Changes to Claim allocation - Will this really benefit the Defendant?

The Civil Procedure Rules (CPR) are due to be updated with many of the changes coming into force on 6th April 2009. The changes to the Rules in this 49th update can be viewed on the Ministry of Justice's website.

A significant change to the (CPR) in my line of work is to Part 26 and the allocation of cases to the small claims track, fast-track or multi-track dependent on the value of the claim.

The small claims track applies to claims excluding personal injury where the claim's value is less than £5000 or where damages for personal injury exceed £1000. This will not be changed.

The majority of personal injury claims however fall within the fast-track, this used to be for claims that fell outside of the small claims track but that did not have a financial value of more than £15,000. All claims with a value in excess of £15,000 were allocated to the multi-track.

Under the updated CPR after 6th April 2009 the fast-track financial limit will be increased to £25,000.

Working within the personal injury sector I envisage some difficulties with this change and would instead recommend an increase to the small claims track limit for personal injury claims, which has been rejected.

Firstly in relation to the increased limit for fast-track claims, a Defendant cannot currently obtain their own medical evidence in relation to the Claimant's alleged injuries unless it is a multi-track case or they make an Application to the Court. Whilst this will not be necessary in all cases, if an injury is complicated or where the Defendant has serious concerns over the nature or causation of the Claimant's injury, obtaining medical evidence from your own expert is advantageous. Unfortunately some medical experts can be biased towards the Claimant (or the Defendant) and others do not provide sufficient reports to alleviate any issues/concerns.

Taking into consideration the increase of the fast-track limit to £25,000 along with the nature and/or complexity of the injuries the Claimant would have to incur to exceed this new limit, I believe that Defendant Solicitors are likely to be disadvantaged.

In my opinion it would be more beneficial to increase the small claims track for personal injury claims. Currently the limit for these is only £1000 and taking into consideration the recent JSB guidance, only whiplash type injuries persisting for less than 1 month fall within this track. With the JSB guidelines increasing the valuations in each revision, should the Court system not increase their banding to match this?

A typical whiplash injury lasts between 6-12 months with a proportion persisting for up to 2 years post accident. With the recent JSB guidance providing for damages in the region of £2750 for a simple 12 month whiplash injury and £5000 for a 2 year whiplash it could be the case that we no longer see any personal injury claims that fall within the Small Claims Track, thus continuing to increase Defendant's Solicitors costs.

I am sure someone from the Claimant side's views would differ...

Responding to a Claim Form and the Deemed Date of Service

Under Part 6 of the Civil Procedure Rules 1996 (CPR) when a Claim Form has been served on a Defendant, the Defendant has 14 days to respond from the date of service. The Defendant must either:

1. Admit the whole of the claim; (for example agreeing that a payment should be made)
2. Dispute the whole of the claim; (e.g. disputing liability for the claim) or
3. Dispute part of the claim (e.g. admitting liability but disputing the sum of the claim)

If the Defendant intends to dispute any part of the claim but does not respond to the Claim Form by either filing an Acknowledgement of Service or Defence within the 14 days, the Claimant may obtain Default Judgment against the Defendant (Part 12 CPR).

For example further to a road traffic accident the Claimant may issue Court proceedings to recover his damages, if the Defendant does not respond to the Claim Form within 14 days of service the Claimant can enter Judgment in default against the Defendant regardless of whether liability for the accident is admitted or disputed by the Defendant.

Where a Defendant has not responded and Judgment has been filed by the Claimant, the Court will automatically find in favour of the Claimant, without a trial taking place. If the Defendant wants to contest liability he will then have to make an Application to the Court to get Judgment set aside (Part 13 CPR).

It is therefore extremely important if you receive a Claim Form to respond to the Court within the given time. If you are not legally qualified you should consult a Solicitor or your local Citizen's Advice Bureau (CAB).

Where an Acknowledgement of Service is filed, the Defendant is given a further 14 days to submit a Defence to the Claimant's claim. Filing the Acknowledgement therefore gives the Defendant 28 days in total from the deemed date of service to file a Defence. This is particularly a good option where the Defendant needs to seek legal advice or a solicitor needs to take further instructions from their client before finalising the Defence.

When is the deemed date of service?

This may differ in certain cases so it is worth checking what information is included with the Claim Form and in practice on receipt of a Claim Form a Solicitor will telephone the Court to confirm this.

Prior to the implementation of The Civil Procedure (Amendment) Rules 2008, the deemed date of service for a Claim Form served by post was the second day after posting. i.e. if the date of posting was 25th June, the Claim Form would be deemed served on 27th June.

