The defendant costs specialists

Posts made in December, 2010

Christmas Greetings

By on Dec 23, 2010 | 1 comment

The Legal Costs Blog will sign off for this year with something seasonal, if off-topic. Whoever did the visuals for this monologue obviously spent an enormous amount of time on the job but I don’t feel it adds anything and recommend simply sitting back in your chair, closing your eyes and enjoying. The only piece of background information that you might find helpful is this: the historical St Nicholas (Santa) was a bishop in what is current day Turkey. [youtube]sbJpRLhaSqs[/youtube] [youtube]vU1D1HKTDCY[/youtube] [youtube]g17Pl7MFMco[/youtube] You may need to adjust your security settings if you receive this via email or view online. Happy Christmas and a prosperous New...

Read More

Unlawful and grotesque funding arrangement?

By on Dec 22, 2010 | 2 comments

My latest Update: Costs for Solicitors Journal is now available to view online.  The “apportionment” subject is fraught with complexity and I won’t pretend this is meant to be a definitive analysis of the issue or that the two first instance decisions mentioned, where I was acting for the defendants, would necessarily be decided the same way by different judges.  This is an issue that many law costs draftsmen don’t appear to even recognise as a potential problem when drafting bills. Also available is a further book review for Civil Costs: Law and Practice. For non-subscribers, I think access is for only a limited period. Jackson LJ’s attack on “grotesque” funding arrangements (see link) raises an issue I have been meaning to comment on for some time.  I am not at all sure that the funding arrangement in that case was even lawful.  This is based on the fact the CFA had been entered into where there was “no risk” of non-payment of ordinary fees.  There was no “conditional” event.  In Arkin v Borchard Lines Ltd [2001] NLJR 970 Coleman J held: “26. It is further argued that, if the February 2001 Agreement effected a variation of the CFA with retrospective effect, that variation would be unenforceable as being contrary to public policy. This submission is based on the foundation that, unless permitted by statute, conditional fee agreements are unenforceable on public policy grounds. That proposition is firmly founded on the unreported decision of the Court of Appeal in Awwad v Geraghty & Co 25 November 1999 (Lord Binghal LCJ, Schiemann and May LJJ). The relevant statutory provision is section 58 of the Courts and Legal Services Act 1990 in its unamended form. On the proper construction of that section the only permissible conditional fee agreements are those entered into before it is known whether the condition of success has been satisfied. The provision in section 58(1) that: “In this section a ‘conditional fee agreement’ means an agreement in writing between a person providing advocacy or litigation services and his client which – (b) provides for that person’s fees and expenses, or any part of them, to be payable only in specified circumstances”. clearly referred to circumstances which have...

Read More

Lord Justice Jackson wins award

By on Dec 21, 2010 | 1 comment

Lord Justice Jackson has won a Golden Bull award from the Plain English Campaign for one of the year’s “best” examples of gobbledygook.  This was from an excerpt from his Review of Civil Litigation Costs: Final Report on page 184. “Personal injuries litigation is the paradigm instance of litigation in which the parties are in an asymmetric relationship, as discussed in chapter 9 above.” The Plain English Campaign suggested that perhaps Lord Jackson could have said: “Personal injuries cases are the examples of court cases between different parties.” As Solicitors Journal pointed out: “Sadly this appears to make no...

Read More

"Grotesque" funding arrangement

By on Dec 17, 2010 | 7 comments

Lord Justice Jackson, giving the leading judgment in the case of Pankhurst v White [2010] EWCA Civ 1445, described the claimant’s solicitors’ funding arrangement as “grotesque”. What generated this fury, aside from the fact that there was a success fee claimed and the claimant had the benefit of ATE obviously? The claimant’s solicitors had entered into a conditional fee agreement (CFA) some two months after obtaining judgment on liability with a 100% success fee if the action went to trial. “Success” was defined as any recovery of damages. The claim related to a catastrophic injury case where there could be no question of damages being assessed at zero once primary liability was resolved. Therefore, even if the claimant lost at a quantum trial on a defendant’s Part 36 offer, as indeed he did, the solicitors would still be entitled to their base costs in relation to the quantum trial. This would come out of the claimant’s damages. As Jackson LJ observed: “In the circumstances of this case there was no risk whatsoever that the claimant’s solicitors would not be paid their base costs in full. Yet the solicitors were charging a ‘success fee’ on top of their base costs for running a non-existent risk. This makes a mockery of what is said to be the justification of the present conditional fee agreement regime.” This case represents a perfect example of how to kill a golden goose. This is why claimant lawyers’ pleas that the Jackson proposals will hinder access to justice are likely to fall on deaf ears. This case has an interesting twist. It appears that the MIB, who were defending the claim, agreed “with the benefit of legal advice” to pay a 35% success fee to the claimant. What strange legal advice the MIB appear to have...

Read More

Typical blogger

By on Dec 16, 2010 | 0 comments

As Andrew Marr recently noted: “A lot of bloggers seem to be socially inadequate, pimpled, single, slightly seedy, bald, cauliflower-nosed young men sitting in their mother’s basements and ranting. They are very angry people.” What a cheek.  I’ve still got a full head of hair.

Read More