The Law Commission



APPENDIX D

CONSIDERING THE LIKELY IMPACT OF OUR PROPOSALS

D1.     The report recommends replacing the existing statutory discretion with a presumption in favour of a specified rate, set each year at 1% above the bank base rate prevailing at the time. The courts would be able to depart from this rate where there are good reasons to do so. In larger cases (over £15,000) there would also be a presumption that the interest rate should be compound rather than simple.
D2.     These proposals have the potential to affect a wide range of commercial and consumer debt and damages actions, together with some personal injury and professional negligence claims. A broad estimate suggests than around 500,000 court actions a year would be affected, though in most cases the impact would be small.
D3.     This appendix is a first attempt to assess the impact of these proposals, looking separately at consumer debt, commercial debt, personal injury and professional negligence litigation.
D4.     There are four reasons why assessing the impact is difficult:

(1) Our knowledge of court business is patchy. In the discussion that follows we have relied on a mixture of court statistics and one-off studies. Both sets of data should be treated with care. Court statistics often mask important differences between cases, while one-off studies are limited in both place and time. For example, we have attempted to interpret 2001 national figures^[1] by applying findings from a detailed study of the business of the Sheffield courts in 1996-7.^[2] Such an approach is suggestive only. Sheffield may not be a typical court, and much may have changed since 1997.

(2) We lack reliable quantitative data on how often interest is currently awarded, or at what rate. The data collection exercise in Central London County Court described in Appendix C is an attempt to plug this gap. However, it is based on a small and limited sample, and must be treated with care.

(3) We do not know how the courts would adjust to low interest rates in the absence of statutory reform. Some adjustment is likely – but would probably take place in an uncertain and ad hoc way.

(4) We do not know what will happen to commercial interest rates in the future – whether the bank base rate will continue low or will rise again. If we assume low interest rates, our proposals are essentially "defendant-friendly". As interest rates rise, however, they become progressively more "claimant-friendly". These caveats need to be borne in mind in the discussion that follows.

THE EFFECT ON CONSUMER DEBTORS

D5.     Before looking at cases that will be affected, it is important to stress which cases will not be affected. Three types of consumer debt will not be affected:

(1) any contract that already specifies an interest rate – such as mortgage contracts, bank loans, store or credit card debts;

(2) any statutory debt (such as income tax) where the interest rate is specified by statute;

(3) debts where interest is not currently awarded. Our understanding is that in practice, District Judges very rarely award interest on debts associated with poverty, such as domestic rent, water or fuel debts.

D6.     The main type of debts that will be affected are those owed for unpaid goods and services. Often these are owed to small firms or traders – for building work, car repairs, solicitors' bills etc.^[3]
D7.     In 2001, 1,461,105 default actions were issued in the county court.^[4] How many of these represent debt actions brought against consumers of the type that may attract interest at a rate set by the court? Although this is a difficult question to answer with any precision, some answers are suggested by the audit of work in Sheffield County Court in 1996-7. This found that out of all default actions issued, 72% were liquidated; of which 52% were brought by firms or organisations against individuals. Of these, 23% were for work done or services rendered and 9% were for goods not paid for.^[5] This would suggest that around 175,000 actions for unpaid goods and services brought against consumers each year.^[6] The number is likely to fluctuate with changes in the economy.
D8.     In our own data collection exercise, we gathered data on 41 actions brought against consumers for unpaid goods and services. Of these 13 did not ask for interest, and one asked for contractual interest. On this basis, we have made a rough estimate that one third of such claims will not be affected, whereas the remaining two-thirds will be affected. This would suggest that our proposals will affect 117,000 consumer cases per year.

County court default actions: small, quick and routine

D9.     Most consumer debt actions are small. The Sheffield study found that over 90% of county court liquidated claims in 1996-7 were for £3,000 or less. Most of the bigger claims related to the repayment of loans. Among claims for work done or goods delivered, less than 2% exceeded £5,000.^[7]
D10.     Most of these claims were also quick. Looking at liquidated claims as a whole, only 19% were defended. Most ended with default judgments (44%), or were withdrawn (23%) or settled (14%) before a defence was entered. This meant that consumer claims completed their passage through the county court within a few months. Almost two thirds were completed within 8 weeks and 85% were completed within 24 weeks.^[8]
D11.     The picture is one of many small, quick cases processed as a matter of routine. Consumer defendants were very unlikely to be represented. The Sheffield study found that defendants were represented in less than 3% of county court default actions for work done or goods delivered.^[9] This suggests that interest rates will also be imposed as matter of routine, with few opportunities for discussion.

