In 1990, I was two years of age. At that time, Nick Hanning had become a Fellow of ILEX. I had not even heard of ILEX (later CILEX) until my last year of my History degree in 2010. By then, Nick had become one of the first Legal Executives to become a partner in the law firm and fone of the first to become a Legal Executive Advocate.
He then became the President of ILEX between 2012 and 2013. He didn’t stop there though. He was also appointed to the Board of CILEX Regulation, became a Deputy District Judge and a Fee Paid Employment Tribunal Judge.
I reported about how CILEX Lawyers could apply to be Recorders and it was therefore not a surprise (and if so, a pleasant surprise) for Nick to be announced as the first CILEX Recorder.
I am going to feel quite sad attending the higher rights course with other CILEX lawyers, knowing that Nick, who has done more for CILEX than I ever will, will not have the opportunity to tick off the next box in his CILEX achievements.
I never met Nick, but I look forward to hearing stories and anecdotes about him. No doubt all other CILEX members will keep Nick’s memory alive.
Prior to the 17th edition of the JC Guidelines, many practitioners and advocates were arguing for or against the Court increasing the PSLA brackets to account for inflation.
Given the significant increase in inflation (which, if using RPI which is what the Judicial College relied on, was a significant increase) it impacted Defendants who found that Claimant Part 36 offers were now more likely to be beaten.
Understandably, Defendants argued that there was no need for the Courts to account for interest. The 17th edition had a significant impact, because the Judicial College expressly agreed with the Claimant’s position.
Blair v Jaber
Recorder Jack, in the matter of Blair v Jaber whilst sitting in the County Court at Coventry, agreed with the Claimant that inflation needed to be accounted for.
17. I turn then to general damages. I first make a general point about the Judicial College Guidelines. The current edition was published on 11th April 2022, nearly a year ago. The figures in this latest edition were probably finalised earlier. Since then, we have had inflation such as has not been seen since the 1970s. The Office of National Statistics figure for January 2023 released on 15th February 2023 showed the Retail Price Index at 13.4% per annum. The source of that is http://www.ons.gov.uk/economy/inflationandpriceindices, accessed on 8th March 2023
18. The Judicial College Guidelines, unlike the Northern Irish Green Book, do not take future inflation into account. I need to consider whether the figures in the guidelines should be increased to take the unexpected and massive increase in inflation into account. Ms Dervin submitted that I should not. That is, she submitted, a matter for the Judicial College to consider. I disagree. The Judicial College Guidelines are just that – guidelines. If there is a change in circumstances between April 2022 and today, that is a matter to take into account when assessing damages. The very substantial drop in the value of money which has taken place since April 2022 is just such a circumstance. Accordingly, the Judicial College figures needs to be increased by, in my judgment, about 12%.
I experienced significant success in increasing the amount of PSLA awarded over time, which usually led to Part 36 consequences.
17th Edition
The 17th edition was released and, helpfully, I received it a few weeks before it was due to be published. The following was contained within the introduction:-
As in previous editions we have rounded the figures to provide realistic brackets. The figures have been cross-checked against each other to ensure consistency and, so far as possible, a degree of logic in the difficult task of compensating physical injuries by the payment of money. Since the publication of the last edition of the Guidelines, inflation has risen dramatically. In uplifting the figures in this edition we have, as in previous editions, applied the Retail Prices Index. In doing so we reflect the law as it currently stands. For this edition, we have uplifted by reference to the RPI figure of 376.6 for August 2023 (which was published by ONS on 20 September 2023) as that was the most recent figure available at the date on which the text of this edition was finalised. We have received considered submissions that an index other than RPI should be used and that an alternative index (Consumer Prices Index) would more accurately and more fairly provide the true measure of inflation in the UK. We are aware of these arguments and recognise the existence of alternative indices that may be appropriate. However, it is not for the editorial team, which I lead, to prescribe a different inflationary index from that which is judicially approved and adopted by the courts dealing with personal injury claims. Any change must be for the courts having heard evidence, including expert evidence, and submissions on behalf of claimants and defendants. Putting it shortly, if the current judicially approved index is to be challenged, then that challenge must be made in the courts. We look forward to reviewing the position in two years’ time. For the avoidance of doubt, of course, these guideline figures should be increased by the appropriate index for inflation between August 2023 and the date of any assessment of damages.
One of the tasks of the editorial team for each new edition of the Guidelines is to apply an inflationary increase to the figures contained in the previous edition. For that purpose, it has always been the practice to use the Retail Prices Index (RPI) and, for the reasons explained in the Introduction to this seventeenth edition, it is the index which will continue to be used unless and until the Courts decide otherwise.
There is, unfortunately but unavoidably, quite a long gap between the editorial team finalising its work and the Guidelines appearing in print. For example, as explained in the Introduction to the sixteenth edition, the editorial team based the figures in that edition on RPI as it stood in September 2021, but the guidelines were not actually published until April 2022. Thus, even at the date of publication, the figures for every edition of the Guidelines are already somewhat out of date. In times of higher inflation (and particularly when dealing with larger awards), the difference can be significant. To our surprise, the issue of whether to apply inflationary increases between editions still seems to attract some controversy when, in accordance with conventional practice and procedure, it should not. We have noted that in some cases judges have applied inflation only from the date of publication of the Guidelines but in circumstances where it appears the delay between calculation of the figures and publication was not drawn to their attention. For the reason explained above, this is incorrect. For the avoidance of doubt, an inflationary increase to the Guideline figures should be applied to ensure that figures remain up to date.
To give a practical illustration of the approach to be taken, in the sixteenth edition, the suggested figure for total loss of taste and smell in Chapter 5(C) is ‘in the region of £39,170’. This was based on the RPI figure in September 2021 of 308.6. To establish the value of that sum in say June 2023, one first needs to establish RPI at that date (376.4). The updated value of £39,170 can then be calculated as: £39,170 x (376.4/308.6) = £47,776 reflecting an increase in RPI inflation from September 2021 to June 2023 of around 22%.
For this present edition, we have updated figures based on RPI in August 2023 (376.6), but publication of this edition is not expected until April 2024. Details of the latest available RPI figure can be found within the ‘RPI All Items Index’ section of the Office for National Statistics website.
Therefore, the jump in the PSLA brackets, compared with the 16th edition, was significant compared with previous increases (due to the increase in inflation).
Current inflation increase
So, what does this currently mean for PSLA? One should follow the advice of the Judicial College (and presume that if the Judicial College was correct in using the RPI instead of CPI) we should assume that we account for inflation using RPI.
The RPI was 376.4 at the time of the preparation of the 17th edition. The most recent RPI recording was November 2024 which shows RPI at 390.9:-
Therefore, a further uplift of 3.7% should be applied as per the calculation below:-
390.9 RPI – 376.6 RPI = 14.3
14.3 ÷ 376.6 RPI x 100 = 3.69613224
Percentage increase from 376.6 RPI to 390.9 RPI = 3.7%
So what does it do to the JC Guidelines? Here is an example:-
Chapter 14– Minor Injuries
17th edition
Uplift – 390.9 Nov 24 (3.7%)
(a) Injuries where there is a complete recovery withinseven days.
A few hundred pounds to £840
A few hundred pounds to £871.08
(b) Injuries where there is a complete recovery within28 days.
£840 to £1,680
£871.08 to £1,742.16
(c) Injuries where there is a complete recovery within threemonths.
£1,680 to £2,990
£1,742.16 to £2,993.70
The increase is so minor that in practice, it currently will not make much of a difference. However, it is always worth keeping an eye on the market and RPI in case there is a significant jump. After all, it can go in the opposite direction and reduce in value (although I expect it would never drop below the current JC Guidelines.
Overall, it may not be worth making much of a big deal about, especially when the Court is likely to give a rounded figure for PSLA.
