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What is the nature of the relief sought under CPR 3.9?
What was the breach?
I assume its a fixed costs case?
Yes I see you say it is :)
Hi Alex, The claim is for personal injury, repairs and credit hire and is worth £15000. It fell out of the portal pre-issue and so I'm assuming fixed predictive costs would apply. Is that right? The nature of the breach is that a witness statement was served late. The relief sought is that the Defendant be allowed to call the witness to provide oral evidence at trial.
How late was the w/s?
And how long after the breach did they make the application?
simultaneous exchange of witness statements was required by the 30th of June 2014 and the Defendant's statement was served in time. It was an additional statement from a claims manager who commented on the location of the vehicle at the time of the accident that was served on the 25th of July but this was because he had a heart attach on the 16th of June
What rate is the CFA and when were proceedings issued?
Date of CFA not rate !
im not sure about the date of the CFA but proceedings were issued on the 14th of March 2014
Ok - let me just look at Part 45 and get my advice ready
ok thank you
Right I have looked at this. There is a good reason why he couldn't give a statement! Therefore it would be unreasonable of you to oppose the application.
You are right it is fixed costs and QOCS do apply.
Technically you are not quite right when you say C wont be liable for costs in any event.
Costs ARE awarded by the Court but can not be enforced without leave of the Court (save for fundamentally dishonest claims etc).
So there will be a costs award, but generally it is not enforced.
Aw for costs for opposing, the Courts made it clear in Denton that the opposing party would be liable for indemnity costs for unreasonably opposing.
So you dont want to risk the client to that.
Part 45 interim applications costs are generally limited to 50% of the Type A and Type B costs of Table 6 or 6A
However if indemnity costs are sought then a cost schedule can be served
Can I clarify anything for you about this today please?
Hi Alex. Thank you for this. You say that Denton states that indemnity costs could be awarded against the Claimant. Is this even though a costs order could not be enforced? If such an order could not be enforced would the client still be at risk? Does denton override the QOCS and fixed costs?
The client is at risk if there is a finding of fundamental dishonesty.
This overides QOCS
But in any event based on what you have said, it would be unreasonable in my view to oppose the application
Does that clarify?
I understand it would be unreasonable but in terms of advising the claimant would the only reason to advise them not to oppose the application be if there was fundamental dishonesty? The Claimant had stated that he was stationary at the time of the accident but witness evidence that was served late states there was equipment in the Defendants car that shows the CLaimant's vehicle was not stationary. Would this be classed as fundamental dishonesty?
The grounds for disapplying QOCS are:
Thank you for this Alex. Am I allowed to ask two more questions related to this case?
If they are short yes
Thanks Alex. If the Claimant states that they had were stationary at the time of the accident and had not switched the engine on and that the Defendant reversed into them and the Defendant said he was reversing out of a car park space and stopped before putting his car into first gear and that the Claimant reversed into them, on the basis of just these two accounts what would you say was the most likely outcome at trial just based on these accounts and for what reason? How would you answer the most likely outcome with reasons in just one sentence?
I havent seen all the evidence. It comes down to impact damage, credibility of the witness mostly.
You can have a great case on paper but under XX the witness is really bad and you lose
The last question Alex is that if the Claimant were to oppose the application, what would you say their argument should be?
The only thing they could say is that D did not seek an extension and could have.
Thanks Alex. You have answered my questions so well. I am very grateful for your help. Best wishes.