OLA if the accident was sustained in an area not demised under a tenancy;
• In an office block, any area not demised remains in the control of the landlord; or
• The lobby or corridors may have been retained by the landlord, whilst the office area's demised under a tenancy.

Given the diverse nature of real estate claims, a number of causes of action can arise. For example, claims could arise under the Occupiers’ Liability Act 1957 (“the OLA”). Under the OLA, an occupier has a common duty of care to all visitors to ensure their reasonable safety. For example:

The Landlord and Tenant Act 1985 ("the LTA") could apply. If a tenant is injured or suffersillness due to disrepair, a landlord could be liable under the Act.There is also the Defective Premises Act 1972 ("the DPA"). Whilst the LTA applies onlyto tenants, the DPA imposes a duty upon landlords who are subject to a repairingobligation in the relevant lease, to ensure that all persons are kept reasonably safe frompersonal injury due to a relevant defect in the state of the premises demised. Therefore,if a person suffers an injury in a demised part of a property that is due to disrepair forwhich the landlord is responsible, liability could attach to the Landlord.Finally, there are likely to be claims in contract and claims in negligence could also beadvanced.

T: +44 (0) 191 404 4156 M: +44 (0) 7834 308465 E: showes@dacbeachcroft.com

Awaab died from a respiratory disease brought on by prolonged exposure to black mould which had not been dealt with by Rochdale Boroughwide Housing. The coroner wrote a damning Prevention of Future Deaths Report in November 2022 which then became national news with Michael Gove spearheading the Government’s response. The outcome is the Social Housing Regulation Act 2023. The Act received Royal Assent in July 2023 but many provisions are not yet in force. The main thrust of the Act is to massively increase the regulatory oversight of the social housing sector, which is not the subject of this note.

However, Section 42 changes disrepair law and provides a new route for claimant firms to bring claims against local authorities, housingassociations and any other social housing providers. The new provision requires regulations to bring it into force, but it is vital to know aboutthe changes in order to prepare for them. In essence, Section 42 adds a new statutory covenant to the existing covenants in the Landlord and Tenant Act 1985 which are implied into every tenancy agreement and lease under seven years. Added to the existing covenants to keep in repair the structure and exterior and ensure the letting is fit for human habitation, there is to be a new Section 10(A) (2) and (3) in the Landlord and Tenant Act that the Landlord will take action in relation to prescribed hazards.

They are the same list as describes fitness for human habitation - including freedom from damp.

• The answer is that regulations will be made under this new Section 10A which will set out for the first time fixed timescales by which landlords have to respond to complaints of damp/mould to avoid a breach of covenant.
  
• We do not yet know what these timescales will be, consultation on them closed on 5 March 2024. The Government has, however, suggested a very tight timescale as follows:
• That the landlord should investigate within 14 days of being made aware of the potential hazard.
• The landlord then has 14 days to prepare a written summary of findings to the tenant detailing the hazard identified and the proposed next steps.
• Any works needed to commence within 7 days of the written summary being issued.
• Works to be completed within a reasonable period of time.
• However, any emergency repairs to be done within 24 hours, and if there is a significant or imminent risk of harm or danger, the landlord must offer temporary accommodation.

From the defendant side, one important provision to know about is a specific defence under Section 10 A(5); thatit is a defence for the landlord to prove that they used all reasonable endeavours to avoid a breach of the covenant.So as well as gearing up to be able to respond to meet these sort of timescales, the big take away is this; good recordsneed to be maintained of every attempt to inspect properties - especially where there is a report of damp or mould.Clear records of all attempted contacts by phone, email or by knocking on the door, to try to inspect, as well as theperson making the contact, need to be maintained. So as and when claims are brought, the evidence is availableto make use of this new statutory defence.

T: +44 (0) 191 404 4156 M: +44 (0) 7834 308465 E: showes@dacbeachcroft.com

It is not surprising that since the Covid pandemic, there has been a significant decrease in the number of employer liability and public liability injury claims. In fact, when you look at the Portal Company data for 2018 and compare it with the number of CNFs received across 2023, the number of new claims has reduced by almost 50%. While some lawyers had anticipated that there would be an increase in the number of EL and PL claims in 2023 compared to 2022, this simply did not happen. Instead, the monthly average number of EL and PL CNFs dropped in 2023 compared to the prior year. This is not wholly surprising given that your average claimant has three years in which to bring a claim and the last of the three English lockdowns only ended in March 2021.

