Sarah Robson Barrister - Legal Articles
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Legal Articles*
 
 
What is the nature of a Provisional Assessment Oral Review?

This new procedure has little guidance as to what is and is not allowed.  Is an Oral Review just a review, a full blown rehearing, or is it more like an appeal where parties are limited to what they raised in the Provisional Assessment hearing?  Cook on Costs has one line stating the court will hear issues 'afresh'.  Other than that, there appears to be no guidance at all.

HHJ Woods, the DCJ at Liverpool has considered this on appeal twice and has concluded that new evidence can be admitted on oral review.  Download copies of the judgments here in the cases of Ion v Ahmed and Mehmi v Pincher.   


VAT on Medical Reports/Medical Disbursements 
 
When you consider that 14% of your car insurance premium is to pay for the cost of whiplash claims, like the emerging spring, the BGT decision should bring cheer! Barratt Goff and Tomlinson v The Commissioners for Her Majesty's Revenue and Customs, was a case brought by a Nottinghamshire Law Firm and in which the Law Society intervened.  The hearing was on 1st - 2nd December 2010, and the decision was published at the end of January 2011.
 
Read the full case report here 
 
Barratt Goff and Tomlinson (BGT) disputed that they had to charge and account for VAT on medical reports obtained for personal injury or clinical negligence litigation.  Not so long ago HMRC had accepted medical reports were disbursements and so they were not subject to VAT.  However, in they issued new guidance stating that VAT had to be charged.  Most insurance companies cannot recover VAT in the normal way because they are 'exempt institutions' and so this simply added to their costs, which inevitably get passed on to those of us paying for car insurance.  Small practitioners were hit hard, with some of their paying clients point blank refusing to pay the VAT, leaving the solicitor to pick up the tab. 
 
HMRC argued that as BGT read the medical reports, it obtained them to provide a legal service VAT should be charged. However, BGT argued that the expense of ‘obtaining’ a medical report was merely a disbursement not subject to VAT because it was a separate service carried out for the claimant as their agent.  The tribunal accepted BGT's arguments. 
 
Leeds CC  carried out a full review of all the authorities on VAT on medical reports in the case of Evans v Wakefield Metropolitan District Council, HHJ Cockroft 20.09.12. Click here to download a copy of the Evans judgment.
 
What now?
 
It is clear is that the tribunal accepted that VAT should not be charged, that the HMRC guidance was wrong.  therefore, that this is retrospective in effect, and is always accepted by courts to be so in Sarah's experience.  An interesting practitioner note is that judges are more easily persuaded by the article concerning the case in the Law Gazette than they are in the actual judgment.  Law Gazette Editors take note!
 
See the Law Society practice note here on the Barratt Goff and Tomlinson v HMRC case and its implications.
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When does a Claim start?
 
Sarah has again successfully argued in  that a claim does not start for the purposes of Part 7 until the court issues the claim.  A claim which settles before the court has issued it only attracts predictive costs, per CPR 7.2, PD 7A 5.1 and CPR 44.12A (c), even if the papers have been sent to the court.


SCCO Guide 2013

The first guide published by the SCCO since 2006 is available.  Click here to download a free copy of this important procedural guide.


Miscellaneous Expenses -
A lot of fuss and bother over nothing?
 
 
Ghattaorya v Bailey LTLPI 05/10/2009
 
My case of Ghattaorya v Bailey on miscellaneous expenses is over 3 years old, yet it still attracts vast numbers of hits on my site.  One cannot under-estimate its importance when Part 36 offers are close, and literally thousands of pounds in costs can turn on whether this is allowed or disallowed.  Do not ignore miscellaneous expenses!
 
Claimant solicitors plead ‘miscellaneous’ expenses as an almost mandatory ‘add-on.’  This is supposedly to cover the cost of subsidiary expenses which have been incurred because of the litigation.  Whilst it is trite law that you cannot recover for stress and anguish incurred because of litigation, the miscellaneous claim seems to have slipped through the net as a legitimate expense.
 
