The defendant costs specialists

Posts made in April, 2012

Article on CFA challenges

By on Apr 16, 2012 | 6 comments

Readers of Solicitors Journal will know I contribute a regular costs column. Somehow I usually manage to find something new to write about that hasn’t already appeared on the Legal Costs Blog. As part of our Costs Law Articles Archive project I will be uploading some of these old articles over the coming weeks. First up is a discussion of the Tankard v John Fredricks Plastics Ltd [2008] EWCA Civ 1375 judgment and whether it would kill off CFA challenges. In the article I wrote: “Although a collective sigh of relief will have gone up from panel members of the ALP scheme the decision has done little or nothing to limit the scope for challenges to other schemes or introduce any greater certainty. Hollins introduced the vague (and often shifting) concept of the ‘material’ breach and Tankard has introduced the even more unhelpful ‘reasonable person’ test. Although this appears to represent a common sense approach it actually produces nothing but uncertainty. If you asked the ‘reasonable person’ whether he thought that a scheme that provided only 1% of a firm’s revenue might affect the advice it gave then the answer would probably be no. If you informed the same person that an interest amounted to £50,000 a year you would possibly get an entirely different answer. Of course, it is quite possible that 1% of a given firm’s revenue is indeed £50,000 a year. Would two judges give the same answer to this set of facts? Equally, £50,000 for some firms really would be irrelevant but for others would represent the difference between profit and loss. This new test will mean that there may have been a breach of the Regulations by one firm when advising a client but no breach by the firm next door giving exactly the same advice on the same scheme.” Having recently had a CFA challenge upheld on appeal, and with one or two others still in the pipeline, I am sticking by the view that Tankard did not kill off CFA challenges but simply made the outcome more...

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Without prejudice to negligence

By on Apr 12, 2012 | 2 comments

Schedule of costs from claimant law costs draftsmen with the added proviso: “Any error/omissions herein of any nature are excluded from any Agreement reached pursuant to this schedule”. Strangely, I’m not prepared to negotiate on that basis.

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Costs Lawyer swear box

By on Apr 11, 2012 | 1 comment

Costs lawyer writing in Costs Lawyer magazine on the approach the Legal Services Commission takes to allowances for preparing claims for costs: “Ridiculous, unrealistic, appalling and downright insulting. These are just some of the expletives that came to mind…” “Expletives”? I guess some costs lawyers have led more sheltered lives than...

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Relief from sanctions

By on Apr 5, 2012 | 0 comments

Costs Practice Direction 10.1 states: “In a case to which rule 44.3B(1)(c) or (d) applies the party in default may apply for relief from the sanction. He should do so as quickly as possible after he becomes aware of the default. An application, supported by evidence, should be made under Part 23 to a costs judge or district judge of the court which is dealing with the case. (Attention is drawn to rules 3.8 and 3.9 which deal with sanctions and relief from sanctions).” Why no mention of CPR 44.3B(1)(e) concerning notification of ATE premiums? Something else for the next CPR update given this seems to have been overlooked when CPR 44.3B(1)(e) was...

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Providing notification about funding

By on Apr 4, 2012 | 1 comment

Practice Direction – Pre-Action Conduct 9.3 makes clear, if there was ever any doubt, that even pre-proceedings: “Where a party enters into a funding arrangement within the meaning of rule 43.2(1)(k), that party must inform the other parties about this arrangement as soon as possible and in any event either within 7 days of entering into the funding arrangement concerned or, where a claimant enters into a funding arrangement before sending a letter before claim, in the letter before claim.” Is it sufficient to advise “we have entered into a CFA” or “our client has the benefit of an ATE policy” or does it trigger the full requirements under CPD 19.4? CPD 19.4 states: “(1) Unless the court otherwise orders, a party who is required to supply information about a funding arrangement must state whether he has – entered into a conditional fee agreement which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990; taken out an insurance policy to which section 29 of the Access to Justice Act 1999 applies; made an arrangement with a body which is prescribed for the purpose of section 30 of that Act; or more than one of these. (2) Where the funding arrangement is a conditional fee agreement, the party must state the date of the agreement and identify the claim or claims to which it relates (including Part 20 claims if any). (3) Where the funding arrangement is an insurance policy, the party must – (a) state the name and address of the insurer, the policy number and the date of the policy and identify the claim or claims to which it relates (including Part 20 claims if any); (b) state the level of cover provided by the insurance; and (c) state whether the insurance premiums are staged and, if so, the points at which an increased premium is payable. (4) Where the funding arrangement is by way of an arrangement with a relevant body the party must state the name of the body and set out the date and terms of the undertaking it has given and must identify the claim or claims to which it relates (including Part 20...

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