The defendant costs specialists

Posts made in December, 2011

Costs Lawyer student numbers double

By on Dec 15, 2011 | 2 comments

Association of Costs Lawyers’ press release: The number of people choosing to train as a Costs Lawyer has almost doubled during 2011 as the impact of several major forces – including the Jackson reforms and the Legal Services Act – are felt in the costs sector. The Association of Costs Lawyers received 112 applications to take its join its rigorous training programme this year, compared to 65 in 2010. Study leads ultimately to qualification as a Costs Lawyer, an authorised person under the Legal Services Act with independent rights of audience and to conduct litigation. Iain Stark, chairman of the Association of Costs Lawyers, said one major factor was the growing insistence of the courts that only those with rights of audience can appear in costs hearings – law costs draftsmen, who are not members of the ACL, have to rely on an out-of-date “legal fiction” that they are temporary employees of their instructing solicitor and so can “borrow” their rights of audience. Mr Stark explains: “Following the recent costs management pilot in Birmingham and the current nationwide pilot in Mercantile Courts and Technology and Construction Courts across England and Wales arising out of the Jackson reforms, the profile and importance of costs has never been higher. As such, judges increasingly want to hear from those with the relevant experience and recognised level of qualification. “All litigators will have to get to grips with costs budgeting as part of these reforms and we are seeing more firms – including some of the largest in the City – deciding to bring costs expertise in-house so they can manage costs from the start.” The increased status of costs professionals coupled with the continued downturn in the legal jobs market has changed people’s attitude towards a career in costs, Mr Stark continues. “The unprecedented rise in student numbers demonstrates that people are starting to realise that there are other routes to a successful and rewarding legal career. Under the Legal Services Act, Costs Lawyers undertake reserved legal activities and enjoy the same benefits and status of many other legal professionals – including partnership in legal disciplinary practices.” The Costs Lawyer route to qualification also supports the social mobility agenda in the legal...

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Successful National Accident Helpline challenge

By on Dec 14, 2011 | 0 comments

Earlier this year I successfully argued that a CFA was unenforceable and the solicitors’ costs were therefore disallowed. The challenge was on the basis of the, now revoked, Conditional Fee Agreement Regulations 2000, in that the solicitors had failed to advise the client of the interest they had in recommending a particular ATE insurance policy. The claim concerned the National Accident Helpline scheme. I am not aware of any reported decisions concerning this scheme and it may be that the outcome was fact specific. The decision shows that Regulation 4(2)(e) challenges have not been killed off by the judgment in Tankard v John Fredricks Plastics Ltd [2008] EWCA Civ 1375. (That judgment simply muddied the waters.) What I find interesting about this matter is how long it has dragged on for. This was a routine RTA claim resulting from an accident on 12 December 2003 which settled for £8,000. The claim settled on 21 February 2008. Detailed assessment proceedings were commenced on 3 March 2009 and rumbled on until judgment was handed down in relation to the preliminary issue of the enforceability of the CFA on 14 April 2011. But did not end there. The Claimant is appealing the decision of the Costs Judge and the appeal is due to be heard very shortly. (If the appeal is dismissed I will let you know. If it succeeds I will keep quiet about it and hope posterity records this as being an outright win on my part.) Those concerned about the impact of the Jackson reforms can console themselves with the thought that there can be a surprisingly long run-off for even the lowest value claims. The judgment can be read here: King v Thames Water Utilities & Transport for London....

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Cook on Costs 2005

By on Dec 13, 2011 | 3 comments

I never knew my old legal costs text books could be so valuable. I see someone is selling a used copy of Cook on Costs 2005 on Amazon for £637.51 (plus delivery). [Update – I see they’ve dropped the price to £19.99 this morning. Just as I thought I was sitting on a goldmine.] [Further update.  Seems to be holding its price elsewhere, although this looks like a different...

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When is an RTA not an RTA?

By on Dec 12, 2011 | 12 comments

I’ve said it before, and I’ll say it again, access to the Association of Costs Lawyer’s online Members’ Forum alone is arguably worth the price of ACL membership. One of the favourite topics that keeps coming up is when is an RTA not an RTA for the purposes of the fixed success fee regime. Endless fascinating examples keep getting thrown up but this is one of my favourites: “I had a case where a poor old dear was casually sitting in her armchair reading when she was injured as a consequence of being blown across the room when a vehicle exploded in the road outside her home – and this was deemed to be an RTA, albeit one that occurred within the comfort of her own...

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Costs of issues abandoned

By on Dec 9, 2011 | 6 comments

Should a party expect to recover costs in relation to heads of claim which they have abandoned? In AEI Ltd v Phonographic Performance Limited [1999] 1 WLR 1507, Lord Woolf MR stated: “…it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs of a particular issue on which he has failed.” Referring to this judgment Longmore LJ, in Summit Property Ltd v Pitmans (A Firm) [2001] EWCA Civ 2020, at paragraph 16, approved this view and went further: “In my judgment, it is also no longer necessary for a party to have acted unreasonably or improperly before he can be required to pay the costs of the other party of a particular issue on which he (the first party) has failed. That is the substance of what the Master of the Rolls was there saying.” Again, in Dudley Fleming v Chief Constable of Sussex [2004] EWCA Civ 643, Potter LJ observed at paragraph 36: “The principles are too well known to require to be set out in detail. The pre-CPR working rule to be found in the judgment of Nourse LJ in Re Elgindata Ltd (No 2) 1 WLR 1207 was modified by the observations of Woolf Lord in AEI Rediffusion Music Ltd v Phonographic Performance Ltd to the effect that it is no longer necessary for a party to have acted unreasonably or improperly to be deprived of his costs on a particular issue on which he has failed.” So the test for recovery is not necessarily one of whether it was reasonable to pursue that head of claim. In Shirely v Caswell [2001] 1 Costs LR 1, Chadwick, LJ, giving the judgment of the Court of Appeal: “The costs of issues abandoned, or not pursued at trial, ought, prima facie, to be disallowed against the party incurring them on an assessment of the costs of that party by the costs judge – because, again prima facie, they are costs which have been unnecessarily incurred in the litigation.” Burton J said, in Nugent v Goss Aviation [2002] EWHC 1281 (QB): “On an assessment the costs judge, who will prima facie disallow costs in respect of issues abandoned or...

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