Hello. Welcome to this Webinar on PR litigation strategy. My name's Niki Carter. Three idea of this webinar really is to take a look at some s a challenging areas in person injury, and I wanted to pick up a few issues. First, they want to look talk about protocols and portals. I then wanted to move on to look at limitation and obviously within the problem is that this webinar when what times? The whole issue of limitation was a particular he sure wanted to pick out. And it links inexorably, really to the next on the list, which is service on. I've called it avoiding the pitfalls. But think to our links really, really closely one of the issues, of course, being that getting service right is justice important on justice, worrying if you like, as getting limitation right to are hard to separate, Really? Well, we'll talk about that. I then wanted to say a bit about pre action disclosure on really examine this particular method of obtaining disclosure. There are lots of mechanisms within the rules we can use to obtain disclosure, but if we want to go for pretty actually disclosure, there are some checks If you like that, we need to make first to make sure that's the appropriate route to obtain the documents that we want. I thought we take a look at that when to do it, how to do it on what the cost situation is in relation to applications of that kind. And then, lastly, I wanted to pick up the issue off interim payments on. I wanted to look at those within the portal Andi in the wider civil Procedural Part 25 arena on really just kind of look at some of the contrasts that they're all in terms of the way in which we make interim payments, what the requirements are, what you need to do, what the risks are, will see. I think that very different scenarios, depending on whether you're making the application within the portal or whether you're making an application outside. If we turn first to the portals and I want to look up the e o p l as well as the rt A. But one of the things we're beginning to see beginning to get some statistics on is that we know now that more claims are exiting the portal for both Ilan PL claims due to a failure to pay stage one or stage two costs all due to a failure to respond to the stage to settlement packed within the relevant time period on interesting. We also know that a high percentage of e l and P L canes are exiting the portal due to the defendant failing to make an interim payment. Now, that's something that we're gonna pick up in this weapon. Are think the whole concept off making applications for interims within the portals on what the risks are doing. So you know all their risks to doing so on How does that compare with the scenario when you come out the portal on your in the realms of part 25 both e Olympio claims we also know frequently exit the portal, do you to part seven proceedings being incorrectly actually issued for limitation rather than part eight. Now for both rt A and deal on pl we know that the proper procedure, if you're having to issue proceedings protectively if you like, is to do so via practice direction eight b, That's the right way to go on issuing part seven proceedings in a protective manner in the portal will certainly cause the claim to leave. But it will also cause the claimant to find themselves on the wrong end of a negative costs order. In other words, on unreasonable exit from the portal will be the problem that the climate will have to face. If we're gonna talk about the protocols that portals, let's call them. I think we need to make a bit of a decision about the sense in which the portal forces us to make a choice and decide whether what we've got on our hands is an e l claim employers liability or appeal claims so called public liability claim. Now, you know, once upon a time I think we have probably felt that we knew pretty well the difference between those two types of claims. But the portal is really, really specific on within the e l P o protocol, we get a definition off Aneel claim on we get a definition off appeal claim. I think it's quite important to be clear, which is which the key issue for an eel claim on. I think this This is where we need to really check. The definition is that what the portal is specific about is it specific about unemployment relationship. So it's very clear that an eel claim means a claim by an employee against their employer for damages arising for bodily injury sustained in the course off employment. So what, two things to country with their one? Is there unemployment relationship in the first place? On to Have we got someone who has had an accident so called in the course of their employment, So let's take the 1st 1 We know that the protocol is clear that in terms off statutes, a statute that the court will turn to to decide whether someone's an employee or not is the employer's liability. Act 1969 actually blows liability brackets, compulsory insurance brackets at 1969 on. That's the act that talks about whether or not somebody has got a contract for service or a contract off. So I'm trying to look at the tea things and decide now, which is it, which is that the claimants got on whether or no, the claimant actually is going to be an employee or they're not. So we know that we've got a place that we can check if you like, we can decide whether or not someone's going to be considered to be an employee on. We know that that's the standard. If you like that, the court will take a look at when deciding if we're right or no, you feel that it ought to be pretty straightforward to decide whether someone's an employee or not. Surely it's obvious. And surely, apart from anything else, they know whether they're an employee or not. Well, of