Implementation of the Jackson costs reforms has moved a step closer with the Legal Aid Sentencing and Punishment of Offenders Bill passing its second reading in the House of Lords, despite 51 of the 54 members who rose to speak criticising the bill.
However little time was spent debating the civil costs reforms and this increasingly looks like a done deal.
The Costs Law Articles Archive section of Legal Costs Central has been updated with a couple of articles from 2006 dealing with CFA challenges from the height of the costs wars. Thanks to Kings Chambers.
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A recent survey by a legal recruitment consultancy reported:
“When asked to rate their confidence in the jobs’ market on a scale ranging from 10 (very optimistic) to -10 (very pessimistic), the average score for lawyers was -7.8.”
It was not reported as to whether any law costs draftsmen or costs lawyers had taken part or what their average scores were.
Barrister Andrew Crouch, writing in Solicitors Journal Bar Focus supplement highlights an interesting problem that will apply equally to barristers and solicitors post-Jackson concerning the operation of the proposed 25% success fee cap based on general damages and past losses:
“lawyers in the post-Jackson reform world are also going to have to get used to asking their successful clients to pay them their success fees from their general damages (enhanced by ten per cent) and past losses. If the matter goes to court, such calculations should cause little difficulty, but surely it is only a matter of time, in a case that settles, before there is a dispute between a lawyer and his client as to the proportion of general damages and past or future losses in the sum agreed and the sum on which the lawyer is entitled to claim his success fee”
As to the related problem that I have raised in the past of whether the 25% cap includes or excludes VAT, Lord Justice Jackson has confirmed that in his view the 25% figure should include VAT. This means legal representatives will actually recover only 20.83%. Jackson LJ does not seem to have commented on whether the 25% cap (or rather 20.83%) should be split between the solicitor and barrister (or barristers) where both are instructed.
Lord Justice Jackson’s recent paper for the Civil Justice Council Workshop on “Technical Aspects of Implementation” opens with the quote:
“Cultivate simplicity, Coleridge”
The footnote advises this comes from Charles Lamb’s advice to Samuel Taylor Coleridge in 1796.
Nice to see a CH link slipped in.
Jack Straw’s attempt to make the payment of referral fees a criminal offence has failed (in part because of concerns over the burden of proof required). Instead the proposed ban will be dealt with by the regulators.
Dominic Regan, writing in the New Law Journal, suggests this is:
“the most sensible way of enforcing a ban upon the profession. … The risk of being struck off should ensure that the tempted do not succumb”
So the clock will be turned back to pre-2004 when the Law Society rules banned referral fees and solicitors wouldn’t dream of paying them for fear of the consequences. Unless there were panel members of Claims Direct, Accident Group, etc, etc.
The Court of Appeal handed down judgment on 12 October 2011 in Motto & Others v Trafigura  EWCA Civ 1150 ruling that funding costs are not recoverable. How long will I have to wait before all bills of costs have stopped claiming for this work?
The Civil Justice Committee Working Group on Technical Aspects of Jackson Implementation has published its initial paper on possible options for implementing changes to proportionality, Part 36 Offers and Qualified One-way Costs Shifting.
Rachel Rothwell, writing in the Gazette, described the working group as “comprising some of the most talented and experienced practitioners in the field of costs”. A view that the Association of Costs Lawyers wouldn’t necessarily share.
I’m putting my money on them picking Option C for proportionality:
The hybrid model. Under this model both reasonableness and proportionality are considered at the same time when ever an item or category of costs is being assessed / budgeted. Unlike Option A and B, proportionality (and the new rule) is applied as the items of the bill or categories of costs are being assessed alongside considerations of reasonableness. There is then a residual long stop for the court to reduce the figure still further if the proportionality rule justifies it. This will be applied in only rare / exceptional cases. Like Option A, the application of the long stop will be in exceptional or rare cases only, but this time not because reasonableness would have catered for disproportionate costs (as in Option A) but because inevitably where a court has assessed items as being reasonable and proportionate during an assessment it will only be in exceptional or rare cases that the outcome of the assessment results in a disproportionate figure.
In real terms, this will mean no change from the current position for the vast majority of cases. Proportionality will remain a damp-squib with no impact on the amounts allowed by the courts, thus undermining one of the key Jackson proposals.
The Legal Aid, Sentencing and Punishment of Offenders Bill, implementing the Jackson reforms, has cleared the Commons and will now go to the House of Lords.
Lord Justice Jackson, in a written lecture, said:
“Lawyers leave no stone unturned when it comes to arguing about costs”
I think this is something of a generalisation. I would never dream of running anything but the strongest of arguments.
As for all the others I come up against in court…
Lecture can be read here.
Just received email from costs drafting recruitment agency for costs lawyer who “has successfully maintained a record of achieving 100% success in court cases over a 16 year period”.
Is this something to shout about?