The defendant costs specialists

Posts made in November, 2009

Legal costs and the "corruption" of the current system

By on Nov 13, 2009 | 0 comments

Some of you may have already come across Colin Berry. His wife suffered serious injuries following two washing machines falling onto her from a height of 30 feet. (To have one washing machine fall on you may be regarded as a misfortune; to have two looks … etc.) Mr Berry wrote on one website: “My main aim is to publish this case throughout from beginning to end, just to leave something to the society of the future to ponder on”. If future society ever stumbles on his various blogs and videos it will indeed have much to ponder. This video gives his views on solicitors who overcharge, amongst other things. The section on legal costs starts (so far as there is any start or finish) about 11 minutes into the video. (If you receive the Legal Costs Blog via email you made need to adjust your security settings to view the video.) I hasten to add that the views expressed by Mr Berry are his own and not those of the Legal Costs Blog or anyone associated with...

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One-way costs shifting – The sting in the tail

By on Nov 11, 2009 | 0 comments

I recently received an email from someone who is writing an article for their university newsletter and wanted my views on the potential impact of the Civil Litigation Costs Review on defendant panel solicitors.  This is an interesting issue and one that, to be honest, I had not previously given much thought to.  Much of the Jackson Review, at least so far as it covers the type of work undertaken by defendant panel solicitors, is focused on controlling the costs that claimant lawyers incur, rather than those of defendants.  My previous posts on the subject have therefore focused on that aspect, rather than the impact on defendant firms.   Lord Justice Jackson’s Preliminary Report has, so far as is relevant, two main proposals.  These are the ones most likely to find there way into the final report.    The first of these is extending fixed costs to all stages of the fast-track.  Although the Preliminary Report, so far as I can see, does not spell this out, it seems clear that it is intended that fixed costs would apply to claimant solicitors but not defendant ones.  If anyone is able to point me to something that suggests this view is mistaken, then please let me know.  This proposal would not, in itself, have any direct impact on defendant solicitors.  If my reading of the proposal is correct, and if only this change was made, it might lead to the strange outcome that defendant solicitors were able to recover more in costs than claimant solicitors.  That would be a first.   The more interesting issue is whether the extension of fixed costs would have an impact on claims behaviour which would, in turn, impact on defendant firms.  It is generally accepted that the introduction of the predictable costs regime encouraged some claimant firms to issue proceedings at the first opportunity to escape the fixed costs scheme (see page 126 of the Preliminary Report).  On the one hand, an extension of fixed costs might encourage some claimant firms to settle cases as quickly as possible, doing as little work as possible in the process, to maximise their profit margins.  This might reduce the number of issued cases and therefore have an...

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Does proportionality still have a role in legal costs disputes?

By on Nov 9, 2009 | 0 comments

At the end of a costs presentation I recently gave to some solicitor clients I was asked if the issue of proportionality was one that still carried any weight in legal costs disputes.   Given how central the issue of proportionality was meant to be when the Civil Procedure Rules were introduced, it is strange that this question even needs to be asked.  However, it is one that is entirely legitimate to raise.  As Cook on Costs 2009 states: “‘What is proportionality?’ is a conundrum the courts are still trying to solve”.  In an effort to throw some light on the issue, I will let you have my thoughts on the subject.   The starting point is CPR 44.4(2): “Where the amount of costs is to be assessed on the standard basis, the court will – (a) only allow costs which are proportionate to the matters in issue”.   In the early days of the CPR, defendants, naively with the benefit of hindsight, thought this meant what it said.  Costs would not be allowed at a level that was disproportionate to the matters in issue.  Therefore, for example, if there was a straightforward RTA claim with damages of £3,000 being recovered, if at the detailed assessment hearing the judge reduced the costs to £7,000 on the basis of what had been “reasonably” incurred, the judge would then stand back and make a further reduction to, say, £3,000 to ensure that the final amount allowed was “proportionate”.  If only.   The correct approach was indentified by the Court of Appeal in Lownds v Home Office [2002] EWCA Cic 365:   “what is required is a two-stage approach. There has to be a global approach and an item by item approach. The global approach will indicate whether the total sum claimed is or appears to be disproportionate having particular regard to the considerations which Part 44.5(3) states are relevant. If the costs as a whole are not disproportionate according to that test then all that is normally required is that each item should have been reasonably incurred and the cost for that item should be reasonable. If on the other hand the costs as a whole appear disproportionate then the court...

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My intellectual property rights have been infringed

By on Nov 4, 2009 | 0 comments

I assume readers are familiar with search engines such as Google and Yahoo. In addition to the ordinary search results they produce, they also also show sponsored links.  This works by allowing advertisers to purchase the right to have their advert displayed when certain keywords are typed into the search engine.  For example, a business selling designer goods might choose the keywords “designer goods” and “fashion”. Louis Vuitton brought a case against Google complaining that adverts for counterfeit items popped up when internet users searched for the company and that this infringed their trademark rights.  They wanted to prevent others from being able to use their registered trademarks as a keywords.  The case ended up being referred to the European Court of Justice.  The preliminary ruling was that there was no breach. All very interesting, but what has this got to do with legal costs, I hear you ask? I recently discovered that a Google search for Gibbs Wyatt Stone produces a sponsored link for an entirely different firm of law costs draftsmen (although I wouldn’t quite describe our services as being those of traditional costs draftsmen).  I suppose I should be flattered that our reputation is such that others hope to raise their own profile by association with our name.  However, I’m left feeling vaguely used and...

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APIL does the Hokey Cokey on fixed fees

By on Nov 2, 2009 | 0 comments

I previously reported (see post) on the Association of Personal Injury Lawyers (APIL) walking out of talks on extending fixed costs in personal injury cases.  The latest news is that APIL is now back in.  APIL has explained its decision to rejoin the talks being due to the fact that the Civil Justice Council agreed to discuss matters of process, and not just the level of fixed fee, and that it had been offered the opportunity to make a final written submission on this issue to Lord Justice Jackson.  Nevertheless, APIL maintains it still has “profound skepticism” about the need to extend fixed costs. In a further boost to Jackson LJ, the new Lord Chief Justice, in a recent interview with the BBC, expressed the hope that the cost of civil litigation would be "properly examined" following the publication of Jackson LJ’s report.  There is building up a virtually unstoppable momentum behind the idea that radical changes need to be made to control legal costs.  Whichever party comes to power after the next election (and at this stage it might be either the Conservative party or the Tory party) there is not going to be an injection of fresh public money to pay for the costs the current system creates.  Any change is going to be focused on limiting the costs that are incurred during the process or the costs that are recoverable at the end. Click image to enlarge:...

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