The defendant costs specialists

Posts made in November, 2013

100% of damages

By on Nov 29, 2013 | 2 comments

There was much fuss when the new portal fees were being proposed. Karl Tonks, previous president of APIL, said: “Lawyers cannot reasonably be expected to run cases at a loss. But if the proposed fees are implemented, the only alternative will be to turn claimants away or take legal fees from a claimant’s damages, which flies in the face of the principles of justice.” Interesting that I’ve just come across a Form of Authority that was signed by a claimant on 19 June 2010 giving the following authorisation to his solicitor: “Client Management Fee – as per my signed Client Agreement with AAH to irrevocably and unconditionally pay on my behalf the AAH CMF in the sum of £379.00 plus VAT from my damages [emphasis added] to AAH (or as it shall direct) at the conclusion of my claim” It’s not clear what the Client Management Fee is designed to cover or what service the claims management company performs that goes further than that offered by the solicitors. Nevertheless, it does seem that many solicitors (ie those who were panel members of this scheme) were happy to see their clients recover less than 100% of their damages prior to the fee change.  And given the scheme is endorsed by Esther Rantzen it must be...

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Mitchell v News Group Newspapers Ltd

By on Nov 27, 2013 | 13 comments

The Court of Appeal has unanimously dismissed the appeal in the costs budgeting case of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1526 (part of the “Plebgate” saga). Although the decision is itself crucially important for costs budgeting purposes – fail to serve and file a budget on time and your costs will be limited to court fees only, with no real hope of relief from sanctions – it has much wider implications for the future of civil litigation. The courts can now be expected to take a very robust approach to compliance with rules. Failures to comply will be punished harshly. Relief from sanctions applications will be doomed to failure unless unusual circumstances can be shown for the breach. A mere failure to show prejudice will not come close to being sufficient. Conclusion of the Court’s judgment: “In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the...

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Vitol Bahrain EC v Nasdec General Trading LLC

By on Nov 22, 2013 | 6 comments

The recent case of Vitol Bahrain EC v Nasdec General Trading LLC and others [2013] All ER (D) 38 (Nov) provides an interesting insight into how the courts may interpret proportionality under the new test. The matter related to an interim anti-suit injunction to prevent the defendants from pursuing any application to join the claimant to proceedings in the United Arab Emirates. The issue was whether the question of title of two oil cargoes should be litigated in England or in the UAE. The Commercial Court held the anti-suit injunction should not continue and awarded costs to the defendants to be summarily assessed on the standard basis. The value of the cargoes was some US $119m, but the hearing was not about who had title to the oil, it was about whether an injunction should be granted to restrain the defendants from joining the claimant into existing proceedings in the UAE. The claimant’s statement of costs sought a total sum of £242,760.48, which included the costs of the without notice application as well as the costs of the return date hearing. The defendants’ statement of costs sought a total of £165,421.80. Males J held that the amounts claimed were grossly disproportionate. He commented that the message should go out loud and clear that the Commercial Court would not assess costs summarily in such disproportionate amounts merely because the figures on both sides were broadly comparable. Control would be exercised to ensure that the costs claimed from the unsuccessful party were reasonable and proportionate. Having considered the defendants’ statement of costs, his lordship assessed their costs summarily in the amount of £75,000. This decision envisages the interesting prospect of paying parties arguing that the receiving party’s costs are disproportionate notwithstanding that they themselves have incurred costs at a level as high or higher. It is not clear from the case summary available how the judge reached the figure of £75,000. I suspect that this was not as a result of a line-by-line analysis of the Defendants’ statement of costs. The note at 44.5.3 of the White Book, admittedly dealing with the pre-1 April 2013 rules, states: “The judge in a trademark dispute summarily assessed the costs at the end of...

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Guideline hourly rates for costs lawyers and law costs draftsmen

By on Nov 18, 2013 | 23 comments

The Civil Justice Council’s Costs Committee is currently undertaking a review into Guideline Hourly Rates. As part of that process they are considering whether to introduce a further category of fee earner for costs lawyers and costs clerks (their term not mine). If this is done, will costs lawyers be placed in a higher category to costs clerks? Would non-costs lawyers be able to obtain similar rates as costs lawyers where they had “equivalent experience”? If so, what would that amount to? Would the costs lawyer qualification count for more than simply the number of years working in...

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Disclosing privileged documents in detailed assessments

By on Nov 15, 2013 | 14 comments

The Senior Courts Costs Office Guide 2013 correctly describes the approach to disclosure in detailed assessment hearings of potentially privileged documents: “If, having examined documents lodged with or produced to the court, the court is minded to determine a point of dispute wholly or partly in favour of the receiving party it does not automatically follow that the paying party will have a right to see all of the documents relied on by the court in reaching that decision. The court should enquire of the paying party whether the paying party is content to accept that ruling (subject to appeal) or whether the paying party wishes to see the documents relied on by the court in making the ruling. In many cases the paying party will be content to agree that the court alone should see those documents. The alternatives (see below) may lead to additional delay and an increase in costs. (b) If the paying party declines to accept the court’s ruling without inspecting documents, then, save as explained in paras (f) to (h) below, the court will put the receiving party to his election between showing the documents in question to the paying party or not relying upon them and offering to prove the fact of which the document is evidence by some other means. Alternatively the receiving party may decide to withdraw the claim for the costs of it. The court may give directions enabling the receiving party to have a fair opportunity to provide other evidence. In reaching its final decision on the issue the court will not take account of documents which the receiving party has elected not to show to the paying party.” Those costs draftsmen and costs lawyers who continue to believe that they can simply show the documents they rely on to the judge without also having to potentially show the same to the other side have misunderstood the true...

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