I am going to do something that does not come naturally to me. I have going to admit I was wrong. Worse than that, I am going to have to admit to being wrong about three things. This whole process is so traumatic that I am going to have to stagger this over several days.
I was wrong when I predicted that the new RTA Claims Process would not happen (see post) either because agreement would not be reached in relation to the rules or because the Jackson Costs Review would torpedo it.
Yet, here we are with the process due to launch today.
There are those who are already taking bets on how quickly the new "portal of doom" will crash.
I'm sticking with my other prediction that the process will produce a flood of satellite litigation, a view shared by Master Hurst who said at the Association of Law Costs Draftsmen's AGM that the process is so complicated it would generate satellite litigation for "the foreseeable future". So good news for law costs draftsmen and other costs professionals at least.
The internet contains an enormous amount of legal costs law information, much of it free. Unfortunately, it tends to be scattered throughout the web or buried deep within specialist sites. Wouldn’t it be great if all this information could be easily accessed? Well, of course it would be which is why the Legal Costs Blog is delighted to announce the launch of Legal Costs Central. This is an intuitive webpage giving you direct links to all that legal costs information out there.
So it’s just a links page then? So what?
No, this is nothing like other link pages that some law costs drafting firms have on their sites that have a handful of links to, for example, the homepage of the Association of Law Costs Draftsmen or the Law Society. This is a serious tool which … oh you’ll just have to look for yourself to see what I mean: www.gwslaw.co.uk/legal-costs-central
We’ve even included a Google search tool so there is no reason why costs practitioners shouldn’t make this their homepage. With everything just a couple of clicks away think of the hours of time saved.
The site does not attempt to cover criminal or legal aid costs law. It is also not an attempt to create a directory of everything costs related on the internet. There are an enormous number of interesting costs articles, podcasts, webinars, etc out there and this does not attempt to create a directory of all that material. An interesting project for another day?
Please read the Disclaimer before using Legal Costs Central, although it shouldn’t really be necessary to spell this out. Don’t dabble in legal costs unless you know what you are doing (I wonder if the judiciary should made to follow this rule).
This should be treated as something of a work in progress at the moment. We are planning on making further enhancements in coming weeks. If you have any suggestions for other useful links or spot any broken links please drop us an email via the Contact page.
The Law Society is running an online survey on Lord Justice Jackson's Costs Review. They say they have "concerns over the possible effect on access to justice and the impact on solicitors' business models and income streams".
Although the survey purports to be open to those who act for either claimants, defendants or both, the questions then seem to be focused on claimant representatives (there's a surprise) so no guessing what the likely finally conclusions will be. Still, for those who like completing Cosmopolitan quizzes you can have a go here: here.
For those who haven't already read them, the Senior Courts Costs Office Costs Practitioners' Group Minutes of the last meeting can be found here.
Not all of the proposals contained in Lord Justice Jackson's Review of Civil Litigation Costs require primary legislation. One of the intriguing questions is the extent to which the judiciary will quietly introduce some of his ideas.
Andrew Parker, writing in the New Law Journal, said: "Anecdotally one or two County Courts are already taking steps to apply some of the ideas on fast track costs".
I haven't had enough cases proceed to detailed assessment yet to form any view. Have any readers begun to see Jackson influencing the courts already?
A further definition from The (Alternative) Legal Costs Dictionary:
Indemnity principle n. legal principle that receiving party cannot recover from paying party in legal costs more than he is liable to pay his own lawyer. To make the process fair on detailed assessment, the paying party is denied access to any information concerning the terms of the agreement between the receiving party and his lawyer unless the paying party can first establish a genuine reason to suppose more is being claimed than should be. This is done by producing the kind of evidence that the paying party is not entitled to see. If the paying party had such information, he would not need it. If he does need it, he is denied access to it because he has not been able to produce evidence as to what the evidence will show if it is disclosed. The Catch 22 of legal costs. To compensate for this rule, in the unlikely event that it can be shown that more has been claimed than should have been, the court will treat this as a “most serious disciplinary offence”. Where, during the course of a detailed assessment hearing such a breach is found to have occurred, the judge, mustering the full force of the majesty of the law, will say: “shall we move on to the next item then?”.
The press has been reporting on The British Chiropractic Association (BCA) dropping their libel action against science writer Simon Singh. The BCA had sued Dr Singh over a newspaper article in which he alleged that the organisation promoted “bogus treatments”, such as chiropractic for childhood asthma and colic, which were not supported by evidence.
Now, I know nothing about chiropractors and so I’m in no position to comment on whether or not they are nothing but a bunch of quacks peddling a lot of twaddle. You can read the original article from The Guardian here and form your own view.
Another example of quacks trying to use English libel law to stifle criticism can be read here: The Doctor Will Sue You Now. (I say “another” in the general sense of the word rather than to imply that the BCA’s libel claim was the previous “example” of quacks acting in this way, for the benefit of any libel lawyers who haven’t got anything better to do with their time.)
Interesting though this all is, and crucial from a free speech and scientific investigation perspective, what caught my eye was the report in the The Times claiming that Dr Singh stands to “lose £60,000 in legal costs despite winning. … Although Dr Singh’s lawyers will pursue the BCA for costs, he is likely to recover only 70 per cent of the £200,000 he has spent on defending himself. … [His solicitor] noted, however, that defendants rarely recovered more than 70 per cent of their costs even when libel actions were dropped”.
Why should Dr Singh only recover 70% of his costs? It is certainly entirely common on a between the parties detailed assessment for bills to be reduced by at least 30%. That, however, is not the same thing as saying that the unrecovered balance is “reasonable” on a solicitor/own client basis. Those working in the field of legal costs law will recognise the idea of “solicitor/own client” costs that cannot be recovered from the other side. As Ian Moxton, writing in the Association of Law Costs Draftsmen’s Costs Lawyer magazine, recently recognised, there appears to be no definitive definition of what falls into this category.
