02 December, 2014
Since the advent of fixed costs, Defendants and Insurers alike have seen Claimant solicitors utilise ever changing methods to try and ensure that turnover remains high. Pre-action disclosure applications (PADs) are becoming more and more regularly tapped. Claimant solicitors are trying to circumnavigate fixed costs by claiming that post-portal PADs are not subject to fixed costs. Forbes are still seeing regular claims for sums in excess of the fixed cost regime.
A number of tactics have been spotted with the most regular tactic/argument being that PADs are not Interim Applications for the purpose of assessing costs. This argument is somewhat perverse and to date no plausible explanation has been provided in the alternative to explain what PADs actually are if they are not Interim Applications?
Case law supports the assertion that PADs are Interim Applications. The leading Judgment in this respect can be found in the case of Connaughton v Imperial Health. The Judgment is short but sweet and paragraph 28 simply states, 'The fact is that applications for PAD are interim orders'. When directed to this Judgment many Claimant Solicitors have agreed to fixed costs, however in certain instances the Defendant's stance has still been challenged and the matter has ended up at a hearing.
Thankfully at each and every hearing run by Forbes, no Judge has yet to find that a PAD is anything other than an Interim Application. When combined with a well placed costs offer made in advance of the hearing, the news is good for Defendants and Insurers alike who can then endeavour to recover their costs of the hearing.
We at Forbes continue to take the fight to Claimant Solicitors on this issue and continue to be successful. Claimant solicitors are still attempting to wriggle out of the regime but none have yet been successful. Continue to watch this space as whilst challenges are now less frequent they do still arise and as Forbes are at the forefront of this battle we are well placed to keep you appraised of developments throughout.