course, the answer to that is, um, you know, it really is are going to be a question off deciding whether or not the court fields that's unemployment relationship actually exist. The claimant may have views about who they're employed by the claimant. They say, Oh yes, I know who my employer is and I'm certainly employed by X, but we know from cases in limitation, actually, under the Limitation act 1980. Sometimes claimants all not clear about that on it may be that the claimant thinks they're an employee, and that may not be true. There may be a subcontractor. They may be a freelancer, so there may be reasons why unemployment relationship is not in place now. there's an element here saying, Well, does it really matter? Eso what? Really? So what if in the e l CNF is submitted and strictly speaking, there's no unemployment relationship between the claim, um, on the person against him, they're bringing the claim. Well, the risks all prison on Thank because if we think about the situation in terms off time that the defendant gets to reply unsure of its to reply in the portal, they get 30 business days in a nail scenario and 40 business days. An appeal scenario. You can picture the scene that, if inaccurately on e l protocol R E M C and F sorry has been submitted on on goes to claim through the portal and practice. The claim exits the portal army could do for free here of the defendant to respond. It would be an open argument for that defendant to say, Well, I didn't get my 10 extra business days. If you'd correctly labeled this appeal, I'd have had 10 extra days response time, so there were risks, I think, in getting it wrong. If you live in submitting Aneel CNF when in fact the reality is strictly speaking under the definition, it's pale, and that's before we've had to consider the second part of conundrum, which is that the accident needs to have happened in the course off the employment employment on the term the phrase, if you like, plucked directly from the Health and Safety at Work act, which it is that that is the term that appears there. But we haven't really had a lot off help authority, if you like in trying to work out what it means, because it wasn't really very important as a phrase in the days before the enterprise and regulator react in 2013. Well, we have the six pack. Regulations like that were passed under the act that, in other words, that statutory protection for workers at work now the key phrase being workers at work. The regulations have always used the term at work where us the act itself talks about in the course of employment. Now think it through is pretty clear that at work is a much broader term than the phrase in the course of employment to be in the course of employment, potentially, you got claimants who may be having a tea break, maybe their care workers who sleep on the premises on there know all shift at the time, but actually sleeping on the permit, their employees premises. When the accident happens, they have an accident. Then does that happen in the course of employment? So this uncertainty also not only about employment status, but also about whether the accident has actually happened, so called in the course of employment. So we need to be fairly confident that we've got unemployment relationship, that the court will agree the accidents happened in the course of employment before the e l CNF is the right route. If you like to go down on If no, your insurer points out to you that, in fact, that's all correct, and you should have submitted a pale awful then it may well be sensible as a default if you like to submit appeal rather than in a l just to avoid those arguments. Don't forget there are others, too. But cause in a Neil claim, the claimant sister is obliged to consult also the employer's liability tracing office to check who the insurer might be. Well, that's not going to work, of course, if there's no unemployment relationship on if the claimants claim is not against their employer. There is no database off insurers for pl insurance that it doesn't exist, so that would be a problem. The next issue, of course, is the obligation in the air portal for the defendant to actually supply lost earnings details on again. Of course, if the defendant isn't the claimants employer, that obligation no longer exists. One word of caution about that, of course. That particular provision is one of those provisions where there appears to be no sanction if the defendant doesn't actually supply those earnings details. So if you don't get the earnings details when you submitted your meal, CNF and you don't get them from the defendant. It may be that you're considering leaving. The protocol may be thinking. Will the defendant has failed to combine? Apply with the provision of portal. Be careful that particular provisional, though it says it must be done, doesn't supply a matching sanction. You might find yourself on the thin ice in relation to whether or not you've been reasonable in exiting the portal. Let's take a look at the definition for pale now on. You could argue the public liability claims air intended really just to be everything else. Is that what they're intended to pay? Well, yes, to some extent, Certainly The definition talks about claims for PPI. I arising out to breach of statutory or common or duties made against a person other than the climate's employer or the claimants employer and respects off matters arising other than in the course of the claimants employment. So you've got a situation where you may still have a claim between an employee and an employer, but that you've got a situation where the accident didn't occur during the course of the claimants employment. Therefore, the PL