The defendant costs specialists

Posts made in October, 2012

Defining "disease" for the purposes of fixed success fees

By on Oct 30, 2012 | 1 comment

Legal costs is a funny old game. Fixed success fees for employers’ liability claims were introduced on 1 October 2004. Fixed success fees for employers’ liability disease claims were introduced on 1 October 2005. Recoverability of success fees between the parties will end in April 2013 (although not retrospectively). Only now, with the end in sight, has the question of what is and what is not a “disease” suddenly become problematic. The first issue that arises is whether exacerbating a pre-existing condition amounts to a disease. This issue now appears to be heading to the Court of Appeal. See the excellent briefing note from specialist costs counsel Andrew Hogan for a more detailed analysis. Secondly, we have the recent judgment of Mr Justice Males in Patterson v Ministry of Defence. This concluded that symptoms relating to exposure to cold weather conditions did not amount to a “disease” for the purposes of the fixed success fee regime. This judgment includes a detailed analysis trying to interpret the meaning of the term “disease”. It is clear that this is a far from straightforward point. This is compounded by the fact that some of the claims that fall within the “disease” category for the purpose of the rules would not normally be considered as such using ordinary language. Now that the courts have been asked to properly grapple with this issue it is likely to run for some time and potentially produce some unexpected outcomes. Remember, everyone used to believe that pleural plaques was an actionable injury and millions of pounds was paid out in damages and costs before it was decided that it was...

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New proportionality test

By on Oct 24, 2012 | 1 comment

Earlier in the year specialist costs counsel Andrew Hogan wrote about the various alternative proposals for a new proportionality rule. Commenting on the Longstop Model (i.e. undertaking an assessment applying reasonableness and at the end of the assessment process the judge can stand back and reduce the figure further if the amount appears disproportionate – this is the model that appears to have been adopted) he wrote: “The notion of a “long stop” discount test of proportionality, is a recipe for satellite litigation, as it will introduce chronic uncertainty into the assessment of costs, both in terms of when such a deduction will be applied and in terms of what the quantum of deduction might be. Perhaps, more significantly, it is disappointing that even now, some 15 years after Lord Woolf ‘borrowed’ the concept of principle of proportionality from European Union law, it remains a nebulous and uncertain concept, hard to define and even harder to apply, which is conceptually very odd, when one considers that the stated aim of Jackson was to reduce perceived disproportionate costs to a proportionate level. If you can’t define proportionality, how can you judge whether you have succeeded or not in moving from a disproportionate model of costs to a proportionate one?” I have yet to meet a costs practitioner who believes that the new proportionality test is workable. More worryingly, I have yet to meet a costs judge who is able to explain by what margin, if any, a Bill of Costs in relation to routine litigation that has been assessed at £75,000 applying the reasonableness test should then be reduced down to if the amount in dispute was only...

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Provisional assessment pilot

By on Oct 22, 2012 | 11 comments

A reader recently contacted me to ask whether I had any information on how the provisional assessment pilot scheme is working in practice, what is generally being allowed to claimants, and what people’s general experiences have been. I must confess, to date I have not had a single case fall within the scheme. Perhaps claimants are steering well clear of the courts where the pilot applies. So, the best I can do is ask other readers to share their thoughts here. For once, I will entirely understand if these are...

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Simmons v Castle – "simple, clear and fair"?

By on Oct 19, 2012 | 1 comment

I don’t want to have to change the name of the Legal Costs Blog to the Let’s Have a Go at APIL Blog but they do keep coming out with the silliest things. APIL president Karl Tonks, commenting on the Court of Appeal’s change of mind in Simmons v Castle as to the timing of the 10% uplift in general damages, stated that the original ruling was “simple, clear, and fair to all concerned”. His criticism is that: “now someone who starts funding his claim in, for example, March next year but whose case concludes in, for example, November, won’t be entitled to the increase, while at the same time someone who starts on 1 April but whose case concludes in November will receive a different sum in damages for his pain and suffering. It could easily mean that two claimants leaving court on the same day, with the same injuries, will receive different damages just because of the date on which they signed their funding agreement.” This appears to reveal a rather worrying lack of understanding as to how LASPO will operate. Let us take two claimants who suffer identical injuries following highway tripping accidents, both worth £5,000 general damages in current money. They settle their claims in November 2013. Both claims are funded by way of CFAs with 100% success fees and ATE premiums of £500. If the Simmons judgment had been left unaltered: 1. Claimant A starts his claim in March 2013. When the claim settles in November 2013 he would be entitled to damages of £5,500 (ie £5,000 plus the 10% uplift). The other side would be liable for the success fee and ATE premium meaning Claimant A walks away with £5,500 in hand. 2. Claimant B starts his claim in April 2013. When the claim settles in November 2013 he would be entitled to damages of £5,500 (i.e. £5,000 plus the 10% uplift). Claimant B will have to pay his success fee and ATE premium out of his damages. The success fee would almost certainly be £1,375 as the 25% cap would apply. Claimant B would therefore walk away with £3,625 in hand. How is this any fairer then the amended judgment? The amended...

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Costs Lawyer expansion or protection?

By on Oct 17, 2012 | 5 comments

The Association of Costs Lawyers recently released the results of a survey of claimant personal injury lawyers indicating gloomy predictions for the implications of the Jackson costs reforms. 78% predicted that they would have less work after implementation. 62% of firms expected to make staff redundant as a direct consequence of the Jackson reforms, while 28% did not yet know. Only 10% said they were sure they would not make such redundancies. When personal injury lawyers sneeze the costs profession tends to catch a cold. Even if the personal injury lawyers surveyed are incorrect as to the negative impact on their work volumes, other parts of the Jackson reforms, such as an extension of fixed fees and costs budgeting, will inevitably lead to a significant reduction in the amount of work available for Costs Lawyers and law costs draftsmen. A recent press release from the Association of Costs Lawyers, commenting on the continuing high numbers of new students joining, highlighted the fact that “The Costs Lawyer route to qualification supports the social mobility agenda in the legal profession, as students need only a minimum of four GCSEs to begin the training”. What intrigued me about that aspect is that the Association’s President, Michael Bacon, commented in this month’s Costs Lawyer magazine on the “impressive level of qualifications that many of those applying for student membership this year have shown” and the suggestion that the Association should be trying to extend awareness of the profession to various universities and their students, with it being agreed in principle that a selection of universities would be visited to outline to them the role of the Costs Lawyer, what qualifications are required and the “attractiveness” of the profession as a viable alternative to either barrister or solicitor. Although there is not exactly a conflict between the minimum academic qualifications required and the potential drive to encourage those with law degrees to enter the costs world, it does reveal a certain tension between the two. I would be the first to recognise that there are many excellent Costs Lawyers and law costs draftsmen who may have limited academic qualifications, and in the past this was probably true for a high proportion of those practising....

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