The defendant costs specialists

Posts made in October, 2011

Proportionality in costs

By on Oct 27, 2011 | 6 comments

Even a stopped clock tells the correct time twice a day. And so it has come to pass that even I have turned out to be correct on a couple of occasions. Back in June, reporting in the Solicitors Journal on Master Hurst’s preliminary ruling on proportionality in Motto v Trafigura Ltd [2011] EWHC 90201 (Costs), I started by paraphrasing Humpty Dumpty: “proportionality means just what I choose it to mean – neither more nor less” It will be recalled that Master Hurst had relied on Morland J’s judgment in Giambrone v JMC Holidays [2002] EWHC 2932 (QB): “For my part I do not accept that if a costs judge has ruled at the outset of a detailed assessment that the bill as a whole is not dispropor-tionate he is precluded from deciding that an item or a number of items are or appear disproportionate having regard to the ‘matters in issue’.” Based on this passage Master Hurst had concluded: “Therefore, in my view, there is no reason why a costs judge, having found at the outset on a global view, that the costs have the appearance of being disproportionate, should be precluded from deciding that an item or number of items are in fact proportionate, and thus that the test of necessity should not apply to them.” I concluded the article: “So we now, apparently, have the situation whereby: 1. If the costs overall are deemed to be proportionate, individual items will be allowed if they were reasonable even if not necessary, unless the court decides that individual items are disproportionate, in which case they may be disallowed if they are reasonable but not necessary. 2. If the costs overall are deemed to be disproportionate, individual items will be allowed if they were both reasonable and necessary, unless the court decides that the individual items are proportionate, in which case they may be allowed if they are reasonable but not necessary. At this stage you may want to have a quiet lie down in a dark room. If a costs judge can allow or disallow individual items depending on whether they are individually deemed to be proportionate or disproportionate, what is the point of the global approach, as...

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Free legal advice – at a cost

By on Oct 26, 2011 | 4 comments

Bill of costs states: “Prior to entering into the CFA, the matter was privately funded.” So, no claim the CFA is retrospective in nature. Quick visit to the solicitors’ website which states, under the heading “How much will making a claim cost me?”: “Absolutely nothing, and that’s guaranteed!” Also, in clear and unambiguous wording: “free legal service”. And: “If you would like to speak to one of our personal injury Solicitors for free legal advice, call us now” And: “Our service is totally risk and cost free, there are no catches, no fees, no deductions and no middlemen, win or lose you will not be asked to pay a penny.” I wonder if their marketing department and costs department should speak to each...

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Costs management

By on Oct 25, 2011 | 3 comments

Richard Langley, writing in the Solicitors Journal, commenting on costs management records: Courts have always grappled with how to manage cases and had a variety of tools at their disposal for this purpose. In 1595, the Master of the Rolls decided in one chancery case that the pleading, at 120 pages long, was eight times longer than it needed to be. The remedy was to order that the pleader be brought into Westminster Hall at 10.00am the next Saturday, whereupon a hole be cut in the middle of the pleading so that it could be placed over the pleader’s head, who would then be led around “bare headed and bare faced” before being sent to the Fleet Prison until he had paid a £10 fine (Mylward v Weldon [1595] EWHC Ch 1). Something similar needed for prolix Points of Dispute and...

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Costs law updates

By on Oct 24, 2011 | 0 comments

If the Legal Costs Blog has seemed a bit quiet lately that is because I’ve been off sick with some kind of cold/flu virus for the best part of the last four weeks. To suggest I’m now a bit behind with work would be an understatement. With all the recent costs developments, I’ve now got about six month’s worth of blog posts to write. Until I’ve caught up can I ask the government to refrain from making any further costs related announcements, the rules committee from making any relevant rule changes and the courts from making any further costs judgments? I did manage to stagger to the LexisNexis Costs and Litigation Funding conference on Thursday. A quick summary of some of the issues covered can be found on the Legal Futures website. This included costs judge Master Haworth predicting that the Jackson reforms are likely to lead to the costs war restarting with a new wave of satellite litigation. So, something good may come out of all the upheaval. The chair of the conference, His Honour Michael Cook, quoted from the article I wrote for Solicitors Journal on the unresolved issue of whether VAT is included within the proposed 25% success fee cap in personal injury claims. Despite that article being written back in July we seem to be no closer to an answer. In other news (I’m trying to cram in as much as possible here), the Association of Costs Lawyers has released Modernising Bills of Costs – First Report of the Jackson Working Group. This report has been based on work by a number of key stakeholders and can be expected to form the basis for the inevitable changes to bill format that will follow Jackson...

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Why did the lawyer cross the road?

By on Oct 21, 2011 | 0 comments

I’m grateful to Kerry Underwood for the, possibly, apocryphal story of the solicitor’s bill that contained the following entry: “To crossing the road to say ‘Hello’ to you and to crossing back again when I realised that it was not you.”    

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