The defendant costs specialists

Posts made in January, 2015

Part 36 costs offers

By on Jan 27, 2015 | 2 comments

I recently received an offer as follows: “We confirm that we can agree to accept the sum of £18,800.00 in settlement of our costs, this offer is made subject to S1 Part 36 CPR, applies to the whole of this matter and is open for acceptance for 7 days. If we do not hear from you within that period we intend to set this matter down.” I wonder what possesses people who have clearly never read Part 36 to think that making an offer purporting to be a Part 36 offer is a good...

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Bloody provisional assessments

By on Jan 23, 2015 | 13 comments

And another thing… Problem: Many judges make the average doctor’s handwriting look as though it was the winning entry to a calligraphy competition. They try to write their decisions to the provisional assessment in boxes which have been left smaller than a postage stamp by the receiving party. The decision is written in light green ink (or perhaps invisible ink) that does not photocopy properly in the copies returned to the parties. The court staff photocopying the Points of Dispute/Replies/Decision fail to notice that the part of the page with the judge’s decisions has not copied properly or that the document is double-sided. Solution: When the parties are advised of the date of the provisional assessment (6-9 months in the future), the receiving party is to email a copy of the Points of Dispute/Replies, in Word format, to the court. The judge’s decisions are typed into the Points of Dispute/Replies. Even the courts’ creaking technology must be able to cope with...

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Provisional assessment – and another thing…

By on Jan 22, 2015 | 7 comments

More issues as to provisional assessment… Problems: The timing of certain steps in the process is confusing at best. The parties are meant to undertaken the arithmetic on the Bill as assessed post-provisional assessment. However, how does the judge undertake, where relevant, the global proportionality cross-check if the judge does not know the figure that has been initially arrived at? Some courts are issuing their own directions for the parties to inform the court of the initial calculations so proportionality can then be considered and the final amount determined. However, this step should be provided for in the rules. The rule concerning filing of statements of costs is a mess. PD 47 para.14.3(c) refers to filing “a [in the singular] statement of the costs claimed in respect of the detailed assessment” implying that it is just the receiving party that will file a statement. What if the paying party has won? There is no requirement to serve the statement of costs on the opponent. The statement of costs will have to be prepared before the provisional assessment has occurred and before the parties have agreed the arithmetic. How much time should go in the statement of costs for the post-assessment number crunching and trying to agree the figures with the other side, when the work has yet to be done? For a Bill at the top end of the £75,000 figure, this can be time consuming if there have been, for example, amendments to the hourly rates and VAT figures. What if the parties cannot agree the figures and need to make written submissions to the court. How is this time dealt with in the statement? Post-assessment, the parties “must” agree the total sum due to the receiving party on the basis of the court’s decisions within 14 days of receipt of Precedent G. But they then have 21 days to request an oral hearing. Is it necessary to try to agree the exact figures if a party is going to request an oral hearing in any event? Solutions (and I confess this may need some more thought): No statement of costs to be served when requesting provisional assessment. The initially provisionally assessed Bill, pre-proportionality consideration (where the new...

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Further issues with provisional assessment

By on Jan 21, 2015 | 2 comments

More problems with the provisional assessment process… Problems: The, very limited, provisional assessment pilot was based on claims for costs with a value of up to £25,000. When provisional assessment was rolled out the figure was moved up to £75,000. This was an interesting experiment. It failed. The provisional assessment rules do not require the receiving party to lodge the bulk of their papers with the Court in advance of the assessment. The Senior Courts Costs Office believes it is not possible to properly assess a Bill without the proper supporting documents and requires the solicitor’s full file to be lodged. If the Rules Committee and other courts believe they know better than experienced costs judges and costs officers as to what is required to undertake a fair assessment, they are wrong. Solutions: Reduce maximum figure for provisional assessment to £25,000. Require full supporting papers to be...

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Another provisional assessment problem

By on Jan 20, 2015 | 8 comments

Another issue with provisional assessment… Problem: The rules remain a mess over the issue of what is or is not included in the £1,500 provisional assessment cap. There has already been one amendment to try to clarify the issue but a second is needed. Does the £1,500 include or exclude the costs of negotiating costs prior to a notice of commencement being served? Does the £1,500 include or exclude the costs of Part 8 costs-only proceedings. Solution: It should include the costs of any negotiations. It should not make a difference whether this work is done pre or post formal service of a Bill. If the costs of Part 8 proceedings are to be excluded, a fixed fee should be applicable for issuing Part 8 proceedings (say £80 plus court...

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