The defendant costs specialists

Part 36 offers in costs proceedings

By on Jul 29, 2013 | 50 comments

The new CPR introduced Part 36 offers into detailed assessment proceedings and I am now starting to see the first Part 36 offers coming through.

(I’ll ignore for the moment the fact that a number of these don’t count as detailed assessment proceedings had already been commenced before 1 April 2013.)

I’ve never seen so many wholly defective Part 36 offers in such a short period of time. Most of these don’t even come close to being valid Part 36 offers.

I see an opportunity for Professor Dominic Regan not to offer his usual masterclass in Part 36 offers but rather an idiot’s guide for beginners. But then, I suppose those drafting these documents don’t (yet) realise they are defective and don’t know they need remedial help.
 

    50 Comments

  1. I bet the offers came from low-down-and- dirty costs lawyers.

    In case anyone missed this article, here is the latest thinly disguised attack on hard working (and proven) costs draftsmen: http://www.litigationfutures.com/news/ramsey-named-acl-honorary-president

    Sir Ramsey is someone who has proper legal training being an ex barrister. Too bad he has never drawn a bill of costs. but that doesn’t matter hey, you can no doubt con potential clients into believing that the ACL (and its highly qualified members) are on a par with such a distinguished fellow!

    Anonymosity

    29th July 2013

  2. i too have seen many purported Part 36 offers from Defendants; the majority equally defective – one one memorable case, i have different part 36, open and “WPSATC” offers all made on the same day!

    now what strikes me, is that while the ACL trumpets (again in the press, well done to the Chairman going on about qualified people, would be so nice if he explained how many of his membership came by said “qualification”) about leadership,and representing the profession, where are they in issuing guidance to their members? where are their Articles in the legal press telling people how to safeguard their interests? THEY are meant to be the experts.

    Silence

    Utter silence

    this is the only article Ive seen from anyone in the ACL on the subject, and its to snigger (sorry Simon) at the unfortunates whom need guidance.

    Anonymous

    29th July 2013

  3. I haven’t put forward one of those yet. I don’t intend to until the next case I get acting for a receiving parting gets close to 21 days before a provisional assessment.

    I have, however, received loads of “Part 47.19” offers (mostly from receiving parties, but not all) in cases where DAP were started after 1st April :-/

    Richard

    29th July 2013

  4. Part 36 in DA proceedings is one thing, however, has anyone noticed, while drafting Bills, how many solicitors (both Claimant and Defendant) do not understand Part 36 in the substantive actions??

    With the new significance of Part 36 I find it astounding.

    I would not be inclined to point out to my opponents that their offers are defective, however. Why give them an opportunity to place you at greater risk?

    Chris

    29th July 2013

  5. @ Chris the temptation not to point out defectiveness is understandable, however, the duty is to the court; i know many DJ’s get very irate when presented with unnotified technical arguments to defective offers at the end of DA’s, the fact ive pointed them out (and had the point ignored) in correspondence usually resolves the argument very quickly. I can imagine saying a Part 36 offer particularly is defective would need to be spelled out

    Anonymous

    29th July 2013

  6. I feel very sorry for Anonymosity at 6.39 am that he can be so belligerent so early on a Monday morning.

    If he had half a brain he would know it is not Sir Ramsay but Sir Vivian. Also, he is not an ex-barrister. He is still a barrister in addition to being one of our best Judges.

    Sir Vivian`s appointment is a tremendous coup for the ACL and Murray and his colleagues are to be congratulated.

    Annon

    29th July 2013

  7. @ Annon on July 29th, 2013 10:58 am

    I object to your assumption that I am a man.

    It seems your view is probably coming direct from ACL client grabbing HQ.

    Please enlighten us all regarding why Sir Ramsey (or Vivian for nitpicking pretentious types) has been appointed? What relevance foes he bring to the table i.e. in terms of detailed assessment or technical costs experience. Or indeed has he ever conducted a costs negotiation or indeed drawn a bill of costs.

    I think not. It just reinforces the widely held belief that the ACL has delusions of grandeur which they cannot back up in terms of professional qualifications.

    It is time to get real!

    Anonymosity

    29th July 2013

  8. Anonymosity – I used the masculine gender for shorthand. You should have called yourself Ms Anonymosity.

    As I understand it, Sir Vivian was appointed by the Lord Chancellor to oversee the Rule change when LJ Jackson had health issues.

    If Sir Vivian has the confidence of the Lord Chancellor then that is good enough for me. Would you like to oppose him at a DAH?

    To conclude this correspondence I would only pose one question. Could a 20 year old man or woman starting out in costs NOT become a Costs Lawyer and still have a career?

    Annon

    29th July 2013

  9. @ Annon 29.07 5:07pm

    the shorthand, is always feminine, save for sexist dinosaurs.

    the appointment of Sir whoever, is elitist nonsense. As Anonymosity correctly points out, and as you endorse with your comments, there is NO relevance in the appointment professionally, other than to try and make the ACL look like something its not.

