The defendant costs specialists

Posts made in January, 2014

Time for service of Replies to Points of Dispute

By on Jan 30, 2014 | 10 comments

Replies to Points of Dispute occupy a strange place in the detailed assessment process. Many costs practitioners and costs judges have traditionally viewed them as largely a waste of time, often consisting of self-serving argument or pointless comment (eg “Not agreed”). At worst, they extend beyond setting in skeleton form the receiving party’s position and are drafted in the form of complete submissions (rather rendering attendance at a detailed assessment hearing redundant). They have always been optional. The pre and post April 2013 rules are, for practical purposes, identical with CPR 47.13 reading: “(1) Where any party to the detailed assessment proceedings serves points of dispute, the receiving party may serve a reply on the other parties to the assessment proceedings. (2) The receiving party may do so within 21 days after being served with the points of dispute to which the reply relates.” This has always seemed a straightforward rule to me. The service of Replies is optional. If the receiving party considers that Replies will assist in narrowing the issues or addressing a point of principle they can serve Replies within 21 days. If service of Replies is viewed as being unlikely to facilitate settlement or narrow a point of principle, in advance of assessment, the receiving party can choose not to serve Replies. Prior to 1 April 2013 they would still be free to make whatever submissions they wanted at the detailed assessment hearing. Failure to serve Replies did not limit the ability to make oral submissions. However, it was common practice amongst many costs draftsmen and costs lawyers to serve Replies outside 21 days and often only shortly before a detailed assessment hearing. When challenged, the response was often along the lines that they had hoped to avoid the cost of preparing Replies but now it was clear the matter would proceed to assessment it was now necessary to prepare Replies. This totally misunderstood the purpose of Replies. They were to be served at an early stage in the assessment process, if at all, if they may have assisted in avoiding the matter having to proceed to a final assessment. If they were unlikely to avoid a hearing, there was no need to serve them....

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Impact of Jackson on cost firms

By on Jan 20, 2014 | 24 comments

Patrick Allen, writing in the New Law Journal, commenting on the Jackson reforms: “Many smaller PI firms are closing, selling their cases at a discount to their WIP or being taken over. Firms are being hoovered up by the mega firms such as Slater Gordon. … If firms do have cash this is because they have no new business and they are in that brief cartoon moment before they fall to earth.” The impact being felt by PI firms will quickly be felt by costs firms, although many have never been busier because of the time lag between new instructions being received by solicitors and the cases settling. Has the impact started to hit some costs firms...

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Provisional assessment hearing

By on Jan 8, 2014 | 11 comments

Notice received from court: “Take notice that the provisional assessment will take place on 7 February 2014 at 2:30pm at X County Court when you should attend 90 minutes has been allowed for the provisional assessment NB – No parties are to attend the provisional assessment hearing” That’s clear then....

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Cap on costs budgeting process

By on Jan 6, 2014 | 13 comments

Claimant serves costs budget totalling £100,000. Defendant serves costs budget totalling £20,000. Defendant’s budget is, unsurprisingly, not disputed and approved by the court. Claimant’s budget is, unsurprisingly, hotly disputed and is dealt with at a costs management hearing. PD 3E para.2.2 states: “Save in exceptional circumstances – (1) the recoverable costs of initially completing Precedent H shall not exceed the higher of £1,000 or 1% of the approved budget; (2) All other recoverable costs of the budgeting and costs management process shall not exceed 2% of the approved budget.” The Claimant’s budget is reduced by the court to £60,000. Each side’s costs of the contested costs management hearing appears to be limited to 2% of their own approved budget (rather than the budget of the other side). So, the Claimant gets a maximum of £1,200 and the Defendant a maximum of £400, despite the fact the only reason for the costs management hearing is because the Claimant submitted an inflated budget. Fair? And is £400 even going to begin to cover the Defendant’s costs? This has the appearance of not being very well thought...

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