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From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
I am noticing that more often now, the guidelines for small claims track matters include a requirement that witness statements be written in the witness’s own language. If the witness’s language is not English, an English version of the statement must also be provided, and an appropriately independent interpreter should be present at the trial.
This, whilst understandably is important for the purposes of a fair trial, could be a significant barrier to access of justice.
What happens in fast track trials and beyond?
The usual position regarding witnesses who cannot speak English will usually be governed by PD 32 paragraph 18.1 (as CPR 32.8 states that a witness statement must comply with the requirements set out in Practice Direction 32):-
“The witness statement must, if practicable, be in the intended witness’s own words and must in any event be drafted in their own language, the statement should be expressed in the first person and should also state……….”
Further, PD 32 paragraph 23.2 sets out the requirements
Where a witness statement is in a foreign language—
(a) the party wishing to rely on it must—
(i) have it translated; and
(ii) file the foreign language witness statement with the court; and
(b) the translator must sign the original statement and must certify that the translation is accurate.
These specific changes occurred in April 2020, although there was a similar rule regarding paragraph 23.2, but not paragraph 18.1.
Relevant authorities
There are various authorities that followed the changes to PD 32.
In the case of Correia v Williams [2022] EWHC 2824 (KB), the High Court refused to overturn a Circuit Judge’s decision to strike out the Claimant’s evidence, which was prepared in English by the Claimant’s Portuguese Solicitor. The High Court also did not challenge the Circuit Judge’s findings that the methods to remedy the defective statement were insufficient. This includes translating the English statement into a foreign language, translating it orally to the witness or allowing the witness to give their evidence in chief live in the witness box.
However, if the witness was bilingual and could adequately speak and understand English, then they could (as per Afzal -v- UK Insurance Ltd [2023] EWHC 1730 (KB)) elect to have their evidence in English and did not have to be compelled ot give evidence in their mother tongue.
The huge concern for fixed costs fast track personal injury cases was that Aldred v Cham [2019] EWCA Civ 1780 suggested that the translation and interperter fees could not be recovered from the Defendant under CPR 45.29i(2)(h) as it was not a particular feature of the dispute. However, Santiago v Motor Insurers’ Bureau [2023] EWCA Civ 838 found that the inability to give evidence in English was a particular feature so such costs were recoverable.
Small claims track
The starting position is that CPR 27.2(1)(b) states that Part 32 (evidence) does not apply to the small claims track, except rule 32.1 (the Court’s power to control evidence). This would usually mean that the usual provisions regarding witness statements for non-speaking witnesses would not apply.
However, directions such as the ones below are becoming more commonplace:-
This is a difficult position for parties and practitioners where, as per CPR 27.14(2), there is no particular rule that would allow for the recovery of interpreter costs.
This is going to be a significant obstacle for those not insured and require access to justice. No doubt, insurers looking to defend claims or recover outlays may be willing to cover these costs, but a litigant in person could be deterred from bringing the claim.
I would recommend that those acting for parties in small claims track litigation to address this point early. It will be the case that they will need an interpreter at trial, or is their grasp of English so sufficient that they can both understand written English and be comfortable in being crossed-examined in English?
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From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
Litigators should be well acquainted with the fundamentals of Part 36. Nowadays, it is quite rare for a Part 36 offer to be deemed invalid, especially when using standard templates or N242A. Within law firms, the organisation of teams often separates the management of costs into different departments. This can result in litigation fee earners being unaware of the processes involved beyond just making and accepting Part 36 offers.
I used to be one of those fee earners. When a case was settled, I would send the file to the costs department. The cost schedules were prepared by third-party cost draftsmen. It was only after becoming a consultant that I began to truly consider the aspects I should have known and thought about during litigation but didn’t.
As an advocate, I strive to ensure that my clients fully understand and utilise the benefits of Part 36. I aim to ensure that when it is applied, it is done in a manner that maximises the intended advantages.
Part 36 stays proceedings automatically
Although it may seem obvious, I noticed during my litigation days that parties often engaged in informal negotiations before opting to formalise their settlements with a Tomlin Order.
I found it very strange that the agreement typically required the Defendant to pay the Claimant damages, as well as their costs, which would be assessed or determined if not agreed upon, as per the relevant cost provision. Why would you choose the option that costs more money? All Part 36 settlements come with the same provision:-
“If a Part 36 offer is accepted, the claim will be stayed.”
One then informs the Court, providing reassurance that the matter is stayed and no additional steps need to be undertaken by the parties. However, a Tomlin Order must first be endorsed by the Court. There is always going to be concern until confirmation has been received from the Court.
However, there may be offers/settlements that are not suitable for a settlement by part 36. However, if it can, it should be done by Part 36. This would be suitable even if the parties have agreed provisionally for the formality, one makes the offer part 36, and the other accepts it.
Prepare indemnity costs for summary assessment
PLEASE NOTE the Part 36 regime for Fast Track after 1st October 2023 no longer has indemnity costs, but a 35% uplift on the difference between the fixed costs of the stage of settlement/trial and the relevant period expiring.
It is important that if you have made Part 36 offers on a case that is subject to indemnity costs (because not all Part 36 offers from now on are) the fee earner ensures that appropriate cost schedules are filed, not just of the main action, but for the possibility that the court must determine costs after the expiration of the relevant period.
For the avoidance of doubt, where Part 36 consequences are subject to standard costs, the following provisions apply:-
(b) costs (including any recoverable pre-action costs) on the indemnity basis from the date on which the relevant period expired;
(c) interest on those costs at a rate not exceeding 10% above base rate;
The Court cannot possibly work out the post-relevant period costs on an indemnity basis and apply interest if it cannot know what costs were incurred before and after the relevant period.
The most straightforward option is to two prepare two N260s. One detailing all costs and disbursements up to the expiration of the relevant, and one from after and up to trial. The Court can still use this for assessing costs of the main action if part 36 consequences don’t kick in.
It is quite important to do this because having costs on the indemnity basis means any doubt is in favour of the receiving party, where as standard costs is in favour of the paying party.
“The Court must, unless it is unjust to do so”
I must confess but the concept of ‘unless it is unjust to do so’ did not really occur to me until I started undertaking advocacy myself.
The starting point is that Part 36 will apply. It creates a rebuttable presumption, meaning that it falls to paying party to challenge the application of the Part 36 consequences (Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch)). If the Claimant beats its Part 36 offer, it is the Defendant’s responsibility to demonstrate that applying the Part 36 consequences would be unjust. Conversely, if the Claimant fails to beat the Defendant’s Part 36 offer, the Claimant must prove that it would be unjust for the Part 36 consequences to apply.
The Court must take into account all of the circumstances of claim including the following factors found in CPR 36.17(5):-
(5) In considering whether it would be unjust to make the orders referred to in paragraphs (3) and (4), the court must take into account all the circumstances of the case including—
(a) the terms of any Part 36 offer;
(b) the stage in the proceedings when any Part 36 offer was made, including in particular how long before the trial started the offer was made;
(c) the information available to the parties at the time when the Part 36 offer was made;
(d) the conduct of the parties with regard to the giving of or refusal to give information for the purposes of enabling the offer to be made or evaluated; and
(e) whether the offer was a genuine attempt to settle the proceedings.
In the case of Downing v Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB), it was said that it is fundamental that a Judge, when asked to deviate from the standard procedure on the basis that it would be ‘unjust’ not to do so, should resist the temptation to make an exception simply because they perceive the existing regime as harsh or unfair. There needs to be specific circumstances in the case that warrant departing from the norm.
For example, the Court of Appeal in Yentob v MGN Ltd [2015] EWCA Civ 1292, the Court of Appeal upheld Mann J’s decision to deviate from the usual order in a phone-hacking case. The Claimant failed to secure a judgment better than the Defendant’s Part 36 offer, primarily due to limited admissions and the unlikelihood of the Defendant making an open court statement. Mann J made it clear that in typical cases, seeking a trial for a public judgment is not a valid reason for a Claimant to refuse a Part 36 offer.
