Dominic Regan, writing in Modern Law magazine, reports on the HH J Simon Brown’s recent judgment in the case of Safetynet Security LTD v Coppage (2012) EWHC B11. After giving judgment for the claimant it was decided that as the spend was within the court approved budget a detailed assessment would be an expensive and futile exercise. Accordingly, a final costs order was made within minutes of the substantive judgment being delivered and the claimant came away knowing that by the end of that month his costs would be due.
This raises three frightening issues:
1. Firstly, it highlights the importance of getting the budget right (and the potential exposure of those who get their budgets wrong).
2. Secondly, could the future be one where there is no need for Bills of Costs, Points of Dispute, Replies, cost negotiations or detailed assessment hearings? Those who believe that those who deal with just high-value cases will be immune from the Jackson reforms are mistaken.
3. Thirdly, if this becomes the future it may be bad news for paying parties. Cost budgeting is, at best, meant to be a rough and ready process. If a party manages to have approved a budget that is 10%-20% above what would be allowed through the process of detailed assessment and a trial judge then rubberstamps any costs that come in below the approved budget, paying parties may find themselves paying out significantly more than they might have expected to do if the costs had been subject to the detailed scrutiny of the current system.
On a more cheery note, Kerry Underwood recently predicted that with Jackson implementation we should “expect five years of litigation that will paralyze the Court of Appeal”.
The Association of Personal Injury Lawyers (APIL) recently reported on the shock 28% increase in non-whiplash RTA claims.
Actually, strictly speaking, that is not quite true. What APIL did report, with great fanfare, a press release that received widespread coverage in the legal press and various tweets was that there had been a 24,000 drop in whiplash claims last year
I've previously queried APIL’s similar claims given the Compensation Recovery Unit's figures have been showing a rise in RTA claims. I therefore contacted APIL's press office to try to get to the bottom of this.
Firstly, they clarified that they were only talking about whiplash claims, rather than RTA claims overall. I did ask if they could send me a copy of the figures they were working from or provide a link to this. Strangely, they were unable to do this but they did confirm that the figures did indeed come from the CRU. (Perhaps they met a man down the pub who works for the CRU and this is how they got their figures.)
Nevertheless, I will proceed on the basis that these figures do indeed come from the CRU and that they show in relation to whiplash claims the following figures:
2011/12 - 547,405 claims
2010/11 - 571,111 claims
I will also proceed on the basis that the CRU figures available on the internet showing the total number of RTA claims are also accurate. These show:
2011/12 - 828,489 claims
2010/11 - 790,999 claims
Deducting the number of whiplash claims from the total number of claims gives us the following balance of RTA claims other than those related to whiplash:
2011/12 – 281,084 claims
2010/11 – 219,888 claims
At this stage it becomes apparent that insofar as there is a story within these figures, it is not the modest 4% reduction in whiplash claims, it is the staggering 28% increase in other types of injury claim. (To put this in perspective, the one-year increase of 61,196 additional non-whiplash claims is not that far short of the total number (81,470) of Employer Liability claims throughout the whole of 2010/11.)
This category of case, obviously, covers an enormous variety of injuries, with everything from a cyclist receiving minor grazes to their knees following been knocked off their bicycle all the way up to those being rendered tetraplegic. However, under normal circumstances one would expect the proportion of non-whiplash injuries to remain broadly the same as the proportion of whiplash injuries. I am prepared to admit the possibility that changes in car, seatbelt and headrest design might, over the long term, impact on the likelihood of those involved in RTAs suffering whiplash injuries. But I struggle to begin to imagine what can have happened over a one-year period to have led to a decrease in whiplash injuries at exactly the same time as other injuries are soaring by this margin.
Commenting on the very high number of whiplash injuries that appear to be suffered in this country rather than other European countries, one wag suggested that we in this country must have the weakest necks in Europe. These figures appear to suggest that the past year has shown a modest improvement in the strength of our necks but at exactly the same time as the rest of our bodies appear to have suffered from the worst deterioration in general health since the Black Death.
Under the circumstances, I find it extraordinary that APIL should be seeking to make a big song and dance about the whiplash figures without even commenting on the massive apparent increase in other injury claims.
The First Edition of Mark Friston's Civil Costs: Law and Practice quickly established itself as the definitive work on the subject. The much anticipated Second Edition has now been published. This is no minor update.
The book jumps from an already impressive 1,245 pages plus indexing to a massive 1,510 plus indexing. Naturally it includes the latest costs law developments since the last edition, covering cases such as Motto v Trafigura and Simcoe v Jacuzzi UK Group. There is a major update on the ever changing Part 36 regime and a fully revised section on the RTA Portal scheme.