We must also remember that future claim numbers very much depend on the changing landscape in the claimant solicitor market. Gone are the days when a raft of different claimant solicitor firms had medium sized pockets of personal injury work, all competing in the same space. Instead, we are seeing many of those claimant firms either consolidating or leaving the market completely. If you look back over the last few years, we have seen Irwin Mitchell sell off its low-value personal injury business and the likes of Accident Claims Lawyers Limited, Woodwards Law Limited and Pure Legal all go bust. While those changes took place, the claimant solicitormarket continued to consolidate with the likes of Michael W Halsall Solicitors, Amelans and Jeffries Solicitors all being acquired by Express Solicitors as they pursue their ambitious growth plans.

There will likely be a shift in focus for some firms from high-volume personal injury towards more lucrative claims, such as complex or catastrophic injuries, medical negligence or professional indemnity. Additionally, we expect a heightened emphasis on profitability, with claimant firms potentially exploring new jurisdictions or optimising internal operational structures to streamline processes.

T: +44 (0) 117 918 2108 M: +44 (0) 7725 061925 E:cmitchell@dacbeachcroft.com

CPR Rule 26.16 only prescribes three claim types for complexity band assignments where the appropriate allocation is the intermediate track. PL and EL claims are not specifically stipulated and it simply does not follow that they will be allocated to complexity band 3 just because that is the banding that applies if fast track allocation is appropriate.

Insights from the non-injury early cases confirm that, especially for intermediate track, there will be a real battle in deciding complexity banding. There is a very real opportunity for defendant paying parties to make admissions to reduce issues and be able to robustly argue for lower complexity banding when a claim settles.Settlements without admissions are problematic as it is not then clear what would have been admitted and outstanding if the claim had progressed. Claimant receiving parties will attempt to use letters of claim and correspondence to set-out the scope of required admissions and agreed facts in order to pressurise defendants to leave issues outstanding at the peril of justifying a higher complexity banding. There havealready been instances of a defendant's queries at pre-action stage being described as issues to justify higher complexity banding. It is clear that unnecessarily combative or even aggressive denials or refusals to deal with points will come back to bite defendants when it comes to complexity banding assignment.

• Complexity band 1. EL and PL claims will fit into this banding provided only one issue is in dispute and the trial is expected to last no more than one day. There is a suggestion that liability and quantum are capable of being treated as an 'issue' as it is stipulated that it will include "personal injury claims where liability or quantum is in dispute." It is therefore possible for there to be more than one aspect of quantum to be contested within the overall umbrella of quantum for it to be considered one 'issue'. However, only if the trial will not last longer than one day.
• Complexity bands 2 and 3. These bands are quite close in their description and also the amounts that apply are relatively similar. Band 2 is for "less complex claims where more than one issue is in dispute, including personal injury accident claims where liability and quantum are in dispute." Band 3 is for "any more complex claim" described as unsuitable for band 2 and includes employer liability disease claims. Claimant receiving parties will refer to the fact that EL and PL claims are band 3 for fast track and argue that they will generally be 'more complex' and fall into band 3. This is, however, not what the rules say and it is clearly envisaged these claims could be band 2, where it is likely that a trial will last longer than one day and therefore not be band 1. It is apparent from early non-injury cases that parties might be tempted to be pragmatic and settle disputes on the basis of calculating fictious band '2.5'.
• Complexity band 4. This is where any claim unsuitable for bands 1-3 will belong but includes "any personal injury claim where there are serious issues of fact or law." It is anticipated that this is the banding for any claim with a positive pleading of fraud but there is uncertainty as to what the threshold for 'serious' either as fact or law is. For example, where a different version of events is preferred without an express pleading of fraud. Where a point of law emerges as to whether a duty of care exists in the first place, it is not clear whether that will be a serious issue of law. The crux is attempting to fathom what the difference is between a serious issue and 'just' an issue.

