The defendant costs specialists

Refund on hearing fees

By on Jan 12, 2012 | 17 comments

At the time of filing a pre-trial check list (listing questionnaire) or where the court fixes the trial date or trial week without the need for a pre-trial check list, in addition to the listing fee (currently £110) it is necessary to pay a hearing fee (currently £1,090 for a multi-track matter and £545 for a fast-track matter).

The Civil Proceedings Fees (Amendment) Order 2011 provides at 2.3, as did previous versions, that:

“Where a case is on the multi-track or fast track and, after a hearing date has been fixed, the court receives notice in writing from the party who paid the hearing fee that the case has been settled or discontinued then the following percentages of the hearing fee will be refunded:

(i) 100% if the court is notified more than 28 days before the hearing;
(ii) 75% if the court is notified between 15 and 28 days before the hearing;
(iii) 50% if the court is notified between 7 and 14 days before the hearing.”

At least 80% of the bills of costs I see claim the full hearing fee even where the matter has settled 7 or more days pre-hearing.

I had always assumed this was a little wheeze on the part of claimant lawyers. They would reclaim the fee from the court and then try to recover the fee from the defendant.

However, I was recently asked to review Points of Dispute prepared by another Costs Lawyer. Despite the matter clearly settling at a stage where a refund was available, the point had not been taken. I’m therefore left with the impression that inclusion of this item by some law costs draftsmen is due to ignorance.

On the basis that everyone working in legal costs reads the Legal Costs Blog, there is now no excuse for ignorance or dishonesty. I will treat the next unjustified claim for a hearing fee as tantamount to fraud.

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    17 Comments

  1. Simon

    I have read your blog always with interest at its informative and often jocular prose

    Making proposed allegations of fraud, is plainly beyond a joke

    I know from experience, many (most?) solicitors do not know about, or fail to request, the refund fee. A draftsman must properly claim that which their client has disbursed, which is the full fee. It may be remiss of the draftsman not to point out to the solicitor concerned there a possible refund available, but nothing in this is “fraud”!

    Furthermore, many Courts when contacted will not return a fee which should be refunded, and there is much “interpretation” over when the Court “is notified” – very often a case settles verbally or in correspondence subject to formal terms being agreed in the form of an Order, the terms of which are to be agreed. Often, getting written confirmation from a Defendant, or the Order back agreed , adds days, sometimes weeks, onto an agreed settlement date. Courts do not accept being “notified” in a call, and need paper evidence.

    I would caution you to be certain of the full facts, before alleging fraudulent activity

    Anonymous

    12th January 2012

  2. I think Simon’s comment was clearly very much in jest and there is no reason whatsoever to be offended.

    I agree though that sometimes it is better to include the full fee in the bill until you are sure you can actually get the refund, for the reasons you state. The item in the bill can then be conceded.

    Richard

    12th January 2012

  3. I have been informed by ‘Benson’ at the SCCO that it is not now possible to obtain any refund for a DA fee once the Notice of Hearing has been fixed!

    Truly Eminent Costs Professional

    12th January 2012

  4. My experience is that the court will never refund the DA fee, as the refund only applies to ‘Fast Track, Multi Track or Non Money Claim Hearings’.

    I agree with Richard, it is good practice to include the fee in the claim for costs until such time as it is refunded. We regularly concede the fee subject to a refund, but better safe than sorry.

    Pete B

    12th January 2012

  5. Allegations of fraud without evidence is enough to get solicitors struck off. Even in jest the blog posting is very poor form indeed.

    The blog also ignores the wonderfully efficient court system that has on many occasions refused refunds for a variety of arbitrary reasons. The Heywards Heath bulk centre has in the past informed me that the written request for a refund is considered made at the time they get round to reading the letter, not the date it was sent.

    In the vast majority of cases, at the time the bill is served the fee has been paid and there has been no refund granted. Until a refund has been granted (not merely requested) the disbursement is a valid item to claim.

    Paul Williams

    12th January 2012

  6. Well Simon did not actually accuse any individual of fraud – he merely made a general point. In my view, it is well made.

    I think it is mainly ignorance of the Order on the part of many solicitors and some individuals who call themselves costs draftsmen.