claim is gonna be the appropriate one to make a not the eel. You may have a situation where your own clear about the claimants employment status. Maybe it's not certain whether the claimant is a freelancer or a subcontractor or perhaps on a zero hours contract. And again, it would seem the safest course, if there's any doubt about that, is to go down the pier route, Submit PLC and if again, simply because the defendant then would have no argument about being given the maximum response time to the to the CNF. The extra 10 business days. While we're talking about definitions, we need to talk about the definition for the road traffic portal the rt 1/4 on. We're not short of definitions off a road traffic accident We never have been. We've got a definition within the cost roles. We got definition within the road traffic act itself, aunt. To some extent, the definition in the portal is very similar to those definitions. But there is a significant difference. We've got it on the slide now They're the beginning. Looks exactly what we used to rt a means an accident resulting your bodily injury to any person caused by or arising out off the use or motor vehicle on a road or other public place in England. Wales. But it's the next part that's different on the next part is exclusive, if you like to the rt a portal, it goes on to say, unless the injury was caused wholly or in part by a breach by the defendant off one or more. The statutory provisions as defined in section 53 off the health and Safety workout 1974. Now what does that mean? What that means, Of course, is if you have a road accident, let's take an example. It could be a claimant who's driving their company car was involved in a collision, maybe with no other vehicle on practice. The argument is that part of the vehicles braking mechanism failed, causing the vehicle to head tree. That's a road traffic accident. However, your claim would involve ah breach by the defendant off one or more of the relevant statutory provisions passed under the Health and Safety at Work Act. In other words, the so called six pack regulatory regime. Your argument would relate to defective equipment in the vehicle, and it wouldn't by this token be a road traffic accident, a tool. It would be excluded if you like a bounced back potentially to the eel or pl proprietor portal simply because of the involvement off the breach of the regulatory regime. Now the rest of the definition assays one. We're pretty much used to, really, what's a motor vehicle? Well, a mechanically propelled vehicle intended to be used on roads on we know the definition or road, although remember, of course, we've got the extra words in the definition, just as we have in the Road Traffic Act or other public place, and that will include areas where the public have access to, not just for more roads and highways within the meaning of that terms. It's a bit of a broader term, I think, the term that causes perhaps the most controversy that say ace, use off, caused by or arising out off the use off on. We've certainly seen in recent times the course struggling, really to try and work out what that might mean on the default setting really appears to bay that when you start to talk about deciding some things have risen at off the use of a motor vehicle. The term use of is a very, very broad term. Indeed, Cases like Schneider on door to door Pts limited from 2011. Pick up this issue on. It's an extraordinary case, really this one, I think, because the case really concerns Mrs Schneider trying to gain access to a so health minibus when she's been collected from hospital on and failing to do that. No, actually managing to gain access to the vehicle. It all she injured her hip while attempting to climb aboard the vehicle. Now the court decided in that particular case that the accident arose out of the use of a motor vehicle. And indeed, in that case, the master who was deciding that the costs matter, which is what this was all about, said that it does appear to defy logic that this could be considered a road traffic accident. When at the time of the injury, Mrs Schneider wasn't the owner of the vehicle, she wasn't inside the vehicle. She wasn't the driver of the vehicle. The vehicle was in motion on the vehicle was no in collision with her or with any other vehicle. How can that be? Really? Is the issue How can you be using the vehicle if all those things are true now? Remember, this was all about the appropriate cost. Rations should apply to cases of this kind. So it wasn't about portals or not before the portals were were were in extent, really. But the court decided that this accident did arise after the use of a motor vehicle. It's pretty clear that the definition use is a very broad one. We've certainly seen other cases on many other cases before that, and subsequent to that, saying the same thing if we take case off green and kiss coaches. We had a parked coach that the claimant was trying to A like From the time the accident happened on, the claimant slipped on her a slippery step on exit. The court decided, for the purposes of costs on, for the purposes of the appropriate insurer that was a road traffic accident. There may be a bit of a dilemma here because for many claimants, finding the road traffic accident insurer as the right defendant is a relief. Because, of course, of the comfort of knowing that the claim will be paid. There's money that is an insurance policy, dad. But of course, that downside to that is that the cost regime may be much more much less generous. Let's say, Ah, harsher regime with lower costs, Ferranti A's on Don't forget cause what you leave the portal. The difference in costs is also notable on the basis that