The defendant costs specialists

Posts made in October, 2011

Above the law

By on Oct 19, 2011 | 11 comments

I recently received, from a well-known firm of claimant lawyers, a set of Replies. In support of the Replies and the refusal to disclose the conditional fee agreements was a statement from the managing partner of the firm. This explanation included the following: “Defendants’ request for early disclosure of our CFAs is made in an attempt to avoid their obligations to pay costs on a technicality. I find this approach utterly wrong and certainly not in the spirit litigation should be conducted.” I suppose the “technicality” referred to is what some of us like to refer to as “the law”. Only lawyers who make their living holding others to account to the full extent permitted by the law would believe that the law is something that applies to everyone but...

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Fixed fees to be reduced

By on Oct 17, 2011 | 4 comments

Jonathan Djanogly has confirmed that the Government intends to reduce the fixed fees in RTA claims once the ban on referral fees comes in. Can we also expect a reduction in Guideline Hourly Rates, which haven’t been increased this year? A nicely balanced piece on the subject of RTA claims was published in the Daily...

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Motto & Others v Trafigura – Court of Appeal

By on Oct 13, 2011 | 5 comments

Court of Appeal judgment in Motto & Others v Trafigura [2011] EWCA Civ 1150 out.  Summary of leading judgment: “i) Proportionality: I would allow the defendants’ appeal, and would hold that it follows that any item on the Bill is only to be allowed if it was necessary; ii) Vetting costs: I agree with the Judge’s conclusions, save that the necessity test must be satisfied before any item is recoverable, and any specific (as opposed to generic) item can only be recovered if it falls within the grasp of the relevant claimant’s CFA; iii) Pre-Action Protocols: I would dismiss the defendants’ appeal against the Judge’s finding that there should be no disallowance or reduction in respect of any sum claimed in the Bill on the ground of the claimants’ failure to comply with any protocol or the PDPAC; iv) Medical reports: Subject to the point that the cost of these reports should not be recoverable if it was unnecessary to obtain them, I would uphold the Judge’s conclusion on this issue. v) Abandoned claims: Subject to satisfying the requirement of necessity in relation to an item, the claimants can recover costs in respect of the “abandoned claims” in so far as it was reasonable and proportionate to plead, investigate and pursue them; vi) Settlement and distribution: I would uphold the Judge’s conclusions, save I would discharge his imposition of the 26 October 2009 cut-off date; vii) Cost of funding: Contrary to the Judge’s conclusion, I do not consider that the claimants can recover the costs of preparing and advising on the CFAs, nor do I consider that they can, recover any costs incurred in discussing the litigation with,, or taking instructions from, with the ATE insurers; viii) Success fee: I would uphold the Judge’s determination of 58% uplift for both Leigh Day and counsel; ix) ATE premium: I would uphold the Judge’s decision to fix the premium of £9,677,554 by reference to a 65% prospect of success.” Much to mull over.  Something for claimants and something for...

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Risk assessment

By on Oct 7, 2011 | 2 comments

A further definition from The (Alternative) Legal Costs Dictionary: Risk assessment n. document that identifies the litigation risks of the case which is prepared prior to there being sufficient evidence available to identify the litigation risks of the case. A document carefully and methodically drafted to suggest a level of risk such as, if it actually existed, would mean the lawyer would not touch the case with a ten-foot bargepole but which will hopefully persuade a judge several years later to allow a 100% success fee.  ...

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Over-charging by City firms

By on Oct 3, 2011 | 2 comments

An interesting article from costs draftsman Jim Diamond on legal costs overcharging by City firms recently appeared on the Legal Week website. This included the following example: “The partner of a major law firm who was invited to a client’s corporate golf day. The partner subsequently charged the client eight hours at his full charge-out rate. The purchase of a pair of £80 golf shoes on the day was also charged, to the client’s...

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