In a similar fashion to complexity banding, the vast majority of claims will settle before the court allocates a claim to track. Complexity banding assignment will either take place at the same time as allocation or afterwards where allocation is contested. Only where a claim is suitable to either the fast track or the intermediate track will FRC apply. Therefore on a claim that settles pre-allocation, the parties will need to try and agree what the suitable track and complexity band would be. The extent to which speculation is permitted carrying out either exercise has always been problematic, especially around whether a claim is suitable for allocation to the small claims track or the fast track. Defendant paying parties will often argue that likelyallocation should be based upon the claim as it settles rather than what it will describe as the 'impermissible speculation' of what a claim might become if it had not settled. It is likely that the basis for dealing with both likely allocation and likely complexity banding will be one of the first FRC test cases.

T: +44 (0) 117 918 2108 M: +44 (0) 7725 061925 E:cmitchell@dacbeachcroft.com

DAC Beachcroft are continuing to successfully defend a significant number of assaults on this basis; assaults by those who can present with violence and aggression cannot be completely eradicated despite what the claimant fraternity may argue.

DAC Beachcroft have successfully defended a number of pre-action disclosure applications, where claimant's solicitors still insist that service users records are disclosable pre-litigation and refuse to pay the costs of accessing those documents. We have taken a number of such cases to hearings and have been successful in recovering our costs. The defensibility of claims is, if anything, becoming more challenging in circumstances where staff turnover is at an all-time high within the care sector. Unless investigations are done promptly and in a detailed way, access to witnesses can be lost very quickly, and that can make such a significant difference to how likely a case is to succeed and for defendant lawyers to weigh up the litigation risk. Early contact with potential witnesses is critical even if a handwritten signed and dated document is the best that can be achieved. This is particularly valuable where it is contemporaneous.

The industry has seen an increase in assault claims, potentially for two reasons. Firstly the hangover from Covid where there wasa restriction on external visits causing, arguably, an increase in levels of frustration to service users which translated into incidentsof aggression and violence. There is also a perception that as the demographic of care providers changes, there may be morereluctance on the part of staff members to accept that part of their role is to manage what are inevitable incidents. Anecdotally wehave seen an increase in claims made by less experienced members of staff and it maybe in part due to the lack of experience, but there does seem to be more of an appetite to make a claim on what appear to be relatively minor incidents.

What is becoming prevalent is the multidisciplinary nature of the provision of care and the way in which there are restrictions placed on care providers in relation to the funding allocation by local authorities. There are examples of cases where requests have been made for increased ratios in the staffingrequirement to support a particular service user, and which has been made and repeated but effectively ignored, until such time as an incident has occurred when the staffing ratio is promptly changed. That presents real problems in terms of defensibility and raises the possibility of bringing the local authority into actions as a third party. That inevitably complicates matters and increases the costs exposure. Any requests in relation to increases in staffing, if they are made, should be repeated and documented to maximise the chances of using that evidence.

In terms of the future, issues will continue to revolve around staffing. Government changes to immigration requirements placed on care providers, in relation to the documentation they need to provide, will put even more pressure on what is a very pressurised sector. The turnover of staff is not likely to decrease and as more newly trained, and on occasions untrained members of staff enter the sector, the potential risks are going to be evident. In those circumstances, dialogue with social care providers in relation to the complexity of the liability risk they present will continue to be important. An increase of community based care is also going to put additional hazards before insurers that will need to be properly understood and identified and we are already seeing an increase in claims of this type.

So will we see the UK product liability regime change to address these new challenges? OPSS, the UK's products regulator, recently concluded a consultation mostly looking at product safety but which also foreshadowed the review of the CPA 1987. So expect further changes about how the law defines 'products' and 'defects' to address some of the above challenges.

How collective action could fuel product liability claims – will the UK and EU movecloser to US-style class actions? The EU Collective Action Directive 2020 has been inforce for several years now, and complements existing national means by which injuredclaimants can bring claims collectively. In many ways the UK is more advanced thansome EU nations. As well as Group Litigation Orders, many mass claims can simplysee joint case management with the courts taking a flexible and bespoke approach.Coupled with a mature litigation funding regime and increased advertising forclaimants including on social media, we can expect more claims where productscause or are alleged to cause injury to multiple consumers.

