The defendant costs specialists

Posts made in January, 2009

Birmingham City Council v Forde

By on Jan 29, 2009 | 0 comments

The recent decision in Birmingham City Council v Forde [2009] EWHC 12 (QB) is a worrying one both for Defendants and for the legal profession generally. This was an appeal to the High Court from a decision of the Supreme Court Costs Office. Unusually, for a case heard in Birmingham District Registry, the Senior Costs Judge Master Hurst sat with the Judge as one of the assessors. The judgment is long and detailed but we will try to summarise the important issues. The Claimant’s solicitors had entered into a Conditional Fee Agreement (CFA) with the Claimant which did not include a success fee. The CFA was entered into prior to the revocation of the CFA Regulations 2000. Shortly before the conclusion of the claim, the Claimant’s solicitors became concerned as to the validity of their CFA due to challenges that the Defendant local authority had been raising in relation to similar agreements. They therefore entered into a second CFA that purported to cover all work performed, including the work already done under the original CFA. This new CFA sought a success fee of up to 100% if the matter proceeded to trial. The new CFA was entered into after the revocation of the CFA Regulations 2000. A letter was sent to the Claimant together with the CFA which stated that all legal costs to date were to be dealt with under the second agreement unless the Court ruled that the new agreement was invalid, in which case the original CFA would be relied on. The Defendant challenged the validity of the second CFA. On appeal it was held: • Following Jones v Wrexham Borough Council [2007] EWCA Civ 1356, it was confirmed that the letter formed part of the second CFA. • There was nothing wrong with seeking to rely on the first CFA in the event that the Court held the second to be invalid. • There was adequate consideration for the second CFA by virtue of the agreement to continue to act for the Claimant. This was particularly so given the doubt over the validity of the first CFA. The obligation to provide services under the second CFA in place of a potentially unenforceable obligation under the...

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C v W

By on Jan 29, 2009 | 0 comments

The recent Court of Appeal decision in C v W [2008] EWCA Civ 1459 was concerned with a CFA with a success fee that was entered into after liability had been admitted by the Defendant’s insurers. This judgment, in many respects, follows the earlier decision of Haines v Sarner [2005] EWHC 90009 (Costs), in which Simon Gibbs acted for the Defendant. In relation to Part 36 offers, CFAs normally contain one of the following two clauses: ‘It may be that your opponent makes a Part 36 offer or payment which you reject on our advice, and your claim for damages goes ahead to trial where you recover damages that are less than that offer or payment. If this happens, we will not add our success fee to the basic charges [emphasis added] for the work done after we received notice of the offer or payment.’ or ‘It may be that your opponent makes a Part 36 offer or payment which you reject on our advice, and your claim for damages goes ahead to trial where you recover damages that are less than that offer or payment. If this happens, we will not claim any costs [emphasis added] for the work done after we received notice of the offer or payment.’ The CFA in C v W contained a variation similar to the second clause. The distinction between these two clauses is crucial. The first one does not put the solicitor at risk in relation to Part 36 offers – they will still be paid their base costs. The second clause does, as failure to beat a Part 36 offer will mean the solicitor recovers nothing from that point onwards. The judge at first instance allowed a 70% success fee. At the initial appeal this was reduced to 50% but the Defendant appealed again on the basis that the amount was still too high. The Court of Appeal held: • “In the absence of any evidence that the accident had been caused by anything other than negligence on the part of the driver and in the light of the fact that his insurers had already admitted liability on his behalf, it is difficult to see how Mrs. C could have...

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Claims Handling Law and Practice – Book Launch

By on Jan 29, 2009 | 0 comments

GWS partner Simon Gibbs has contributed two chapters on legal costs to the recently published Claims Handling Law and Practice – A Practitioner’s Guide. Produced, and otherwise written, by leading defendant solicitors Kennedys, this practitioner’s desktop handbook is an invaluable tool for claims handlers. It covers all areas of general liability including motor claims, clinical negligence, health & safety, disease, abuse and housing disrepair. The previous edition of this book proved extremely popular (see link: Amazon review) and this new fully updated edition is sure to be similarly successful. For ordering details use this link:...

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