The defendant costs specialists

Posts made in September, 2010

Properly drafted bills of costs

By on Sep 29, 2010 | 7 comments

I previously discussed the issue of what hourly rate is appropriate for drafting a bill of costs. I suggested that for the vast majority of bills Grade D rates were appropriate. One reader responded that those bills with “difficult apportionment issues or multiple parties with costs orders going here and there” should justify a higher rate. I will immediately concede that this type of bill can be very complicated to properly draft. This is in large part due to the uncertainties of the law surrounding these complex areas. How about the following: “The principles established in Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88, HL concerning the costs of claims and counterclaims have been largely overridden by the introduction of the CPR. Discuss.” Issues surrounding apportionment of common costs are fiendishly difficult. Other than a brief mention in relation to group actions, I can see no attempt by Cook on Costs 2010 to even try to deal with this area. Civil Costs: Law and Practice gives a detailed analysis of some of the principles that apply but does not put forward any clear guidance as to how some of the problem issues should be resolved. (What does the ALCD training information have to say about this area?) Although it may well be the case that a properly drafted bill in relation to one of these problem areas would justify above Grade D rates – and I reserve my position on that – unfortunately, it is this type of bill that is often most poorly drafted. I suspect that the majority of the time this has nothing to do with the receiving party deliberately drafting the bill in the most favourable manner arguable, but rather reflects a failure to understand that there is even an issue. Even worse is the situation where an attempt at apportionment, for example, has been made but this appears to have been done in an entirely arbitrary and random manner. Often it is impossible to work out how the apportionment has been applied. The paying party is left to guess. So, well done to the costs draftsman who drafted the bill I recently saw where the pre-amble explains: “The Bill...

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It's all in the mind

By on Sep 24, 2010 | 0 comments

A while ago I commented on the British Chiropractic Association (BCA) dropping their libel action against science writer Simon Singh where the BCA had sued Dr Singh over a newspaper article in which he alleged that the organisation promoted “bogus treatments”. I fear that my comments on alternative treatments may have opened a whole can of worms and have given every lawyer in the country carte blanche to comment on the efficacy of such treatments. Richard Barr, a consultant with Scott-Moncrieff Harbour and Sinclair, in Solicitors Journal, wrote: “When your baby dies, don’t sue me” warned the angry obstetrician when my wife (as she then wasn’t) refused his advice to stay in hospital because her as yet unborn son was stubbornly in the breach position. The obstetrician said there was no hope of turning him and he insisted she should have a Caesarean. She on the other hand really wanted to have a home birth; the problem was solved when her midwife administered a homeopathic remedy. Within hours the baby turned and was born naturally. Last year the baby achieved first class honours at Oxford Brookes University. Oxford Brookes University! That shows the dangers of dabbling in alternative remedies. Mrs Barr subsequently decided to train as a homeopath on the basis that although: “on the face of it, it makes no sense at all but I have seen it work so many times that I am convinced that homeopathic remedies work” and expressed the view that there was something about homeopathy that was far more effective than placebo. Richard Barr agrees. Now, the way that science discovers whether a particular form of treatment works, or works better than placebo, is by undertaking thorough blind trials. If the treatment is shown to outperform the placebo then this suggests that it is effective. When this has been attempted with homeopathy, it has failed to produce any such clear result (see The end of homeopathy?). So how has Mrs Barr been able to identify a set of statistically relevant outcomes that have eluded science? On the subject of “how does it work”, Richard Barr explains: “It should be remembered that homeopathy is not just a matter of dishing out pills. The key...

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Friston v Cook

By on Sep 22, 2010 | 2 comments

OK.  So the title of this post is somewhat misleading.  I’m not running with that debate (I caused enough trouble with my Costs Counsel v Costs Lawyer post). Dominic Regan, in his recent book review of “Friston on Costs“, as he titles it, does start down that road but happily concludes: “Buy both”. This review originally appeared in New Law Journal and is reproduced with the kind permission of Dominic. Late last year Ward LJ described Cook on Costs as the seminal work on a subject which has created more angst (and generated yet more costs) in the last decade than any other subject in the field of civil procedure. The costs wars are objectively and masterfully described in the Jackson material. These concerns provoked the then master of the rolls to turn to Sir Rupert Jackson for guidance on what on earth to do. Those who are recently qualified will find it impossible to believe that not so long ago costs were a mere afterthought. Of course, there were arguments about quantum but the elaborate technical arguments which are now commonplace just did not arise. Blockbuster Dr Mark Friston (Kings Chambers) has now entered the arena with a blockbuster running to over 1,200 pages. I adore books but this is the first time I have ever seen the text extending to the inside back cover of a tome. The obvious question is which one do I buy? (Cook or Friston?) Both is the answer. They complement one another and do not occupy the same turf. Friston has produced an exhaustive, technical encyclopaedia of costs. Arcane points are covered in exquisite detail. The footnotes are magnificent. Can I recover the cost of an expert report which I did not rely upon? Here you will find your answer. Those on the frontline of costs disputes should have this work surgically attached to them. The publishers, Jordans, are to be congratulated upon producing the title at a very modest price (even cheaper on Amazon at £56.67 as I write). “Those on the frontline of costs disputes should have this work surgically attached to them.” There is only one serious problem with the book and it is not down to the author....

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Costs monkey

By on Sep 21, 2010 | 1 comment

A further definition from The (Alternative) Legal Costs Dictionary: Costs monkey n. (derog.) what you get when you pay peanuts.  

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