In Walsh v Singh [2010] EWHC 1167 (Ch), HHJ Purle QC determined that the Defendant’s conduct during the trial was so unattractive that it justified making no order for costs, despite the successful Part 36 offer.
It is common for parties to argue that they were unable to properly assess the value of their claim without the disclosure of material facts or evidence, as illustrated in the case of Ford v GKR Construction Ltd (Practice Note) [2000] 1 W.L.R. 1397, CA. Situations often arise where a balance needs to be struck, particularly when the Claimant is a child who may not fully understand the value of their claim and is unable to settle without finalizing the evidence. This situation does not automatically undermine the usual consequences of Part 36, but it is something that the Court may consider.
It might be possible that a Judgment that beats the Part 36 offer minimally may be a situation where it is not appropriate for the Part 36 consequences. In the case of Novus Aviation Ltd v Alubaf Arab International Bank [2016] EWHC 1937 (Comm), the value of a US-dollar judgment in sterling was only higher than the Claimant’s Part 36 offer because of significant currency changes after the Brexit vote. Leggatt J decided that it would be unjust to impose Part 36 consequences.
Therefore parties should consider their conduct throughout the claim, as it really can make a material difference as to how the Court deals with any Part 36 consequences that are triggrered.
This rule, however, does not apply to Part 36 consequences in respect of Stage 3 hearings under the Low Value Pre-Action Protocol for Personal Injury claims (RTA & EL/PL). In those circumstances, the Court ‘must order’ the Part 36 consequences. There is no discretion.
When are Part 36 consequences an uplift, rather than indemnity costs?
There are two broad circumstances where Part 36 will not award costs incurred after the relevant period has expired on an indemnity basis;
Where the new 1st October 2023 fixed costs regime applies.
Stage 3 hearings under the Low Value Pre-Action Protocol for Personal Injury claims (RTA & EL/PL).
First, looking at what Part 36 says about the new 1st October 2023 regime:-
Costs consequences following judgment
36.24.—(1) Rule 36.17 applies with the following modifications.
(2) Subject to paragraphs (3), (4) and (5), where an order for costs is made pursuant to rule 36.17(3)—
(a)the claimant is entitled to—
(i)the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date on which the relevant period expired; and
(ii)any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them; and
(b)the claimant is liable for the defendant’s costs in accordance with paragraph (9).
(3) Where rule 36.17(1)(b) applies, the claimant is entitled to—
(a)the fixed costs in Table 12, Table 14 or Table 15 in Practice Direction 45 for the stage applicable at the date of judgment; and
(b)any applicable additional fixed costs allowed under Section I, Section VI, Section VII or Section VIII incurred in any period for which costs are payable to them.
(4) Where the court makes an order pursuant to rule 36.17(4), instead of costs awarded on the indemnity basis under rule 36.17(4)(b), the claimant is entitled to additional costs in accordance with paragraph (5).
(5) The additional costs are an amount equivalent to 35% of the difference between the fixed costs for—
(a)the stage applicable when the relevant period expires; and
(b)the stage applicable at the date of judgment,
to which the claimant is entitled under paragraph (3)(a) and (b).
Table 12 is Fast Track where standard costs no longer apply, Table 14 is the Intermediate Track and Table 15 is for noise induced hearing loss claims which are allocated to the Fast Track where standard costs no longer apply.
With respect to Stage 3 hearings. It is not a formal Part 36 offer, but the offers contained within the Part B Court Proceedings Pack which is sealed in an envelope until the conclusion of the Stage 3 determination of damages. Whilst the new Part 45 only applies to accidents after the 1st October 2023, the Part 36 consequences are the same:-
(2) Where paragraph (1)(a) applies, the court must order the claimant to pay—
(a) the fixed costs in rule 45.37; and
(b) interest on those fixed costs from the first business day after the deemed date of the Protocol offer under rule 36.27.
and
(4) Where paragraph (1)(c) applies, the court must order the defendant to pay—
(a) interest on the whole of the damages awarded at a rate not exceeding 10% above base rate for some or all of the period starting with the date specified in rule 36.27;
(b) the fixed costs in rule 45.30;
(c) interest on those fixed costs at a rate not exceeding 10% above base rate; and
(d) an additional amount calculated in accordance with rule 36.17(4)(d).
Use N242A, rather than template letters
I have encountered numerous cases where the drafting of a Part 36 offer has either omitted or included elements that invalidate it as a Part 36 offer. While the offer itself may still be valid, the protections provided by Part 36 may no longer apply. For instance, if one party expressly rejects an offer, it can no longer be accepted.
Using a N242A is most effective when the other party understands a Part 36 offer. If you are dealing with a litigant in person, it’s important to clearly explain the consequences of the offer. The case Barton v Wright Hassall [2018] UKSC 12 establishes that if the rules are available online or accessible to the public, a litigant in person cannot claim ignorance of their existence. However, because Part 36 can be quite complex, it is advisable to clearly articulate everything to minimise the risk of an ‘unjust to do so’ order.
In the alternative, using a N242A prevents any risk of the offer being invalid.
Most importantly, contract law does not apply to Part 36 (it’s ok to expressly reject an offer or make a counter offer)
One junior fee earner expressed hesitation about recommending a counter Part 36 offer when the other party’s offer was good. The reason they were concerned was because of the fundamental basis that a counter offer amounts to a rejection of the previous offer (Hyde v Wrench [1840] 3 Bev. 334).
I reassured the fee earner that Part 36 was a self-contained set of rules. I said it was akin to the purchase of land, i.e not subject to the usual provision of contract law. I referred them to the following subsections of Part 36:-
36.9
(1) A Part 36 offer can only be withdrawn, or its terms changed, if the offeree has not previously served notice of acceptance.
36.10
(1) Subject to rule 36.9(1), this rule applies where the offeror serves notice before expiry of the relevant period of withdrawal of the offer or change of its terms to be less advantageous to the offeree.
(2) Where this rule applies—
(a) if the offeree has not served notice of acceptance of the original offer by the expiry of the relevant period, the offeror’s notice has effect on the expiry of that period; and
(b) if the offeree serves notice of acceptance of the original offer before the expiry of the relevant period, that acceptance has effect unless the offeror applies to the court for permission to withdraw the offer or to change its terms—
(i) within 7 days of the offeree’s notice of acceptance; or (ii) if earlier, before the first day of trial.
(3) On an application under paragraph (2)(b), the court may give permission for the original offer to be withdrawn or its terms changed if satisfied that there has been a change of circumstances since the making of the original offer and that it is in the interests of justice to give permission.
36.11
(2) Subject to paragraphs (3) and (4) and to rule 36.12, a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer), unless it has already been withdrawn.
Obviously there are a few exceptions, but the point being is that it expressly states that a Part 36 offer, which is not withdrawn, is capable of being accepted at any time. The consequences that may follow from a late acceptance are, of course, a real risk.
It also applies when Part 36 and Calderbank offers are made in tandem. Of course, the principles of Part 36 do not transpose onto the Calderbank offer, and therefore, a counter offer (even if it is Part 36) is likely to be found to be a rejection under common law.
You can inform another party that you are rejecting their Part 36 offer. However, unless the relevant period expires and they withdraw the offer, it remains open for acceptance, subject to the previously mentioned caveat. While explicitly stating that you won’t accept the offer may make you seem foolish when you later accept it, it is still a legitimate course of action.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
I’ve previously advised that as a consultant for Rees Clayton Solicitors Limited I had the fortunate opportunity to attend the Court of Appeal hearing of Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435. I was sitting behind counsel for the claimant/respondent.
The Judgment has been handed (albeit, not yet on bailii or National Archive) and I have been provided with a copy (see below).
The matter was a second appeal following an initial strike out of the claimant’s claim. Those who conduct personal injury litigation for claimants will be familiar with the issuing of a protective claim form and then, taking steps to prepare the particulars of claim and serving the substantive proceedings upon the defendant.