you're gonna get more for a e l than you would appeal. Never mind the difference between rth as well, so cost terms claimants are going to be worse off. But in terms of finding a defendant with deep pockets and insurance policy. Finding that the accident arose as a result of the use of a motor vehicle is a bit of a relief, really. One thing we need to go on to mention is that in the list of exclusions from the RT a portal, we know that the portal doesn't apply to claims in respect of breach of duty. Oh, to road users by a person who is not a road user. So your defendant has to be a road user for the portal the rt April sent to be appropriate. That becomes quite interesting. If you think of cases, for example, under the Animals Act where you might be bringing a claim for the behavior off. Ah, horse and rider on the carriageway, you'll claim in that case will be against the keep off that animal, The keeper off the animal almost certainly not necessarily, but almost certainly at the time will not necessarily be a road. Use a tall and yet your thought is well, Surely this is a claim that I need to bring in the portal dough, I bring it. If the accident involved a claim of being injured in a car accident within the RT a portal. This provision seems to suggest not because your defendant is not a road user. It's quite clear, but both e e l appeal protocols have been drafted really clearly to try and exclude the possibility off rt A claims if you like ending up in the e. L or the PL portal. For obvious reasons, the claimants recover more costs in LPL portals, but there are circumstances in when they when this will not be the right thing to do. On where you will be needing to bring your so called rt a claim within an e l or P El Portal. Let's take a look at an example off the way the courts are looking or beginning to look at, whether or not cases should be brought within the rt a protocol The protocol of the pl protocal. Andi I think one of the concerning things the case up chosen to look at this case called fresco on the trustees that Pancaro Maintenance Fund I'm a Plymouth County court case. One of the concerning things I think about this case is the judge's comments that it's only on a literal interpretation off the protocol rt a protocol, and he'll appeal protocols that the claim finds itself falling outside. All the protocols on that literal interpretation should in fact, be rejected. It's a bit concerning, I think, because one of the things we're taught to look at in the protocol is literal interpretations on. It's very difficult to know how a case like this one came to be decided in terms of costs in the way that it did. Let's just remind ourselves of the fact that this one the claimant was a minor on was a passenger in a car being driven by his mother. The car collided with a tree that fallen to the highway, and the tree was owned by the defendant trustees. They settled the pain, my claim for £1000. Now the claimant sort costs on the standard basis, whereas the trustees argued that the claim should have been brought under the relevant protocol. Now it seems challenging to work out which protocol they meant, because if we take a look at the RT, a protocol that appeared not to apply well, firstly, because it have not been caused by the use of a motor vehicle on a road or other public place. And in addition, of course, because the person against whom the claim was being made was no a road user. By the same token, the court then looked at the definitions, which we just have done, actually, And the protocols for the EOE peel on that protocol didn't apply either, as one of the excluded claims was a claim for damages arising out of a road traffic accident. So it seemed reasonably clear that the claimant fell between the two protocols in the claim that he had had. The court made the comment that had the claim been a pedestrian, ah, cyclist or horse rider who had been struck by the tree, the matter would have proceeded under the pl pl protocol that would have been quite clear. It was the fact that the climate was actually a passenger in a motor vehicle that led to his apparently being excluded from that protocol on the view, the court was simply that this was untenable and not acceptable. What we need to take a look at I'm really consider is the extent to which that principle will be applied on when deciding whether cases say in the protocol or they don't or whether they're commencing the protocol or they don't. It is very difficult to call if the courts using the term on a literal interpretation this claim didn't either. Protocols is difficult to know what other kinds of interpretation we've got. A huge factor in this case seems to have been the relatively low damages, pain suffering, loss community that the claimant recovered on the court taking of you that this was just the kind of case that the fixed cost regime protocols were intended to cover. It's a difficult point to call when you're deciding whether to bring a claim in a protocol or not. Now we know sometimes it's not attempting to commence the claim in the protocol on the just simply on the basis that, of course, once you're in the protocol, you are. Then even if you then leave subject to the exit costs that will apply on the only way to avoid those. The straitjacket, if you like those costs, is to find yourself allocated to the multi track on exit. Short of that, you're always going to be stopped. We portal exit costs. That's a real dilemma, but I think what that case reveals is the court's intention that cases that financially seem to fit the bill if you like. I'm are going to find themselves appropriately brought in a port protocol, even if on a strict interpretation of