The rules as amended in 2008 however now provide that service does not occur until two “business days” after dispatch and therefore weekends are no longer counted. i.e. if a Claim Form was issued on a Thursday, the deemed date of service would not be until the following Monday. This rule applies regardless of the means used to serve a Claim Form. Documents other than a Claim Form are deemed served 2 days after dispatch regardless of the method.

One particular case I have come across that is slightly different to the above is where the Claim Form has been issued by the County Court Bulk Centre. In this case the included information provides the date of service as 5 days after the issue date detailed on the Claim Form. Proceedings issued from the Bulk Centre are usually simple debt collection matters which in the main is undefended.


Further information can be found on HMCS's website

How to fight Council planning applications - Part 4

Part 4 - The Ombudsman

Firstly I must apologise for the amount of time it has taken to provide the final post on this issue. However despite initially making a complaint to the Local Government Ombudsman (LGO) in February, it took until November for me to receive any reply. The investigator advised that he had been out of the office over the summer and the complaint was not dealt with in his absence.

I initially sought the Ombudsman's assistance on behalf of the local residents when there appeared to be evidence of pre-determination. This evidence was not surprising to many residents – was it possible for a Committee to make an impartial decision, when they in fact act within the body making the proposals (i.e. the Council)?

The Ombudsman did nothing to investigate the complaint despite being presented with the evidence.

After the decision I contacted the LGO again (March), in reply I was advised to contact the offending Council direct with my complaint. This apparently was the required procedure except in exceptional circumstances, further to which if the matter was not resolved I should contact the LGO again. As the Council had not adequately investigated/responded when the issues were raised on a number of occasions during the planning process, I wrote to the Ombudsman declaring that this was in fact an “exceptional circumstance” and that an independent review was required. It could not be accepted by the local residents that the Council could find any malpractice on their own behalf.

The Ombudsman ignored this request and advised that the complaint had been referred to the Council to be dealt with via the Council's own Complaints Procedure.

The Council “investigated” the complaint and determined that their practice/policy was not to pre-determine applications.. The Council's response failed to provide any evidence to indicate that a full/proper investigation had been undertaken and they continued to quote doctrine (i.e. what “should” happen) rather than address what had “actually” happened.

I referred the matter back to LGO (May) repeating our request for an independent review. Their response (when finally received) was that having “investigated” the complaint, there was no evidence to suggest pre-determination (not commenting on that provided). In addition we were advised that public money “could not be wasted” solely because a decision had not gone our way.

No evidence has been provided to suggest that this matter was fully looked into and many people have questioned how independent the LGO actually is.

From this website you will see that there are many other people with the same concerns

Over 150 local residents situated at and around the proposed site objected to the plans, the Councillors (none of which were local) approved them. Do we really live in a democracy?

How to fight Council planning applications - Part 3

Part 3 - The Decision

Unfortunately the decision did not go in our favour and I hope you have better luck. You may wonder whether there is any right to appeal against a decision made by the Committee... well there isn't, unless you are the person making the application and the application is refused.

Be prepared that despite your arguments and the number of objectors the Committee may still approve the plans. The best you can do is try.

The only TIP I can add here is to make your views of the decision known; for example everyone who has attended should get up and leave whilst the Committee are trying to move onto the next issue, noisily if you wish.

Don't be afraid to make comment on the decision as you leave, it is one of things I regretted after all the work and stress I went through and having represented over 100 people:

• it allows you to express feelings couldn't put across professionally during the allocated representation slots – don't be constrained by their “process”, you no longer have to adhere to the process, but they still do


• it makes them aware you will continue fighting despite their decision


• it allows you to have the final say

The most important thing is that they are there to represent you – they are not judges (no matter how much they may act like it), so if they belittle you or tell you to quieten down when leaving make them aware of this! They only deserve your respect once they have earned it. That said don't resort to violence or personal attacks!

One thing I have not yet addressed with respect to the application process is the role of the press. At the Committee meeting there is usually a member of the press (local paper normally) taking notes and you may find that comments you have made within your representations are used if they write it up.

TIP – identify the press and pass a copy of your representations to them – this enables them to provide an accurate reflection of your main points and may include something they have missed. They may actually approach you afterwards to take your contact details. Some of my representations were included in our local paper's article.

If there is objection within the community with respect to the planning application, you may need to make the decision whether to approach the press yourselves. This may be of some benefit if the larger community objects to the plan or they do not understand the true implications of the proposals. It is for you to make the decision, but be aware that the press may become involved whether you choose to contact them or not.

On the other side of the coin however, bringing the press in could also be to your detriment. If other members of the community approve of the plans they may also choose to contact the Council to show their support, as I have previously advised a supporting representative can also speak at the Committee meeting, this does not have to be the person/company/department presenting the application. Unfortunately those who show their support will cancel-out those who object and may actually be more highly regarded by the Council. One of the main arguments the Council used to counter our objections to the proposals were that they would benefit the wider community, despite the local community, those actually around the proposed site objecting to it.