In this particular case, the defendant driver was a Polish lorry insured by a Polish insurer. That insurer had admitted liability. They did so through their claims handlers InterEurope AG European Law Service.
Unfortunately, the claims handler responsible at the time issued proceedings against InterEurope instead of the actual defendant. They cited the European Communities (Rights Against Injuries) Regulations 2002. This meant that the claim was filed against the wrong party (not the insurer), and the cause of action referenced legislation that allowed a claimant to pursue a claim directly against both the insurer and a motor insurer in the UK. Since the insurer was Polish, this constituted the incorrect cause of action.
A Defence was filed to argue that the defendant was the incorrect Defendant, and the cause of action was also not applicable in the matter. An application was made to substitute Powszechny Zaklad Ubezpieczen (‘PZU’), but it did not seek to change the cause of action.
Defendant’s application to strike out
On 10th March 2022, DDJ Pithouse heard the defendant’s application to strike out the claim. By the time of the hearing, PZU had substituted in as the correct Defendant. The Claimant was represented by Jake Rowley of Counsel and within his skeleton argument (quoted in the Court of Appeal decision, Jake submitted the following:-
16. Where a statement of case is found to be defective, the Court should consider whether that defect might be cured by amendment and, if it might be, the Court should refrain from striking it out without first giving the party concerned an opportunity to amend (see: In Soo Kim v Youg [2011] EWHC 1781 (QB)).
17. Given PZU are now the Defendant, the claim is capable of amendment to cure the defect, that is because:
a) Pursuant to Article 18 of Council Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) a direct right of action against an insurer defendant is granted if the law applicable to the non-contractual obligation or the law applicable to the relevant contract of insurance so provides. The provisions of Rome II in relation to non-contractual obligations are retained EU Law by virtue of the operation of regulation 6 of The Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008 as amended by The Law Applicable to Contractual and Non-Contractual Obligations (Amendment etc.)(EU Exit) Regulations 2019. As such Rome II applies to claims brought within the jurisdiction of England & Wales whether the claim was instituted before or after 31st December 2020; and
b) Poland is an EU Member State and is bound by the terms of the Sixth Motor Insurance Directive (2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability). Pursuant to Article 18 of the 2009 Directive each Member State is required to permit a direct right of action against an insurer in respect of the civil liability of their insured. The overwhelming likelihood is that the law of Poland permits direct actions against liability insurers in the circumstances of this accident.
Jake’s reference to In Soo Kim v Youg (sometimes referred to as Kim v Park) was to the following paragraph:-
40. However, where the court holds that there is a defect in a pleading, it it normal for the court to refrain from striking out that pleading unless the court has given the party concerned an opportunity of putting right the defect, provided that there is reason to believe that he will be in a position to put the defect right
At this point, no application had been made by the Claimant to amend the cause of action. Jake went on to say:-
18. C can make, and ought to be permitted to make, whatever further application is necessary/required in order to amend the PoC in order to rectify the issue, given it is capable of rectification. All the ‘building blocks’ of the case are present, it simply needs to be formulated in an amended way. Strike out would be disproportionate and unjust. If so minded, the Court can order that the making of such an application has to be within a certain period of time, failing which the claim will be automatically struck out. An unless order of that sort would be more appropriate.
DDJ Pithouse gave a very short judgment, of which paragraphs 1, 8-13 were quoted in the Court of Appeal’s judgment. Essentially, the Judge made the following points:-
He was of the view that he could not be satisfied there would be sufficient pleadings that would overcome the requirements I would strike out the claim.
He pointed out that he would always be reluctant to take away the rights of an individual who may well be entitled to some form of compensation
he recognised that counsel for the claimant had quite properly to set out what would need to be done but also recognised that these steps had not been taken.
That would be consideration of the limitation act in respect of any application to amend given that limitation had passed.
He reiterated that two months have been made since the defendant’s application to strike out was issued with no application to amend, without further delay if another application is made to amend the proceedings.
He referred to a substitution of one pot of gold to another (the other being a claim for loss of chance by the claimant against her solicitors.
Claimant’s appeal to His Honour Judge Parker
The Claimant sought permission to appeal from a Circuit Judge and the first appeal was heard by HHJ Parker. The Court of Appeal characterised Judge Parker’s ex tempore judgment as an impressive and well-reasoned explanation for his decision to set aside the DDJ’s strike out order.
Judge Parker noted that it was argued before DDJ Pithouse that the defect in the claimant’s case could be remedied as outlined in Jake’s skeleton argument. Regarding the Limitation Act, he acknowledged that foreign law is a factual matter but stated he need not decide on it since the DDJ had not. He expressed an opinion that the cause of action stemmed from substantially the same facts and that the Limitation Act would not prevent an amendment.
Judge Parker also pointed out pointed out that the DDJ failed to consider if striking out the claim was a proportionate response to the Claimant’s shortcomings and referenced Kim v Youg, which suggests allowing a party the opportunity to rectify issues. He also noted the absence of an unless order.
Judge Parker examined the relevant factors himself. He acknowledged that the defect had been clearly flagged to the claimant and criticised the claimant’s legal advisors for their inadequate articulation, which caused delays. He recognised that the first strike-out application by InterEurope had not yet been before the court and that there was only a two-month gap between PZU’s strike-out application in January 2022 and the hearing before DDJ Pithouse in March 2022.
It was clear that the defendant was not arguing the cause of action proposed was insufficient, but that the claimant had failed to specify it. Judge Parker found that PZU’s status as a Polish insurer, it likely understood the claimant’s intentions to remedy the defect. The defendant was not prejudiced by the delay, having already addressed the claim’s merits, and would only need to provide evidence on Polish law, where any delay would be inconsequential.
The matter was to be listed to hear the Claimant’s application to amend the cause of action (which had been issued prior to the hearing before Judge Parker).
Defendant’s appeal to the Court of Appeal
The Defendant sought permission to appeal from the Court of Appeal, which was granted.
They argued that Judge Parker erred in law by finding that DDJ Pithouse misapplied discretion in striking out the claimant’s claim. They said he incorrectly stated that this was the first time the claim had occupied court time and that DDJ Pithouse failed to consider the claimant’s failings, proportionality, and the possibility of allowing the claimant to rectify the issues. Additionally, they said that Judge Parker did not acknowledge that the claimant had not applied to amend the cause of action, going onto improperly substituted his own conclusions regarding the defendant’s strike-out application in place of DDJ Pithouse’s conclusion.
They also argued that Judge Parker incorrectly found that there was sufficient intention before DDJ Pithouse to amend the cause of action, said that Judge Parker did not assess whether the claimant had a real or financial prospect of getting permission to amend the cause of action and overlooked the lack of evidence in how the claimant could remedy the claim.
During the hearing, which can be viewed on YouTube, the defendant argued that without specifying the relevant Polish legislation to DDJ Pithouse, he could not determine whether there was any realistic chance of the claimant succeeding in an application to amend the Particulars of Claim. The defendant asserted that, at the very least, the specific provision should have been outlined; at most, expert evidence should have been presented. This is because Polish law, while a factual matter, falls outside the court’s area of expertise and would require expert evidence to establish whether Polish law permits a direct cause of action against the insurer by a third-party motorist.
The defendant went on to say that Judge Parker was wrong to intervene and substitute his own conclusion because DDJ Pithouse’s decision was within his ambit given the circumstances and evidence before him. The defendant contended that DDJ Pithouse had all the relevant factors in mind when deciding to strike out. The Appeal Judges did question how likely it would be that Poland, who was a member state of the EU and was required to make Rome II domestic law in Poland (as per Jake’s skeleton argument before DDJ Pithouse).