definitions, they don't really belong in either. All the technicality. If you like one of the types of cases that we haven't discussed yet in the portal are disease cases on. We have to kind of decide what's appropriate when it comes to disease cases. Now we know disease cases against employers are part of the protocol and are intended to be used in the protocol. One off. The questions that's come up in recent times is really how to define on a disease case. How do we do that? How do we come up with a definition now? We do get a definition within the protocol, so we get we get a definition off a disease. Cases not particularly helpful illness, physical, psychological, any disorder, ailment, affliction, complaint, melody or derangement. Other than a physical or psychological injury caused by an accident or other single event, it's not desperately helpful in it's more about what it's not than what it is I was not very helpful working definition, but certainly the protocol, if you like, defines a disease in in this exact way, and it really is trying to make the difference. I think between something that happens over a period of time, which it seems clear the close call is happy to consider a disease on something that happens in a single event. Now. This Way said, There's been a lot of debate about what this time might mean on one of the arguments that being run in recent years is to suggest that certain types off condition that we tended to think of his disease cases should no longer be considered. So on one of the most obvious is noise induced hearing loss. Now, clearly on, we get on example of the court having a look at this in case called Dalton back in 2015. The issue at the time of Dalton was not about protocol portal at all. What waas about success fees on the appropriate percentage for a successfully on whether or not Dalton a noise induced hearing loss came was in fact, a disease case or not. The insurers sought to argue that hearing loss is an injury I'm not a disease on. Obviously, that would have impact reducing the amount of costs they have to pay. In that case, we know those rules have gone, but the many cases still being come follow done to them, of course, but those rules have gone. But the issue now really is. How do we know? How do we tell whether something like noise induced hearing loss is a disease or not? It's an interesting case. It won't go to the my new show of it here. The court. The judge was certainly willing to look at 1985. Prescribed disease regulations are. The judge was persuaded to look at the dictionary definition, no less off what disease might be on took the view that, in terms off noise induced hearing loss, the key really issue was whether or not the condition developed over a period of time, rather than whether it was a one off incident. So when reference was made to in 2000 for ah document entitled Calculating Success Fees and Employer's Liability Disease Claims and I I and I in jail noise induced hearing loss was the third largest category of disease. And indeed, in this case of Dalton, the judge went on to say, And I HL, by any sensible reckoning is not just a disease. It's the paradigm, often occupational disease. Eso It seems pretty clear. Noise induced hearing loss claims will be considered to bay disease cases. We know that they are in the portal, if you like. On that they are intended to be dealt with in the portal. As long as there's only one employer defendant and more than one employed event in disease cases on, they do not have to be commenced within the portal. What we need to also remember, of course, about disease cases is that they all not subject to the fix Recoverable costs scheme once they exit the portal costs are then payable on the standard basis. There's a reminder of that. The relevant cost rule is rule 45.29 a, which makes that clear that exit costs do not supply to disease cases, having left the portal. So it's going to be pretty important to be clear about the distinction between injury on disease. On its why, I think it's useful and interesting for us to look at previous cases where that conundrum, if you like, has been dealt with, um, we know that it's only disease cases with one employer defendant that are to be brought within process on. That means, of course, then that the claimant doesn't have to bring ah claim where there's more than one employer defendant in a disease case on employees disease case within the portal. Now that does beg a area off. Some problem, I think, on the problem, really is whether or not we saw it. In case off Williams and the secretary of state for Business, Energy and Industrial Strategy I. Noise induced hearing loss came where the claimant chose not to bring their claim within the portal for employers liability in public liability claims but to begin bringing a claim against potentially to employer defendants. When one employer defendant admitted liability, the claimant chose not to pursue the second on. Indeed, there was a situation where Part 36 offers were made by the original defendant on the claimant accepted that Part 36 offer. The question arose as to whether or not cost should be limited to fix. Costs are a weather cough should be an open standard costs. Now. The defendant's argument waas that the costs from the LPR protocol fixed costs all toe apply simply on the basis that there were no part seven proceedings or judgment on Rule 45 24 which talks about the circumstances in which disease cases receive open cost if you like from one of the better ones. Access costs is only in situations where there has been part seven proceedings or a judgment in this case that had no happened on. The court took the view that it waas