    Personally, I would happily take said Sir on at any DA – he and the LC would be better informed if they understood the reality of the costs profession, by having any experience of it.

    and yes, a young person starting the profession can, could and should pursue the career absent the ACL. this is more elitist nonsense, when it is perfectly clear that the rest of the legal profession is opening its boundaries to allow alternate routes into their profession – it is only the ACL closing ranks

    Anonymous

    30th July 2013

  10. Interesting logic – somebody that falls foul of shorthand etiquette when commenting on a blog must harbour derogatory thoughts about women, and believe them to be inherently inferior…

    Does your inappropriate use of commas and failure to begin sentences with capital letters indicate that you hate English teachers?

    Captain Costs Man

    30th July 2013

  11. I am miffed about the logic that, because Jackson saw fit to let Sir Ramsey oversee his reforms then that means the appointment of Sir Ramsey to the ACL is come kind of coup.

    Lets not forget these are the same reforms which are threatening the existence of us all, and are seriously flawed in many areas. Indeed there is a strong argument that many of the problems we are facing is as a direct result of people meddling in costs when they do not have any actual practical experience of it.

    The appointment of Ramsey only is only a PR exercise, like most other things that ever come from the ACL these days – totally self serving.

    I would love to oppose Ramsey at Detailed Assessment. It doesn’t matter how many years experience you have as a solicitor, barrister, judge, legal professor, etc etc etc. If you do not have any experience of the nitty gritty detailed assessments and costs arguments you are going to fail! Why is this so hard for you to comprehend?

    Anonymosity

    30th July 2013

  12. @ Captain

    the best response you your inaneness, is

    Anonymous

    30th July 2013

  13. Of course my comment was inane, I was replicating your logic…that was the point I was making. You may have heard it as it whistled over your head.

    Captain Costs Man

    30th July 2013

  14. Godwin’s Law (as amended by the Fictitious Amendments Provisions 2013)states

    “As an online discussion on GWS costs blog grows longer, the probability of a partisan comment regarding ACL members/non-members approaches 1.”

    First response to a post about Part 36 offers descends into usual pointless arguments.

    Non ACL members – Yes the ACL shamelessly promotes ACL membership despite lax regulation and dubious qualification requirements. Yes they insinuate anyone who is not in their organisation is probably not competent and yes there are both good and bad costs draftsmen who are and are not members of the ACL. We all know this. This is the status quo and has been for some time. We do not need constantly reminding!

    Bored with being sidetracked

    30th July 2013

  15. Why not start your own association and vent your resentfulness that way? You could call it the Association of Law Costs Draftsmen!

    Pete B

    30th July 2013

  16. @ Pete B – Brilliant, that made me chuckle.

    Captain Costs Man

    30th July 2013

  17. I agree it is tiresome, but lets remember – the ACL have prompted this by carrying on their recent smear campaign. See the link I posted above,

    Do you expect us to just sit back and bite our tongues?

    Anonymosity

    30th July 2013

  18. So according to Ms Anonymosity I am a sexist dinosaur (how original) because I did not follow a grammatical rule no one has ever heard of except Ms A.

    As Captain (soon to be Major) Costs Man and I have pointed out above the grammatical failings are all Ms Anonymosity`s which must make her many job interviews quite interesting.

    “My favourite actor? Dame Dench.”

    Christina Hendricks is 38.

    Annon

    30th July 2013

  19. Well no, of course not Anonymosity – what we all need to do is post lots of anonymous comments on an internet blog!

    (No offence Mr Gibbs…perhaps you could cull these endlessly boring, off topic “debates”?)

    Anonymous

    31st July 2013

  20. I agree with anonymous @ 7.49am today

    Why not invite the ACL to host an open forum to ALL people in this profession to air their views on this clearly very touchy subject?

    The fact is Simon is the only one willing to have the arguments hosted, and well done to him for that I say!

    p.s. those people unable to make constructive intelligent comments, are usually the ones resorting to nit picking over grammar 😛

    Anonymous

    31st July 2013

  21. it is what it is, faults and all, and its the only thing we have to work with

    can we not just stick to discussing points of interest / law?

    annon

    31st July 2013

  22. You should use capitalisation for the post script abbreviation. 🙂

    Anonny

    31st July 2013

  23. The last three comments remind me of communist china.

    Are you really so afraid?

    IT strikes me that anyone searching for a ”costs lawyer” may hit this site, and see what a farce it really is, considering the amount of times ”costs lawyer” is written on this blog.

    I can understand your concerns chaps!

    Anonymosity

    31st July 2013

  24. Bored with being sidetracked on July 30th, 2013 3:12 pm

    Like!

    Anonymous

    31st July 2013

  25. Sidetracked from what – a relentless smear campaign?

    Anonymosity

    31st July 2013

  26. I wish the comments on this blog were actually approved to remove the comments that are irrelevant to the blog post in question.

    It would save having to read the same old CD v CL drivel every week…

    If the blog post was about Ramsey being appointed President of the ACL then fair enough but part 36 offers are nothing to do with it.

    I am aware of the irony that I am myself not talking about Part 36 offers with this post!

    Annon2

    31st July 2013

  27. Censorship would suit the ACL down to the ground wouldn’t it?

    Lets all bury our heads in the sand and pretend the ACL is not trying to lie about the ”dangers” of instructing non costs lawyers in a smear campaign to pick up work and put others out of business!

