The defendant costs specialists

Posts made in September, 2011

Costs incurred in litigation about estates

By on Sep 12, 2011 | 0 comments

One of the amendments to the 57th Update to the Civil Procedure Rules, which comes into force on 1 October 2011, introduces costs capping rules in relation to trust funds. What is peculiar about this change is, so far as I can see on a brief review, it does not give any guidance as to the factors the court is to take into account when deciding whether to make such an order. It purports to supplement CPR 44.17-20 which introduced the restrictive approach to such orders. However, the very introduction of the rule for this type of case and the fact the court is specifically permitted to consider making such an order of its own initiative implies that these may be made much more frequently than generally. The explanatory note reads: “Minor amendments are made to streamline the process and minimise work and costs incurred in litigation about estates”. Are costs capping orders coming back into vogue? The relevant changes to the Costs Practice Direction are: (1) After paragraph 23A.5, insert— “SECTION 23B COSTS CAPPING ORDERS IN RELATION TO TRUST FUNDS 23B.1 In this Section “trust fund” means property which is the subject of a trust, and includes the estate of a deceased person. 23B.2 This Section contains additional provisions to enable— (a) the parties to consider whether to apply for; and (b) the court to consider whether to make of its own initiative, a costs capping order in proceedings relating to trust funds. It supplements rules 44.17-20 and Section 23A of this Practice Direction. 23B.3 Any party to such proceedings who intends to apply for an order for the payment of costs out of the trust fund must file and serve on all other parties written notice of that intention together with an estimate of the costs likely to be incurred by that party. 23B.4 The documents mentioned in paragraph 23B.3 must be filed and served— (a) in a Part 7 claim, with the first statement of case; and (b) in a Part 8 claim, with the evidence (or, if a defendant does not intend to serve and file evidence, with the acknowledgement of service). 23B.5 When proceedings first come before the court for directions the court may...

Read More

Defamation Proceedings Costs Management Scheme

By on Sep 9, 2011 | 0 comments

Costs lawyers and law costs draftsmen not engaged in defamation proceedings may be forgiven for not getting too exited about the 57th Update to the Civil Procedure Rules extending the Defamation Proceedings Costs Management Scheme for another year. However, to do so would be a big mistake.  It would equally be a mistake for those who do not work in costs law to think the scheme is of no interest. This pilot may well be the blueprint for costs management in all multi-track claims in the future. The relevant practice direction for the pilot is being amended. Previously the key section (5.6) read: The judge conducting a detailed or summary assessment will have regard to the budget estimates of the receiving party and to any view previously expressed by the court pursuant to paragraph 5.3. Unless there has been a significant change in circumstances the judge will approve as reasonable and proportionate any costs claimed which fall within the last previously approved budget. Save in exceptional circumstances the judge will not approve as reasonable and proportionate any costs claimed which do not fall within the last previously approved budget. What this means is that so long as the costs come in “on budget” then unless there has been a significant change in circumstances the costs claimed will be allowed. The budget acts as a cap on what will normally be allowed. This section is now being changed to: When assessing costs on the standard basis, the court— (1) will have regard to the receiving party’s last approved budget; and (2) will not depart from such approved budget unless satisfied that there is good reason to do so. In my view, this is a fundamental change. This seems to suggest that the budget figure might be allowed even if that level of costs has not been incurred. Arguably, of course, this would require a change to the indemnity principle. However, we already have fixed fee rules elsewhere that allow for greater costs recovery than may reflect the level of costs incurred. What place for detailed assessment if a party is claiming costs of no more than the budget? On the other hand, does the change from “unless there has been...

Read More

Compensation culture still a myth?

By on Sep 8, 2011 | 8 comments

The Insurance Times has reported that the volume of whiplash claims has shot up by a third over the past three years. Figures obtained from the Department of Work and Pensions show that 571,111 whiplash claims were registered with the Compensation Recovery Unit in 2010-11. This is a one-third jump on the widely quoted figure of 432,000 whiplash claims in the ABI’s 2009 whiplash report. What really struck me was that this was reported to be against a backdrop of a fall from 247,780 to 208,648 in the number of all road traffic accidents reported to the police, according to Department for Transport statistics. If my maths is correct (and it rarely is), that must mean that for every RTA reported to the police there are a corresponding 2.7 people who suffer whiplash. Given the large number of vehicles on the road with only one occupant (probably the majority), that would represent a farcically high injury rate. You couldn’t make it up. Oh. Actually you can. That’s the problem....

Read More