    Having said that,my work is around 50-50 Claimant/Defendant and I have certainly come accross situations where I am preparing a Claimant Bill where the fee has already been refunded and I have pointed it out but been instructed by the solicitor to claim the full fee in the Bill on the basis that “it is up to Defendant to take the point”.

    John Allen

    13th January 2012

  7. I trust you stood your ground and refused?

    annon

    13th January 2012

  8. ‘…the fee has already been refunded and I have pointed it out but been instructed by the solicitor to claim the full fee in the Bill on the basis that “it is up to Defendant to take the point”.’

    And you actually carry out that instruction? Are you one of these individuals you refer to that call themselves costs draftsman?

    Pete B

    13th January 2012

  9. No I did not carry out the instruction because I managed to persuade the solicitor of the error of his/her ways – in fact it was more than once with different solicitors over the last five or so years.

    However, that raises another discussion point.Whose bill is it – that of the costs draftsman or the solicitor? The solicitor is in control and signs the bill.

    Why should the costs draftsman not carry out instructions and put what the solicitor wants in the bill, so long as he has fully advised the solicitor?

    I await the expected onslaught!

    John Allen

    13th January 2012

  10. I suppose it would depend on whether he was regulated by the CLSB and how much he valued his membership of the ACL if he was.

    There was a case last year where the draftsman was sent to prison and recommended for deportation for dodgy drafting, so you cannot just point the finger at your instructing solicitor.

    Pete B

    13th January 2012

  11. I think you have made a good point Pete. Professional standards have improved greatly over the last few years, although some of us have maintained them for many years.

    Just for the avoidance of doubt, I merely posed a question.

    John Allen

    13th January 2012

  12. I think the case Pete refers to was subject to debate earlier last year on here. Someone tried to counter that we didnt know the full story but then failed to explain the situation from memory

    annon

    13th January 2012

  13. A costs draftsman, solicitor or barrister who does anything to support the recovery of fees from a paying party which he knows are not in fact payable is not merely acting unprofessionally – he is committing a criminal offence. And it would be wrong to think that the police do not take an interest in this sort of thing. I am aware of several cases in recent years where solicitors have been investigated by the police for presenting dubious claims for inter partes costs: eg not giving credit for “kickbacks” from medical reporting agencies.

    Jacques Hughes

    15th January 2012

  14. Jacques, this is very true, however, in my 40 year experience of working within claimant Personal Injury and later costs, there are many many things wrong with the profession.

    If I cannot persuade the solicitor of the error of his/her ways then I simply refuse to act for them, there are many many solicitors who unfortunately fall within this category. To deny the existence of the problem, as some of the plebs have done, is irresponsible. Only when we face up to the reality of our profession can we find ways to change the problems.

    The conduct of many other people involved in the claim business is also questionable. to borrow a quote from Simon:

    The strange thing about reports delivered by independent experts is that they almost always manage to say what those commissioning the report wanted. Have you ever noticed how medical experts instructed by claimants always conclude that the injuries suffered by the claimant are so life-changing that the claimant will never be able to work again or lift anything heavier than a tooth-pick? On the other hand, the medical experts instructed by defendants invariably conclude that there is nothing wrong with the claimant that a strong mug of tea wouldn’t sort out

    the truth is obvious, I am just waiting for the day panarama investigate the PI lawyers, or cost experts the same way they do immigration lawyers. The result, I suspect would be surprising to those who live in the clouds, but not to those who know the reality and are fighting for change.

    Anonymous

    22nd January 2012

  15. I note with interest that “it is not now possible to obtain any refund for a DA fee once the Notice of Hearing has been fixed”

    I have a matter where after the request for DA (and paying a fee of £2,445 case management directions were given indicating a time estimate of a 3 day hearing with 3 hours reading time for the reginal costs judge. In the event the costs were settled between the parties before the remainder of directions had to be complied with and the bill was withdrawn by consent and upon the payment of a seperate fee on an agreed order.

    Please can anyone point me to any provision that says the DA fee should be refunded by the court in full or in part before the DA hearing has been listed?

    Mohammed Qasim

    2nd February 2012

  16. how do I claim compensation for fees from the court etc when we turn up for court hearing and the court has not listed the hearing (their fault}

    Cliff Colley

    27th May 2015

  17. @ Cliff Colley
    not asking for freebie advice, when you don’t employ a solicitor or costs professional, is the best advice

    Anonymous

    1st June 2015

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