The EU has already started to diverge from the UK post-Brexit and has introduced a new EU Product Liability Directive. Why does this matter to UK insurers and insureds? Manufacturer insureds exporting to the EU, or selling to a business in the UK exporting to the EU, need to be aware of what is changing. Key changes include:

• Extending the definition of product to include software. Manufacturers of components, which can include those integrated or inter-connected with productwould also be liable for defects caused by those components.
• Compensation extended for non-material losses, including medically recognised damage to psychological health. Also compensation following the destruction ocorruption of data (not used for professional purposes).
• Change in the burden of proof: When a claimant is faced with excessive difficulties, in particular due to the technical or scientific complexity, to prove the defectiveness of the product or the causal link between its defectiveness and the damage, a court may decide that the claimant is only required to prove the likelihood that the product was defective or that its defectiveness is a likely cause of the damage.
• The claimant can seek a court order to request access to 'necessary and proportionate' evidence from the manufacturer – this is nothing new for UK lawyers but significant for countries where disclosure is less familiar e.g. Germany and the Netherlands.
• An extended liability period of 25 years in exceptional cases when symptoms are slow to emerge. Compare the existing 10 year longstop under CPA 1987.
• When a manufacturer of a product is established outside the EU, the importer of the defective product or component, the authorised representative of the manufacturer or, as a last resort, the fulfilment service provider (a company that typically takes care of the warehousing, packaging and dispatching of a product) can be held liable.

QOCS was introduced in Scotland in June 2022 and applies to all personal injury actions and appeals raised on orafter 30 June 2021. Although we anticipated a lot of satellite litigation following its introduction, 2022 was relatively quiet in terms of challenges. However, 2023 brought a slew of reported decisions

The court was invited to consider the issues of fraudulent misrepresentation and manifestly unreasonable behaviour. Mrs Lennox was an 82 year old customer who tripped and fell over some shopping baskets in an Iceland store. Ultimately her claim was unsuccessful and the defender moved for QOCS to be disapplied on the grounds that she had acted "in a manifestly unreasonable manner in bringing the proceedings in the first place and by failing to lead positive evidence,"which the defenders argued amounted to an abuse of process.

The Court Rules that sit alongside Section 8(4) also provide that QOCS cost protection may not apply if the claimant either fails to beat a tender or unreasonably delays in accepting a tender (Part 36 offer), and also if the action is abandoned or Summary Decree is granted against the pursuer or claimant.

• Where a person makes a fraudulent misrepresentation or others act fraudulently in connection with the claim or proceedings;
• Behaves in a manner which is manifestly unreasonable in connection with the claim or the proceedings; or
• Otherwise conducts that proceedings in the manner that the court considers amounts to an abuse of process.

QOCS has been around in England and Wales since 2013 and, whilst the overarching aim of the rules in the two jurisdictions is similar, the circumstances in which QOCS will be disapplied is different.

She and her daughter gave evidence and the court was shown CCTV of the accident. There was no doubt the accident had occurred and that she had sustained an injury. The issue was whether the defenders had breached their duty of care toward her. The court preferred the evidence of the defenders in relation to where the baskets were sited in relation to the check-out aisle and also in relation to when the area had last been checked by the defenders.

The court, in dealing with the application to disapply QOCS, confirmed that manifestly unreasonable is something more than unreasonable – it must be clearly or unmistakably unreasonable. An abuse process is a separate concept from manifestly unreasonable behaviour. It involves a misuse of the procedure of the court in a way which would otherwise bring the administration of justice into disrepute among right thinking people.

The court pointed out that although the defenders' evidence had been preferred, that was not sufficient to establish manifestly unreasonable behaviour. Had the court interpreted CCTV evidence in a different way, Mrs Lennox's claim may have succeeded and QOCS would apply.

Following on from decision, the court was again asked to disapply QOCS on the grounds of fraudulent misrepresentation and manifestly unreasonable behaviour in the case of James Nelson v John Lewis PLC [2023] SC EDIN44. In this case, Mr Nelson was injured when a colleague threw a ball at him during a night shift. He claimed he had developed unilateral deafness as a result.

The defenders had been aware of complaints of horse play but had taken no steps to address that. Although Mr Nelson was successful on liability, he failed to establish causation. This case is interesting as it raised an issue in respect of Mr Nelson's credibility. The accident had occurred on 14 October 2018. The pursuer attended his GP two days following the accident, with the GP recording "that he had first become aware of a sudden onset of loss of hearing when he had woken that morning" – which was before the accident occurred.

