The defendant costs specialists

Posts made in April, 2009

Evidence of the compensation culture?

By on Apr 6, 2009 | 0 comments

I’ve recently come across the following video. The message itself is somewhat confused in that it starts by commenting on an attack that was launched on a defendant lawyer and then somehow uses this to support arguments concerning there being a “compensation culture”. Nevertheless, I present it here as it at least gives something of the public perception of lawyers: A more detailed review of the original story appeared in an article in The Telegraph (link to external site). Whatever one’s view of the pleural plaques litigation, an attack on a solicitor involved in the test cases from MPs and fellow solicitors is extraordinary. The law as it currently stands in relation to pleural plaques litigation has led to a reduction in the amount of work that my firm would otherwise handle. We deal with a significant amount of asbestos litigation for defendants and pleural plaques work previously represented a sizeable proportion of that work. Nevertheless, for what it’s worth, I think the House of Lords was correct to find that pleural plaques was not an injury for which compensation should be awarded. However, I am never able to get out of my mind the suspicion that those claimant lawyers who campaign for a change in the law in this area, and argue that a terrible injustice has been done, are actually primarily concerned with the potential fees they have lost rather than the...

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Hourly Rates and the RPI

By on Apr 1, 2009 | 2 comments

The constant refrain from claimant representatives whenever a paying party seeks to question the accuracy of a bill of costs is that one should not seek to go behind the signature to the bill unless there is a “genuine issue” as to whether the bill is accurate, and the case of Bailey v IBC Vehicles Ltd [1998] EWCACiv 566 is cited in support. I’ll save for another day a full scale rant as to how misplaced the Bailey approach is. However, one simple example of how naive the Bailey decision is can been seen on a daily basis following the routine disclosure of CFAs. I’m not now talking about whether the solicitor really has managed to comply with the onerous requirements of the now revoked CFA Regulations 2000. The issue I have in mind is the rather more straightforward one of the hourly rates claimed. A CFA will usually set out the hourly rates that are to be charged. However, the rates claimed in the corresponding bill often bear no relationship to the rates allowed for in the CFA itself. At its most basic, this is often an example of bills being signed without the slightest concern for accuracy or the indemnity principle. I don’t trust signatures on bills due to years of experience in the costs world. A more subtle issue arises in relation to increases in the hourly rate. A common clause in many CFAs, and this follows one version of the Law Society’s Model CFA wording, is: “We will not increase the rate by more than the rise in the Retail Prices Index”. Despite this clear and unambiguous wording, bills are routinely presented where the hourly rates increases year-on-year by more than the RPI increase. When challenged, the response from some claimants is that they wrote to the client informing them of the purported increase and because the client did not challenge the RPI busting increase it is therefore binding on the client and can be recovered from the paying party. Not so said the Senior Costs Judge in Findley v Jones and MIB [2009] EWHC 90130 (Costs) (reaching the same conclusion as the judge in Puksis v Brumby [2008] EWHC 90095 (Costs)). Any increase allowable...

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