unreasonable off the Cayman to fail to follow the protocol unreasonable off them simply on the basis that one employer admitted liability on by choosing not to continue against the other employer upon disclosure of materials about protective measures. The claim. It was, in essence pursuing a claim against one employer defendant in a disease case. In those circumstances, the claim should probably have been commenced within portal. There have been the claimant. If it's settled within, the portal would have been stuck with fixed costs from the portal on. That is exactly what the claim of God. So it really is an interesting reminder. I think that it's We need to be really, really specific about exemptions from these fixed costs because in the absence of it, the court simply took the view that the claimant had manipulated. If you like the system by, it's starting out with a claim against to employ defendants by actually only proceeding in a claim against one off them. Let's take her a bit of a look at the position concerning interims within the portal on We Know 7 11 in the portals that there is allowance made for the possibility that the claimant may need to obtain subsequent medical reports or reports from non medical experts on in those circumstances, there should be an agreement to stay the process so are suitable periods of past, and the climate can then request an interim payment, either in accordance with paragraph 7 12 or with paragraph 7 20 I'm really the only difference if you like. Between those two paragraphs is the amount of money on that the claimants looking for if you like, we know that the protocol provides for the possibility off under 7 17 I'm a request by the claimant for £1000 in respect off an interim payment on If that £1000 this reflect is requested, then the sun must be paid within 10 days of the defendant receiving interim. Settle back. There is another option for the claimant to look for more than £1000 in those circumstances, the defendant is going to need to pay within 15 days of receiving the interim settlement pack. We should go on to say that the assumption is that the £1000 is in respect, off pain, suffering and loss of immunity. On this, the claimant is looking form, or more than £1000. Those additional sums, if you like, are in respect off pecuniary losses. So, in other words, amounts that the climate has already lost no amounts. The claimants needing to spend in the future anticipating to spend but that the time is already I lost, racked up a za loss on indeed, specifically and the rt A protocol. It's made quite clear, um, that if, for example, it's related to vehicle damage. If repairs to the vehicle have been paid for by the claimant, then it might be acceptable to make an application for an interim for those payments, but only if the claimants, the one who is paid out for those repairs. We know also that in claims where the value of the claim is more than £10,000 the climate can have wall in one bite of the cherry. If you like, I could certainly go back for further interim payments. One of the things we do need to remind ourselves off. If the application is for more than £1000 there is a check in place, and the check really on costs is if the claim is not content with the amount paid by the defendant in a request for more than 1000 let's say the claimants also 3000. The defendants only agreed to pay 1500. Then the court will order the defendant to pay no more than the stage to fixed costs. Where the court awards an interim payment of no more than the amount off about the defendant. All the court makes no award. In other words, once the claimant has left the portal, having failed to obtain the interim that they want over and above £1000 that claim, it will then be tested in hot. 25 of the rules to see whether they actually do better than that. Some that they offered on that will then dictate if you like, the amount of costs that they may be receiving where those paragraphs apply, In other words, where the defendants do not pay up are in the requisite time scale. We know this is another of those exits where the claim it must give notice that the claim will no longer continue on to the protocol. On that, that notice must be sent within 10 days after the expiry of the relevant periods. If that notice is given, the claim will leave on, the climate will be out of the process. If the claimant chooses not to give that notice, then the claim will simply proceed on the Cayman will lose their opportunity off. Dipping the claim out of the process of together at this point seems important to me. To contrast the situation are the checklist, if you like for interim payments outside the portal. In other words, in part 25 we know that took successfully received apart 25 interim outside the portal. The first thing that needs to be in place is that the defendant will need to have admitted liability to the claim looked or that the climate has got judgment against the defendant for damages to be assessed on. Also that the courts satisfied if the claimant went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant, from whom he's seeking an order for an interim payment. That's quite a tall order, would is quite clear. It's not that may well be likely. It's that the claimant would obtain judgment for substantial sum I'm now. What's important about that is that the courts interested really on whether the claimant's likely, if you like to obtain the relevant sums of money from the defendant on the bar is a little bit lower, actually for apart 25 interim payment application and it's a little bit lower, really, because the climate doesn't actually have to show that the items they're seeking, the interim payment in respect, all