Category Archives: Civil Procedure

The emphasis on settlement of cases before the issue of proceedings or at any point before trial is very much part and parcel of the Civil Procedure Rules from their inception in England & Wales. The courts are fully aware of their powers to disallow a party’s costs for failing to mediate the resolution of a case and otherwise saving on wasted court time and legal costs.

Marking a letter “Without prejudice – save as to costs” has traditionally been a way to ensure that a party can make an offer without that offer coming to the attention of the trial judge who might otherwise get a glimpse into how that party viewed the merits of the case; an offer to settle a case for £1,000 which has been issued at court for £60,000 may well indicate that one party did not truly believe in the strength of their evidence. It is a matter of public policy that parties should be able to engage in meaningful and realistic settlement discussions without eroding how the trial judge will view their case.

However, as highlighted in a recent case of Jones v Tracey [2023], care must still be exercised when relying on the phrase “without prejudice – save as to costs” in a letter sent to the opposing party.

In particular, the costs judge in Jones laid down some points to distinguish correspondence which is truly without prejudice and that which is not:

• The starting point for the court is the manner in which the letter is drafted. It will normally be the case that the writer of a letter can be taken to have intended to mark a letter in a particular way or otherwise to have intended to write an open letter. However, if it is clear from the context that a letter was intended to be open, or without prejudice or without prejudice as to costs, it will be treated as such.

• In some cases, the true nature of the letter will be obvious such as a letter that falls within a chain of communications of a particular type. Commonly a letter which is not marked ‘without prejudice’ that falls within a chain of communications in the context of settlement negotiations will be treated as being without prejudice unless the opposite intention is obvious. The converse may also be true.

• …the true nature of the communication must be established objectively without regard to evidence of subjective intention and the right approach is to consider how a reasonably minded recipient would regard the letter.
Accordingly, it is important to remember that without prejudice correspondence will only have the effect of not being disclosable to the trial judge if it is truly directed at resolving the case; a letter that merely hints at the possibility of Alternative Dispute Resolution or Mediation will not truly be considered to have the consequence of being without prejudice – whether those words appear on the letter or not.

The judge in Jones also demonstrated that the mere refusal to mediate does not automatically disqualify the successful party from claiming their costs following on from cases such as Dunnett v Railtrack Plc and Halsey v Milton Keynes General NHS Trust which were seminal cases in highlighting the importance of mediation and costs recovery. These cases stop short of making mediation compulsory given that this would otherwise infringe on Article 6 of the European Convention on Human Rights. However, costs sanctions are still available if the refusal to mediate is not justified. In Jones, there were grounds as to why the Claimant was not denied their costs:

“I have concluded that the claimant’s conduct was not such as to warrant a deduction from his costs. In reaching that conclusion I have in mind in particular (a) the fact that the claimant made most of the running in relation to settlement (b) the third defendant’s behaviour in her conduct of the claim and (c) the strong merits of the claim which either were known or should have been known to the third defendant and (d) the late stage at which the third defendant expressed a willingness to engage in ADR. Although the claimant did not explain his position in April and May 2023 it would not have been unreasonable to have concluded that the additional cost of mediation was not warranted. I do not consider that on the facts of this case it can be said that silence on the part of the claimant amounted to a refusal to undertake mediation (or some other form of ADR).”

A case in the Oxford County Court highlighted the factual balance that often needs to be struck in deciding the lawfulness of surveillance activities when set against conflicting rights to privacy.

A homeowner had placed several cameras about his property, ostensibly for surveillance reasons to protect his home and car.

However, the range of view of those cameras was problematic for the neighbour who was often caught on her neighbour’s camera coming and going from her home. She brought a claim for harassment and for breach of the Data Protection Legislation.

The Judge deciding the case considered each camera’s extent and whether the video and audio recordings could be justified for their stated purpose when compared to the actual or potential loss of privacy of the neighbour.

The starting point was that the homeowner was entitled to use video recordings to protect his home, but where those cameras were focused exclusively on the neighbour’s property, no such justification was found and their use was therefore prohibited.

In this particular case, the Judge awarded substantial damages, although part of the factual matrix was that the homeowner had misled his neighbour about certain aspects of what the cameras did and this meant that his neighbour could not have known how or to what extent her privacy rights were being infringed.

It was also noted that audio recordings were potentially more intrusive to privacy rights and would require a high degree of justification for their use.

The importance of notices informing members of the public that CCTV or other recording equipment is operating will be helpful in ensuring compliance with the Data Protection legislation.

Court fees for civil cases have been increased from 30th September 2021.

The latest increase comes after the Government’s response to consultation within the sector. As ever, the issue has been to permit the proper funding of the court system whilst seeking to maintain access to justice.

For claims on the Fast Track (value between £10,000 and £25,000 for most claims), the trial fee is £545 and £1,175 for Multi-Track cases over £25,000.

Standard applications for orders will now come with a fee of £275 and an application by consent £108.

For full details of current court fees, consult the latest EX50 leaflet on the GOV.UK web-site.

Changes to the Civil Procedure Rules are finally due to come into force in May 2021 in respect of damages for pain and suffering caused by whiplash arising out of certain Road Traffic Accidents.

Under the new rules, a potential claimant will not be able to recover their legal costs if the value of the claim for such damages would not exceed £5,000 (previously £1,000).

This will mean that clients either have to pay a solicitor privately to help with such cases (without being able to recover such costs from the other side), or deal with the matter themselves.

There have been concerns expressed by the Law Society that the changes may lead to low settlements of such claims with inadequate compensation being given to victims of such accidents.