The defendant costs specialists

Posts made in May, 2013

Future of costs drafting

By on May 30, 2013 | 28 comments

Tony Guise, director of GUISE Solicitors writing in Litigation Funding magazine: “Costs management will mean that detailed assessment is in run off for most if not all cases. The future for costs drafting must be in question.”

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Legal costs mediation

By on May 24, 2013 | 13 comments

The other day I attended my first costs mediation concerning mediating costs of detailed assessment proceedings (ie not the costs of the substantive claim but the costs of the costs – claimed at close to £500,000). I’m not a great fan of the concept of mediation. Mediators like to talk about achieving a win-win outcome but the reality is that if both parties settle by moving from their primary position they have both lost. It is a lose-lose outcome. Surely it’s much better to expensively litigate all the way in the hope that there is one true winner. More importantly, if the mediation succeeds I feel sorry for the poor hard-working Costs Lawyer who looses three lucrative days in court plus preparation time. And think of poor Master Campbell who gets deprived of listening to my dulcet tones for three thrilling days. He’d be gutted. Mediation successful. Hearing vacated. Don’t go to mediator Phil Hesketh unless you want a similar bad...

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Costs Lawyer regulation

By on May 16, 2013 | 30 comments

The government has rejected calls for will-writing to be made a reserved legal activity despite there being clear consumer protection issues surrounding badly drafted wills. There is now absolutely no prospect of such a minority sport as costs drafting becoming a reserved activity. As Costs Lawyer Jon Williams has observed, the Association of Costs Lawyers and Costs Lawyer Standards Board will hopefully take note before spending further time or money pressing for...

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Provisional assessment costs

By on May 15, 2013 | 11 comments

At the panel session at the Association of Costs Lawyers’ Annual Conference the inevitable question arose as to what the £1,500 maximum costs recoverable under the new provisional assessment scheme was meant to cover. One of the costs judges said this issue had arisen at, I believe, a judicial meeting where they had been informed the figure was not intended to cover the court fee or the costs of drafting the bill. However, the view of the panel appeared to be that it probably did include VAT and any success fee. The later is uncontroversial (regardless of whether it is fair). But, the panel conspicuously failed to explain by what route of construction/interpretation the rule excludes any court fee or the costs of drafting the bill given this wording: “The court will not award more than £1,500 to any party in respect of the costs of the provisional assessment.” Court fees have always been treated as being part of the “costs” of a claim. That is the route by which court fees incurred in substantive litigation are recovered. Courts do not make orders along the lines of: “The Defendant to pay the Claimant’s costs to be assessed if not agreed and the Defendant do also pay any court fees incurred by the Claimant” If court fees are therefore treated as being part of the “costs” of substantive litigation, by what route do these cease to be “costs” when incurred in the course of provisional assessment? And, if court fees are not part of the “costs” of the provisional assessment, under what jurisdiction does a judge undertaking provisional assessment have the power to order, when assessing a receiving party’s costs, that something other that “costs” should be paid? In relation to the costs of drafting a bill, we have binding Court of Appeal authority in the form of Crosbie v Munroe: “Until the time the substantive claim is settled, the ‘proceedings’ relate to liability and the amount of any compensation. After the substantive claim is settled, the ‘proceedings’ relate to the assessment of the costs the paying party has to pay. Although CPR 43.2 contains no definition of ‘assessment’ as such, the White Book comment on this rule accurately states...

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