TIP– whilst there may be no real argument against the potential benefits to the community, it could be argued that the site is just not a suitable one; i.e. in our case building a youth centre on a private estate directly behind retirement homes. Therefore in your arguments enforce that there are better sites for the proposals to be located.

Finally once the decision has been made, if you are unhappy with how the Council has handled the planning application process don't give in. Throughout our application the question kept being raised with regards to the Committee's impartiality given that they are part of the Council and the Council is making the application. It will always be harder to oppose an application put forward by the Council than an individual for a number of reasons. I am not saying that there will be any impartiality/pre-determination issues but if there is any evidence of this you should complain to the Local Government Ombudsman who can investigate. Keep up the pressure, if not for you, for future people that who will also need to deal with the same planning department. The more complaints raised in the long run about unfair/impartial department decisions the more likely it will be dealt with. This is our current route and I will try and keep you posted.

Go to the LGO Website for more information.

How to fight Council planning applications - Part 2

Part 2 - The Committee meeting

Once the consultation period is complete, if you have raised an objection to the application you will be invited to the Planning and Highways Committee meeting. It is at this meetings that the planning application will be decided.

At the Committee meeting one person from each side, supporting and objecting, will have the opportunity to address the Committee for a 2 minute period.

TIP - Nominate one person to speak and gather details of everyone's objections – the more reasons for refusing the application you can hit them with the better.

TIP - Rather than solely raising the concerns objectors have, try to find policies which the planing application violates and therefore why the application should not be approved – for example we found several Unitary Development Plan (UDP) Policies contravened by the application's plans and by raising these achieved additional parking spaces and an access route to the site – these details were found on the Council's website.

In our case the Council put forward a report to the Committee prior to the meeting (which I think is common practice). Along with details of why the plans should be approved it detailed the number of objections and the concerns raised. However it also gave them a chance to counter these - albeit in our case they didn't address the main issue in question; the residents' concerns were about the security of the area (such as residents' property) and the Council responded with the security of the proposed site.

TIP - This report was published on the planning website and also handed to us just before the Committee meeting, however a copy was also sent directly to me when I raised my detailed written objection to the Council. N.B. It took a long time for a lot of the documents to be uploaded to the site - it is therefore worthwhile requesting a copy after the consultation period.

After both parties have made their representations the Committee members will then discuss the application based on what they have heard. Further to this the Chair will ask members to indicate whether they approve or reject the planning application and a hand show vote will be taken.

It is possible that the Committee meeting will be deferred either before representations are made or after them to enable further information to be sought. In our case it was deferred twice, once when Committee members were made aware of the number of objectors and then again to allow further consultation with the residents and for the applicant to submit a change of plans.

TIP - Until the decision is due to be made any further objections may be considered – if you need a few more petition signatures or other objections use this time wisely. Also if there are any companies which you believe have not been consulted which should be contact them and ask them to put any objections in writing – businesses/money should have a greater influence than an individual.

TIP - If you do get more than one chance to make representations try and always attack from different angles, if the Council have received written objections they are likely to know the reasons for your objection, there is no point repeating the same thing each time. As mentioned above try and find flaws with the plans especially where approval would be contrary to Council policy, try to gauge what the argument for approving the plans will be and try to counter them and raise any conduct issues i.e. lack of consultation/pre-determination.

TIP - Last but not least be sure you know the correct time and location of the meeting, I have heard of situations where times/locations are changed last minute and those who wish to attend the meeting are not advised. In our case our meeting was moved to another room on a different floor of the Town Hall, whilst many of us were waiting outside of the original allocated room.

See you for my next blog post part 3 - The Decision.

How to fight Council planning applications - Part 1

This is the first instalment of a four part series detailing my own experience of fighting a Council's planning application and advice on how you would go about doing so. If you would like a copy of the full series prior to its publication or have any questions please leave a post below.

Firstly I must say that we lost our battle and the planning permission was approved. Whilst unfortunately we did not win on the main objection to the plans (a youth centre) we did however get elements of the plans changed (parking/access) - I hope our story will help anyone else wanting to take a stand by showing what you are likely to expect and providing tips which may help you.

Part 1 - Submission of planning application and consultation

We were invited to a meeting about the Council's proposals approximately 3 months prior to the application itself being submitted. It is likely that your Council will do the same but be warned that they are unlikely to tell you when the application is actually submitted.

TIP - routinely check the planning application website for your local Council from the time you hear about the plans.

Once the planning application is submitted there is a period of 21 days statutory consultation within which time objections/support or other comments can be raised by consultees (e.g. Highway and Environment Agencies) or neighbouring residents. However there is only a duty on the Council to consult those residents who share a boundary with the site of the application, not necessarily residents living nearby. These boundary residents should be sent a letter with details of the plans.

