The defendant costs specialists

Posts made in March, 2012

"No" to entity regulation for costs firms

By on Mar 27, 2012 | 2 comments

Today I continue my examination of the calls for the Costs Lawyer Standards Board (CLSB) to introduce entity regulation of costs firms, in light of the decision in Kynaston v Carroll [2011] EWHC 2179. There appear to be two further arguments as to why entity regulation is required. The first one is that if Costs Lawyers can delegate their rights of audience to non-Costs Lawyers there is a danger that many costs firms will decide there is no need, or advantage, to employing a large number of Costs Lawyers. They will only need one Costs Lawyer per firm to enable them to exercise all the rights of Costs Lawyers. The number of those paying for a Costs Lawyer practicing certificate will rapidly decline and a disproportionate burden will be carried by the few remaining. (It would be pure speculation as to how many of those who recently joined the Association of Costs Lawyers joined on the back of rights of audience concerns pre-Kynaston.) Therefore we need entity regulation to cover the costs of Costs Lawyer regulation. This argument, I suspect, places too much weight on the advantages that come with Costs Lawyers’ “rights”. There are a significant number of Costs Lawyers who work in-house for solicitors. They have never needed Costs Lawyer’s rights (beyond possibly costs appeals, which I doubt are utilised other than in the rarest of cases). Equally, there are those who do only Legal Aid work and never use their “rights”. Costs Lawyer status must therefore be viewed by many as having a value beyond the rights that come with it. In similar fashion, the number of practising solicitors continues to spiral ever upwards despite much of the work done by solicitor firms not being regulated work and despite the fact that much litigation work is indeed done by unqualified paralegals acting under the supervision of a single qualified solicitor. Again, the perceived benefits of being a qualified solicitor appear to go beyond the rights that go with it. Now that Kynaston has established that detailed assessment hearings are “in chambers” and anyone may attend if properly instructed by an authorised person, the rights of audience that come with Costs Lawyer status are of limited value....

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LASPO lackadaisical logic

By on Mar 27, 2012 | 0 comments

One of the problems with CPR 45.23 and the fixed success fee regime for EL disease claims is the Scope and Interpretation section which states it applies where: “(b) the dispute relates to a disease with which the employee is diagnosed that is alleged to have been contracted as a consequence of the employer’s alleged breach of statutory or common law duties of care in the course of the employee’s employment” The difficulty is that it does not define “disease”. It may not seem like much of a problem for well recognised industrial diseases but it does create difficulties at the margins. For example, what about post traumatic stress disorder following an injury? Disease or not? Arguably assistance can be found in the Pre-Action Protocol for Disease and Illness Claims which states: “This protocol is intended to apply to all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease. … Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event.” It is arguable though that one should not be used as an aid to construction of the other. Now let’s look at the recent amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill recently voted through by the House of Lords: “Exception for industrial disease cases The changes made by sections 46, 48 and 49 of this Act do not apply in relation to proceedings which include a claim for damages for a disease, condition or illness (whether or not resulting in death) resulting from any breach of duty owed by an employer to an employee.” Firstly, what the hell is a “condition”? A broken finger is a condition. It is rather less obviously a disease. What is intended to fall within the definition of “condition” that is not also a disease or illness? If nothing, why has it been included? Secondly, what is the significance of proceedings which “include” a claim for damages for a disease, condition or illness? The fixed success fee...

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LASPO loopy

By on Mar 26, 2012 | 4 comments

One of the amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill voted through by the House of Lords is that the proposal to end recovery of success fees should not apply in industrial disease claims: “Exception for industrial disease cases The changes made by sections 46, 48 and 49 of this Act do not apply in relation to proceedings which include a claim for damages for a disease, condition or illness (whether or not resulting in death) resulting from any breach of duty owed by an employer to an employee.” So, a reasonably well paid engineer who suffers minor hearing loss at work will be able to keep 100% of his damages but a single mother with young children to support who suffers catastrophic injuries following an RTA may lose 25% of her general damages and past losses. What is fair or rational about making EL disease claims a special...

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New Guideline Hourly Rates?

By on Mar 23, 2012 | 3 comments

I note the suggestion that trainee solicitors could be paid as little as £2.60 an hour in their first year under an amendment to the Solicitors Regulation Authority’s proposals for ending the minimum wage. Presumably we can then expect a corresponding decrease in Guideline Hourly Rates for trainee solicitors to, say, £10 per hour. This should still give firms a reasonable profit margin. Obviously Guideline Rates ranging from £90-138 would be totally unsustainable with pay rates of £2.60 per...

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Detailed assessment and rights of audience

By on Mar 22, 2012 | 19 comments

One of the controversial forthcoming changes to the CPR concerning detailed assessment proceedings is 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.” Now, I, along with other members of the Association of Costs Lawyers, must have missed the consultation document that went out when these changes were first proposed. If I had seen it (and surely they didn’t just press ahead without bothering to consult those people who will have to work with this) there would have been a long list of problems pointed out. However, putting to one side some of the theoretical problems, there is one rather glaring practical difficulty. The Statement of Rights, which governs the rights of a Costs Lawyer holding a current practising certificate, says it covers: “Rights of audience in all proceedings being conducted under Parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under Part 52 of those rules with regard to appeals from detailed assessment hearings before a High Court Judge or a Circuit Judge such rights to exclude an issue of entitlement to costs under CPR 44.3 and entitlement to a wasted costs order arising solely under CPR 44.14(1)(b) or CPR 48.7 other than in connection with proceedings commence [sic] under (vi) and (vii) below.” So, it expressly excludes rights of audience as to “an issue of entitlement to costs under CPR 44.3”. (We’ll ignore for the moment that there is no obvious good reason for such a general exclusion.) The new rule change means that Part 44.3 will apply to liability for costs of detailed assessment proceedings but a Costs Lawyer, who otherwise has rights of audience in such proceedings, will not...

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