This head of claim deserves closer inspection: The miscellaneous claim is for telephone calls, postage and stationary - travel is usually claimed for separately.  Miscellaneous claims in your average fast track case typically range from about £10 to £50. 
 
There may have been the cost of posting an initial form reporting the incident to the insurer or solicitor, perhaps with a covering letter.  However, many insurance companies take a claim over the phone now, rather than requiring the completion of a form, or provide a pre-paid envelope.  The postage, therefore, is probably no more than one or two stamps, so less than say, £1. 
 
The cost of stationary – a single sheet of writing paper if any, well with a ream costing around the £3 mark for 500 sheets that’s not even a penny. 
 
Many insurance companies and solicitors firms provide free-phone numbers or lo-cost call numbers, e.g. 0845.  Some solicitors firms now encourage all correspondence with the lay client to be by email.  BT now charge 5.25p per minute for geographic day time calls from a landline, and if the claimant is on an all-inclusive package then there is no extra cost to them.  All-inclusive phone packages are more common now, and with 19 out of 20 internet users on broadband now, the chances are more claimants will in fact be on some form of ‘TV/Telephone/Broadband’ all inclusive package.
 
Put the claimant to proof and a judge will laugh at you, as there are hardly ever any receipts for these sorts of expenses. 
 
Cross-examine at any length, and you risk the wrath of the judge and a stop being placed on cross-examination thus deemed ‘unnecessary’.  
 
Most sensible Counsel (with sensible instructions) will get their heads together before trial and agree some compromise figure. 
 
However, if you must press ahead and attack the claim in court, zip in with a pin-point question without the usual protection of a pre-attack set up.  The most devastating attack, however, is simply to ask the judge to compare the length of time claimed on the cost schedule for telephone attendances on the claimant, with the cost at even 5.25p/min for even every single call.  The miscellaneous claim is then often dealt a hefty blow by the judge’s pen. 
 
In Ghattaorya v Bailey (2009) LTLPI 05/10/2009 the judge dismissed the entire head of claim for miscellaneous expenses, noting that claiming for miscellaneous expenses was ‘a bad habit claimant solicitors had got into’.  The Ghattaorya v Bailey principle was approved by HHJ Harrington in Harwood v Kapek (2010) LTLPI 21/7/2010,again citing the failure to correctly plead the losses under this head as the reason for not allowing a miscellaneous claim, Ghattaorya v Bailey approved.  There are a few (easier to spell) other cases on miscellaneous expenses, but Ghattaorya v Bailey is the most well known and often referred to.
 
 
Legal Humour
 
A light-heartedly look at the law and legal profession.  (Submissions for inclusion here gratefully received.)
     
    • A poor solicitor can cause a trial to be delayed for months.  A good solicitor can cause a trial to be delayed for years.
     
    • Caveat lector:
    No lawyers were harmed during the construction of this site.
     
    • When a person assists a criminal before arrest, they are aiding and abetting.  When a person assists a criminal after arrest, we call them a defence lawyer.
     
    • The pupil barrister carefully warned his client not to lie when giving evidence.  He asked if his client appreciated what could happen if he did not tell the truth in court.  "We'll probably win" his client replied.
     
    • Why did the lawyer cross the road?  To sue the chicken.
     
    • What's the difference between a good lawyer and a great lawyer?  A good lawyer knows the law, a great lawyer knows the judge.
     
    • Never mind the dog - Beware of the dog's lawyer.
     
     
    * This website is intended to provide general guidance only.  It does not give legal or professional advice, and is not to be used in providing the same.  Whilst all efforts have been made to ensure that the information is accurate, any liability including that arising in negligence, is excluded to the fullest extent lawfully permitted for any loss or damage howsoever arising from the use of this information.

     
    © Sarah Robson 2016