TIP - in our case many residents affected by the plans were not consulted but still had objections. It is important to make everyone affected aware of the plans especially if there is a contentious issue. What I did was flyer these residents with brief details of the application and provided the web address where they could find the plans and comment on and object to them.

The more objections received by the Council the less likely they will be ignored. We believe is that it is harder to turn down a number of people than one sole objector.

TIP - get a petition with as many signatures possible of residents objecting to the application – involve your neighbours – I know it seems a lot of work but will take less time if split between a number of people – believe me it is worth it.

TIP - keep checking the Council's planning website, any comments from consultees and neighbouring residents will be posted, Highways Management in our case noted a flaw in the plans in their response to consultation and by using these “official” concerns it strengthened our own arguments.

Coming next week - the Committee meeting - how to prepare, structure your arguments and deal with the Council's underhand tactics.

Driver Sues Dead Cyclist

Spanish Driver Sues Dead Cyclist

Click on the above link and read the article - tell me what you think. Imagine that the car driver was not speeding and only that he failed to see a cyclist who was riding at night with no reflective clothing and no helmet. (The driver in the article has not faced any criminal charges).

Is he right to want compensation for the damage to his vehicle from the dead cyclist's family?

If one car driver caused a collision with the other but died of his injuries, the other driver would claim against the dead person's insurance company being liable for the accident - not involving the dead man's relatives. However as this case involved a cyclist there is no insurance company to fall back on so he would naturally look towards the dead man's relatives for compensation.

You could however question why the driver has not claimed against his own insurance company. The article unfortunately does not provide full details of the accident, if the accident was solely the fault of the cyclist, why should the driver have to make a claim to his insurance company which would subsequently affect his premiums and any no claims bonus. Compare this with someone whose car is vandalised; their insurance is affected, yet they are not to blame - is this fair?

Personally if the cyclist was wholly to blame I do not blame the driver for making a claim although directing this at the cyclist's family appears insensitive, but it may be the only option. Even if the cyclist is only partly responsible the driver can still claim.

If this case happened in the UK, I think many home insurance policies cover liabilities relating to householders' actions and the driver would be able to claim against this.

"Help! I have received a County Court claim form for a road traffic accident"

Working in a solicitors firm within the RTA industry I deal with legal proceedings on a daily basis but if someone who is not familiar with them receives these through the post I can understand that they can be very daunting and quite worrying. Several times this week I have dealt with telephone calls from extremely distressed people who have received a County Court Claim Form in relation to road traffic accidents, some which even date back to 2004 (3 years ago). Some of these people have said that they have been physically sick especially as the form states that they need to respond within 14 days or face judgement against them in the region of thousands of pounds (the amount claimed).

Unfortunately sometimes proceedings are served directly on the insured rather than the insurance company or solicitors dealing with the matter. Should you receive such proceedings I hope that this post helps to alleviate your worries and explains exactly what you should do.

1. PLEASE DO NOT WORRY! The best thing I can recommend is to speak to either your insurance company or a solicitors (if appointed) to advise that you have received a claim form.

2. Usually they will ask you to send the claim form or a copy to them so that they can deal with it on your behalf.

3. If liability for the accident has been admitted then it is unlikely that you will need to do anything further, everything will be resolved by your representatives

Where liability (fault) is admitted the reason legal proceedings would be issued is a dispute over quantum (the value of the claim) or the limitation period is due to expire/has expired (see below for further information in relation to limitation)

4. Where liability is in issue it is likely that you may be required to attend court to give your version of events, however your representatives will be able to explain the process and exactly what is required of you if this is the case so feel free to raise any queries or worries with them


Turning to my above point in relation to "limitation" sometimes claims are not concluded until the limitation period expires. Once people have reported an accident to their insurance company and had their vehicle repaired they tend to forget about the matter. However what the insured does not see is the work that then has to be done by the insurance company or solicitors appointed by them when dealing with a third party claim.

In England and Wales you have 3 to make a personal injury claim - (I am sure you have seen the annoying people in the street asking if you have had an accident in the last 3 years). If a claim is not settled before the 3 year period expires most solicitors issue protective legal proceedings to ensure that their client receives their compensation. If this is not done and a client cannot go on to claim their compensation this can lead to professional negligence being raised.

Once the proceedings have been issued they must then be served within a 4 month period. Therefore if the claim is still not settled within these further 4 months the proceedings will be served (sent) to the Defendant - as mentioned above this maybe the insured rather than the solicitors acting.

I hope the above helps if you are faced with the above. If you have any queries please feel free to ask and I will try and answer them.

Further information about dealing with a claim and the claim form itself can be found at HMCS (Her Majesty's Court Service)