The defendant costs specialists

Posts made in March, 2015

Drafting time

By on Mar 31, 2015 | 17 comments

Further to my post yesterday, the time claimed for drafting the three virtually identical Notices of Funding was a total of three hours (one hour for each). Did you guess correctly? Being charitable, I suppose it is possible the fee earner recorded the time as being 1 unit per notice. An inexperienced costs draftsman then misread the corresponding attendance notes as recording 1 hour per notice and failed to engage brain when drafting the bill to consider whether this was remotely realistic. The matter was then passed to a partner who was too busy to give even a cursory glance at the contents of the bill before signing the certificate of accuracy. At no stage was there ever any intention to defraud the defendant. Other possible explanations are also...

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Drafting Notice of Funding

By on Mar 30, 2015 | 6 comments

I’m currently dealing with a case where the claimants’ solicitors were acting for three claimants arising out of the same incident. Same fee earner dealing with each claim. Notices of Funding were prepared; one for each of the three claimants, all on the same date. Each claimant had the benefit of a CFA and an ATE policy. The dates of the three CFAs were identical. The dates and details of the three ATE polices were identical other than the policy numbers. To make matters easier, the policies were not staged. Other than the name of the claimant and the date of the ATE policy, each Notice of Funding was identical. Would readers like to take a guess as to how long is being claimed for completing these three notices (which were, of course, just standard N251 forms)? The answer is higher than you might suppose. Answer...

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Naming wrong defendant in CFA

By on Mar 25, 2015 | 1 comment

What are the consequences of naming one party as the opponent in a CFA but then succeeding in the claim against another party? This is a long-running issue with various non-binding and conflicting decisions on the issue including Brierley v Prescott [2006] EWHC 90062 (Costs), Law v Liverpool City Council [2005] EWHC 90020 (Costs), Scott v Transport for London (2009) (unreported) and Brookes v DC Leisure Management Ltd & Anor [2013] EW Misc 17 (CC). Deputy Master Friston has recently handed down judgment in another case addressing this issue in Hailey v Assurance Mutuelle Des Motards (SCCO, 2015). Although the facts of the case were rather unusual, the reasoning adopted is of more general application. One more case to throw into the...

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Defining “disease” claims

By on Mar 18, 2015 | 8 comments

The dispute as to whether noise induced hearing loss (NIHL) claims are “disease” claims for the purposes of the fixed success fee regime stems from the complete failure to define “disease” in the Civil Procedure Rules. What is less obvious is whether this was a careless oversight or a deliberate decision. Males J when faced with the issue of determining whether a certain condition was a disease, in the case of Patterson v Ministry of Defence [2012] EWHC 2767, held: “Notwithstanding the objective of CPR 45 to provide a clear and certain test for the award of success fees, inevitably questions may arise as to whether particular conditions are to be characterised as ‘diseases’. When that occurs, and when the answer is not obvious, there is in my judgment no single test or definition which can be applied. In circumstances where the Rule itself provides no definition of ‘disease’, and where the dictionaries do not assist, it would not be practicable or sensible for the court to attempt to supply its own definition.” Phillips J, in the recent case of Dalton v British Telecommunications plc, recognising he was taking the opposite approach to Males J, attempted to define disease: “In my judgment consideration of the legislative history in this case strongly indicates that Parliament intended the term ‘disease’ in sections IV and V of CPR 45 to include any illness (whether physical or physiological), disorder, ailment, affliction, complaint, malady or derangement other than a physical or physiological injury solely caused by an accident or other similar single event. The provisions of section IV are therefore restricted to injuries caused by accidents (or other single events), preserving the long-established distinction.” I take this to mean that under Phillips J’s definition: Symptoms caused by a single accident or event = injury Symptoms caused by more than one accident or event = disease This would mean that if I bang my thumb with a hammer, I have suffered an injury. If I bang it a second time I am suffering from a disease. With respect, that is nonsense. Therein lies the difficulty with trying to provide a definition for disease. This is, in part, the very issue that arises in most NIHL...

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Costs Judge vacancies

By on Mar 17, 2015 | 2 comments

The Judicial Appointments Commission is advertising for three Costs Judges (two immediate, one future vacancy). So far as I can work out, in light of the retirements of Master Hurst, Master Campbell and, presumably, another Master in the not too distant future, this will not represent an increase in overall numbers. On the other hand, at least cuts to the court service have not led to a decrease in numbers. I note the position is open to solicitors and barristers but still not Costs Lawyers. The level of knowledge expected is high: “Detailed knowledge of the law of costs and its application is required and this will be assessed as part of the selection process for these roles. As well as requiring knowledge of all aspects of costs law, Costs Judges need a general knowledge of all other civil, family and criminal law.  Typical civil cases will involve such diverse areas of law as defamation, clinical negligence, planning, personal injury, commercial law or marine...

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