    Anonymosity

    31st July 2013

  28. Didn’t Ramsey win us the World Cup ? ACL going for broke?

    cost draft

    31st July 2013

  29. @ cost draft

    Us??? thats a rather large supposition that all draftsmen and readers of this blog are English

    @ Annon2

    Insofar as I am led to believe, the blog posts do require approval before appearing – Simon?

    Anonymous

    1st August 2013

  30. Apparently only 40% of the comments posted actually make it onto the site. The rest are either highly offensive, sleep inducing or total gibberish.

    Pete B

    1st August 2013

  31. Just thought I’d add a comment to this for no other reason that I’ve got a name and I’m not afraid to use it!

    Jonathan James

    1st August 2013

  32. I propose a gladiatorial battle to the Death, once the victor has taken the spoils both sides shut up about this infernal “debate”

    This really is tiresome – there are good and bad CD’s / CL’s on both sides of the fence – that is all that can be said

    now lets all do some sodding work

    annon

    1st August 2013

  33. Just because you have a normal name jonathan, does not mean you can poke fun at people with names such as Anonymosity, Annon or the most common type, Anonymous.

    Anonymosity

    1st August 2013

  34. Anonymous @8.59
    Us= England

    cost draft

    1st August 2013

  35. @ cost draft

    thought so, Jingoism at its worst

    Anonymous

    1st August 2013

  36. Anonymous at 4.00pm

    There is a difference between Jingoism and patriotism. Sadly, the chattering classes have contrived to redefine patriotism as Jingoism and racism. These days flying the Union Jack is considered racist.

    (N.B. I refuse to use the term Union Flag)

    Annon

    1st August 2013

  37. Patriotism is wonderful

    I support the Union Jack – the point is, the Union involves 4 countries, not just 1, a point lost on the author of the “us” comment. That, my friend, is jingoism at its worst, and I’m being polite

    Anonymous

    2nd August 2013

  38. Exactly what Union are you talking about?

    Wales, Scotland and Northern Ireland all have their own assemblies which have cost billions of pounds to set up and will continue to cost millions in the future. How much does it cost to print everything in Welsh as well as English? Most of this huge wasted investment has come from English taxpayers.

    The awful Salmond wants an independent Scotland but is hazy on the finance of it.

    Yet these three countries continue to send MPs to Westminster to sabotage legislation the English want passed. Every time I hear a Labour voice on TV it seems to be Scottish.

    How can I be Jingoistic when the other three members have left the club and the “Union” has ceased to exist??

    Annon

    2nd August 2013

  39. What is the point of a paying party making a Part 36 offer as opposed to a Calderbank offer? I appreciate that the former holds more weight at the end of the day – or is supposed to – but it carries the heavy 10% addition penalty if beaten,wheras, so far as I am aware, the Calderbank offer does not.

    john allen

    2nd August 2013

  40. QOWCS?

    annon

    2nd August 2013

  41. To get from P36 offers in costs proceedings to devolution is staggering! Off topic comments should be deleted.

    @john allen 11.14 – the 10% uplift applies only if a receiving party beats its own P36 offer, not if it beats a paying party’s P36 offer…unless I have misread your post.

    anon

    2nd August 2013

  42. The only benefit in a paying party making a Part 36 offer is that it may be given more weight than a Calderbank offer. However, the rules explicitly provide that any offer can be taken into account at rule 44.2 (wrongly referred to as 44.3 in Part 36.1 following the rule moving) and Calderbank offers are placed before Judge on provisional assessments.

    The downside to Part 36 offers is they do not (and arguably cannot) include costs of detailed assessment. Personally I like to rap everything up with one offer to settle not risk being dragged to a far flung court to argue about assessment costs.

    The 10% rule only applies were a Claimant/Receiving Party beats their own Part 36 offer. There is no similar benefit or conversely any detriment to a receiving party making a Part 36 offer.

    'king costs

    2nd August 2013

  43. Anonymous @8am et al
    No wonder few, if any, take your frolics of fancy seriously ” The Union ” as an entity does not play in the World Cup. England won the World Cup……fact and nothing else.

    costs draft

    2nd August 2013

  44. @ all the Englandites

    England did win the World Cup . Still doesn’t make it an “us” when you address this blog and its wider multicultural readership

    Anonymous

    2nd August 2013

  45. Anonymous 2/8/13 @6.47pm

    Frolicking again, do you ever learn ?

    Where did I say I was English?

    costs draft

    3rd August 2013

  46. @ John Allen
    @ anon
    @ king costs

    What are you doing positing about Part 36 offers, don’t you know this thread is amount ACL -v- CD and England -v- The Rest

    annony

    3rd August 2013

  47. @ cost draft

    Read your own posts , you’re the one referring to England as ‘us’.

    Anonymous

    5th August 2013

  48. I would be grateful if anyone had an explanation why 47.20(4) provides that Part 36 applies to costs of the detailed assessment proceedings rather than the costs of the proceedings themselves.

    Anonymous

    29th October 2013

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