The decisions so far have confirmed that QOCS will be the default position and that the circumstances in which QOCS will be disapplied will be few and far between. It is likely that in order to succeed on the grounds of fraudulent misrepresentation or manifestly unreasonable behaviour, the court will requireto make a finding that the pursuer's evidence was incredible or wholly unreliable. Further, in order to succeed on the grounds of manifestly unreasonable behaviour, the court will need to be satisfied that the action was either bound to fail at the outset or, once it became clear that the action was bound to fail, the action was not discontinued.

In Nelson, the court stressed that before suggesting the pursuer had made a fraudulent misrepresentation, the court needs to make a finding that the pursuer had deliberately misled the court. The court had made no such finding but had simply preferred the defenders' evidence on causation.

On a happier note for defenders, the courts have disapplied QOCS protection where pursuers have abandoned their actions. In McCrae v Screwfix & Others [2023] SC EDIN28, the pursuer accepted an offer from one defender and sought to abandon his claim against the remaining defenders. The pursuer argued that only where there was evidence of inappropriate conduct in an action would QOCS bedisapplied. The court disagreed with that interpretation and confirmed that the determination of an application under the court rules was entirely at the court's discretion. The pursuer had abandoned his claim against Screwfix and, as such, they were awarded their expenses.

In Harvie v Avrameoru & two others (unreported) [November 2023] the pursuer brought an action againstthree defenders and at a relatively advanced stage sought to abandon the action against defender 3.Not surprisingly, defender 3 sought expenses. They maintained throughout the claim and the litigationthat they were not the correct insurer; that they had provided the details of the correct insurer to thepursuer and the policy number prior to litigation being raised but that no steps had been taken by thepursuer's agents to check the position before raising the proceedings. The court confirmed that as thepursuer was abandoning his claim against defender 3, they were entitled to expenses.

It was also not manifestly unreasonable behaviour,where there had been no express or implied finding that the pursuer was incredible or that his action was bound to fail.

The decision in Nelson suggests that before a defender can seek to disapply QOCS on the grounds of fraudulent misrepresentation or manifestly unreasonable behaviour, the court must make a finding that the pursuer's evidence is incredible or that there was deliberate attempt to mislead the court. For manifestly unreasonable behaviour, the court will need to be satisfied that the case was bound to fail from the outset and say so.

T: +44 (0) 141 223 8561 M: +44 (0) 7917 427940 E:lgallagher@dacbeachcroft.com

General Damages
The 6th Edition of the Guidelines for the Assessment of General Damages (known as the Green Book) is due to be issued imminently (and may even be in place by the time of reading), replacing the 5th edition which was published in February 2019 and following the work of the revision committee chaired by Lord Justice Horner. Inflationary increases averaging 25% are expected. It is hoped that the publication of the new Green Book will bring some much needed certainty to the arena of general damages which has been in flux for some time.
Future Loss
In Northern Ireland we currently have the highest personal injury discount rate in the world! However, in line with the other UK jurisdictions a formal review must commence by July 2024. Defence practitioners and insurers alike are hoping for a more "positive" outcome.

County Court
County Court costs for both solicitors and counsel are based on a statutory scale, with fees based on the valueof the settlement or award. These are normally reviewed every three years but have not been reviewed since2019 due to the absence of a sitting devolved government. An initial consultation was launched in June 2023 and is expected that further consultation with formal proposals will launch soon.

High Court
A judicial working group has been set up to consider the solicitors taxation hourly rate (which has not beenamended since 2014). The group is tasked with fixing a new rate and establishing a policy for future reviews.It is currently in the evidence gathering stage. A new taxation hourly rate may lead to a revised Belfast SolicitorsAssociation scale for High Court costs (guide only) which itself hasn't been reviewed since 2016, and perhapseven a new competing local insurers High Court costs guide (last published in 2014).

An increase in the monetary jurisdiction of the County Court continues to be anticipated, with a potentialdoubling from its current limit of £30,000 to £60,000 (although this was first raised in 2021). The Civil JusticeReview in 2021 felt that an increase in the County Court jurisdiction would ensure that the High Court becomes“a real centre of excellence, hearing only cases of very high value, multi-party actions, etc.” This increase is allthe more important given the inflationary increase in damages.

The High Court pre-action protocol has not been reviewed since 2008. A working group has now been formed to look at the pre-action process as well as the litigated process. The new protocol will potentially be in place by the summer and, for the first time, is expected to contain sanctions for non-compliance.

T: +44 (0) 289 041 2831 M:+44 (0) 7736 795807 E:lbutler@dacbeachcroft.com