The defendant costs specialists

Posts made in February, 2015

Inaccurate costs estimates

By on Feb 17, 2015 | 1 comment

The move from costs estimates to costs budgets has left rather a mess in the rules due to the absence of transitional provisions. Nevertheless, under the old rules, and to the extent to which the old costs estimate rules continue to apply, the response of receiving parties to objections concerning inaccurate estimates is invariably, in my experience, misplaced. Receiving parties almost always rely on the guidance given at paragraph 29 of Leigh v Michelin Tyre Plc [2003] EWCA Civ 1766: “In our view, para 6.6 of the practice direction gives the court the power to take matters such as these into account in deciding whether, and if so how far, to reflect them in determining what costs it is reasonable to order the paying party to pay on an assessment. We do not, however, consider that it would be a correct use of the power conferred by para 6.6 to hold a party to his estimate simply in order to penalise him for providing an inadequate estimate. Thus, if (a) the paying party did not rely on the estimate in any way, (b) the court concludes that, even if the estimate had been close to the figure ultimately claimed, its case management directions would not have been affected, and (c) the costs claimed are otherwise reasonable and proportionate, then in our view it would be wrong to reduce the costs claimed simply because they exceed the amount of the estimate. That would be tantamount to treating a costs estimate as a costs cap, in circumstances where the estimate does not purport to be a cap.” However, the guidance given in that case concerned an earlier version of CPD 6.6: “On an assessment of the costs of a party the court may have regard to any estimate previously filed by that party, or by any other party in the same proceedings. Such an estimate may be taken into account as a factor among others, when assessing the reasonableness of any costs claimed.” The Leigh judgment gave guidance as to how this should be applied in circumstances where the CPD was silent as to the approach to adopt. Following Leigh, CPD 6.6 was significantly amended: “(1) On an assessment of the...

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Top costs expert

By on Feb 11, 2015 | 6 comments

The media has a terrible habit of attributing expert status to those who clearly have no right to be called anything of the sort. Fox News famously interviewed a “terrorism expert” who claimed “In Britain, it’s not just no-go zones, there are actual cities like Birmingham that are totally Muslim where non-Muslims just simply don’t go in”. In similar fashion, Costs Lawyer magazine recently published the views of “some of the country’s top costs experts” on what the coming year holds for the profession. In truth, they were prepared to publish the views of any idiot they could find. My contribution was: “The key elements to achieving the Jackson goal of ensuring proportionality in civil litigation were the extension of fixed fees for lower value claims and a new proportionality test for higher value claims. Costs budgeting is already proving to be an expensive and counter-productive experiment.  The Court of Appeal has already undermined any credibility in the new test for relief from sanctions.  The end to recoverability of additional liabilities has been more than off-set in personal injury litigation by the introduction of Qualified One-Way Costs Shifting.  The extension of fixed fees has inevitably succeeded in bringing a degree of proportionality in the fast-track. The missing piece in the jigsaw, and the last realistic hope of ensuring proportionality for the multi-track, is the new proportionality test.  Approaching two years after introduction we still do not know how the courts will apply this.  This will be the main battleground for 2015. I predict a repeat of the relief from sanctions fiasco.  The matter will reach the Court of Appeal and they will deliver a robust decision following the guidance already given by Jackson.  This will be followed by howls of anguish from the usual suspects, with some justification, that the decision will deny access to justice for large numbers of potential claimants. Shortly afterwards the Court of Appeal will then “clarify” their decision and reformulate their guidance giving such a watered-down test that it would have made the judges in Lownds blush.  The logic of Jackson’s recent calls for a massive extension of fixed fees will then become difficult resist, but only because a dog’s dinner was made of...

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