The defendant costs specialists

Posts made in August, 2012

10% damages increase

By on Aug 17, 2012 | 0 comments

David Marshall, writing in Solicitors Journal, on the recent announcement by the Court of Appeal that general damages will be increased by 10% and the fact the Legal Aid, Sentencing and Punishment of Offenders Act 2012 itself had not included provision for this: “This absence was raised in parliamentary debate. Ministers held to the line that this was to be taken forward by the senior judiciary. There had been considerable argument about which claimants would be ‘better off’ or ‘worse off’ with 10%, but if there was no increase then all claimants would be ‘worse off’. By “all claimants” this appears to ignore entirely those claimants who are funded by BTE insurance or privately fund their claims. These claimants would have been no worse off with the ending of recoverability of success fees and ATE...

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Hawksford Trustees Jersey Ltd v Stella Global UK Ltd

By on Aug 14, 2012 | 5 comments

Interesting Court of Appeal judgment in Hawksford Trustees Jersey Ltd v Stella Global UK Ltd & Anor [2012] EWCA Civ 987. Main issue concerned a claimant who had been unable to obtain ATE cover prior to the original trial. He was successful at trial and the Defendant appealed. At this stage the Claimant managed to obtain ATE cover that not only provided cover in relation to the costs of the appeal but would also provide cover in relation to the costs of the original proceedings, if the appeal succeeded. The Court was concerned with issue of whether that element of premium attributable to providing cover for the original proceedings was recoverable as costs of the appeal (short answer: no). Of rather wider significance was part of the reasoning why the majority of the Court concluded that it would be wrong to allow for such recovery. The importance of giving notice of funding to an opponent was highlighted. In the judgment of Lord Justice Rix: “the importance of fair notice being given to the other party of a potential liability in additional costs is entirely undermined if the premium which the respondent seeks to recover in the appeal, so far as it relates to costs of trial, could be recoverable. For the defendant would have incurred all the costs of trial together with its potential (but retrospective) liability for the respondent’s ATE premium in ignorance, necessarily so, of what was coming round the corner when it appealed. When, however, in the course of its appeal, it learns for the first time of the ATE premium taken out in the appeal embracing cover for the costs of trial, it is too late for the defendant to do anything. It cannot concede the claim – it has already fought the trial. And if it concedes the appeal, then, if the respondent is correct in its interpretation of section 29, it will have to pay the ATE premium for the costs of trial. This is despite the fact that, in obtaining an appeal, it has persuaded the trial judge or the court of appeal that permission to appeal should appropriately be granted to it (while there is no similar hurdle in the standard...

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Faisel v Lancashire County Council – Administration of solicitors

By on Aug 10, 2012 | 7 comments

The other day I posted a link to a website showing some case summaries of various first instance decisions. One angry reader commented: “I’m surprised this is publicised on the blog as useful case summaries – will we now all be submitting every DJ decision and taking it as Gospel?” I see no reason to interfere with the long-established tradition amongst law costs draftsmen and costs lawyers to treat a decision made late on a Friday afternoon by a Deputy District Judge, sitting in Worthing County Court, on the appropriate grade of fee earner to allow in a public liability tripping claim, as being binding on all other members of the judiciary for similar claims. Indeed, surely there is no need to even produce a copy of a judgment or transcript, one can simply tell a judge that: “Costs Officer So-and-So always allows me a rate of £200 per hour for this type of case” and the judge will be obliged to allow the same. Of course, aside from the issue of whether first instance decisions are binding or not, there are often no higher authorities on a given issue of costs law. Therefore these decisions can often throw useful light on the various arguments that can be run, and a well delivered judgment can provide an extremely helpful summary of what can otherwise be quite complex issues. With the above in mind, here is a link to the interesting decision in Faisel v Lancashire County Council, Preston County Court (25 May 2012) concerning the situation where the original firm of solicitors ceases to act following them going into administration. Where they are acting under a CFA, are their costs recoverable at the conclusion of a case? This issue usually comes down to a question of analysis of the terms of the CFA that deal with termination of the agreement before the successful conclusion of the claim and how the Court determines the agreement was ended. Here the District Judge appears to have concluded, although not exactly expressing himself in these terms, that it was the decision of the Claimant to terminate the original agreement (notwithstanding the fact that the original solicitors were already in administration), and the terms...

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Simmons v Castle fiasco

By on Aug 9, 2012 | 0 comments

I mentioned the other day some of the anomalies thrown up by the Court of Appeal’s recent judgment that general damages should be increased by 10% where judgment is given after 1 April 2013. Kerry Underwood has now drafted a comprehensive, and masterful, analysis of some of the problem issues and this can be read on the Litigation Futures website. This is absolutely essential reading for all litigators and not just those directly involved in costs. However, he concludes the article with the sweet sounding words: “Oh, to be a costs lawyer now that Jackson is...

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RTA Portal claims case summaries

By on Aug 8, 2012 | 3 comments

The website of barrister Sarah Robson contains some useful costs related case summaries, particularly in relation to RTA Portal claims: http://www.sarahrobsonbarrister.co.uk/Reported-Cases.html. Click image to enlarge:  ...

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