Consumer actions in the High Court

D12.     In theory, consumer debt actions may also be started in the High Court. However, the Sheffield study found that the High Court was overwhelmingly used by businesses against businesses. Only 10% of liquidated actions brought in 1996-7 were against individuals.^[10]
D13.     Liquidated High Court claims were for surprisingly small amounts. Overall, 65% were for less than £3,000. Among liquidated claims brought against individual defendants, only 7% exceeded £10,000.^[11] Most High Court debt claims could have been brought in the county court.

Cases that proceed to a small claims hearing

D14.     The consumer debt cases that will be most strongly affected by our proposals will be those in which the debt is disputed. The Judicial Statistics show that in 2001 20,520 debt-related small claims hearings took place in which the defendant was an individual.^[12] These cases last longer than undisputed claims, so interest payments will be higher. On average it takes 28 weeks for a debt claim to proceed from issue to hearing.^[13] If one assumes that it will take several months for the claimant to pursue the debt before issue, one may hazard a guess that such cases would take, on average, around a year from cause of action to judgment.
D15.     Most defendants to small claims hearings lose. In Baldwin's study of small claims hearings, 62% of claimants succeeded wholly or in large part, and 9% succeeded in some part.^[14] It is therefore common for consumer defendants to small claims hearings to end up with a judgment made against them. The figures suggest around 14,570 such judgments each year. In many cases the judgment will bear interest under the County Courts Act 1984, section 69.
D16.     Not all judgments are actually paid. Baldwin points out that six months after the hearing, only half had been paid in full. In a quarter of cases, no payment at all had been received.^[15] However, consumers may be concerned about the size of any court judgment entered against them even they are unable to pay it. (They may be especially concerned about those they are unable to pay.) It is important that court judgments are perceived as just, whether or not they are actually paid.

The effect of interest proposals on consumer debtors: conclusion

D17.     On a rough estimate, our proposals may affect up to 117,000 consumer debt actions each year. In the main, these will be cases brought by small firms and traders in respect of work done and (to a lesser extent) goods delivered. The amount of interest consumers will be required to pay will be reduced from 8% to 4.75%.
D18.     Most of these actions are fairly small and quick. Thus the amount of money at stake is not great. The Sheffield study found that the median value claim was less than £500. We may also assume that most claims are concluded within six months of the cause of action arising. This would suggest that in the majority of cases, the reduction would be £8.12 or less. ^[16]
D19.     The cases most affected will be where the defendant enters a defence and proceeds to a hearing. It is especially important that interest rates should not be perceived as way of discouraging defendants to put forward a legitimate defence. Even if the defendant eventually loses (as they do in around 14,570 cases a year) the interest entered in judgment against them should be perceived as compensatory rather than penal. Assuming a claim of £3,000 lasting for a year, the difference in interest from 8% to 4.75% would amount to £97.50.^[17]
D20.     The proposals allow the court to adjust rates, if for example, a debtor has deliberately delayed payment and the trader has been forced to borrow money at high interest rates. Given the routine nature of most debt collection, and the low level of representation, these provisions will probably be used relatively rarely.
D21.     Finally, it would appear that the introduction of compound interest will have very little effect against consumers. It is rare for actions to be brought against consumers for more than £15,000. Where such actions are brought they will usually be for money lent, where the interest rate (and compounding intervals) are already set by contract.

COMMERCIAL DEBT RECOVERY

D22.     The Sheffield study suggests that out of county court liquidated default actions, around a third (32%) are brought by firms against firms specifically for unpaid goods or services. Applying this proportion to the Judicial Statistics figures would suggest that in 2001 around 337,000 commercial debt cases were started in the county court.^[18]
D23.     The High Court is also commonly used for commercial debt recovery. In 2001, 16,491 Queen's Bench Cases were started in District Registries.^[19] The Sheffield study found that these were overwhelmingly commercial debt recovery. In all, 93% of cases started were liquidated claims, and 82% were classic commercial debts brought by firms against firms for the recovery of money owed for goods or services. This would suggest that in 2001 around 13,500 commercial debt claims were brought in District Registries for the price of goods or services.
D24.     The Judicial Statistics show that another 5,122 cases were started in the Royal Courts of Justice in London. However, the profile of these cases is different, with only a minority concerning debt. The Judicial Statistics suggest that only 29% (1,483) were for goods or services. Other prominent categories included personal injury, breach of contract, professional negligence and defamation.
D25.     Taken overall, it would appear that large numbers of court cases are debt actions brought by firms against firms for the supply of goods and services. At a rough guess, in 2001, over 350,000 such actions were brought in either the county court (around 337,000) or High Court (around 15,000). The effect of the Late Payment of Commercial Debts (Interest) Act 1998
D26.     This category of cases (debt recovery by businesses from businesses in respect of goods and services) attracts a higher rate of interest under the 1998 Act, to discourage late payment. This rate, set every six months at 8% above base, is currently 11.75%.
D27.     The 1998 Act does not appear to be widely used, though it is not entirely clear why this should be. There are several possible explanations.