It would generally be recognised, for example, that a solicitor’s time spent travelling to the home of a client who was perfectly able to travel themselves would be solicitor/own client in nature. A fit client would be expected to travel to his solicitor. Very nice if the solicitor is prepared to come to you but you cannot expect the other side to pay for this “luxury”. Equally, a demanding client who wants to be updated every 5 minutes on the progress of a claim is likely to produce additional unnecessary work that would be classed as “solicitor/own client”. However, in normal cases this element of a claim is likely to be very small. It certainly would not account for a 30% shortfall.
The 30% element is likely to fall into one or more of the following categories. Firstly, a court might conclude that the hourly rates agreed between Dr Singh and his solicitors are too high and award, as against BCA, an amount that it considers to be reasonable and proportionate. Dr Singh would be potentially liable for the shortfall. However, if his solicitors are charging the "going rate" for that type of work then normally the court would allow those rates. Secondly, a court may consider that the fees of Counsel are too high. Again, the same considerations apply as for the hourly rates. Of course, the fact that a solicitor/own client assessment is on the indemnity basis whereas most between the parties assessments are on the standard basis may make a difference in the rough-and-tumble of detailed assessment. The third area where significant reductions might be expected is in relation to document time. It is fairly common for significant reductions to be made to time spent working on documents. However, this is usually because too long is being claimed for the work. If a judge has decided on a between the parties assessment that the time claimed is too long then exactly the same should apply on a solicitor/own client assessment. A client should never find themselves faced with having to pay a “shortfall” because his solicitor has taken too long over a task.
Cook on Costs recounts the story of Lord Benson asking Mr Justice Templeman what the difference between solicitor and client costs and party and party costs was and receiving the reply: “33 1/3”. Although that may have been about right at the time, Cook on Costs goes on to quote Jeremy Rawkins, President of the Association of District Judges, summarising the position in 2005 that: “The valuable demarcation between solicitor/client costs and party/party costs has been eroded so that there is no practical distinction”. That being the case, a successful defendant to a liable action should never find themselves with a 30% shortfall unless they have been overcharged by their lawyer. Of course, this is only my opinion and should not be treated as an assertion of fact.
The topicality of this issue is that for most personal injury claims it has become the norm for clients to have no interest in the level of costs that are being incurred because their solicitor will never pursue them for any shortfall. Lord Justice Jackson wants to revert to the position where clients do have an interest in the level of costs being incurred.
This also ties in with the news that the attempt to limit success fees in libel cases to 10% failed after a Commons’ committee voted against the proposal and as a result of the General Election being called.
For those who work in the world of legal costs law it is generally recognised as being, at best, an art rather than a science.
However, the other day I stumbled across an attempt to make the process of predicting legal fees more accurate. I don't know what other people stumble across on the internet but I suspect some are using slightly different search terms to me.
A Canadian law firm offers the online Legal Fees Guesstimator (see link). You enter some very basic details of your future family trial and it produces a guestimate of the likely legal costs.
I have no idea how accurate it is but can confidently state that it is sure to produce more accurate figures than many of the claimant legal costs estimates I see here.
The long wait is finally over and Dr Mark Friston's new book Civil Costs: Law and Practice is finally published. It should be starting to ship and arrive in bookshops round about now.
Was it worth the wait? Oh, yes.
Early drafts may have hinted at it but the final version confirms this book will become the Bible of the legal costs world. Whenever a complex legal costs issue arises on detailed assessment, this is the book that costs judges will reach for to resolve the issue. It is simply head-and-shoulders above any other costs book on the market.
Some costs books contain little or no commentary on the subject and simply recite large chunks of the CPR or costs case law. Other publications are full of commentary but it is virtually impossible to determine how much of this is based on established points of law, due to an absence of comprehensive referencing, or how much is simply the writer’s opinion.
This book manages to bridge that gap. There is not a single proposition put forward that does not have a detailed corresponding reference for the authority (and there are thousands of footnotes). On the rare occasion where the writer’s opinion alone is being given, this is made crystal clear.
The chapters are broken down into subchapters dealing with real, practical issues. Subchapters include not only broad topics such “limitation”, “apportionment”, and “oral retainer”, but also day-to-day questions such as “copying charges” and “experts’ fees”.
This book is written primarily as practitioners’ text rather than a students’ text. However, sections of it will be invaluable to students taking the Association of Law Costs Draftsmen’s Modular Training Course. Students who remember even a fraction of what is contained within this book will fly through the ALCD’s examinations.
The bad news, of sorts, is that this is not an idiot’s guide to costs law. Costs muppets will gain little assistance from this book, although they may still feel obliged to own a copy given this book will be routinely quoted from.
This has not been written as a book to read from cover-to-cover. However, those who do so will find their time rewarded a thousand times over. This book is full of gems that even experienced costs practitioners will have either never come across or long since forgotten.
If you go to a detailed assessment without a copy of this book under your arm, small children will follow you down the street laughing.
Those of you visiting the Legal Costs Blog today and thinking something looks different do not need to worry or have you eyes tested. The Blog's previous publishing platform was about to be discontinued meaning that the Blog was about to disappear. Regular readers (God bless both of you) might have thought that would be something of a shame. The Blog has therefore had to be exported to a new publishing platform and our IT people have been busy working on this. Other than some formatting issues with old posts, hopefully the changeover will be nice and smooth (although bear with me while I get used to the new system).
I have some exciting posts to bring you over the next few days including a review of Dr Mark Friston's newly published Civil Costs: Law and Practice.