In particular, one Judge queried how as a Polish insurer, upon being notified about the contents of Jake’s skeleton argument wouldn’t have reverted to the Solicitors to advise if it was wrong that there was Polish legislation that allowed direct cause of action against a polish insurer. The defendant argued that DDJ Pithouse was not bound to take the low bar of inferring that there could be such Polish legislation when determining the defendant’s strike out application. The Appeal Judges were very clear that rather than keeping quite and surprising the claimant at trial the defendant quite rightly set this out clearly in their defence. The Appeal Judges then went on to say that what the Defence does not do is say that they could never be a Defendant in the action. Therefore, when the matter came before DDJ Pithouse, it must have been the case that he would have had to consider whether for all intents and purposes, the remedy was likely to be technical because otherwise, the defendant would have argued that it could never be remedied. Quite fairly, the defendant pointed out that Jake’s skeleton argument was prepared the day before the hearing and it would not have be easy to obtain such instructions.
With respect to the absence of intention of the claimant to make an application, the Appeal Judges questioned whether the request for an unless Order was in fact the evidence/element of intention, because if such an application was not made then it would be struck out. The defendant pointed out that it never expressly stated within Jake’s skeleton argument that the claimant would make an application, but that it could. The defendant argued that the unless order was nothing more than providing the claimant with more time to consider applying, it should not be inferred as intent.
The defendant, therefore, argued that Judge Parker was wrong to intervene with DDJ Pithouse’s decision and substitute his own conclusion.
In response, the claimant maintained that DDJ Pithouse was wrong and, did not give full adequate consideration. Further, the claimant said he was wrong to find that the proceedings could not be amended (and endorsing Judge Parker’s determination). It was argued that it was clear that in writing and orally that the claimant had said, I will amend this and give me a date to do so.
An interest point made in the claimant’s oral submission was this proposition:-
“…at the very start of all this there is Miss Alton driving her car on a motorway. She’s an innocent victim in all this. She presents her claim to, what has always been, a Polish insurer, and she says to the Polish insurer, ‘Look, this is not right. You crashed into me. I’ve suffered a very modest loss. Will you compensate me for this?’. At no point do they write back and say, ‘Aha. I’m not liable for that. I’m not liable for that because, unbeknownst to you, in Poland, there is no direct right cause of action. We didn’t adhere to these various EU directives. Bad luck.’ It is absurd to propose that they wouldn’t know that. They are Polish insures. All they do is insure Polish vehicles in relation to road traffic matters. So not only has the point never been made in argument before, the appellant is essentially holding up a false defence. There has never been and there could be [that defence].”
The claimant also submitted that DDJ Pithouse did not properly take into account or evaluate the consequences if the Claim was stuck out, especially in the light of the modest value and the pre-action admission of liability. In respect of the possibility of expert evidence, the claimant argued that if it was required in every case, the low value RTA rules would have included an express provision for the recovery of such a disbursement. This was a point that the Appeal Judges seemed to indicate that expert evidence would only be necessary if the defendant did not admit that the particular law applied.
(Please note, these are only a few brief points and I encourage those who are interested to watch the appeal. It was really riveting to hear both arguments).
Judgment
The Court of Appeal handed down its judgment on the 22nd November 2024 dismissing the defendant’s appeal.
The Court of Appeal, was of the view that Deputy District Judge Pithouse did have sufficient material before him that indicated that an application to amend the cause of action was not only arguable but likely to succeed. This was on the basis that Poland was obligated to implement the Sixth Motor Directive in its domestic law, and the defendant’s conduct supported this.
They noted that Jake’s skeleton argument clearly outlined the direct claim, and the defendant, as a Polish motor insurer, would have known this. They found that DDJ Pithouse should have inferred that there was unlikely to be an issue regarding the direct claim under Polish law. Additionally, the defendant’s position was that the pleading defect could be cured, rather than asserting it could not. They were not satisfied that the claimant needed to spell out the specific provision to get over the threshold.
With respect to the proposition of requiring expert evidence (which of course was the proposed higher bar that the claimant needed to meet), Popplewell LJ said the following:-
30. As to expert evidence, that is a matter of proof, not pleading, and although foreign law is a question of fact, which, subject to a number of exceptions, has to be proved by evidence, it is by no means necessary in every case for a party to adduce such expert evidence when applying to amend a pleading. Only if there is likely to be an issue as to whether the party seeking to rely on foreign law can surmount the threshold of arguability necessary to support an amendment will it be appropriate to embark upon an evidential inquiry with foreign expert reports at that stage. This was obviously not such a case.
The other question was whether the claimant’s application could succeed given that an amendment would happen after the expiration of limitation and s35 Limitation Act 1980/CPR 17.4 would require a new cause of action or amendment to arise out of substantially the same facts. Popplewell LJ said:-
31. There remains the question whether an amendment would fall foul of s. 35 of the Limitation Act 1980 or whether the new cause of action arises out of the same or substantially the same facts, which we have to address by reference to the procedural position which has arisen. The Judge held that the DDJ had not decided that question, and there is no appeal from that aspect of his decision. It was treated, therefore, by the DDJ and the Judge, as an arguable point of law which did not fall for decision on the strike out application, although as I have said, the Judge went on to express his view that the new cause of action did arise out of the same or substantially the same facts so that the Limitation Act would form no hindrance to the amendment. If so treated as an arguable point of law, it does nothing to undermine the conclusion that the DDJ ought to have held that the defect could be cured by a pleading with a real prospect of success.
32. My provisional view is that the Judge’s obiter conclusion is correct and that the amended claim arises out of the same or substantially the same facts. It is well established that a claim can arise out of the same or substantially the same facts even if it depends upon a new fact: Mulalley v Martlet Homes Ltd [2022] EWCA Civ 32. Although foreign law is a question of fact, it has been treated as a special kind of question of fact, and one on which findings are to be treated differently from other findings of fact: see for example Bumper Development Corporation v Commissioner of Police for the Metropolis [1991] 1 W.L.R. 1362 at 1370 per Purchas LJ. It is, in substance, part of the identification of the legal, rather than factual, basis for a claim. A change in the legal basis of a claim can be made without offending against either the letter or the spirit of what is precluded by s. 35 of the Act and CPR part 17.4(2), the main purpose of which is to avoid placing a defendant in the position where if the amendment is allowed it will be obliged after expiration of the limitation period to investigate facts and obtain evidence of matters which are completely outside the ambit of, and unrelated to those facts which it could reasonably be assumed to have investigated for the purpose of defending the unamended claim: Goode v Martin[2001] 3 All ER 562. In this case no new investigation would be required of PZU at all, since it can be taken to be familiar with the relevant position in Polish law. Moreover, if it should be confirmed at the amendment hearing that there is no issue about it (on which PZU will have to make its position clear), so that the (foreign) legal basis of the claim were undisputed, it would be quite contrary to the purpose of s. 35 of the Act and CPR 17.4(2) if the introduction of that undisputed “fact” alone were sufficient to require the claim to be treated as arising out of facts which were substantially different.
33. However, this appeal is not about limitation, and we received no argument on the point,which will be for the County Court to determine if necessary, taking into account not only the points to which I have referred but all the arguments which PZU and Ms Alton choose to advance. I have only expressed my provisional view because it may help the parties to avoid wasting further costs where, subject to this point, liability is unlikely to be in issue, the personal injuries are evidenced by medical reports, and the amount claimed is modest in comparison to the costs which may be incurred in further procedural disputes. My conclusion about the DDJ’s first error, is not, however, dependent on these provisional views about limitation.
Poppenwell LJ found that DDJ Pithouse did not appropriately balance the prejudice of the claimant and defendant properly and that there was no evaluation of those factors. He found that on balance, the prejudice strongly favoured dismissing the strike out. He therefore found that Judge Park was correct to interfere with DDJ Pithouse’s decision and make his own fresh conclusions of the application.