(1) It may take time for the Act to become known, and for cases to work their way through the system. When first introduced in November 1998, the Act only applied to small businesses (50 or fewer employees) collecting debts from big businesses. Such cases are relatively rare. For example, Baldwin's study of small claims found that that only 0.6% of small claims fell into this category.^[20] It is more common for small businesses to sue other small businesses: Baldwin found that in almost a quarter of small claims (24%) a small business or trader was suing another small business or trader.^[21] However, it is only since 7 August 2002, with the inclusion of large businesses. that the Act has reached its full potential.

(2) It may reflect lawyers' lack of interest in interest. Solicitors may be unaware of the Act, and may have failed to grasp its advantages.

(3) Creditors may be reluctant to invoke the Act. It may be thought overly aggressive, or difficult to enforce.

Commercial debts: conclusion

D28.     Our proposals will not affect creditors' rights to claim under the 1998 Act

directly. However, in practical terms they may encourage creditors to use

the 1998 Act for two reasons. First, it will make creditors think about

interest (rather than reaching for the 8% rate on auto-pilot). Secondly, it will increase the differential between the normal court rate and the enhanced rate under the 1998 Act, making the 1998 Act appear more advantageous.

D29.     In cases not covered by the 1998 Act, our proposals will ensure that interest rates more accurately reflect commercial reality. In most small, short cases, the rate the debtor is required to pay will be reduced. In large, longer cases, there are likely to be small increases to reflect compound interest.
D30.     Overall, the greatest effect of our proposals will be in large commercial litigation involving damages rather than debt, which are not covered by the 1998 Act or by contractual terms. The action that spurred this review was a restitution case for money had and received. We were told that interest may also be substantial in breach of patent cases, where losses may spread over many years.^[22] In this type of litigation it is important that English law is regarded as fair, up-to-date and sensitive to commercial realities. It is difficult to justify the lack of compound interest simply on the grounds that the statute does not allow it.

PERSONAL INJURY LITIGATION

D31.     For the purposes of discussion over interest, personal injury damages may be divided into three types.

(1) The most important element is future loss. This does not carry interest at all.

(2) Non-pecuniary damages are subject to special rules – and carry interest at 2% from the date of the claim. The amount of interest at stake is small, and we are not proposing any changes.

(3) Past pecuniary loss carries interest from the date the loss arises. Where loss is continuous (as in loss of earnings) the courts may simplify the calculation by granting interest at half the normal rate. Although case law suggests that they should grant interest at half the special investment rate (ie 3%) we were told that it is often granted at half the judgment rate (ie 4%).

D32.     Our proposal is to reduce the normal rate granted on past pecuniary loss. However, where the amount of the past-pecuniary loss exceeds £15,000, there will be a presumption that the rate should be compound. The rate may also be raised where the claimant can show that they have been forced to borrow money at high rates.

Standard cases

D33.     In order to assess the impact of these proposals, it is important to bear in mind that most personal injury cases settle for relatively small damages. The largest study of "ordinary" personal injury cases is an analysis of over 80,000 legally-aided cases closed in 1996-7 (when legal aid was still generally available for this type of work).^[23] It showed that 70% of successful cases resulted in damages of less than £5,000 and 80% resulted in less than £10,000. These figures are for total damages. Only very serious injuries would result in past pecuniary losses of more than £15,000.
D34.     The study also showed that most cases were concluded within three years. In road, tripping and occupiers' liability cases, most victims consulted solicitors within a month of the accident. The mean duration for work and road accidents thereafter was 29-30 months.
D35.     These figures suggest that in the great majority of cases, our proposals will lead to small savings in the amount of interest paid on past pecuniary loss. To take a couple of examples:

(1) The first would be a small case, where a £500 loss of earnings arises in the week or two immediately following the accident. The case settles 18 months later. If one applies the current base rate plus 1% (4.75%) the interest payable on £500 would be £35.63 compared with £45 if one applied the special investment rate, or £60 if one applied the judgment rate.

