Response by Thompsons Solicitors - June 2008

About Thompsons

Thompsons is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.

Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.

The firm participates regularly in government consultations on legislative issues.

Pre-issue applications

The Association of District Judges discussion document is aimed at assisting parties by enabling a District Judge to make an evaluation or a finding on particular issues which are preventing the parties from reaching a settlement.

Thompsons has concerns about this proposal, in particular the non-binding, non appealable nature of such decisions and the absence of costs’ orders.

In Thompsons view there are relatively few occasions where it might be appropriate for a District Judge to make an evaluation or a finding in a personal injury claim. These would be:

(a) Small claims
(b) Where a request for inspection facilities has been denied.
(c) Where a request for an interim payment has been refused.

Paragraph 3 of the discussion document comments that pre-issue applications for disclosure are common and, in some cases, disclosure of the documentation sought enables parties to resolve matters between them without formal proceedings having to be started. In our experience it is rare for parties to resolve matters following disclosure of documentation. Invariably court proceedings have to be commenced.

In the vast majority of fast and multi track personal injury claims, the issues will require oral evidence to be heard and a formal ruling to be made.

The exception is in small claims where costs are not payable and the parties may be willing, for reasons of proportionality, to accept a District Judge's indication, or may even agree in advance that the District Judge's decision will be binding, based on written evidence/oral submissions alone.

While the pre-action application procedure may be appropriate in consumer and debt related claims, where oral evidence may not be necessary to resolve particular issues, we submit that it is inappropriate for use in personal injury claims.

Non-binding decisions

Thompsons notes that the decision of the District Judge will not usually be binding or subject to an Appeal process. It is accordingly questionable whether the unsuccessful party will accept the outcome of the pre- action application. This is especially so since the proposal is that the content of the hearing will be privileged and will not be able to be cited in full proceedings.

If the losing party does not accept the outcome then the pre-action application process will result in delay to the progress of the claim and disadvantage to the claimant.

With regards to “formal” decisions, it is not clear whether a formal decision could be appealed. Guidance will be required.

Costs

It is appropriate for costs sanctions to be imposed on the party whose submissions are rejected by the District Judge. We submit that costs should follow the event in the usual way. If, for example, a successful pre-action application is made for an interim payment, the party requesting the interim payment should be paid their costs of making the application.

Finally, it is not yet clear how much the issue fee will be. The issue fee for a £3,000 to £5,000 value claim is £108. In a claim of that value, it is questionable whether it would be proportionate to incur a fee of £75.00 (the current cost of an oral application), for a non binding “indication” from a District Judge.

The issue fee should be recoverable from the losing party if it was paid by the ultimately successful party.