The defendant costs specialists

Posts made in August, 2013

Power poses

By on Aug 30, 2013 | 8 comments

The Telegraph has reported on research showing various poses that can boost your chance of a successful career. Apparently, feet up on the desk with hands behind head is one of the most powerful poses a person can adopt. Research suggests the effect of a strong pose such as this can linger even after a person returns to a more normal stance. I’ll try this at the next detailed assessment hearing I attend and let you know how I get...

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APIL/PIBA 6

By on Aug 29, 2013 | 4 comments

A large number of current CFAs with Counsel in personal injury cases are governed by the APIL/PIBA 6 model agreement. This provides: “If the amount of damages and interest awarded by a court is less than a Part 36 payment into Court or effective Part 36 offer then: 1) if counsel advised its rejection he/she is entitled to normal and success fees for work up to receipt of the notice of Part 36 payment into Court or offer but only normal fees for subsequent work; 2) if counsel advised its acceptance he/she is entitled to normal and success fees for all work done.” What costs are payable in the event Counsel was not advised a Part 36 had been made and the therefore did not advise one way or the other on the offer, which is subsequently not beaten? On the face of it, there is a lacuna in the wording. The problem should not arise, in theory, because the agreement, under the heading “Obligations of the Solicitor”, states the solicitor agrees: “promptly to bring to counsel’s attention … any Part 36 or other offer to settle” But what if the solicitor forgets? The agreement states: “Counsel may terminate the agreement if … Counsel discovers that the solicitor is in breach of any obligation [under “Obligations of the Solicitor]”. In the event of termination in this situation the agreement provides: “(1) If counsel terminates the agreement under paragraph 6 then, subject to sub-paragraph 2 hereof, counsel may elect either: a) to receive payment of normal fees without a success fee which the solicitor shall pay not later than three months after termination: (“Option A”), or b) to await the outcome of the case and receive payment of normal and success fees if it ends in success: (“Option B”).” But, if the breach is not discovered until after the claim has settled, can Counsel still terminate the...

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Electronic copy of Points of Dispute

By on Aug 27, 2013 | 7 comments

I’ve just received a request from a costs firm asking for an electronic copy of Points of Dispute to be forwarded to them “pursuant to Costs Practice Direction 35.6”. Now that we are almost a full five months into the new regime I am unsure as to whether: 1. the other side has yet to update their standard letters; or 2. the other side is unaware the Costs Practice Direction is no more (other than for some transitional...

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Judgment and costs

By on Aug 21, 2013 | 0 comments

Interesting view from the New Law Journal’s team of circuit and district judges: Q When judgment is entered in an unspecified claim why is it in terms that it is for an amount to be decided by the court and costs. What happens if say the claimant is awarded damages of less than the defendant’s pre-action Pt 36 offer? What of the status of the judgment for costs? A The origin of the practice would appear to be the wording in Forms N205B and N255 which must be used when judgment is requested (see CPR PD 12 para 3.1) and that is what the form provides for although there is good case for it to be brought to an end. It is our view that costs in this context is an entitlement that could be lost by no award of damages on an assessment, an effective CPR Pt 36 offer or the exercise of the trial judge’s general discretion on assessment to deny the claimant his...

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“Mandatory” offers in detailed assessment proceedings

By on Aug 20, 2013 | 26 comments

I just had my first hearing dealing with an application to strike out Points of Dispute and have the Bill assessed as drawn due to an alleged failure to comply with PD 47 para.8.3: “The paying party must state in an open letter accompanying the points of dispute what sum, if any, that party offers to pay in settlement of the total costs claimed. The paying party may also make an offer under Part 36.” I’ve previously commented on how I consider these applications to be misconceived, at least if they are argued properly by the paying party. The application notice argued: “the Defendant has failed to make an open offer of settlement in accordance with Paragraph 8.3 of the Practice Direction to CPR Part 47.9. … The provision is a must provision and there is no discretion for the Defendant as to whether or not an open offer is made” The Claimant’s Skeleton Argument continued in a similar vein: “the Defendant served Points of Dispute without an open offer of settlement in breach of section 8.3 of the Practice Direction 47. … Contrary to the rule, the Defendant served Points of Dispute without an open offer of settlement… Section 8.3 is obligatory. The paying party ‘must’ provide the open offer”. Whatever the other merits of the application might have been, it was brought on the basis that there is an absolute requirement to make an open offer when serving Points of Dispute. No such duty exists: note the words “if any”. The Points of Dispute here had been served under cover of an open letter stating: “We are awaiting instructions and will put forward an offer as soon as possible” The judge accepted that this amounted to strict compliance with the Practice Direction. It set out in an open letter what offer, if any, was being made at that point: none. There was therefore no breach and the application was dismissed. Barrister Sarah Robson reported on another similar unsuccessful application, made by the same firm, in the comments section of a previous post on this topic. I would be interested to hear the outcome of any similar applications, particularly where the point has been argued...

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