The defendant costs specialists

Posts made in February, 2013

Application for relief from sanctions

By on Feb 21, 2013 | 10 comments

Relief from sanctions applications are currently governed by CPR 3.9: “(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including – (a) the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol; (f) whether the failure to comply was caused by the party or his legal representative; (g) whether the trial date or the likely trial date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; and (i) the effect which the granting of relief would have on each party.” This is to be changed from 1 April 2013 to a newly worded CPR 3.9: “On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need— (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.” I interpret this as being a significant change in emphasis. Previously the courts have tended to approach applications for relief from sanctions as being about achieving an outcome that it ultimately “fair” regardless of the delay and cost this brings to the litigation. The new test appears to be one firmly refocused on robust case management with justice being achieved through stricter enforcement of court orders and rules thereby bringing swifter resolution to the dispute and in a more cost effective manner. If that interpretation is correct, it means case law previously governing applications for relief from sanctions will become largely redundant. Applications for relief from sanctions in costs matters tend to arise where there has been a failure to notify of additional liabilities during the...

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New Employers’ Liability and Public Liability Protocol

By on Feb 20, 2013 | 4 comments

We now have the draft rules for the new Employers’ Liability and Public Liability Protocol and the amended RTA Protocol. A number of possible surprises in the small print but one issue that jumps out is that disease claims (other than mesothelioma and those involving more than one defendant) are treated as employers’ liability claims and therefore fall within the protocol. And therefore attract fixed fees (at a level yet to be announced). This applies unless a letter of claim was sent to the defendant before 1 April 2013. Another chunk of costs work...

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New proportionality test – Further transitional amendments

By on Feb 19, 2013 | 5 comments

I knew it was a mistake to start commenting on the new CPR rules at this stage. Following my post on the ambiguity as to which claims would be subject to the new proportionality test it now appears that a new statutory instrument will be published in March to introduce a new transitional provision within rule 44.3 to deal with this: “to the effect that costs incurred in respect of work done before 1 April 2013 will not be disallowed if they would have been allowed under the rules in force immediately before that date”. What makes this truly shocking is that the letter confirming these changes from Lord Justice Stephen Richards, who chairs the rule committee, records the fact that the committee was aware of this problem and agreed to make this change at the meeting on 8 February 2013 which approved the rules that were then released on 12/13th February. However, when releasing the SI there was no mention that they had already decided to change this in at least one crucial aspect. How are practitioners meant to prepare for the changes and train staff when, ludicrously late in the day as the rules have been published, we can’t even trust the accuracy of what has been released? Good luck to legal publishers working to a March publication date....

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Senior Courts Costs Office listings

By on Feb 15, 2013 | 14 comments

I’ve just received a Notice of Hearing from the Senior Courts Costs Office for a three hour hearing before a costs officer. Listed for September. Seven months to get a three hour hearing. And we haven’t even started with the wave of satellite litigation post-Jackson.

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New proportionality test – Transitional Provisions

By on Feb 14, 2013 | 7 comments

We now have the post-Jackson amendments to the Civil Procedure Rules. We still don’t have the new Costs Practice Direction. I’m trying to resist the temptation of commenting on the Rules until we see the CPD. It may all become clear in due course. However, we definitely do have the new proportionality test: “44.3 (2) Where the amount of costs is to be assessed on the standard basis, the court will— (a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred … (5) Costs incurred are proportionate if they bear a reasonable relationship to— (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party; and (e) any wider factors involved in the proceedings, such as reputation or public importance.” It is no secret that the new CPD will give no guidance on how this should be applied. At the risk of repeating myself, if it is deemed disproportionate to incur costs of £100,000 to recover £25,000 damages (as surely it must be) what level should the judge reduce the costs down to if he decides £100,000 was reasonably or necessarily incurred? The interesting provision that jumps out is the transitional one dealing with this new proportionality test: “Paragraphs (2)(a) and (5) do not apply in relation to cases commenced before 1 April 2013 and in relation to such cases, rule 44.4(2)(a) as it was in force immediately before 1 April 2013 will apply instead.” What does “cases commenced” mean? It is arguably drafted more widely than simply “cases where proceedings have been commenced”. The old transitional provisions, when the CPR was first introduced, were clear: “the general presumption is that no costs for work undertaken before 26 April 1999 will be disallowed if those costs would have been allowed in a costs taxation before 26 April 1999” Therefore, the relevant date was when the work was undertaken. A similar approach could have been adopted in relation to proportionality by excluding...

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