The defendant costs specialists

Posts made in February, 2011

Lawtel subscription rates

By on Feb 28, 2011 | 1 comment

I recently commented on some of the benefits of membership of the Association of Costs Lawyers (ACL) which included discounted subscription fees for Lawtel. I’m now going to have to remove that benefit from the list. When the existing annual Lawtel subscriptions of some ACL members were coming up for renewal those members had the temerity to ask Lawtel for their subscriptions to be renewed on the same discounted terms that the ACL had negotiated. This was done for no better reason that: They were also ACL members. They thought that Lawtel might be prepared to recognise their Lawtel loyalty by extending the same discounted rates as had been offered to various Johnny-come-latelies who had not been previous Lawtel users. Well, Lawtel was obviously not going to put up with any of that kind of nonsense. They immediately: Threw their toys out of the pram. Withdrew the ACL discount for other ACL members. Cancelled their stall at the forthcoming ACL Annual Conference. I guess it takes years of training in sales and marketing before it’s possible to run such a smooth operation....

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An end to time recording?

By on Feb 24, 2011 | 15 comments

One of Jackson LJ’s proposals is for fixed costs for all stages of all fast-track matters.  He concluded that this would produce savings in its own right as: “Claimant solicitors will no longer have to maintain documentation required for costs assessment”  This is presumably on the basis that it will not be necessary to time record with fixed fees for fast-track matters.  However, won’t solicitors still have to time record pre-allocation as they won’t know which track a matter will be allocated to?  The injuries may be more serious than first thought.  Even if the claimant is happy to run the case on the fast-track, the defendant may raise issues, such as alleging fraud, that takes the case away from the fast-track.  Even if allocated to the fast-track, the matter might be re-allocated at some future...

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Provisional Assessment Pilot – Unanswered problems

By on Feb 23, 2011 | 3 comments

Following on from my two-part article on the Leeds provisional assessment pilot, in Costs Lawyer magazine, District Judge Hill wrote a very informative article in response. One of the areas of concern that I highlighted was the fact that the rules did not allow for the court to know what offers have been made and when. There appeared to be no mechanism for the court to award detailed assessment costs to the paying party. DJ Hills response was, essentially, two-fold. Firstly: “The costs judge will not know of offers but so what? Do the rules and practice directions really need to cover every possible eventuality?” I’m not sure that having a rule that allows the court to know whether a paying party has made a successful offer is to be described as covering “every possible eventuality”. The provisional assessment rules do indeed make specific provisions in relation to dealing with the costs of assessment. The omission in question appears rather fundamental. Secondly, DJ Hill wrote: “If, say, there was an offer of £17,000 but the bill is assessed at £18,000, we know what the effect is and no adjustment to the provisionally assessed bill is required.” Do we know? If, say, a bill of costs is served seeking costs of £50,000, the paying party offers £17,000 and the bill is assessed at £18,000, is liability for the costs of assessment really obvious? The starting point is that the receiving party is entitled to costs of assessment unless the court orders otherwise (CPR 47.18(1)(b)). DJ Hill’s article says: “The usual rules apply.” What about CPR 47.18(2) then?: “In deciding whether to make some other order, the court must have regard to all the circumstances, including – (a) the conduct of all the parties; (b) the amount, if any, by which the bill of costs has been reduced; and (c) whether it was reasonable for a party to claim the costs of a particular item or to dispute that item.” What role for those factors (that the court must have regard to) if beating a paying party’s offer is an end to the matter? In the example above, it is highly unpredictable, in my experience, what order a court will actually...

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What do success fees pay for?

By on Feb 21, 2011 | 3 comments

The other day I posted a somewhat tongue-in-cheek comment about how the need for success fees could be avoided if claimant lawyers stopped bringing bad claims. However, there was meant to be a serious point underlying it. APIL’s opposition to the Jackson proposals to end recoverability of success fees can be seen from APIL’s president Muiris Lyons comment: “How can it be fair and just for someone who is suffering because of another person’s negligence to have to pay towards putting things right?” This question, and the issue of recoverable success fees, of course begs the following questions: “How can it be fair and just for someone who is not suffering because of another person’s negligence to have their costs of pursing a misconceived claim paid for by another party?” and “How can it be fair and just for someone (Party A) who has caused suffering to Party B to be forced to pay to towards the legal costs of Party C who has suffered an injury but as a result of an accident unconnected with Party A’s actions and incurred in the process of a failed claim against Party D?” Traditionally, legal claims were paid for privately. If a party was able to persuade the other side or the court they had a good claim then their legal costs were paid for by the negligent party. If a party failed in their claim, they paid their own costs (and those of the party they had “wrongly” pursued). Legal aid transferred the costs of the “bad” claim from the individual who brought the “bad” claim onto the tax payer. Or, arguably, enabled some “good” and “bad” claims to be brought that might not otherwise have been brought at all. The previous Government’s decision to introduce recoverable success fees transferred the costs of “bad” claims from the tax payer or the individual (often regardless of the ability of the individual to fund the claim privately) onto negligent defendants. Party A, who has negligently injured Party B, has to pay the costs of Party B and also (via the success fee mechanism) the costs of Party C bringing a “bad” claim against Party D. Recovery of success fees does not pay...

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