The defendant costs specialists

Posts made in January, 2016

Fixed costs uncertainty

By on Jan 25, 2016 | 2 comments

I previously mentioned that the conflict in decisions as to whether fixed costs apply where costs are payable on the indemnity basis, when a claimant succeeds on a Part 36 offer, was due to be resolved by the Court of Appeal in February. Kerry Underwood’s blog now reports that this case has settled. We are therefore left in the dark as to when fixed costs do or do not apply. Hopefully this is a matter the rules committee will address as a matter of urgency. Given the benefit of certainty and the avoidance of further satellite litigation are lost if fixed costs do not apply, surely the answer would be to continue to apply fixed costs but with an uplift, say 10%, on the amount. This leaves all the benefits of fixed costs but with a costs incentive retained to the claimant to make a good Part...

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Further delay to new Bill of Costs format

By on Jan 14, 2016 | 16 comments

The mandatory pilot scheme in the Senior Courts Costs Office for the new J-Codes based bill of costs format had been due to start in April but was then delayed until October 2016. It has now been announced that this date has also been abandoned for further consideration. Part of the impetus for this appears to have come from the Law Society who wish to consult with their members. (The Law Society can hardly be blamed for this. Jackson only recommended a new software based bill of costs in December 2009 and so this will have come as quite a surprise to them.) For the time being, we are left with a continuing potential gap between budgeted cases and bills of costs that do not properly reflect those budget phases. The recent “summary by phase” requirement is wholly inadequate as an interim measure. The conspiracy to make the Jackson reforms unworkable...

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Fixed costs when costs on indemnity basis

By on Jan 13, 2016 | 0 comments

Do fixed costs continue to apply if a claimant is entitled to costs on the indemnity basis? I am grateful to Gordon Exall’s Civil Litigation Brief for highlighting two conflicting decisions on this issue. This is now apparently due to be heard by the Court of Appeal in February. Something has gone seriously wrong with the drafting of the rules that it can be anything other than 100% clear as to when fixed costs applies. It makes a mockery of the certainty that such a regime is designed to...

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How detailed should Points of Dispute be?

By on Jan 6, 2016 | 15 comments

I am always rather mystified when I receive Replies that contain a preamble along the following lines: “Many of the Defendant’s points of dispute do not comply with the costs practice direction as they do not state concisely (or at all in some cases) the nature and grounds of the dispute. The Defendant has chosen, in many cases, to either offer no reason for the proposed reduction or just state that the claim is ‘excessive’. CPR Part 47.9 CPD 8.2(d) states – 8.2 Points of dispute must be short and to the point. They must follow Precedent G in the Schedule of Costs Precedents annexed to the Practice Direction, so far as practicable. They must – (b) identify specific points, stating concisely the nature and grounds of dispute. The Claimant submits that where the Defendant has failed to state the nature and grounds of their dispute then that dispute should be struck out and the item(s) allowed in full.” If I understand the point being taken, it is being suggested that a Dispute that simply states the number of communications claimed, hourly rate, disbursement, time claimed, etc, is “excessive” without further detail or explanation is non-compliant with the Practice Direction. Now, it is no doubt possible that where, for example, 10 routine communications are being claimed to obtain a single set of GP records that instead of a dispute reading: “Excessive. Reduce to 3”, this could be elaborated on: “The Defendant respectively submits that the 10 routine communications claimed to obtain a single set of medical records is unreasonably high and disproportionate and that a competent litigator acting with all due skill and alacrity should have been able to obtain the same without the need to undertake this level of communications. To the extent to which this level of communications has been undertaken, this implies a number of chase-up communications (responsibility for which should not fall on the shoulders of the paying party on an inter partes assessment) or are of a non-fee earner, purely administrative nature. The Defendant submits a reasonable allowance would be 3 routine communications. The Court is reminded that this is a standard basis assessment and by virtue of CPR 44.3(2)(b) when assessing costs the...

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