(2) In a mid range case, where past pecuniary losses of £10,000 arise continuously over a three-year period, the interest payable under our proposals would be £711, compared with £900 if one applied the special investment rate, or £1,200 if one applied the judgment rate.

However in many cases interest is not calculated precisely, and will be factored into the negotiations in a global way.

Long cases

D36.     Two factors made cases last longer.

(1) First, the more severe the injury, the longer the case duration. On average, severe injuries took twice as long to conclude as minor injuries. ^[24]

(2) Secondly, irrespective of severity, clinical negligence cases took longer to resolve at each step of the process. The legal aid study found that claimants generally took between one and two years to instruct a solicitor – and solicitors then took a mean of 33 months to conclude the case.^[25] It was therefore common for clinical negligence claims for take four or more years to resolve. Similarly, a survey of cases submitted to the Supreme Court Taxing Office found that clinical negligence took an average of 65 months from the time the claimant first consulted a solicitor to judgment or payment, compared with 56 months for other personal injury cases.^[26]

D37.     The longest cases of all were the most severe clinical negligence claims. The NHS Litigation Authority expressed particular concerns about cases involving children (especially those concerning birth-related injuries), where the normal limitation periods do not apply, and claims may be brought to their attention a decade or more after the original incident.
D38.     It is important to look at the impact on clinical negligence cases in greater depth, and these are dealt with in Appendix E.

PROFESSIONAL NEGLIGENCE

D39.     There is evidence to suggest that professional negligence cases are also ranked among the most lengthy cases.
D40.     For example, Genn's survey of Supreme Court Taxing Office Bills in 1995 found that professional negligence actions were the next slowest to resolve, after clinical negligence and personal injury actions. She found that the mean duration for professional negligence cases in the survey was 33 months for non-legal aid cases, rising to 52 months for legally aided cases.^[27]
D41.     An analysis of general legal aid files closed in 1998-9 confirmed that professional negligence cases were particularly slow.^[28] The average case took 46 months from legal aid application to conclusion:^[29] a quarter took five years or more, with longest taking almost 10 years.
D42.     The survey of legal aid bills showed that in practice most cases (78%) were brought against solicitors, with most of the rest brought against surveyors, architects or vets. Damages were in the mid-range. The median amount was £13,750. A quarter were for £5,000 or less, with a quarter for £30,000 or more.
D43.     It is difficult to know exactly how the courts treat interest payments on these cases, but the strong culture in favour the judgment rate would suggest that most currently attract interest at 8%.
D44.     In most cases, the reduction of interest rate from 8% to 4.75% will result in a reduction in interest awarded. But this is an area where claimants may well show that they needed to borrow at higher rates to make good the damages – so the judge may well order a higher rate.
D45.     Where damages are over £15,000, we propose a presumption in favour of a compound rate. Where 11 years have elapsed between the cause of action and settlement/trial, a compound rate of 6% will exceed a simple rate of 8%. It is therefore possible for our proposals to increase the total interest payable, though this would only happen in unusual cases.

Professional negligence cases: conclusion

D46.     The effect of our proposals is likely to be a small reduction in interest payable to claimants in most standard cases. However, additional interest may be paid to those who can show particular need. More interest may also be paid in the very longest cases, where the effect of compounding becomes significant.
D47.     Overall, it would appear that the effect is broadly neutral.

OTHER DISPUTES

D48.     We have looked briefly at other areas of litigation. We do not consider that our proposals will affect actions against the police, judicial review or defamation cases. For housing repairs, the net effect is likely to be a small reduction in the interest paid.

Actions against the Police

D49.     As far as actions against the police are concerned, these may also take a long time to resolve. The analysis of legal aid bills found that, like professional negligence claims, the mean time from legal aid application to resolution was 46 months, with the longest action taking almost 9 years.^[30] The amounts at stake ranged from £400 to £635,000 – but large awards were very much the exception. Generally awards made against the police were small – half under £5,000 and three-quarters under £10,000.^[31]
D50.     Non-pecuniary damages for false imprisonment or malicious prosecution do not usually attract interest.^[32] Although it is possible to include claims for pecuniary loss such as lost earnings, these will be minor. Thus our proposals are unlikely to have much effect in this area.