Commentary
The key takeaway from this judgment is that the initial approach to the strike-out application should have involved a thorough evaluation of all factors, leading to the conclusion that an unless order was appropriate. In some cases, a proper assessment could yield a different result, particularly if the issue has been presented to the court before.
Many applications from defendants typically include two arguments: a strike-out application or an unless order. Swain v Hillman was referred to at the Court of Appeal hearing. It is the test usually used to establish whether someone has a real rather than fanciful prospect of success (to determine a summary judgment or to set aside default judgment).
I can see why the Court of Appeal and Judge Parker were of the view that the claimant only needed to show that it was more likely than not that there was a way to remedy the defect. This was a specific technical point. An amendment to a cause of action may not be remedied, and if the other party wishes to pursue it, they may need to present evidence to support their claim.
The title of this post includes the phrase “and the accompanying satellite litigation’. This is in respect of what Poppenwell LJ said at paragraph 33. It was his view that the parties should come together and avoid a further hearing to determine the claimants actual application to amend the particulars of claim. He noted that liability was admitted. He noted that it was a modest claim, and he indicated (and it was not a point raised on appeal, so he gave it purely to assist the parties) that such an application would likely succeed and that it would be in the party’s best interest to save costs and court resources of proceeding to a hearing.
It is like the time I had to assist as a consultant on a case where a junior solicitor received a file from another law firm and forgot to issue a protective claim form. It was received by the court (i.e. date deemed to have been brought) 5 days after limitation. Quite literally, I reached out to both Defendants and reitterated that the s11 Limitation defence was exactly that, a defence they were entitled to rely on. They did not have to and their clients could take the proportionate view not to raise it. Either they failed to understand or chose not to but both told me that the claims were ‘statute barred’ and that they would strike out the claim.
After many months and multiple hearings, the Court concluded that it was correct and appropriaterity to disapply Section 11 of the Limitation Act 1980, in accordance with Section 33 of the same Act. Ironically, this process cost both Defendants considerable time and expense. More importantly, by the time the limitation issue was resolved, the driver of the Claimant’s car had already proceeded to a fast-track trial and had been successful. As a result, the Claimant’s chances of success significantly increased.
I thought back this this case when I read paragraph 33 of Alton v PZU. Parties really do sometimes cause so much more work and hassle contesting points that ought not to be contested.
As a closing point, I should emphasise to all that if you attend the Court of Appeal and it’s being streamed, just remember the recording does not stop just because the Judges have left. It has, unfortunately, caught me saying (as we left the court room) “do you think they will mind if I take on of these [law] books as a souvenir?”. Fortunately, the Court clerks did not say anything bad either because their entire conversation after we all left was also included and remains on YouTube.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
For years, the fixed costs for RTA, EL, and PL litigated matters under £25,000 remained unchanged. Only accidents that occur on or after 1st October 2024 are subject to the new, increased amounts. That’s just over 10 years after they were introduced.
Now, after over three years following its implementation, that has been the publication of the review, which has suggestions to increase the whiplash tariff. You can read the report by clicking here.
Highlights
There a three main takeaways from the report, at least in my view:-
When considering how to account for inflation, the report considered whether to rely on CPI or RPI (deciding to go with CPI).
They intend to increase the whiplash awards
They intend to clarify what is a minor ‘injury’
Inflation
The JC Guidelines, in the 17th edition, advised they intended to increase inflation in line with RPI, but said it would be for the judiciary to decide.
It was considered whether RPI or CPI should be used. They said when considering an increase due to inflation, it’s important to choose the right measure. Claimant representatives have suggested using the Retail Prices Index (RPI) because it is currently used to adjust the JCG and would likely result in a bigger tariff increase. However, the Office of National Statistics (ONS) has stated that RPI is not a reliable measure of inflation and could overstate it. A joint consultation by HM Treasury and the UK Statistics Authority showed that RPI will be reformed by 2030 to match the Consumer Prices Index (CPI) Housing measure.
As a result, the ONS recommends using the Consumer Prices Index (CPI) whenever possible. This is consistent with the methods used in the original tariff calculations and the last Personal Injury Discount Rate review in 2019, which also used CPI. Additionally, when the small claims track limit was raised to £1,500 in 2022, CPI was the measure chosen.
Essentially the review opted for CPI:-
Having considered the available data and evidence I have have decided that there that there should be some level of inflationary increase to the tariff, and that the appropriate should be measure is CPI. RPI as it is currently calculated would overstate inflation and use of CPI is in line with common practice across government.
Increase by up to 15%
After considering various options, the suggestion was to increase tariff amounts for CPI inflation from 2021-2024 and add a three-year buffer, resulting in a 14-15% increase for each band. It is suggested that the brackets may increase to the following figures:-
Duration of Injury
Increased in line with CPI
Whiplash
With minor psych
0-3 months
£275
£300
3-6 months
£565
£595
6-9 months
£965
£1,025
9-12 months
£1,510
£1,595
12-15 months
£2,335
£2,435
15-18 months
£3,445
£3,550
18 to 24 months
£4,830
£4,975
Minor psychological injury
It was noted from feedback from the Call for Evidence suggests there can be disagreement about the definition of minor psychological injuries, leading to more secondary medical reports. Chapter 14 – Minor Injuries of the JC Guide states that a minor injury typically lasts no more than three months. However, injuries like travel anxiety may still be deemed minor even if they persist longer.
I would usually refer to Chapter 4 – Psychiatric and Psychological Injury (A) Psychiatric Damage Generally (d) Less Severe gave the following guidance:-
Cases falling short of a specific phobia or disorder such as travel anxiety when associated with minor physical symptoms may be found in Chapter 14: Minor Injuries.
I would follow the same procedure and argue that if it did not meet the criteria for a specific phobia or disorder (which falls within Chapter 14) then it is deemed to be a minor psychological injury.
The outcome suggests that minor injuries are short-term injuries resulting in complete recovery within three months and not covered elsewhere. Cases involving significant pain, multiple injuries, or travel anxiety related to minor injuries, where symptoms last beyond three months, may be included. Compensation awards will depend on the severity and duration of symptoms, as well as their consistency. Claims for shock or travel anxiety without physical injuries or recognised psychiatric conditions will not qualify for compensation.
What will happen now?
Now that the Lord Chancellor (whether Shabana Madmood could have opted for Lady Chancellor) must consult the Lady Chief Justice and the outcome communicated to the relevant stakeholders before a statutory instrument is laid before parliament. No doubt we will hear within the forthcoming months.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
In the case of Extreme E Limited v Extreme Networks Limited, the appellant (ENL) was represented by Mr Aaron Wood (who appeared for his client in the High Court in the first appeal of the matter).
Even now, as CILEX lawyers embark on their journey to become higher court advocates, many—if not most—are completely unaware that there are other professionals who are not barristers or solicitor-advocates appearing in senior courts. For example, Mr. Wood, who is a Trade Mark Attorney, is one such individual.
Aaron informed me that this was not his first appearance before the Court of Appeal; it was just the first time he appeared in person instead of remotely. Although I was aware that Trade Mark Attorneys have the right of audience, I was disappointed to learn that someone like Aaron has already appeared in the Court of Appeal before (Thomas v Luv One Luv All Promotions Ltd & Anor [2021] EWCA Civ 732) and I wasn’t even aware of it. I believe others should be aware of this as well.
It seems that Trade Mark Attorneys are underappreciated, and the legal sector is even less aware of them compared with CILEX. Therefore, this post is about Aaron and Trade Mark Attorneys.
What is a Trade Mark Attorney?
A Trade Mark attorney specialises in trademark law and helps individuals, businesses, and organizations with trademark protection, registration, and enforcement. Trademarks are unique signs, such as logos or slogans, that identify goods or services.
These attorneys are qualified to represent clients in various intellectual property legal matters, including appeals in the High Court and litigations in the Intellectual Property Enterprise Court (IPEC). They can also obtain a further advocacy and litigation certificate to appear in all Courts (namely the Court of Appeal and the Supreme Court).
