The defendant costs specialists

Increased legal costs work

By on Apr 23, 2014 | 17 comments

The majority of those working in costs have never been busier.

We are still benefiting from the historical increases in personal injury claims, with settlements now flowing into new costs work.

The transitional provisions relating to the introduction of the Jackson reforms have meant those areas of costs work that will reduce or disappear (eg fast-track personal injury claims) have yet to bite or are only just beginning to be felt (eg reduced numbers of detailed assessment hearings in light of provisional assessment).

For those undertaking costs budgeting there is an increase in the front-loading of work for claims that are still ongoing, with the potential reduction in work (no need for bills, detailed assessment, etc) at the end of the process yet to happen.

Although a period of satellite litigation was to be expected by the new rules, the unexpected boost in work has come about as part of the Mitchell approach.

My diary is rapidly filing up with hearings to deal with applications concerning:

1. Applications to strike out Points of Dispute due to a failure to serve an open offer. (These misconceived applications are dropping off.)
2. Applications for relief from sanctions for failing to provide proper notification of funding during the life of the claim.
3. Applications for relief from sanctions for failing to serve with the bill the correct documents in support of additional liabilities. (How many years do lawyers need to get this right?)
4. Applications for permission to serve Replies late.
5. Applications to strike out Replies served late.

(If you need representation for any hearings in the London area, let me know.)

This is not all good news for costs practitioners. Some of these applications are the result of costs draftsmen and costs lawyers failing to do what they should, when they should. Next year’s professional indemnity premiums are going to spike.

    17 Comments

  1. For a DA with late replies, are you actively issuing an application or leaving it to the Claimant?

    Brent May

    23rd April 2014

  2. re: point 3 – I find its not Lawyers who get it wrong, but their CLowns and draftsmen, who never understood

    And I’ve now taken to asking open confirmation from such, that their actual clients are aware of the default and where the blame lies, in terms of indemnity for wasted costs. it’s amazing how many of them suddenly settle straight after such letters leave my desk!

    Anonymous

    23rd April 2014

  3. Mine is filling with Defendants who continue with satellite litigation such as whether a deafness claim is a disease claim for the purpose of CPR 45 V and with Defendants failing to provide an open offer with the PODS (no sanction for non compliance but yet again no sanction for filing Replies late)

    Roberto Carassale

    25th April 2014

  4. Lets not forget those cost building Applications made routinely by one certain Claimant firm for payment on account, even before discussions on costs take place. I’m torn as to whether they issue them purely (1) as an added revenue stream for themselves, or (2) because of the new funding scheme they offer.

    Anonymous

    25th April 2014

  5. on the flip side of the POA application, and I dont know the name of the firm in question but I do know of the very recent practice of one Defendant organisation, perhaps it was because of court delays and the fact that the interim payment request was routinely declined when made?

    perhaps therefore the application, whilst premature as you should ask and allow a reasonable period of time, was merely to get the application in the court system

    Anonymous

    25th April 2014

  6. Today at Darlington County Court, Defendants application to strike out points of replies served outside 21 days dismissed by the Court.

    Hopefully the standard ‘you will need to make an application if you wish to rely upon your points of replies’ will now stop.

    Costs Master

    28th April 2014

  7. But it won’t will it? I still have Claimant’s Solicitors trying to argue that my letter containing an open fully inclusive offer is ‘not in compliance with PD 8.3… blah blah’

    And the reason? because my letter does not have the words ‘open letter’ written at the top of it!!!! the fact that the letter is not headed WP or WP subject to costs is irrelevant according to some Claimant firms

    Suffice to say Judges have not been impressed when an Appliocation has been made!

    Realist

    29th April 2014

  8. @ Costs Master

    Good result at Darlington County Court from a common sense perspective, whether you generally act for Claimant or Defendant.

    What was the basis for the Application being dismissed? That a strike out was not the appropriate sanction, or that the Application was misconceived in some way?

    What was the consequential costs order? Would make sense to me if the Court allowed reliance on the Replies but did not allow recovery of any costs associated with them.

    Icarus

    29th April 2014

  9. No sanction within the CPR to strike out replies if filed outside 21 days. The court reminded the Defendant that replies are optional. Judge was very frustrated that the application had been made. The Judge made a very brief comment that the cost of preparing the replies maybe considered at the provisional assessment hearing.

    Costs awarded to the Claimant of the application.

    Costs Master

    29th April 2014

  10. The problem is there was no sanction for costs to be limited to courts fees for late filing of a costs budget in Mitchell. Judge just made one up.

    Mad, draconian judgments at the top mean you get folk clamouring for draconian sanctions at the top.

    Simple answer is make Replies mandatory so Claimant’s cannot slip in late arguments a Defendant has no chance to rebut at PA and ditch the rule about attaching an open offer to PODs as no one with any sense makes that their best offer so it is utterly pointless.

    'King Costs

    29th April 2014

  11. why not all apply some logic – receiving party seek an extension or make an application

    Paying party – if the replies are really late and have caused prejudice then yes take the point but if we are talking days and no prejudice afforded stop trying to secure a windfall

    Personally I would much rather just get on with the neg’s – if the opening offer is a good platform I will happily extend time for PODs. I find that PODs / Replies rarely aid matters and just incur additional costs

    There is too much oneupsmanship

    abcde

    30th April 2014

  12. Spot on abcde on 30th April.

    john Allen

    30th April 2014

  13. Has your cost lawyer forgotten to make a open offer with the PODs / failed to serve Replies within 21 days then we can help you make a claim just call………

    xyz

    30th April 2014

  14. CLown refuses t/e for pods during negotiations as “they want to see our full objections to consider our offer” (which has been particularised verbally in any event).
    Same CLown makes counter-offer under Part 36, which he refuses to break down nor justify, and then asks for a t/e to draw his replies.

    @ abcde & john Allen – sensibility and reasonableness rarely surface in CLowns acting for CLaimants

    Anonymous

    1st May 2014

  15. Odd that, I am a CL for a Claimant

    Obviously I am the minority

    abcde

    1st May 2014

  16. @ abcde

    you are! God bless you for it!

    Anonymous

    2nd May 2014

  17. Are there any judgements being handed down on the points above at any time soon?

    abcde

    30th May 2014

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