The defendant costs specialists

Posts made in September, 2010

Association of Law Costs Draftsmen benefits

By on Sep 20, 2010 | 0 comments

The Association of Law Costs Draftsmen has negotiated a reduced Lawtel subscription fee for its members.  The reduced subscription fee is £300.00 plus VAT per annum per licence (normally £680.00 plus VAT).  When Lawtel says “normally” this should probably be treated rather loosely as their subscription renewal requests tend to be on the imaginative side at best.  Nevertheless, this a great deal the ALCD has secured.   The ALCD also has group membership of Central Law Training which enable members to obtain a discount of up to 50% on most courses. The ALCD is starting to build up some very useful additional benefits for its...

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County Court Provisional Assessment Pilot

By on Sep 17, 2010 | 0 comments

Now that we’ve all had the chance to consider the new rules for the County Court Provisional Assessment Pilot, which starts on 1 October 2010, lets make sure we are all familiar with the details. CPD 40.12 appears to continue to apply: The following provisions apply in respect of the papers to be filed in support of the bill; (a) If the claim is for costs only without any additional liability the papers to be filed, and the order in which they are to be arranged are as follows: (i) instructions and briefs to counsel arranged in chronological order together with all advices, opinions and drafts received and response to such instructions; (ii) reports and opinions of medical and other experts; (iii) any other relevant papers; (iv) a full set of any relevant pleadings to the extent that they have not already been filed in court. (v) correspondence, files and attendance notes; (b) where the claim is in respect of an additional liability only, such of the papers listed at (a) above, as are relevant to the issues raised by the claim for additional liability; (c) where the claim is for both base costs and an additional liability, the papers listed at (a) above, together with any papers relevant to the issues raised by the claim for additional liability. CPD 40.11 does not. That part says: Unless the court directs otherwise the receiving party must file with the court the papers in support of the bill not less than 7 days before the date for the detailed assessment hearing and not more than 14 days before that date. When do the documents referred to in CPD 40.12 get filed, if at all? I heard a rumour that the provisional assessment would be done without the file but the fact CPD 40.12 remains in place seems to suggest the...

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Gibbon v Manchester City Council

By on Sep 16, 2010 | 0 comments

The legal press has started to catch up with the importance of the Court of Appeal’s recent decision in Gibbon v Manchester City Council [2010] EWCA Civ 726) but I doubt all civil litigators have done so. This decision makes clear that basic contract law principles do not apply to the Part 36 regime.  A Part 36 offer remains open for acceptance until written notice is served withdrawing or changing the terms of the offer (CPR 36.9(2)). (Although see CPR 36.9(3).) This means that an offer remains open for acceptance regardless of express or implied rejection of the offer by the other side and regardless of any counter-offers made and regardless of the fact that the offeror has subsequently made a different offer.  It goes without saying that the offer also remains live despite material changes in the claim – such as fresh medical evidence becoming available. Now, if there are any practitioners who have not acted on this decision: ACT NOW! Review all your cases to see what Part 36 offers were made during the claim but have not been withdrawn or changed.  If it is the other side’s offer, considering whether to accept it now. If it is you own offer, consider whether you wish it to remain live. Going forward, it is crucial to keep at the front of your mind any Part 36 offers that have been made during the life of the claim and to review carefully on every occasion there is a development in the claim. The scope for a professional negligence claim if you fail to accept/withdraw an offer, possibly made several years earlier, is frightening. There are a couple of other points to bear in mind.  An offer that is expressed to be open for acceptance for only a limited period is not treated as a Part 36 offer.  If a Part 36 offer is withdrawn it will be treated as though it was never a Part 36 offer. This second issue raises its own problems.  Suppose a defendant makes a Part 36 offer of £500,000. Offer remains open for two years. Subsequently the defendant obtains surveillance evidence showing clear exaggeration, withdraws the offer and makes a fresh Part 36 offer...

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VAT on medical fees

By on Sep 15, 2010 | 0 comments

The Law Society Gazette recently reported on HMRC’s decision requiring solicitors to charge VAT on medical reports on the basis that they are obtained to provide a legal service and can no longer be treated as disbursments that were not subject to VAT.  The Law Society is to make written submissions in a forthcoming VAT tribunal case on this issue in Barratt Goff & Tomlinson (BGT) v The Commissioners for HMRC. This ties in with the decision Makuwatsine v Trathens Travel Services Limited (view judgment) where it was held that VAT should be charged by solicitors on any medical records obtained and that they were not VAT exempt disbursements.  It is not long ago that all medical reports and records were treated as VAT exempt disbursements.  These developments may be good news for a cash-strapped government but are hardly good news for defendants.  There is also concern among law costs draftsmen assuming this is retrospective.  Solicitors will be liable for VAT on medical disbursements where no VAT may have been claimed from the paying party.  This could lead to solicitor clients seeking reimbursement of the VAT from the law costs draftsmen who prepared the bill as the VAT had been wrongly...

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How many lawyers does it take to change a light bulb?

By on Sep 14, 2010 | 4 comments

How many lawyers does it take to change a light bulb? At what stage does a legitimate claim for legal costs become something rather different… On an entirely different note, I came across the following in a bill of costs the other day: 20/07/2007 – Discussing strategy as to ATE insurance upon a lack of response. Confirming need to chase. (Senior Paralegal) – 6 minutes 20/07/2007 – Discussing strategy as to ATE insurance upon a lack of response. Confirming need to chase. Preparing a file note (Paralegal) – 12 minutes There was presumably a corresponding chase-up telephone call claimed under routine communications (a further 6 minutes) as there was a further entry of 6 minutes for: “23/07/2007 – Preparing file note following telephone attendance with [ATE insurer] chasing response to application”. Ignoring the issue of whether work done in association with funding is recoverable, we therefore have a total of 30 minutes claimed in relation to making one chase-up telephone call due to a lack of response from the ATE insurer. The matter was funded by way of a CFA with a 100% success fee. Even allowing for the fact the work was done by Grade C and D fee earners, by the time VAT is added a total of £151.58 is claimed for one chase-up telephone call. The same bill also had these entries: 28/09/2009 – Discussing correspondence from defendant advising upon address of defendant. Discussing action to take in circumstances (Associate Solicitor) – 12 minutes 28/09/2009 – Discussing correspondence from defendant advising upon address of defendant. Discussing action to take in circumstances (Paralegal) – 12 minutes The description of the correspondence is accurate. The email contained no other information. (We’ll ignore the general rule that “no separate charge is to be made for in-coming letters or e-mails” (CPD 4.16(1).) I would have loved to have been a fly on the wall when the discussion took place between Tweedledum and Tweedledee arguing over what to do in light of this dramatic development in the case. Defendant law costs draftsmen will probably have guessed which firm of solicitors had the cheek to serve this bill. The courts do have the power to penalise on detailed assessment this type of...

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