I was somewhat concerned about the timing of this Second Edition. Publication comes as we are in the throes of Jackson implementation. The book states that it gives the law as at April 2012. Recent months have seen the piecemeal publication of some, incomplete, new rules that will be introduced from April 2013, that have not made it into the new edition. The next few months will see a flurry of new rules covering issues such as Qualified One-way Costs Shifting. These have inevitably not made it into the new edition. Of course, much of the reforms will not be retrospective and the law will remain unchanged in respect of many cases for years to come. However, the book advises, in respect of the Jackson reforms, that "When more information is available, an appendix to this chapter will be published on the Internet”.
This is the perfect solution to the problem the author faced. The reader is now provided with a work that will cover the law as it currently stands and will have available an update to deal with the new changes. The reality, of course, is that even when the new rules have been published in their entirety there will remain a period of uncertainty of at least 12 to 18 months whilst we await discovering the courts' approach to the new rules, such as the new proportionality test. It will be at least 24 months from now before any work can properly hope to deal with the post-Jackson landscape by which stage a Third Edition would be more than welcome. (Many of us, of course, would welcome a new edition annually, but perhaps that is too much to wish for.)
Instead, this edition approaches the Jackson reforms in a novel way. The book includes an extensive section giving guidance on how solicitors' firms can undertake detailed internal reviews to prepare for the impact of the Jackson reforms. This includes detailed flow charts for firms to work through to enable them to understand how to adjust their business models to the new landscape. This section alone, if properly followed, provides the equivalent of thousands of pounds worth of specialist consultancy advice. Any firm that has not already embarked upon a similar exercise should rush out to buy this book for that section alone.
A new chapter is included that provides extensive tables including the clearest and most comprehensive Guideline Hourly Rate table I have seen, court fees going back over the last five years, medical fees guidance, etc. Again, this section alone is probably worth the price of admittance.
This new edition remains head-and-shoulders above anything else on the subject. Essential, not only to every costs practitioner, but to every lawyer.
An interesting issue arises at the lower end of personal injury claims out of the Court of Appeal's announcement in Simmons v Castle  EWCA Civ 1039 that general damages in personal injury cases will rise by 10% from 1 April 2013. Should it not also mean that the small claims personal injury limit is raised to £1,100? Of course, the government is currently considering raising the limit to £5,000, in which case the issue entirely disappears. But, if a decision is otherwise taken to leave the limit in place, will this not suck in a large number of claims into the fast track and make them cost bearing where they would previously not have been? (I'm grateful to District Judge Stephen Gold writing in the New Law Journal for highlighting this issue.)
David Greene writing in the New Law Journal on the decision of the Association of British Insurers to challenge the Court of Appeal's implementation of the 10% increase to general damages:
"Let us hope this is not the first step in a reborn costs war."
Speak for yourself David.
On Saturday morning I was like a small child first thing on Christmas morning as my review copy of the 2nd Edition of Mark Friston’s Civil Costs: Law and Practice arrived in the post.
A full review will follow in the next few days.
However, at this stage I just wanted to comment on the fact that generally in life you get what you pay for. In the case of this book, you most certainly do not. The Recommended Retail Price is £85. (You should be able to get it somewhat cheaper online.) For a practitioner’s book at that price you would normally expect no more than a brief handbook giving a summary of a few procedural matters. Here, you get a staggering 1,510 page textbook plus indexing. And not a single word is wasted.
Let me try to put that in context. I recently received an invitation to a cost conference. In the event that I was unable to attend the conference, I was invited to purchase the conference notes. The price of the conference notes was £250. I've attended enough costs conferences to know that at least some of the speakers’ notes will consist of no more than copies of their PowerPoint presentation slides. Speaking personally, however good these notes are, they generally end up just gathering dust somewhere after the conference and are never looked at again.
In the case of Civil Costs: Law and Practice, you get the definitive work on the subject for £85 and a book you will refer to day after day. I would willingly (if not necessarily as happily) pay five times that amount for this book.
I'll repeat the price again so this fully sinks in: £85. That's less than the equivalent of one hour’s billable work at Band Three, Grade D rates for 2004 (as the handy hourly rate guide on the inside cover of the book advises). Utter madness.
I note from the new edition of Costs Lawyer magazine that a total of 77 new people have applied for membership of the Association of Costs Lawyers. The majority of these are employed in costs firms, rather than being in-house law costs draftsmen. This is a very high number of new applicants and it makes me wonder why there should be this sudden influx at this particular point in time.
The Court of Appeal is to re-visit the issue of the 10% increase in general damages: see Litigation Futures.