Judicial review

D51.     Genn found that judicial review actions were resolved comparatively quickly. The average from instruction to settlement or trial was only 12 months.^[33] As the outcome rarely involves a monetary amount, we do not envisage that our proposals would impact in this area.

Defamation

D52.     Damages in defamation actions are largely damages for non-pecuniary loss, which do not normally attract interest of any kind.^[34] Our proposals are unlikely to impact in this area.

Housing disrepair

D53.     We have been unable to locate quantitative data on the duration of actions for housing disrepair or on the amount of the damages. The only recent research is a qualitative interview study on the effect of the Woolf reforms.^[35] Here solicitors suggested a recent marked reduction in time taken. For example, one landlord lawyer suggested that on average unproblematic cases would now take five or six months, whereas previously it could take anything up to two years. Others repeated that whereas previously cases had often taken over 18 months, they could now take three to six months.^[36] The six months is measured from the date at which solicitors become involved. Tenants may take much longer to attempt to resolve the issue directly with the landlord before contacting a solicitor.
D54.     When solicitors were asked about the amount of damages, they suggested that a typical amount would be around £3,000. Some mentioned a range of £2,000 to £3,000,^[37] while others mentioned £3,000 to £4,000.^[38] Solicitors also said that the housing actions were overwhelming small claims or fast track claims. Multi-track claims over £15,000 were very rare.^[39]
D55.     As we understand it, damages for a failure to repair are generally a continuing loss throughout the period between first notification and actual repair, and so would normally carry interest at half the standard rate.
D56.     It is very unlikely that a tenant will be able to show that they have borrowed to cope with the effects of disrepair. It will also be very rare for damages to exceed £15,000 and attract compound interest. The main effect will be a small reduction of interest. Assuming a continuing loss over two years on £3,000, interest at half the 4.75% rate would be £142.20, compared with £240 at half the 8% rate.

CONCLUSION

D57.     The main effect of our proposals will be in commercial litigation. In standard debt collection matters, debtors will usually be required to pay lower rates of interest. However, this will be partially countered if creditors are encouraged to make greater use of the Late Payment of Commercial Debts (Interest) Act 1998. In lengthy disputed litigation, interest payments will more closely reflect commercial realities. The intention is to increase the reputation of English legal system as being fair, up-to-date and commercially realistic.
D58.     In consumer debt cases brought by suppliers of goods and services, interest payments will decrease – but in most cases by only a small amount (under £10). The main effect will be for disputed claims that proceed to a small claims hearing (or almost to a hearing). Here defendants will no longer be penalised for defending the claim, but will be required to pay interest that more closely reflects the cost to the claimant.
D59.     In most personal injury claims there will be a small reduction in the interest payable on past pecuniary loss. However, in the largest, longest cases the introduction of compound interest has the potential to increase interest payments. In practice the greatest effect will be in clinical negligence cases, and we investigate this in Appendix E.

Note 1   Lord Chancellor’s Department, Judicial Statistics Annual Report 2001 (2002) Cm 5551.    [Back]

Note 2   J Shapland, A Sorsby and J Hibbert, A Civil Justice Audit (2002) Lord Chancellor’s Department Research Series 2/02.    [Back]

Note 3   An analysis of legal aid files closed in 1998/9 found that the most common consumer disputes were over building work in its widest sense (including bills owed to electricians, plumbers, home improvement etc). Other common areas of dispute were leasehold services, car repairs and professional bills. See T Goriely and P Das Gupta, Breaking the Code: The Impact of Legal Aid Reforms on General Civil Litigation (2001) Institute of Advanced Legal Studies. The data collection exercise in Central London County Court also included claims for building work, car repairs, leasehold services and legal fees.    [Back]

Note 4   Judicial Statistics 2001, table 4.2, p 39. A default action, unlike fixed date actions for recovery of land or goods, is not automatically listed for a court hearing. Instead, if the defendant fails to defend the hearing, the claimant may ask for a “default judgment” to be entered as a purely administrative procedure. Although default actions account for the majority of county court business, they do not include possession actions, family matters (such as divorce or adoption) or bankruptcy or winding-up petitions.    [Back]

