The defendant costs specialists

Posts made in July, 2010

Defective ATE insurance certificates

By on Jul 30, 2010 | 2 comments

When After-the-Event insurance premiums became recoverable back in 2000, the Costs Practice Direction introduced the following rule as to what should be provided when serving a bill of costs: 32.5(2) – If the additional liability is an insurance premium: a copy of the insurance certificate showing whether the policy covers the receiving party’s own costs; his opponent’s costs; or his own costs and his opponent’s costs; and the maximum extent of that cover; and the amount of the premium paid or payable. Other than some subtle changes to the wording, to make this gender neutral, the rule remains the same today. So why is it that 10 years after this rule was introduced I still routinely see certificates served with bills of costs that do not comply? The most common defect is a certificate that fails to identify what it covers. Almost as common is a failure to serve any certificate at all but instead serve a consumer credit agreement in relation to the ATE policy that doesn’t itself come close to complying with the requirements of 32.5(2). Given the consequences of failing to serve a compliant certificate (see CPR 44.3B(1)(e)) you would think ATE insurers would make a bit more effort. How hard can it be?...

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Jackson Report – Matthew Harman responds

By on Jul 28, 2010 | 0 comments

Continuing with our occasional series of responses to the Jackson Costs Review from the “great and the good” in the costs world is Matthew Harman.  Matthew is President of the Association of Law Costs Draftsmen, Costs Lawyer and Senior Partner at Matthew Harman & Partners.  JACKSON – 6 MONTHS ON The Jackson report was published amongst great fanfare on 14 January this year although it seems to have been around much longer. The report was the subject of much discussion and debate with the various conference companies reaping the benefits by putting on talks where the few who had read the whole report could pass on the key details to the great majority who had not. From my perspective as a working Costs Draftsman there were obvious concerns about the impact of the recommendations on my day to day life. However, I have always felt that my job is one that evolves and I saw this report as another part of the evolution. Having said that, I did, and still do, have concerns for some areas of the profession. Certainly, the days of the kitchen table draftsman are numbered. However, this is more to do with the scandalous reductions in legal aid than the Jackson recommendations. The big question remains some six months later as to whether the recommendations are going to be implemented. At the time of the report’s publication one very well connected member of the judiciary was asked the question and replied “two wars, one impending election and no money. What do you think?” Well the election has come and gone so where are we now? A question was asked in the House of Commons on 29 June as to whether there would be legislation introduced to allow the implementation of the report. The response was typically political and could easily have been written by Sir Humphrey and went along the lines of: ‘We are taking urgent steps to consider the recommendations of Lord Justice Jackson’. Neither of the manifestos of our coalition Government included any reference to the report. Given the massive problems that the Government are struggling with at the moment there has to be significant doubt as to whether the report will feature...

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What grade fee earner for drafting a bill of costs?

By on Jul 27, 2010 | 9 comments

What grade of fee earner can be justified for a law costs draftsman drafting a bill of costs? Cook on Costs 2010, page 438, says this issue was discussed at a Costs Practitioners’ Group meeting at the SCCO “whose view was that while Grade D fee earners might be able to draw straightforward bills of under £10,000, all other bills ought to be drafted by a Grade C fee earner, since costs are a technical matter, and matters such as the operation of the indemnity principle need more experience than a Grade D fee earner is likely to possess.” This suggests that the Costs Practitioners’ Group was of the view that it is acceptable for smaller bills to be drafted by fee earners who do not understand the indemnity principle.  It also suggests that student members of the ALCD who have had up to five years qualifying employment (and would therefore be the equivalent of a Grade D fee earner) might not understand the indemnity principle.  If true, something would have gone seriously wrong with the ALCD training and the previous five years work. I’m still waiting to see a bill of costs that comes with a disclaimer that the person who drafted it does not understand the indemnity principle and no reliance should therefore be placed on the signature to the bill.  (Though no doubt routinely true even with very large bills.) Cook on Costs does not identify which Costs Practitioners’ Group meeting is being referred to so the Legal Costs Blog did its own fearless investigative journalism. The meeting referred to appears to be that of 8 March 2007.  The minutes can be viewed here.  Michael Cook is not listed as one of those present. The minutes read: “Mr Hocking [from the Association of Law Costs Draftsmen] outlined the current position. For run-of-the-mill cases in the provinces, bill drafting was normally allowed at grade “D” fee earner level, whereas advocacy was generally allowed at grade “C”. In larger and/or more complex matters, grade “C” might be achieved for bill drafting and grade “B” for advocacy which would be appropriate for Fellows of the Association of Law Costs Draftsmen, some of whom are also qualified solicitors or FILEX....

