The defendant costs specialists

Posts made in July, 2014

Costs Lawyer Grade C status

By on Jul 30, 2014 | 13 comments

The recent decision of Lord Dyson to allow Costs Lawyers to potentially qualify as Grade C or Grade B fee earners raises an interesting issue. What level of qualification and training is required for a Costs Lawyer to now potentially be classified as a Grade C fee earner? A typical solicitor will have stayed at school until age 18, then undertaken a 3 year law degree, followed by a 1 year LPC full time course and then undertaken a two year training contract. At that stage they will be entitled to call themselves a Grade C fee earner. This is, post-age 16, a combination of 8 years full time education and training. During the 6 years of education they will have lost potential earnings. During the 4 years of a law degree and LPC will have incurred significant tuition fees. (For those undertaking a non-law degree there will be the further delay and cost of the CPE.) It is unlikely that Grade C status would be reached before the age of 24. In contrast, the minimum academic qualifications to start the Costs Lawyer course is 4 GCSEs at grade C or above, English and Maths being compulsory. (Even this can be avoided if an aptitude test is passed.) The minimum age to start the course is 18. The Costs Lawyer course is designed to be undertaken whilst students are in full time employment. Although the course is no doubt demanding, it appears students are only required to attend a single compulsory seminar each year. To achieve Costs Lawyer status at least three years of relevant experience in costs law and practice is required before, during or after study for the Costs Lawyer qualification. The current cost of the course is a very modest £1,400 plus VAT per year. It is therefore possible to become a Grade C fee earner having left school at 16 and worked in a non-legal environment until the age of 18 and then undertaken the Costs Lawyer course over the next 3 years whilst working for a costs firm. It would be possible to attain Grade C status by the age of 21 whilst earning consistently since age 16 and for a fraction of the...

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2014 Guideline Hourly Rates

By on Jul 29, 2014 | 6 comments

The new Guideline Hourly Rates for 2014 have now been announced. The bad news for those hoping for an increase in the rates is that they remain the same as for 2010. The good news for those hoping for an increase in the rates is that they remain the same as for 2010. The Report of the Costs Committee had recommended a range of amendments with the average rate going down, not up. The recommendation for Grade C Band One was a reduction from the current £161 per hour to £127. Aren’t you pleased they stayed the same? Lord Dyson, the Master of the Rolls, rejected the main recommendations in the report on the basis of the “fundamental” shortcomings in the evidence upon which the recommendations were meant to be based. Not enough lawyers had bothered to respond to the survey. As Professor Dominic Regan succinctly summarised the position: “rubbish in, rubbish out. Dodgy data, nothing doing” Lord Dyson concluded: • there should not be an additional Grade A star • that separate GHR bands specific to specialist fields of civil litigation should not be introduced • that separate rates should not be introduced for detailed assessments of costs, but that there should be greater flexibility in detailed assessments than would ordinarily be shown in summary assessments • there should be no new Grade E fee grade for paralegals (this would have led to reductions in rates for some Grade D fee earners in Band One from £118 to £75 – a 36% reduction) The only “changes” Lord Dyson accepted were that: • the criterion for Grade A fee earners should be amended so that it includes Fellows of CILEX with 8 years’ post-qualification experience • that Costs Lawyers who are suitably qualified and subject to regulation be eligible for payment at GHR Grades C or B, depending on the complexity of the work The changes are to come into force on 1 October 2014. The actual wording of the recommendation in the report for Costs Lawyers was: “The ACL provided evidence giving details on the qualification route, continuing professional development and regulatory framework for Costs Lawyers. The Committee agreed, and determined that the following approach should be adopted...

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Costs of applications in provisional assessment

By on Jul 24, 2014 | 8 comments

CPR 47.15(5) states: “In proceedings which do not go beyond provisional assessment, the maximum amount the court will award to any party as costs of the assessment (other than the costs of drafting the bill of costs) is £1,500 together with any VAT thereon and any court fees paid by that party.” What about costs incurred in relation to pre-provisional assessment applications such as applications to set aside default costs certificates, applications for interim payments or applications for relief from sanctions? If such applications are dealt with pre-provisional assessment, it will not be known at that stage whether the proceedings will “go beyond provisional assessment”. Such costs are clearly incurred within the detailed assessment proceedings but are they costs “of the assessment”? See the comments in Crosbie v Munroe [2003] 3 Costs LR 377 para.34: “the assessment proceedings cover the whole period of negotiations about the amount of costs payable through the Part 8 proceedings to the ultimate disposal of those proceedings, whether by agreement or court order.” Are such costs recoverable in addition to the £1,500 cap if the matter ultimately does not go beyond provisional...

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Relief from sanctions – need for promptness

By on Jul 16, 2014 | 0 comments

The Court of Appeal advises that the guidance given in Mitchell “remains substantially sound”. In Mitchell the Court stated: “If [the breach] can properly be regarded as trivial, the court will usually grant relief provided [emphasis added] that an application is made promptly” It was therefore implicit that even where the breach was trivial, relief would probably not be granted where a prompt application was not made. Elsewhere in the judgment it was stated: “Moreover, as the court emphasised, the application must [emphasis added] be made promptly. This reasoning has equal validity in the context of an application under CPR 3.9.” Again, absolutely clear an application needs to be prompt. The Court of Appeal has now “clarified and amplified” its earlier guidance in Denton. “Trivial” has been redefined: “we think it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant.” The first stage of the new is now: “If a judge concludes that a breach is not serious or significant, then relief from sanctions will usually be granted and it will usually be unnecessary to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.” The guidance was silent at this stage as to whether there is need to make an application promptly if the breach is not serious or significant, unlike in Mitchell. Promptness is given brief consideration in the Denton judgment when considering “all the circumstances”: “As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances.” The new guidance fails to explain whether the issue of promptness is to be given little weight if the breach was not “serious or significant”. This is unfortunate. The Court gives a strong warning to parties: “We think we should make it plain that it is wholly inappropriate for litigants or their lawyers to take advantage of...

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Listing for provisional assessment

By on Jul 14, 2014 | 18 comments

I contacted the Senior Courts Costs Office to enquire whether they had received a request for assessment from the other side. (If not, application to swiftly follow.) They were unable to tell me because they have a backlog of claims such that any request for assessment received since April is probably not on the system yet, let alone having a date for provisional/detailed assessment. The Practice Direction, perhaps optimistically, states: “the court will use its best endeavours to undertake a provisional assessment within 6 weeks” The SCCO is clearly currently struggling to even get the cases onto the system in that timescale. Previously I was hearing those from the SCCO suggesting that the numbers of cases being brought before them for provisional assessment was much less than anticipated. This now seems to suggest that as parties are becoming familiar with the process, the numbers are...

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