Note 5   Most of the rest were either in connection with public sector debts (eg income tax, repayment of housing benefit) or related to money lent. See Shapland et al, n 2 above, p 31.    [Back]

Note 6   ie 1,461,105 x 0.72 x 0.52 x (0.23 + 0.09).    [Back]

Note 7   Shapland et al, p 34.    [Back]

Note 8   Shapland et al, p 65. This does not include delay before the action is brought (for which interest is payable) or for the further delays between judgment and payment (which is subject to a different interest regime).    [Back]

Note 9   Shapland et al, p 36.    [Back]

Note 10   Shapland et al, p 43.    [Back]

Note 11   Shapland et al, p 44.    [Back]

Note 12   Judicial Statistics 2001, table 4.9.    [Back]

Note 13   Judicial Statistics 2001, table 4.11.    [Back]

Note 14   J Baldwin, Small Claims in the County Courts in England and Wales: the Bargain Basement of Civil Justice (1997) p 28.    [Back]

Note 15   Ibid, p 134.    [Back]

Note 16   £500 x (0.08 – 0.0475)/2    [Back]

Note 17   £3,000 x (0.08 - 0.0475).    [Back]

Note 18   Out of 1,461,105 default actions, 72% were liquidated (1,052,000) of which 32% were brought by firms against firms in respect of unpaid goods and services: see Judicial Statistics 2001, table 4.2 and Shapland et al, p 31.    [Back]

Note 19   Judicial Statistics, table 3.1.    [Back]

Note 20   Baldwin, p 26.    [Back]

Note 21   Ibid.    [Back]

Note 22   See Part IV, n 13, above    [Back]

Note 23   P Pleasance, Report of the Case Profiling Study: Personal Injury Litigation in Practice (1998) Legal Aid Board Research Unit. It is difficult to say how far legally aided cases were typical of all cases, but one might expect that legal aid would attract the larger (and therefore longer and more expensive) claims. This is for two reasons. First, the more severely disabled clients would be more likely to meet the means test. Secondly, solicitors would be less prepared to cover such cases on a speculative basis.    [Back]

Note 24   Ibid, p 68.    [Back]

Note 25   Ibid, p 44. The time measured is from the issue of the legal aid certificate to the submission of the final bill. This should be treated with care – the legal aid certificate may be issued some time after solicitor is first instructed, and the bill may be submitted after the final work on the case.    [Back]

Note 26   H Genn, Survey of Litigation Costs (1996) (conducted for Lord Woolf ’s Inquiry into Access to Justice).    [Back]

Note 27   Ibid, p 49.    [Back]

Note 28   See T Goriely and P Das Gupta, Breaking the Code: The Impact of Legal Aid Reforms on General Civil Litigation (2001) Institute of Advanced Legal Studies.    [Back]

Note 29   The mean time was 46 months, the median 45: p 100. This is slightly less than the Genn survey, but is still within the same order of magnitude. Genn relied on High Court cases leading to contested taxations, which is likely to over-estimate the length and cost of disputes, as it attracts the most contentious and difficult disputes.    [Back]

Note 30   Breaking the Code, p 109.    [Back]

Note 31   Breaking the Code, p 110.    [Back]

Note 32   McGregor on Damages (17th ed 2003) para 15-054.    [Back]

Note 33   H Genn, Survey of Litigation Costs (1996) p 91.    [Back]

Note 34   Saunders v Edwards [1987] 1 WLR 1116. Although this case related to fraudulent misrepresentation, Bingham LJ noted that damages for mental distress are analogous to defamation damages which, to his knowledge, never attracted interest. McGregor, states that the Court of Appeal has refused damages for non-pecuniary loss in a claim for wrongful arrest and false imprisonment. He added, however, that “interest is beginning to be allowed on the non-pecuniary element of awards, representing injured feelings, in the statutory tort of racial discrimination.” He qualifies this by stating that “it is thought that these decisions would not survive a consideration of the matter by the Court of Appeal.” See McGregor on Damages (17th ed 2003), paras 15- 056 - 15-057.    [Back]

Note 35   T Goriely, R Moorhead and P Abrams, More Civil Justice? The Impact of the Woolf Reforms on Pre-Action Behaviour (2002) Law Society/Civil Justice Council.    [Back]

Note 36   Ibid, p 307-8.    [Back]

Note 37   Ibid, p 310.    [Back]

Note 38   Ibid, p 333.    [Back]

Note 39   Ibid, p 287.    [Back]