The defendant costs specialists

Posts made in May, 2011

No win, no fee; no stork, no baby

By on May 31, 2011 | 0 comments

Evidence from Berlin shows a clear correlation between the human birth rate and the stork population, thus proving that storks bring babies. Or is this faulty logic? I wonder if we can find some other examples. Step forward the Access to Justice Action Group (AJAG) and the Association of Personal Injury Lawyers (APIL). Here are a few extracts from their recent press release following their “independent research” on Jackson implementation: “Independent research … highlights the importance of ‘no win, no fee’ agreements to the general public, and throws a direct challenge to the Government’s proposed legislation to reduce access to justice by dramatically restricting ‘no win, no fee’ agreements. The research … calculates that almost three million people have used this method to make a legal claim in the last five years. The vast majority of those are people suffering from personal injury. Proposed restrictions to ‘no win no fee’ will mean the facility will cease to be an option for many claimants, and the research reveals that, due to their income, most won’t be able to fund their claims any other way” Denise Kitchener, chief executive of APIL, was quoted: “Under the Government proposals for ‘no win, no fee’ a huge number of people will lose their right to the compensation to which they are entitled, and which they need and deserve, as they will not be able to afford the legal help they need to bring a claim.” It’s the staggering lack of any logical connection between the research undertaken and the conclusion reached that really takes the biscuit. We can only assume that this press release is targeted at those who do not understand the current system and are unaware of the Government’s proposals. The research shows that a lot of people have brought personal injury claims using ‘no win, no fee’ agreements. The research shows that many of them are on relatively low incomes. The “won’t be able to fund their claims any other way” means that they could not pay their solicitors’ ordinary fees in the event a claim was lost. ‘No win, no fee’ agreements are not about to be banned. In future, a successful claimant will pay any success fee out of...

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A wee bit of common sense

By on May 27, 2011 | 17 comments

Comment appearing on Linkedin discussion forum concerning Jackson implementation: “As a scots lawyer I am reluctant to intrude upon private grief but we have never had CFA’s in Scotland nor recoverable ATE premiums and the world has so far as I am aware from the increasing volume of claims from Scottish claimant solicitors, not yet come to an...

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Getting what they deserve?

By on May 26, 2011 | 0 comments

[youtube]j2jNLwg_C4Y[/youtube] Does this mean that Jackson is karma in action for claimant personal injury lawyers? You may need to adjust your security settings or view online if you receive the Legal Costs Blog via email.

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Costs in infant approval hearings

By on May 25, 2011 | 2 comments

Lisa Wright, barrister at 4 King’s Bench Walk, recently wrote a couple of interesting articles in the New Law Journal (18 February 2011 and 15 & 22 April 2001) on costs in RTA infant approval hearings. The second article dealt with costs under the new fixed costs regime under CPR 45.27 to 45.40. The article, when considering hearings to assess damages, stated: “Where the defendant is ordered to pay the claimant’s stage 3 costs, the court can order the stage 1 and stage 2 costs to be paid. CPR 45.38 does not provide for this, however, it is presumed that the court can make such an order given that in adult claims, such costs are paid at the end of each stage (paras 6.18 and 7.61 of the Protocol).” The fact that CPR 45.38 “does not provide for this” picks up on the point I identified when the draft rules were first released (see New RTA scheme rules and win a bottle of champagne). Given the rules were introduced back on 30 April 2010, would it not make more sense for the rules to be updated to fill this lacuna rather than expect judges to have to make it up as they go...

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Discretionary rights of audience?

By on May 23, 2011 | 9 comments

The debate as to whether non-Costs Lawyer costs draftsmen can appear before the courts on detailed assessment continues to rumble on. Although a further detailed analysis of this issue will have to wait for another day, I will briefly pick-up on some observations recently made in an article in Costs Lawyer magazine on the subject. This reviewed a recent judgment from His Honour Judge Holman in Bank of Scotland v Whiteside (16 February 2011). The issue in that case was whether the court should grant a debt collection agency, which was not a firm of solicitors, the right to conduct litigation. That judgment also considered the earlier Court of Appeal decision of Clarkson v Gilbert [2000] 2 FLR 839. In that case the issue was whether it was appropriate to grant the claimant’s husband, who was not a qualified lawyer, rights of audience in relation to the claimant’s case. The court determined that it should only exercise its discretion to permit him to act if there was a ‘good reason’. Judge Holman had noted: “Perhaps most significantly, the right to conduct litigation will only be granted in exceptional circumstances to those who are acting for reward”. Interesting though this decision is, I would suggest it has no direct relevance to the issue of costs draftsmen’s rights of audience. The Bank of Scotland and the Clarkson cases were dealing with the question of whether the court should exercise its discretion to grant rights of audience or rights to conduct litigation to those who otherwise did not have them. That was an issue of discretion and the conclusion was that the court would be slow to exercise such discretion in favour of the unauthorised company or individual. In relation to detailed assessment hearings, the position was previously governed by section 27 of the Courts and Legal Services Act 1990. Law costs draftsmen, not otherwise having rights of audience, were permitted to appear by virtue of falling within s27(2)(e): “where – (i) he is employed (whether wholly or in part) or is otherwise engaged to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and (ii)...

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