The defendant costs specialists

Posts made in February, 2012

Open offers in provisional assessments

By on Feb 22, 2012 | 1 comment

One of the proposed changes to the provisional assessment pilot is: “When lodging documents for PA the parties should file (a) any open offer and (b) in a sealed envelope any offer under Part 36”. Now, filing sealed offers is very sensible and answers the problem I raised last year when the pilot was first launched (see Provisional Assessment Pilot – Unanswered problems). But why open and sealed offers? What is the open offer for? If the other party has accepted the open offer there is no need for an assessment. Can a paying party make an open offer of £10,000 on the bill which the judge can “accept” without bothering to go through the bill?  Then the judge can open the sealed Part 36 offers to see who to award the assessment costs to (eg the paying party if they made a Part 36 offer of £11,000). That should cut the judicial time down to below the current 37 minutes. If not, what is the judge meant to do with the open offer? Please...

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Disbursements only, no hearing

By on Feb 21, 2012 | 0 comments

Forthcoming change to Costs Practice Direction with new 40.5A: “40.5A Unless the court otherwise orders, if the only dispute between the parties concerns disbursements, the hearing shall take place in the absence of the parties on the basis of the documents filed and the court will issue its decision in writing.”...

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Worth every penny

By on Feb 20, 2012 | 6 comments

I have a further footnote to add to the Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 decision. The Master of the Rolls, in his judgment, had expressed concerns that for a case which settled pre-trial for £12,750 the Claimant’s solicitors, Irwin Mitchell, had recovered nearly £75,000 by way of legal costs. It has subsequently been reported that Mr Simcoe, the Claimant, was unaware of the level of costs paid to his lawyers. However, he was quick to rush to their defence. He was reported, in the press edition of The Telegraph, as saying: “I had no idea it was that much. They didn’t tell me. It’s a lot more than me and I’m the one who got damaged for the rest of my life. It is a bit greedy to go back and claim interest.” The Yorkshire Evening Post quoted him as saying: “It seems very greedy to me – I’m the one who was left with permanent damage to my hand.” I note Irwin Mitchell’s website has various quotes from previous clients, such as: “Throughout my case, I had the peace of mind that one only experiences when matters are dealt with by absolute professionals. “, Daniel, London and “Your advice, support, knowledge and listening ear have always been very much appreciated by us both.”, Mike and Janet, York Now they have got some more quotes to use. On a similar subject, try typing “It is a bit greedy to go back and claim interest” into Google and see what advertisement pops...

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Simcoe v Jacuzzi UK Group plc

By on Feb 17, 2012 | 16 comments

Yesterday the Court of Appeal handed down judgment in the case of Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 and gave us a clear answer to the question of whether interest on costs runs from the date of the costs order (the incipitur rule) or the date costs are assessed (the allocator rule). Although the route by which the decision was reached is rather unusual, it was ultimately held that the incipitur rule rules and interest runs from the earlier date when the costs order is made. Further, the fact that a claim is funded by way of a CFA is not a good reason to depart from the normal rule. Now we have a definitive answer. Unless the matter goes to the Supreme Court… It is also worth mentioning the footnote in the Master of the Rolls’ leading judgment: “I cannot end this judgment without referring back to the actual figures in this case. The claimant was seeking damages for significant, but relatively minor and straightforward, personal injury suffered while at work. The claim was presumably worth around £12,750, the agreed damages. The claimant’s costs of pursuing that claim, which did not go to trial, were nearly £75,000. Unless this is an exceptional case, the fact that, without even incurring the cost of as trial, it cost the claimant nearly six times as much to pursue the claim as it was actually worth suggests that something is out of kilter in at least some parts of the civil justice system. Both my own experience in this court and the evidence contained in Sir Rupert Jackson’s report on Civil Costs suggest that this is not a particularly exceptional case. It is therefore to be hoped that the changes which are in the process of being enacted and implemented in relation to civil costs and civil procedure will help ensure that costs become more proportionate. And that applies both to costs as between lawyer and client and to recoverable costs as between the parties to litigation.” Given how this decision was reported in The Telegraph, this judgment may ultimately go down as being something of an own-goal for claimant lawyers. They may have won this particular battle...

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Rules Committee in no doubt

By on Feb 15, 2012 | 2 comments

I note that among the forthcoming changes to the Costs Practice Direction will be the deletion of the current CPD 39.2: “Where there is a dispute about the insurance premium in a staged policy (which has the same meaning as in paragraph 19.4(3A)) it will normally be sufficient for the receiving party to set out in any reply the reasons for choosing the particular insurance policy and the basis on which the insurance premium is rated whether block rated or individually rated.” I was trying to work out why this is going and then realised that it will not be needed once recoverability of ATE premiums ends. The Rules Committee is clearly not in any doubt that this will happen. Still, is it not a bit premature given we are going to have a long run-off of old cases where staged premiums are claimed (probably a good five...

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