The defendant costs specialists

Posts made in March, 2011

Jackson implementation

By on Mar 30, 2011 | 35 comments

The recent lobbying by claimant organisations has paid-off as the Government has entirely abandoned plans to implement the Jackson costs reforms. Oh … sorry. I had pre-prepared two different posts in advance of the announcement yesterday to deal with either eventuality. Let’s start again. The recent lobbying by claimant organisations has been a complete waste of time and money and the Government has announced plans to press ahead with the Jackson costs reforms virtually in full. As the Response to proposals for reform of civil litigation funding and costs in England and Wales says: “The Government intends to implement the reforms to no win no fee conditional fee agreements (CFAs), proposed as a package of measures by Lord Justice Jackson”. The plans include: • Abolish the general recoverability of the CFA success fee from the losing side. In future any CFA success fee will be paid by the CFA funded party, rather than the other side. In personal injury cases, there will be a cap on the amount of damages that may be taken as a success fee. The cap will be set at 25% of the damages other than those for future care and loss. Maximum success fee to remain at 100%. – Yes. It’s really going to happen. • Abolish the general recoverability of after the event (ATE) insurance premiums. The Government intends to have a tightly drawn power to allow recoverability of the ATE insurance premiums to cover the cost of expert reports only in clinical negligence cases. – The end of most of the ATE industry? There will probably be some left to pick up the pieces of ATE for own disbursements, unless solicitors decided to fund this risk themselves. • There will be an increase of 10% in non-pecuniary general damages such as pain, suffering and loss of amenity in tort cases, for all claimants. – A small price to pay for defendants and insurers given the large savings that ending recover of success fees and ATE should bring. • The recoverability of the self-insurance element by membership organisations, equivalent to the ATE insurance premium, will also be abolished. – Who would have guessed that a Conservative led government would be prepared to end...

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Future of CFAs and ATE announced today

By on Mar 29, 2011 | 18 comments

The Ministry of Justice will make a statement today as to its response to the Jackson consultation.  Press leaks suggest that the government will push ahead with ending the recoverability of success fees and after-the-event insurance premium from the losing side. As usual, Legal Futures is likely to be first to report the details and they invite you to check their site after 3.30pm.  (Fingers ready at the keyboard Neil?) Kenneth Clarke speaking earlier today on: the Today programme.  Sounds like clinical negligence claims will be hit as well as other...

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Gray v Toner – Interest on costs

By on Mar 28, 2011 | 11 comments

Writing the Legal Costs Blog is great fun (so long as you don’t mind the hate mail, death threats and excrement shoved through the letter-box). However, one of the drawbacks is that readers come to expect absolutely all costs developments to be reported immediately and in full and complain bitterly if they feel I have let them down. Sadly, pesky clients keep sending me work and topics I mean to discuss on the Blog sometimes get overlooked. Of the various omissions I have made lately, the most unforgivable, of course, is the case of Gray v Toner (11 November 2010, Liverpool County Court) (see link for judgment). This was a decision by His Honour Judge Stewart QC where he held that as a matter of principle interest does not begin to run on costs until they have been assessed, rather than the date of the costs order (eg acceptance of Part 36 offer, Consent Order, etc). Alternatively, if he was wrong on this point, he held that in CFA funded cases the court should exercise its discretion under CPR 40.8(2) and only allow interest from the date costs are assessed. The judge held that as the primary purpose of interest on costs was to compensate a party for being kept out-of-pocket, and CFA funded parties have not usually paid as the claim has progressed, it would be appropriate that interest should only run from the date of assessment of costs and not from the date of the order for costs to be assessed. The decision on the point of principle, as to when interest runs as a matter of right, is surprising and certainly contrary to everyone’s previous understanding (which does not of itself mean it is wrong). It also appears to be a different reading of the rules to that which those who drafted the CPR had. CPR 47.8 deals with the “sanction for delay in commencing detailed assessment proceedings” and at CPR 47.8(3) reads: “3) If – (a) the paying party has not made an application in accordance with paragraph (1); and (b) the receiving party commences the proceedings later than the period specified in rule 47.7, the court may disallow all or part of the interest...

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Denis O'Riordan's retirement

By on Mar 25, 2011 | 5 comments

Principal Costs Officer Denis O’Riordan is retiring from the Senior Courts Costs Office. Over the years I may not have always achieved the exact result I might have hoped for, but it has always been a pleasure to appear before him. What stands out is that I cannot recall a single occasion where I have had a hearing before him where he has not mastered the papers and the progress of the case better than either of the advocates appearing. There is therefore no chance, and he never allowed it, for either advocate (but particularly the one for the receiving party) to mislead the court (or the other side) as to how certain costs have come to be incurred. This can only be possible through the countless hours of reading time and preparation he must have consistently put into each case. I am sure I am not alone in noticing and appreciating this devotion to his work. The Legal Costs Blog wishes Denis a well earned and happy...

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Vituperative responses

By on Mar 25, 2011 | 6 comments

Some interesting thoughts on anonymous comments appearing on websites from Joshua Rozenberg writing in the Law Society Gazette: “Write an article for publication these days and the chances are that it will attract ill-informed comments. No longer content with sending in a letter to the editor and waiting to see if it is printed, readers now demand an instant right of reply on the publisher’s website. And why do so many readers post vituperative responses that they would not dream of making to a writer in person? It must surely be because most such comments appear anonymously.” The fact I allow these on the Legal Costs Blog seems to please and infuriate readers in equal measure.  [Yes.  I had to reach for my dictionary too.]...

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