Trade Mark Attorneys are regulated by the Intellectual Property Regulation Board and their representative body is the Chartered Institute of Chartered Trade Mark Attorneys.
How do they qualify?
To qualify as a Trade Mark Attorney, it’s not compulsory to have a law degree but a degree with at least 2:1 is required. The law degree may provide exemptions.
The next step of the qualification is a postgraduate course, offered by select universities. The first court is the ‘Postgraduate Certificate in Intellectual Property’. This covers Patents & Design and Copyright and Trademarks. The second qualification is the “Professional Certificate in Trade Mark Practice” and is the final qualification required for the vocational element of the qualification.
After undertaking the two qualifications, an applicant will need to complete two years’ work experience in trade mark legal practice to qualify as a trade mark attorney. They would normally do this while they are studying at the firm that has taken them on as a trainee and under the guidance of an experienced mentor.
Who is Aaron Wood?
Aaron has been undertaking senior court advocacy in trade mark matters for years (with one of his earliest reported cases being 2015 where he is identified as a Trade Mark Advocate).
Aaron Wood is a Chartered Trademark Attorney in the UK with over 20 years of experience in intellectual property. He joined Novagraaf in 2024 after working at various law and attorney firms. Some of those firms inclde:-
Brandsmiths
Blaser Mills law
Keystone Law
Wood IP
Swindell & Pearson
Wilson Gunn
Simmons & Simmons.
Aaron holds an LLB in Law with French Law from the University of Birmingham and a Diplome en Etudes Juridiques Francaises from the University of Limoges. He is a Chartered Trade Mark attorney with certificates in Trade Mark Litigators and Advocates, a qualified mediator, and a member of both the Chartered Institute of Arbitrators and the Society of Mediators.
He has expertise in trademark registration and portfolio management, trademark prosecution, trademark filing strategies, trademark dispute resolution and IP litigation. He specialises in automotive and aviation, beverages, fashion and textiles, food and food technology, sports, travel and entertainment, and telecommunications.
His profile on his current firm’s website is just a snippet of the matters that Aaron has been involved with, and many of his other cases can be found in reported matters online and in resources such as WestLaw.
Don’t forget!
While I am pleased that CILEX is making progress, I believe it’s important to acknowledge the various types of lawyers beyond just the two commonly recognised. There are Cost Lawyers, Licensed Conveyancers, Notaries, and many others. It’s evident that there are more than just two or three types of legal professionals in England and Wales.
We should do more to recognise them, especially those like Aaron, who has achieved so much and probably doesn’t get the recognition he deserves.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
When I first started litigation I was taught the basics such as the fact that a child’s settlement had to be approved by the Court and appropriately protected until the child reaches majority age (18 years of age).
I recall other fee earners having training about infant cases and one particular team being moritifed when the Barrister giving the training was horrified to hear of that team utilising parental indemnity for settlements.
There is a real straightforward reason as to why that Barrister was concerned and condemned the use of parental indemnity, and that’s because of what CPR 21.10 says:-
21.10—
(1) Where a claim is made—
(a) by or on behalf of a child or protected party or
(b) against a child or protected party, no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court.
The civil procedure rules prevent any acceptance of an offer from being valid until the Court approves it. This is the ultimate safeguard for the child who cannot conduct their own claim or give instructions as they have no standing.
Sometimes, those in litigation forget this. So I was instructed on a matter where a child’s Solicitors had accepted an offer to settle. A new fee earner took over conduct and, upon reviewing the medical evidence, realised that a psychologist was recommended. This was obtained and a recognised psychiatric DSM-5 disorder was diagnosed. This substantially changed the landscape in terms of damages. The offer that was provisionally agreed subject to approval by the Court was far too low. Whilst an application was made to adjourn the IAH, it is likely that if the matter proceeded to an Infant Approval Hearing, the Court would have adjourned and ordered a psychological report.
Imagine if this was circumvented by a parental indemnity agreement?
What is a parental indemnity agreement?
The agreement is between the parent and the child. It essentially discharges the liability on the parent. So if the child becomes 18 and finds out that the settlement was undervalued or the parents have spent the money on a holiday, then the parents would have a claim against them by the child.
This should never be accepted as a form of settlement. This is a significant risk to the litigation friend and to the firm. The White Book gives the following advice:-
Where a settlement has been reached without approval and where it is alleged the legal advisers were negligent in under or over settling, the usual route is likely to seek to re-open the original claim, with the legal advisors indemnifying for any adverse costs in seeking to do so. The claimant is likely to in any event seek an indemnity against the advisers for any adverse costs. However, it may still be possible to bring an action against the legal advisors (see Evans v Betesh Partnership (A Firm) [2021] EWCA Civ 1194).\
For those reasons, always seek approval of the court regarding settlement. If proceedings have not been issued, you can issue Part 8. If proceedings have already been issued, then all that is needed is an application.
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Alec Hancock is a CILEX Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters save for family proceedings.
Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Board is the regulator. Alec will attend any Court in England and Wales. He does not charge extra for:-
Truro County Court
Bodmin County Court
Plymouth County Court
Exeter County Court
Torquay & Newton Abbot County Court
Taunton County Court
Barnstaple County Court
Contact Alec Hancock
Alec Hancock cannot accept instructions from the general public. He can receive instructions from any law firm or entity subject to professional availability and conflict checks.
I actually find the topic of rights of audience and the exceptions to be very interesting. Despite a significant number of fee earners and county court advocates relying on these exemptions, there is no binding authority and the Court of Appeal specifically refused to deal with the issue as being academic.
Whilst Halborg v Apple has gone a long way to assist all on the topic, it is a Circuit Judge’s opinion in the County Court. At the very least, being an appeal and considering details submissions on the issue means that it has some weight.
The particular issue I want to discuss is the second limb of the schedule 3 para (7) of the Legal Services Act 2007 exemption which is that the person, who is seeking the exemption is assisting in the conduct of litigation under instructions given by an individual to whom sub-paragraph (8) applies, an under the supervision of that individual.
I think Judge Backhouse was correct and it can apply to advocates who are not in-house (county court advocates)/
What did HHJ Backhouse in Halborg say on the matter?
In this particular case, the Solicitors for the relevant party were SCS Law (the litigation trading name of LPC Law) and the county court advocate was instructed by LPC Law. So for all intents and purposes, those instructing and supervising were one and the same. This is very unusual but, I will explain in due course why I say it does not matter if the instructing solicitors and those arranging the advocacy are two different law firms.
Judge Backhouse was of the view that the description of supervision given included elements that were more in line with the definition of training. She relied on the Oxford English Dictionary which defines ‘supervision’ as ‘the action or function of overseeing, directing, or taking charge of a person, organisation, activity, etc.’
She said that LPC had a system in place to oversee and direct its advocates and ensure their competence. Their advocates receive significant initial and ongoing training, were observed in court, and their performance is monitored through reports to LPC. It is not necessary for the supervising Solicitor to personally supervise every activity of every advocate as long as LPC had a system in place for matters requiring the supervising Solicitor’s attention. Judge Backhouse further said that the Court should not enquire into the adequacy of supervision provided by solicitors to advocates; that is a regulatory function.
How can this function when the instructing Solicitor and the Solicitors providing the advocacy are not the same?
There was no further elaboration on how the supervision point applies when the instructing solicitor and the solicitors providing the advocacy were not same solicitors.
I am of the view that supervision passes from the instructing solicitors to the advocacy solicitors. It will assist if you treat the term ‘Solicitor’s Agent’ not the advocate that turns up at Court, but the law firm who are instructed to arrange for that advocate.