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Jackson Costs Report – "a matter of priority"

By on Jul 26, 2010 | 2 comments

I wonder whatever happened to that report.  What was it called again?  Oh, yes: Jackson LJ’s Review of Civil Litigation Costs.  Probably sitting on a shelf somewhere gathering dust. Oh.  Just a moment. What’s this Written Ministerial Statement just released today by Parliamentary Under-Secretary of State for Justice (Jonathan Djanogly MP): I am today announcing the Government’s intention to consult in the autumn on implementing Lord Justice Jackson’s recommendations on the reform of funding arrangements in his report, Review of Civil Litigation Costs: Final Report, published on 14 January 2010. We will be consulting in particular on the reform of Conditional Fee Agreements (CFAs) which should lead to significant costs savings, whilst still enabling those who need access to justice to obtain it. The Government is therefore taking these proposals forward as a matter of priority. Lord Justice Jackson was appointed by the then Master of the Rolls in January 2009 to review the rules and principles governing the costs of civil litigation and to make recommendations to promote access to justice at proportionate costs. Sir Rupert’s independent and comprehensive report makes a broad range of significant recommendations for reducing costs in the civil justice system in England and Wales. The Government is very grateful to Sir Rupert for his report. CFAs have played a role in giving access to justice to a range of people. However, high costs under the existing arrangements have now become a serious concern, particularly in clinical negligence cases against the NHS Litigation Authority and in defamation proceedings. CFAs are a type of ‘no win no fee’ agreements under which lawyers are not paid if they lose a case, but can charge an uplift on top of their base costs – otherwise known as a ‘success fee’ – if they win. Success fees allow lawyers to cover the costs of cases they take on which do not succeed. The success fee can be up to 100% of base costs. After the Event (ATE) Insurance can be taken out by parties to a CFA funded case to protect them against the risk of having to pay their opponent’s costs if they lose. Under the current arrangements, success fees and ATE premiums can be recovered from...

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What grade of fee earner is a costs lawyer or costs draftsman?

By on Jul 23, 2010 | 2 comments

What grade of fee earner does a costs lawyer/law costs draftsman fall into?  This is a different issue as to what grade can they justify on assessment, which I will deal with on another day. I recently commented on the subject of who qualifies as a Grade C fee earner. By way of a quick reminder: Grade A and B fee earners are defined as follows: A – Solicitors with over eight years post qualification experience including at least eight years litigation experience. B – Solicitors and legal executives with over four years post qualification experience including at least four years litigation experience. A Grade C fee earner is defined as: “Other solicitors and legal executives and fee earners of equivalent experience”. The Guide to Summary Assessment of Costs (page 1494 of the White Book 2010) states: “Whether or not a fee earner has equivalent experience is ultimately a matter for the discretion of the court.” More specifically, the Guide states: “Unqualified clerks who are fee earners of equivalent experience may be entitled to similar rates and in this regard it should be borne in mind that Fellows of the Institute of Legal Executives generally spend two years in a solicitor’s office before passing their Part 1 general examinations, spend a further two years before passing the Part 2 specialist examinations and then complete a further two years in practice before being able to become Fellows. Fellows have therefore possess [sic] considerable practical experience and academic achievement. Clerks without the equivalent experience of legal executives will be treated as being in the bottom grade of fee earner ie. trainee solicitors and fee earners of equivalent experience [Grade D].” I’ll proceed on the basis that the costs lawyer/law costs draftsman was initially unqualified. For costs lawyers/law costs draftsmen who have previously qualified as barristers, solicitors, FILEX, etc, or possibly even possess just a law degree, different considerations will no doubt apply. The Association of Law Costs Draftsmen has four classes of membership (or at least did when I was writing this post): Students are registered with the Association and are required to complete one module of the training course within the first year of membership to remain as a student...

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