The defendant costs specialists

Posts made in April, 2012

Temporary exemption for mesothelioma claims

By on Apr 27, 2012 | 1 comment

In a surprise development the government is to exempt mesothelioma claims from the ending of recoverability of success fees and ATE premiums in April 2013. However, this is potentially only a temporary reprieve with Justice Minister Jonathan Djanogly announcing: “On careful reflection about the special position of mesothelioma sufferers, I can now give the House the assurance that we will not commence the relevant provisions in clause 43, on success fees, and clause 45, on after-the-event insurance, in respect of mesothelioma claims in April next year. Rather, we will implement the clauses in respect of those claims at a later date, once we are satisfied on the way forward for those who are unable to trace their employer’s insurer. The amendment commits the Lord Chancellor to carrying out a review of the likely effect of the clauses in relation to mesothelioma proceedings and to publish a report before those clauses are...

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Detailed assessments after costs budgeting?

By on Apr 25, 2012 | 4 comments

This year’s White Paper Conference Company costs conference on Costs, Funding, CFAs and Jackson was such a success it was repeated twice and sold out on both occasions almost immediately. (That’s what you get when you promote a costs event via the Legal Costs Blog.) One of the speakers, Michael Kain from costs firm Kain Knight, talking about costs budgeting, warned the delegates to “Be afraid…Be very afraid”. This warning was in large part no doubt aimed at the costs professionals attending as he predicted that costs budgeting would largely mean an end to detailed assessments. Specialist costs counsel Jeremy Morgan QC has made similar predictions where costs management is applied, suggesting it is “hard to see any room for arguments on proportionality, hourly rates or the reasonableness of the work done”. With an end to recovery of additional liabilities around the corner, that doesn’t leave much left. HH Judge Simon Brown QC, the judge responsible for one of the current costs budgeting pilots, writing in the New Law Journal, stated: “if the budget of the receiving party is approved, then its costs are likely to be paid in full without delay or further later assessment at the end of the case.” Although those involved in running the costs management/budgeting pilots have been keen to emphasise that it is not meant to be the equivalent of costs capping or performing a pre-emptive detailed assessment, it is difficult to see much scope for detailed assessment where the costs come in on budget. Where the budget is exceeded, the rules as currently drafted provide that any judge assessing costs will not depart from such approved budget unless satisfied that there is good reason to do so. And, as HH Judge Simon Brown QC notes, where detailed assessment is required because of inaccurate estimating: “the expense of that process [is] likely to be upon the defaulting receiving party”. Perhaps most chillingly, he concluded: “The days of putting in a bill at the end of a case based on a multiple of billable hours x £x per hour and expecting to be paid are over.” Whichever way the issue is viewed, the importance of accurately setting budgets cannot be...

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Still nothing better to do?

By on Apr 23, 2012 | 8 comments

I mentioned the other day receiving an email from the other side’s costs draftsman on 30th March 2012 reading: “Please can you provide an update on the current position of our clients cost cheque in relation to this matter? Costs were agreed on 23rd March in the amount of £7,000.00 on 14 day payment terms”. I suggested the other side did not appear to have anything better to do other than sending premature chase-ups. Much heated commentary on this post followed as to whether the chase-up was a reasonable step or not, with one wag noting that “the ‘issue’ has certainly prompted a lengthier debate than entity regulation of the costs profession did”. I have a further postscript to add. On 4th April 2012 I received the following email on the same case: “Please can you urgently provide the current position on our clients costs cheque. Costs were agreed on 23rd March in the sum of £7,000.00. Please note receipt of payment is strictly 14 days from when costs were agreed, on day 15 we would be in the position to issue enforcement proceedings to recover the agreed amount.” Given there was no costs order, they presumably meant they would be in a position to issue proceedings for breach of contract on day 15. At this stage I went away to review the papers: 8th March 2012 – Defendant makes offer of £7,000 23rd March 2012 – Claimant says they “confirm costs are now agreed in the sum of £7,000. Settlement in the agreed sum is strictly subject to receipt of the payment in satisfaction within 14 days from the sate of this letter”. I will confess that I rather lost interest in contract law after week one of my law degree and therefore never really mastered much beyond offer, acceptance, rejection and counter-offer. However, my limited understanding of such matters is that if you purport to accept an offer but then seek to impose a fresh condition upon acceptance, such as: • Payment is made within a certain timescale, or • Payment is made in used £10 notes left in a paper bag under a park bench, or • Payment is hand delivered by Pippa Middleton who will...

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LASPO amendments overturned

By on Apr 19, 2012 | 5 comments

The government has, unsurprisingly, overturned all of the House of Lords amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill and, in particular, the one that sought to exempt all EL industrial disease cases from the end to recovery of success fees and ATE premiums. It is a perfectly arguable position to adopt that all claimants should be allowed to litigate entirely risk free and keep 100% of their damages. It is also perfectly arguable that injuries of a certain level of seriousness should be exempt (eg those that will, or have, resulted in death). However, the position of the House of Lords’ amendment to exempt all EL disease claims (and why not non-EL disease claims?) was neither rational nor consistent with whatever it was that was trying to be achieved (unless it was simply pandering to the trade...

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Recovering photocopying costs

By on Apr 18, 2012 | 12 comments

CPD 4.16(5) is well known: “The cost of making copies of documents will not in general be allowed but the court may exceptionally in its discretion make an allowance for copying in unusual circumstances or where the documents copied are unusually numerous in relation to the nature of the case. Where this discretion is invoked the number of copies made, their purpose and the costs claimed for them must be set out in the bill.” However, I am grateful to Friston’s Civil Costs – Law and Practice for reminding me of the views of Evans J in Johnson v Reed Corrugated Cases Ltd (1990) Costs LR, Core vol 180 at 185. “[Counsel for the receiving party] submitted that the maximum number of pages which might require copying in a personal injury case of a normal kind would be 1,000, and that therefore this case did involve an unusual number. I sympathise with this submission, but I am troubled that neither the plaintiffs nor the registrar have made an allowance for the number which in the normal case would form part of the solicitor’s general overheads.” Where the Court does invoke its discretion to allow photocopying it should allow only a reasonable amount for the costs in excess of those that would have been incurred under normal...

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