In Re Pomeroy & Tanner [1897] 1 Ch 284 the Court found that work undertaken by a solicitor agent was not a disbursement but was considered to be profit costs of the instructing solicitor:-
“It is well settled that between the client and the London agent of the country solicitor there is no privity. The relationship of solicitor and client does not extend between the client and the London agent. What is done by the London agent is part of the work done by the country solicitorfor the client. The country solicitor does or may do part of the work personally. He does or may do part of his work through clerks whom he employs in the country. Or, if necessary… he may do the part of his work through a London agent. But as between the country solicitor and the client, the whole of the work is done by the country solicitor. It follows, therefore, that the items which make up the London agent’s bill are not mere disbursements, but are items taxable in the strictest sense as between client and the country solicitor, just as much as items in respect of work done by the country solicitor personally, or by the clerk whom he employes in the country”.
I would say that this concept applies to the principle of advocacy supervision. In the above case, the country solicitor is the instructing solicitor and the London solicitor is the agent. As per the above High Court authority, work done by the London solicitor is treated as work done by the country solicitor.
Solicitor agency is not the instruction of individual solicitors, but firms. So the work done by the London solicitor firm is treated as the country solicitor firm. If this is correct, then the supervising solicitor at the London firm would be treated as an extension of the country solicitor firm. Whilst the country solicitors would have a claim against the London solicitors for any negligence on their part, the buck, in terms of the client, stops with the country solicitors.
It is important to note that “just as much as items in respect of work done by the country solicitor personally, or by the clerk whom he employs in the country” refers to the proposition that the country solicitor would supervise the non-qualified fee earner who would then be able to rely on the exemption under sch 3 Legal Services Act 2007.
Therefore, why would the work carried out by the London solicitor, supervising the non-qualified fee earner, be treated any different than any other work under the agency agreement. This premise was also indirectly acknowledged by Judge Backhouse:-
“It also appears to be the case, as set out in the Law Society guidance and the notes to the White Book, that even before the 1990 Act rights of audience in chambers extended to independent contractors instructed by solicitors, as well as to those employed by solicitors”.
Conclusion
It is my view that the sch 3 exemption would encompass the circumstance where the solicitors on records instruct another law firm that conducts the advocacy. The instructing solicitors have to treat the work done by the advocacy solicitors as their own.
If, for example, a solicitor or CILEX advocate at the advocacy firm undertakes the advocacy, then they are not relying on the sch 3 exemption. However, their fees are treated as profit costs of the instructing solicitors. It is part of the work of the instructing solicitor.
The supervision then comes from the supervising solicitor (or CILEX Lawyer if they have practice rights in civil litigation) within the advocacy firm. It is as if they actually work in the instructing solicitors’ firm and are supervising a non-qualified fee earner so they can exercise the right of audience under sch 3.
This works with advocacy agency firms such as Quest Legal Advocates and LPC Law, which are SRA-regulated law firms. Judge Backhouse said the level and adequacy of the supervision is not a question for the sch 3 exemption; that is a regulatory issue for the firm’s regulator (SRA, CILEX Regulation, BSB, et al.). Most importantly, it means the work conducted by the advocates is protected by either the PII of the advocacy firm or potentially the instructing firm (albeit, more likely the former save for claims brought by the client against the instructing solicitors.
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AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
It is important for litigators to be aware of procedural flaws in the Damages Claims Portal (‘DCP’) which is likely to lead to unintentional dismissals of claims.
There can be a time when an application is made by either side whilst the claim is within the DCP. However, it is usually applications such as permission to extend the time for service of the claim form under CPR 7.6 that causes issues for Claimants.
Applications during the DCP
There has been a slight update to the DCP rules found in PD 51ZB (and this means that practitioners for both Claimants and Defendants ought to continuously check for updates). Certain applications can be issued on the DCP:-
SECTION 7A – APPLICATIONS FOR COURT ORDERS
Applications for court orders – online applications
7A.1
(1) This paragraph applies where a party wishes to make an application and all the parties are represented.
(2) Subject to subparagraph (10), a party wishing to make an application must use the DCP to make that application (“online application”).
(3) The applicant makes an online application using the DCP by—
(a) completing the relevant screens on the DCP; and
(b) submitting the online application to the court using the DCP.
(4) An online application is to be treated as the application notice for the purposes of the CPR and in particular Part 23.
(5) Unless the online application is made without notice under CPR rule 23.4, the respondent is to be notified, through the DCP, of the application as soon as it is made.
(6) If the applicant requests that the online application is made without notice to the respondent, the application is to be referred to a judge to consider the request.
(7) After an online application has been made and unless the application is to be dealt with without notice, the respondent must provide initial information to assist with managing the future conduct of the application (“respondent information”) by –
(a) completing the relevant screens on the DCP;
(b) submitting the completed screens to the court using the DCP; and
(c) if relevant and requested to do so by the court, confirming whether the respondent consents to the application.
(8) If the respondent confirms that they had consented to the application and that their consent was given before the application was made, the application is to be treated as an application for a consent order and the requirements in rule 40.6(7)(c) and PD 40B paragraph 3.4(3) are disapplied.
(9) The respondent must provide their respondent information –
(a) before 4pm on the 5th day after the date of notification of the online application; or
(b) within such other time limit notified to the respondent at the same time that the respondent is notified of the online application as directed by the Designated Civil Judge Online.
(10) The following applications must be made as on-paper applications–
(a) any application made before a claim has been issued;
(b) any application for default judgment under paragraph 6.6(4)(b) where there is a Mental Health Crisis Moratorium in place under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020;
(c) any application relating to—
(i) an appeal;
(ii) enforcement; or
(iii) insolvency;
(d) any application where any respondent is not already a party to the claim.
Other applications
7A.2
(1) If a party wishes to make an application that is not an online application or otherwise covered by a provision of this practice direction, the application must be made using the procedure set out in the rest of the Civil Procedure Rules.
(2) Any application made under subparagraph (1) is to be made to the CNBC or, where the parties have received an order from a judge at a County Court hearing centre, or have been informed that the claim is to be managed at a County Court hearing centre, that hearing centre.
(3) If an application is made and unless sub-paragraph (4) applies, the claim is to be referred to a judge for directions, which may include that the claim is to be transferred out of the DCP.
(4) If the application made is an application for default judgment under paragraph 6.6(4)(b) where there is a Mental Health Crisis Moratorium in place under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020, the claim must be transferred out of the DCP.
This means that unless you are going to make an application that fits within the list of applications found in PD51ZB para 7A.1(10), you will need to send your application to the Civil National Business Centre (‘CNBC’).
Unintended consequence
The issue is that the DCP will automatically dismiss the claim if the Defendant is not notified of the claim (the DCP version of severing the claim form). This is problematic if the Claimant has made an application.
Such an automated response doesn’t happen when the Claim Form is issued at the Civil National Business Centre. The application is made and if it were to be refused it would mean the claim would expire. However, it meant there was an actual determination before that occurred (because as long as the application was made before the expiration of the deadline, it was treated as being made in time, even if the determination occurred after the expiration).
The DCP automatically dismisses the claim, which causes concern because Claimant lawyers feel like they must do something (such as a subsequent application) to remedy the issue. That increases time, cost and resource expenditure for the parties and the Court.
It is therefore vital that if an application needs to be made to extend the time, that you preemptively accept that the claim will be automatically dismissed. It may be prudent to address this in the application because it is inevitable and there is little point trying to address it later. It will happen so do not be surpised.
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Alec Hancock is a CILEX Advocate and Litigator in Civil Proceedings. CILEX Regulation is his regulator. He can appear in open Court in all County Court matters save for family proceedings.
Alec Hancock conducts his advocacy through AJH Advocacy Limited. The Bar Standards Board is the regulator. Alec will attend any Court in England and Wales. He does not charge extra for:-
Truro County Court
Bodmin County Court
Plymouth County Court
Exeter County Court
Torquay & Newton Abbot County Court
Taunton County Court
Barnstaple County Court
Contact Alec Hancock
Alec Hancock cannot accept instructions from the general public. He can receive instructions from any law firm or entity subject to professional availability and conflict checks.
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