The defendant costs specialists

Posts made in April, 2013

Replies to Points of Dispute

By on Apr 18, 2013 | 10 comments

Yesterday’s post on the content of replies under the new rules generated plenty of interest in the Comments Section and I therefore thought it appropriate to elaborate on this issue. In response to the fact the new rules state replies should be limited to points of principle and concessions only one reader commented: “An item being a matter of principle is surely a matter of interpretation. One mans principle is another mans minor issue” Another commented: “Each of those points in the model pods has a space for a reply, including those that are not under the heading ‘points of principle.’ The only change is that you cannot simply say ‘maintained.’” To start with we need to go to the new Practice Direction 8.2 to CPR 47.9: “Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to this Practice Direction, so far as practicable. They must: (a) identify any general points or matters of principle which require decision before the individual items in the bill are addressed; and (b) identify specific points, stating concisely the nature and grounds of dispute. Once a point has been made it should not be repeated but the item numbers where the point arises should be inserted in the left hand box as shown in Precedent G.” So, it is clear that “general points or matter of principle” are limited to those that “require decision before the individual items in the bill are addressed”. As such, this is generally not going to be a matter of interpretation. Disputes raised as to the reasonableness of a conference with counsel, or disputes as to document time, or disputes as to the reasonableness of a brief fee are not “matters of principle which require decision before the individual items in the bill are addressed”. They are disputes to individual items within the bill. The new Practice Direction 12.1 to CPR 47.13 states: “A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses.” Therefore, if a dispute is raised to any of the...

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Points of Dispute

By on Apr 17, 2013 | 14 comments

Oh dear. I have been warning that costs practitioners did not appear to be ready for the post-Jackson reforms. I have so far received two set of Replies prepared after 1 April 2013, prepared by well known costs firms. Both contained detailed responses to the disputes raised as to hourly rates, detailed responses in relation to attendances on the claimants and other parties and detailed responses to the challenges to document time, including general denials that the work claimed was unreasonable. It appears those responsible for drafting the documents are unaware of the contents of the new Practice Direction 12.1 to CPR 47.13: “A reply served by the receiving party under Rule 47.13 must be limited to points of principle and concessions only. It must not contain general denials, specific denials or standard form responses.” For those unsure what might be classed as a “point of principle” look at the new Model Points of Dispute. Disputes as to hourly rates, the number of conferences with counsel or the number of fee earners attending, attendances on the claimant, document time or time claimed drafting and checking the bill are not treated as points of principle. I’ve also received, what purported to be, a Part 36 offer in a matter where detailed assessment proceedings had been commenced before 1 April 2013. Dear oh...

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Hourly rates for costs draftsmen

By on Apr 16, 2013 | 4 comments

I note the new Model Form of Bill of Costs gives the following example in relation to hourly rates: “The claimant instructed E F & Co under a retainer which specifies the following hourly rates. Partner – £217 per hour plus VAT Assistant Solicitor – £192 per hour plus VAT Other fee earners – £118 per hour plus VAT” When it comes to the costs of drafting the Bill it gives: “Engaged: Costs draftsman – 4 hours (at £110)” Read what you like into the fact the hourly rate for the costs draftsman is below the “other fee earners” rate set in the retainer (although, by my maths, the total claimed works out at £120 per...

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Bunny boiler

By on Apr 15, 2013 | 3 comments

The other day I found in my email inbox an email from a Svetlana. The subject line read: “Let’s talk more my bunny!” The contents of the email were: “Hi!!! I have decided to write to you and I think that you will write to me. Please do not hesitate and write to me. I think that we shall find much in common and we can better and closer learn each other. I hope that I shall see your letter soon and mine of straight line E-mail: kamshitovibaa69@yandex.ru you can write to me here and I shall necessarily answer you and to send my photo. I wait with impatience of your letter. Svetlana” I was naturally very flattered but rather put off by the suggestion we would “find much in common”. If Svetlana really does spend all her spare time poring over the finer details of the costs rules and practice directions she sounds like a bit of a sad weirdo....

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Qualified One-way Costs Shifting

By on Apr 12, 2013 | 2 comments

A reader of the Legal Costs Blog contacted me to say one of his solicitor clients had asked the following question: “If we terminate the client’s CFA today and replace it with a retrospective CFA back to the beginning of the case will the client get the benefit of QOCS?” The reader is an exceptionally knowledgeable costs specialist solicitor. The fact that his solicitor client asked the question and he asked me for a second opinion is yet a further example of how practitioners are still struggling with the basics of the Jackson costs reforms. I have no doubt the answer to this question is meant to be: No. The problem (ambiguity) is caused by the transitional provision and the strange use of the word “has” in: “44.17. This Section does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement (as defined in rule 48.2).” I am sure the word “has” is redundant as the rule is intended to cover claimants who entered into such funding arrangements pre-1/4/13 (which ties in with the definition of “pre-commencement funding arrangement”) regardless of whether it is still in place when the claim settles. Nevertheless, “has” creates an ambiguity possibly suggesting “has in place” as opposed to “had”. Yet a further example of sloppy...

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