The defendant costs specialists

Posts made in September, 2014

Hourly rates under CCFAs

By on Sep 29, 2014 | 6 comments

Many cases are still being run under CCFAs which define “basic charges” along the following or similar lines: “charges for work done by or on behalf of Smith and Jones Solicitors, calculated on the basis of the hourly rates allowable for the work in the court in which the claim in question is conducted or would be conducted if proceedings were to be issued” I take “allowable” to refer to the Guideline Hourly Rates for the relevant court. “Allowable” cannot refer to whatever hourly rates it might be possible to persuade a judge to allow at the conclusion of the case. This would create all kinds of indemnity principle problems. Neither can it mean the rates that another judge in that court once allowed in a vaguely similar case in the past. That does not make the rate “allowable” but simply “once allowed in the case of X”. If that is correct, it means there is no discretion to seek rates in excess of Guideline Rates. Secondly, what happens if the claim was one of those issued out of Northampton (CCMCC) County Court and settled prior to transfer to a specific court? Although it was a purely administrative matter that Northampton County Court was the named court, was it not being “conducted” in that court if issued or “would be conducted” in that court if not yet issued? If so, the rates under a similarly worded CCFA would be limited to National 2...

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Definition of road traffic accident

By on Sep 26, 2014 | 8 comments

Is an accident concerning an elderly lady being hit by a mobility scooter in the fruit and vegetable aisle of a Tesco superstore a “road traffic accident” under CPR 45.7 (now CPR 47.9) such that fixed predictive costs apply; a road traffic accident being defined as: “an accident resulting in bodily injury to any person or damage to property caused by or arising out of the use of a motor vehicle on a road or other public place” “‘motor vehicle’ means a mechanically propelled vehicle intended for use on roads” “‘road’ means any highway and any other road to which the public has access and includes bridges over which a road passes.” Yes, said Deputy District Judge Dawson in Scott v Malcolm (Liverpool County Court, 5 April 2013). Thanks to Patrick Driscoll at Shakespeares for providing a copy of the...

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Drafting bills of costs

By on Sep 24, 2014 | 7 comments

PD 47 para.5.8 states: “Where it is necessary or convenient to do so, a bill of costs may be divided into two or more parts” It is difficult to conceive a more necessary or convenient situation then where, due to the transitional provisions, part of the costs will be subject to the old proportionality test and part will be subject to the new Jackson test. Why then do some law costs draftsmen fail to do this? How is a judge on assessment meant to apply the correct tests where the bill is not clearly split? Should applications be made to compel such bills to be re-drafted? Alternatively, should the judge just adopt a robust broad-brush approach and apply the new test to all costs claimed (with the receiving party having nobody but themselves to blame for not having drafted the bill...

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Binding legal authority

By on Sep 19, 2014 | 5 comments

I don’t know how Mark Friston feels when sitting as a Deputy Master at the Senior Courts Costs Office when one of those appearing before him quotes from his book Civil Costs: Law and Practice as being a persuasive record of the law as it stands. Even odder, perhaps, if his opponent in court refers to his book to support an argument counter to that which Friston is advancing. However, I can confirm that I find it rather surprising when I read Replies to Points of Dispute citing something I once wrote on the Legal Costs Blog as though this was somehow likely to sway the poor judge one way or the...

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Costs of Part 8 proceedings

By on Sep 17, 2014 | 14 comments

Has the Court of Appeal messed up again (Mitchell/Denton style)? One of the problems with the English legal system is that the higher courts will sometimes try to do justice to the facts of a case but create a precedent in the process with unintended consequences. This is perhaps particularly acute when it comes to legal costs matters where the higher courts often have only limited understanding of the day-to-day issues that arise. Step forward Tasleem v Beverley [2013] EWCA Civ 1805. This is a decision from the tail end of last year and appears to have received only limited commentary to date. The issue facing the Court of Appeal was: “whether the court can award a claimant its costs of what are known as costs-only proceedings brought under CPR Part 8 in accordance with the procedure set out in CPR rule 44.12A where a default costs certificate has been obtained, as the claimants contend; or is a claimant in those circumstances limited to the amount of the costs specified in the default costs certificate, as the respondents contend? Is the default costs certificate the end of the matter, in other words.” The substantive claims had settled without proceedings being issued. Part 8 costs-only proceedings were issued and notices of commencement served. No points of dispute were served and the claimants obtained default costs certificates. Were the claimants limited (in addition to the amounts set out in the bills) to the fixed costs payable for obtaining a default costs certificate (£80 fixed fee plus court fee) or were additional costs recoverable for the work concerned with issuing the Part 8 proceedings? The Court of Appeal concluded that the fixed costs for obtaining a default costs certificate did not include the costs of issuing Part 8 proceedings and such costs were in the discretion of the court. So far, so unremarkable. The difficulty that arises lies in the reasoning behind the Court’s decision. The Court held: “The bringing of Part 8 costs-only proceedings is not the commencement of, or part of, the detailed assessment proceedings, albeit it is a necessary preliminary to that process if there are no underlying proceedings in existence.” So, Part 8 proceedings are apparently not “part...

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