The defendant costs specialists

Posts made in January, 2012

Liability for detailed assessment costs

By on Jan 31, 2012 | 2 comments

Lord Justice Jackson’s recent lecture on Assessment of Costs in the Brave New World reveals a number of important forthcoming amendments to the CPR and Costs Practice Direction. One of the big changes it to scrap the current CPR 47.18 and 47.19, concerning liability for detailed assessment costs, and substitute these with: “47.18 (1) The general rules about costs contained in Parts 36, 43 and 44 apply to the costs of detailed assessment proceedings, as if “claimant” means receiving party and “defendant” means paying party. (2) The court will summarily assess the costs of detailed assessment proceedings at the conclusion of those proceedings, unless otherwise ordered. 47.19 Unless the court otherwise orders, interest on the costs of detailed assessment proceedings shall run from the date of the default, interim or final costs certificate, as the case may be.” I’m not entirely sure what to make of this (it isn’t clear as to what this will actually mean). The existing express presumption that the receiving party gets the costs of assessment goes. You will then have to look at CPR 44.3 as the starting point: “(2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but (b) the court may make a different order.” What does this mean it relation to detailed assessment costs? Is the “successful” party the party who won the substantive claim? Or, is the “successful” party the party who succeeds in relation to the detailed assessment hearing, which is the subject of the order being made? How do you define success if neither party has made a successful offer? If a paying party reduces a bill by 40% are they the “successful” or the “unsuccessful” party? Satellite litigation round one. Even if we accept that the intention of the rule is that the receiving party is to be treated as the “successful” part, having won the substantive claim, where do we go from there other than having a presumption? The current Part 47.18 creates a presumption in favour of the receiving party but then says at Part 47.18(2): “In deciding whether to make some...

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Jackson postponed

By on Jan 30, 2012 | 0 comments

The government has announced that implementation of the Jackson reforms in the Legal Aid, Sentencing and Punishment of Offenders Bill has been put back six months to April 2013, whilst remaining committed to the reforms.

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Boom or bust for litigation numbers?

By on Jan 30, 2012 | 0 comments

Andrew Dismore, co-ordinator of the Access to Justice Action Group, recently wrote a letter to the Guardian newspaper predicting that “there will be at least 25% fewer claimants” as a result of the proposed changes to the no win, no fee system. This is the same Andrew Dismore who recently predicted, in relation to clinical negligence matters, the proposed changes would lead to “an increase in the number of cases of 1/3rd”. Now, I recognise that it is theoretically possible that the number of clinical negligence claims might go up at the same time the overall number of claims might go down. However, given it is generally recognised that clinical negligence claims are, typically, riskier and much more expensive to run than other types of claim, it seems absurdly unlikely that they would go up significantly at the same time as the number of other claims significantly declines. It is probably too late to have a grown up and informed debate on the impact of the proposed reforms, and only time will tell, however, perhaps the Access to Justice Group could be clear as to which types of claim they are predicting increasing or decreasing numbers and why. I’ll drop an email to Andrew and let you know when I get a response. Click image to enlarge:  ...

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Provisional assessment pilot hailed a success

By on Jan 27, 2012 | 5 comments

The Provisional Assessment Pilot, only one year into the two year pilot, has been hailed a success by Lord Justice Jackson (see Report on the Provisional Assessment Pilot). He recommends that it is rolled out nationally. The scheme covers bills up to £25,000. The first thought is how are junior law costs draftsmen and costs lawyers going to gain advocacy experience if these bills are all assessed on paper (a similar kind of problem the junior bar faces with the loss of much low level advocacy to solicitors)? The second thought is how many bills under £25,000 will there be once fixed fees are extended across the fast-track? The third thought is have I got a big enough pension pot to consider early retirement? The report advises there were 119 cases in the pilot during the first year. After provisional assessment only 2 cases proceeded to an oral hearing. In neither case did the requesting party achieve an improvement of 20% or more upon what it had secured in the provisional assessment. There’s a surprise. The average time spent on each provisional assessment was 37 minutes and the median time was 40 minutes. Experience during the second year of the pilot suggests that where provisional assessment is carried out by a district judge who is not a regional costs judge (and therefore has less experience of assessing costs) 60 minutes should be allowed for the exercise. Make of that what you will. The report found that the process is far cheaper for the parties than traditional detailed assessment, because (save in rare cases) they avoid the costs of preparing for and attending a hearing. DJs Hill and Bedford estimate that the savings for the parties are at least £4,000 per case. (Not a thought for the poor lawyers who find themselves out of pocket. It’s like trying to encourage healthy lifestyles without a thought for the doctors and nurses who may find themselves out of work as a result.) It looks as though provisional assessment will be rolled out nationally at the same time as the other major costs reforms (currently October 2012 although there are some suggestions this may be pushed back to April 2013). Sir Rupert’s recent...

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Controlling Third Party Solicitors' Costs

By on Jan 26, 2012 | 0 comments

I will be speaking at the CIPFA Insurance Network’s conference Effective Claims Handling and Implementing Successful Approaches to Reducing Insurance Claims and Costs covering the subject of Controlling Third Party Solicitors’ Costs. This will be held in London on 14 March 2012 and in Leeds on 21 March 2012. There are just a limited number of places still available. Visit: http://www.cipfanetworks.net/insurance/events/ for more...

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