The defendant costs specialists

Posts made in August, 2010

Costs Counsel v Costs Lawyer – Round Two

By on Aug 18, 2010 | 4 comments

Not long ago I commented on the perceived differences in the skills of specialist costs counsel compared with costs lawyers and concluded that the latter could not realistically expect to compete with the former.  The comments that were made on the post suggest that I am not alone in this view. You can therefore imagine the sense of irony I felt in relation to the telephone call I received a day or two later from a defendant solicitor client. They had previously instructed specialist costs counsel to attend a detailed assessment hearing.  Unfortunately, the bill of costs had been assessed for a few pounds more than the defendant’s offer and the the claimant had therefore been awarded the costs of the detailed assessment hearing. Now, losing by a small margin is not exactly unknown in costs matters but there were one or two unfortunate features: 1. The defendant had made an offer before the bill of costs was drafted.  Excluding the costs of drafting the bill, the defendant would have won comfortably on the offer (see Forward v Burton [2005] EWHC 90003 (Costs)).  Counsel failed to argue this point. 2. The bill had been correctly drafted, at the time, claiming VAT at 15%.  The defendant’s offer had been based on 15% VAT.  No request had been made to amend the VAT claim in the bill.  Apparently, or at least so the court subsequently ruled, the defendant’s counsel had agreed VAT at 17.5% when doing the calculations with the other side outside court.  No attempt had been made to argue that consideration of whether the original offer had been successful should have been based on the VAT rate that applied when the offer had been made.  This made the difference between winning and losing.  The barrister in question shall remain nameless but, from my limited experience of being against him in court, is a gifted junior (as specialist costs counsel almost invariably are).  So what went wrong? I suspect this was a typical example of the potential limitations and drawbacks of relying on specialist costs counsel.  Or, at least, relying solely on costs counsel. Specialist costs counsel are often fiendishly clever when it comes to arguing complex and novel points...

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Civil Costs: Law and Practice – video review

By on Aug 16, 2010 | 0 comments

A review of Dr Mark Friston’s Civil Costs: Law and Practice, although its probably a bit late as I assume all readers of the Legal Costs Blog already have a copy: [youtube]5myzugtM9cM[/youtube] (If you receive the Legal Costs Blog via email you made need to adjust your security settings to view the...

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Ghadami v Lyon Cole – Indemnity principle challenge

By on Aug 13, 2010 | 1 comment

Whenever a legal costs dispute arises you can be sure that our old friend the indemnity principle is never far behind. There has been a long line of case law on this subject where the costs are actually being funded by a third party such as a trade union or legal expenses insurer. The Court of Appeal has recently given us a useful reminder of some of the basic principles in the case of Ghadami & Ghadami v Lyon Cole Insurance Group Ltd [2010] EWCA Civ 767. The claimants brought a claim against the defendant, a firm of insurance brokers. The defendant had the benefit of professional indemnity insurance which covered the costs of the proceedings subject to an excess of £1,000. The defendant paid the £1,000 and the rest of the costs of defending the claim were paid by the insurers. The claimants, who lost their claim and became liable for the defendant’s costs, argued that, on the indemnity principle, they should only have to pay the £1,000 paid by the defendant. The solicitors acting for the defendant had failed to send them a client care letter. Nor had they complied with the obligations contained in the Law Society’s client care code. During the course of the claim, a letter had been sent to the defendant saying: “All costs which exceed £1,000 are payable by your insurers”. The district judge at first instance accepted the claimant’s arguments and limited the recoverable costs to £1,000. At the initial appeal, Judge Moloney reached the opposite conclusion. He concluded that there was no evidence that showed an agreement that the defendant would not be liable to pay their solicitors more than £1,000 in any circumstances. He held that if the letters sent to the defendant by the solicitors had been sent to a client who was not in any way active in the insurance market he would have been well inclined to construe the letters in favour of the client, resolving any ambiguity or doubt in their favour, so as to find that the client was not liable for the solicitor’s fees beyond £1,000. The judge drew a distinction by reason of the fact that the present client was in the...

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An accident waiting to happen

By on Aug 13, 2010 | 0 comments

The following account subsequently formed the basis for an employers liability claim supported by a conditional fee agreement.  With a fixed 25% success fee obviously. [youtube]zZUJLO6lMhI[/youtube] (If you receive the Legal Costs Blog via email you made need to adjust your security settings to view the video.)...

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Jackson Report – Dominic Regan responds

By on Aug 11, 2010 | 0 comments

Continuing with our occasional series of responses to the Jackson Costs Review from the “great and the good” in the legal and costs world is Dominic Regan.  Dominic is a legal writer, broadcaster and speaker on civil litigation matters. He is professor at City University London and a member of the Civil Justice Costs Committee. He spends much of his time speaking on the vagaries of the Part 36 rules. He has written and spoken extensively on the Jackson Costs Review.   THE JUDICIARY AND REFORM The Jackson Report was commissioned by the then Master of the Rolls and not by the Government. Whilst it is now obvious that the new administration is looking to act upon Jackson what is more interesting is that the Judiciary has already started! Sir Rupert enjoys tremendous support from the senior bench. Look at the recent suffocation of Carver v BAA Plc [2008] EWCA Civ 412 in the L G Blower Ltd v Reeves [2010] EWCA Civ 726 decision. The Court of Appeal at paragraph 40 of the transcript recite the criticisms of Carver made in the final Jackson report before proceeding to render it an impotent authority. Take the Fiddes v Channel Four Television Corporation [2010] EWCA Civ 730 libel action against Channel 4 where a decision to deny the claimant the norm of a jury trial was upheld by the Appeal court. Why? It would prolong the hearing and make it more expensive. Can you not hear the resonance of Jackson in there? The Senior Master in Goodale v The Ministry of Justice [2009] EWHC B41 (QB) ordered the Ministry of Justice to complete an electronic disclosure questionnaire even though formal powers to do so do not come into being until October. My simple point is that the Judiciary is demonstrating an increasingly assertive approach. Case management powers are vast; expect to see muscles flexed with much more regularity and confidence....

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