our pecuniary losses, they don't have to do so. It all are consequently the coma baby seeking sums in respect off simply a down payment, if you like on the general damages, the claimants going to be expecting to be receiving we know. The only caveat, if you like on the amount to be received, is that the court will no order an interim payment off more than a reasonable proportion off the likely amount of the final judgment. Now that bars a lot lower than it is within the portal. So claimants who leave the portal because they didn't get the over and above £1000 interim they were looking for all time slightly easier job off proceeding when it's coming out of the protocol on looking at just obtaining a interim in Part 25 in terms of limitation, Section 33 discretion is what I wanted to mention. I wanted to mention the Horton and Sadler case so important that went to the House of Lords in 2006 which overrules the old Walkley on precision, forging his case from them from the seventies on Important Point about, that is, it's now possible for the court to exercise its discretion under Section 33 even though the claimants brought in action prior to the expiry of the limitation period, which has been halted for any reason on we know the reason, of course. In Hopman, Sadler it waas a service of the claim form problem. No reason why you can't go again If you're claim form service is defective and you simply need to start all over in terms of service pitfalls. And we're talking now about service of the claim form. Which is what those are poor defendants fell foul off. The key questions are on your slide, you know? Who are you going to be serving? You serving a solicitor? Take a look at rule 6.7 if you're going to do so. Has the defendant given in writing the business address off? Um, a solicitor in the jurisdiction has that solicitor or has that sinister written to you and told you they're authorized to accept. Secondly, what are you serving? The claim form it served has to be a sealed copy to be good service. When are you serving it? You know, you've got four months from the date of issue of that claim form within the jurisdiction. I certainly we also know that a claim for always is deemed to be served on the second business day after completion of the relevant step post Postal service, whatever. That might be a the particulars 14 days thereafter. But that still has to be within that four month period. Where you serving detailed rules about where? Take a look at the last known address provisions. Take a look at the case off morals on Burlando in that respect. How how are you doing it? Post email fax. Has the defendant sel the solicitors confirmed in writing. They're prepared to accept email service If that's the service you're going to proceed with and just in terms of service, it's quite clear that Rule 6.15 won't necessarily help. That's the rule that will allow claimant have steps taken to bring the claim form to the attention off their opponent are retrospectively to be approved as alternative service. In the case of Barnum, right hassle what we had in the Supreme Court last year, we saw the court being extremely unwilling to cut the poor litigant in personal break where he'd made a mistake and served on solicitors who had never had instructions to accept service on behalf of the defendant. Servicing those circumstance was defective on. We saw Woodward on another in Phoenix house carrying the Court of Appeal just this year, 2019 that the court took the view. There was no onus on your opponent. Toe pointed out. Your error to you to give you a hand. Explain that things have gone wrong on that. They were never actually authorized to accept service as solicitors. So it's a harsh world in the decisions on service. Last See Pre Action Disclosure four Things need to be in place If you need to get documents from somebody who is likely to be a party in any subsequent proceedings, the pair of you need to be likely to be parties and subsequent proceedings. You need to be sure the documents you want are the doctor, and she get by way of standard disclosure anyway. You need disclosure to be desirable now rather than later. Procedurally, if this is the application you're going to make, your order must specify the documents that the respondent needs to disclose. But it may also say that the respondent is to indicate what's happened to any documents they don't have in their possession or control. Note that there's no need to confirm you will be starting proceedings inevitably after your pre action disclosure application, because, of course, the answer is, the documents might not help you, and you might not pay. Cost wise three order is drafted the opposite way around the way you'd expect because it's pre proceedings. You as the applicant may well find yourself paying the cost of this application even if you're successful, simply on the basis that this kind of order, in order for your opponent to pay those costs will only happen where your opponents been. Unreasonable. In objecting to the order Onda or has failed to comply with a protocol obligation in doing so Sharp and Leeds City Council reminds us those costs are likely be paid on fixed bases. If you've bean in the protocol on your next protocol case on in that circumstance, you're going to find yourself limited to fix costs. Exit costs that will be 50% of Type A or Type B costs. That's 50% of £500. If it's an oral hearing, I'm 50% off £250. If it's on paper that significantly less than parties were once receiving for pre action disclosure costs, that brings us to the end of our webinar today. Hope it's been helpful on thank you very much
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