The defendant costs specialists

Posts made in August, 2010

Competent law costs draftsmen

By on Aug 31, 2010 | 2 comments

The Association of Law Costs Draftsmen, when responding to concerns about the recent changes being made to the membership structure and qualification requirements, stated: “The rights which [the ALCD] will regulate include rights of audience and rights to provide legal services, and may in due course include the right to practise reserved legal activities. This means that the relevant test has to be one of competence, not excellence. The ALCD would be failing in its duty to entrants and the public if it were to set the bar so high that only a select few could clear it.” The relevant test being “competence, not excellence” is clearly correct. The Bar does not expect junior barristers to have the skill and knowledge of a QC. Unfortunately, this test does no more than beg the question as to what amounts to “competence” for those acting in the field of legal costs. The fact that a newly qualified solicitor or barrister may be “allowed” to handle a murder trial or a catastrophic clinical negligence brain injury claim does not mean they should. One would hope they would have the sense to turn the instructions down, on the basis of lack of experience, given the importance of the matter. The same should apply to costs (although whether those of us who work in this field have already disqualified ourselves, in terms of having “sense”, is another matter). In fact, the examples of a murder trial or catastrophic injury are perhaps misleading. Those types of claim are immediately obvious to identify, as are their importance and potential complexities. (Barristers also have the benefit of a clerk to act as an initial filter for cases out of the barrister’s depth.) The position in relation to those who work in the field of legal costs is less straightforward. The ALCD’s stated aim is to have its members able to “deal with the vast majority of costs disputes without the assistance of counsel”. From the perspective of those who act for the receiving party, there appear to be four key elements to competence: 1. The ability to recognise, when instructed to deal with a new case, that there may be problems with the retainer. This has many...

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Regional Costs Judge

By on Aug 27, 2010 | 0 comments

A further definition from The (Alternative) Legal Costs Dictionary: Regional Costs Judge n. a District Judge who, after a night of heavy drinking, thought they were volunteering to organise a wine tasting trip to the Loire Valley and is subsequently too embarrassed to admit their mistake or that they do not know the first thing about costs...

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RTA claims process savings

By on Aug 25, 2010 | 1 comment

So, has the new road traffic accident claims process been a success from a defendant perspective? This month’s edition of Litigation Funding refers to figures from AXA showing they are admitting liability within 15 days in 61% of cases and costs have fallen by £200 a claim. Admitting liability promptly is obviously a crucial aspect of the process. It is perhaps unfortunate that this coincides with news that “cash for crash” scams are at a record high (see link) -  There is an obvious tension between trying to admit liability early and weeding out fraudulent claims. It may be too early to conclude whether any perceived costs savings have outweighed any additional fraudulent claims that have slipped through. A more obvious problem appears to be the fact that it is surely too early to know whether there really has been an average saving of £200 per case. The scheme only applies to those cases where the accident was on or after 30 April 2010. We are only four months into the scheme. No doubt those claims that have settled this quickly have had average costs come in at a lower level than those recoverable under the predictable costs scheme. If any claims have already managed to proceed as far as a Stage 3 hearing, they must be few and far between. When a significant number of claims start to get that far there will be an obvious spike in the cost of the average claim. This is before we begin to consider the extent to which claimant solicitors seek to avoid the scheme entirely. The predictable costs scheme revealed the willingness of some firms to seek to play the system and issue proceedings at the first opportunity. It could be a good two years before these claims have settled, and the detailed assessment proceedings arguing over the costs have been concluded, before we know what level of costs will be recovered. Only then can average costs really be determined. Added to all this will be the resources needed to fight the costs battles ahead. It is probably somewhat premature to conclude what costs savings, if any, this scheme will produce....

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Leeds detailed assessment pilot

By on Aug 23, 2010 | 2 comments

The last of Jackson LJ’s Civil Costs Review Seminars was concerned with the detailed assessment procedure. There was overwhelming, if not unanimous, support for the introduction of provisional assessments of costs on paper. In the recent Written Ministerial Statement by Parliamentary Under-Secretary of State for Justice (Jonathan Djanogly MP), confirming that the Government planned to press ahead with the Jackson proposals, it was announced that there were a range of continuing judiciary-led costs and case management work including a “pilot of assessing disputed costs under £25,000 on the papers rather than at a hearing, in Leeds, Scarborough and York County Courts from October 2010”. The new rules relating to the pilot scheme are incorporated in the 53rd CPR Update and will run from 1 October 2010 to 30 September 2011. The first thing to note is that the pilot applies to cases where the base costs are £25,000 or less. With success fees and ATE premiums this will catch a large number of claims. It is not immediately obvious from the new rules whether the onus will be on the receiving party to specifically request the provisional assessment or whether someone at the court will be sitting there with a calculator to check the level of base costs is above or below £25,000. If the onus is on the receiving party, it is not clear what the sanction, if any, would be for getting this wrong. The aim of the new scheme is clearly twofold: 1. Reduce the amount of court time taken up by detailed assessment hearings. 2. Reduce the high costs to the parties that are currently incurred in relation to fully contested detailed assessment hearings. It is worth exploring the likely success of the pilot scheme in achieving these aims. Apparently, the current thinking is that it is estimated that under the pilot scheme it should only take the judge about 45 minutes to review the documents provided and come to a decision. This is clearly significantly faster than the time taken currently in relation to detailed assessment hearings where much longer is needed for even the lowest value and most straightforward claim. There are, however, a number of potential problems. At the last of the...

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Supreme Court guideline hourly rates

By on Aug 20, 2010 | 2 comments

The Practice Directions to the Supreme Court Rules 2009 have been updated with new guideline hourly rate figures for the provisional assessment of costs.  Funnily enough, they are identical to those for summary assessment in other courts. For those who keep pretending that the Guideline Hourly Rates are only relevant for low value fast-track claims, and should play no part in detailed assessment, think again.  These rates also operate as the starting point figures for assessment in matters heard in the Supreme...

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