The defendant costs specialists

Posts made in May, 2016

Online questionnaire

By on May 27, 2016 | 1 comment

Email received asking me to complete online survey.  Among the questions asked: “Do you currently have access to the internet, email, own computer? Select all that apply. Own Computer Internet Email None” I wonder how many completing this answered...

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Predicting when costs are predictable

By on May 26, 2016 | 1 comment

Lord Justice Jackson’s provisional view is that if there is too be an extension of fixed recoverable costs, it should, at least initially, be introduced for all claims up to £250,000: “The first question is whether we should be fixing costs for all civil cases (like Germany and New Zealand) or just for the fast track and the lower reaches of the multi-track. This is a policy decision for others. I would favour the latter course (as recommended in my Final Report), but I acknowledge that some favour the former course. There are two particular reasons why I favour adopting the latter course: (i) Switching to a totally fixed costs regime for all claims, however large, would be too great a change for the profession to accept, certainly in the short term. The justice system only functions because of the high level of support which the profession provides.” It is difficult to reconcile this view with two of the key justifications for fixed fees, namely predictability and an end to the need to expend time and trouble time recording all work. Many claims are pleaded as being worth in excess of £250,000 but subsequently settle, for a variety of reasons, for a fraction of this amount.  Where is the benefit to claimants or defendants of knowing that the costs might be fixed if the claim settles for £x but will be entirely at large if settled for £y? Secondly, if the question of whether costs are fixed or not fixed is dependent on the actual future, and unknowable, settlement value, parties will have to continue to painstaking record all time to allow for the possibility that the costs will not be fixed, notwithstanding that this work will often prove to be wasted when the matter settles for under £250,000 (or whatever figure is...

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Defendant’s pre-issue costs

By on May 23, 2016 | 0 comments

I am grateful to Kerry Underwood’s always excellent blog for bringing to my attention the case of Webb Resolutions Ltd v Countrywide Surveyors Ltd [2016] Ch Div. (A fuller case summary can be found on RPC’s website.) The Claimant notified the Defendant of a potential claim under the Pre-Action Protocol for Professional Negligence.  The claim did not settle and proceedings were issued but the claim was abandoned before service. Was the Defendant entitled to costs?  Yes, ruled the Deputy High Court Master and those costs could potentially include all of the pre-proceedings costs that followed the direct consequence of the Pre-Action Letter of Claim. I am not sure how this decision squares with that of case of Citation plc v Ellis Whittam Ltd [2012] EWHC 764 (QB) where Tugendhat J ordered the Claimant to only pay the Defendant’s costs from the date of service of the claim form: “As to the costs up to the service of the claim form, I make no order. If the Claimant had not commenced the proceedings (and I have held that it ought not to have commenced the proceedings) then the Defendant could not have sought an order for its costs for that period to be paid by the Claimant. The fact that the Claimant did commence proceedings in this case ought not to lead to the result that it becomes liable to pay to the Defendant costs which it would not have been liable to pay if it had not commenced proceedings.” The Citation case did always appear to be something of a rogue decision.  Nevertheless, two issues are highlighted by these decisions (and see McGlinn v Waltham Contractors Ltd [2005] EWHC 1419 (TCC) for further confusion): The surprising lack of clear case law for what costs a defendant can expect to recover. The rather odd distinction between costs a potential claimant or defendant can expect to recover when a claim settles pre-issue/service. A claimant would expect to have their (potentially very significant) costs paid if a matter settled pre-issue.  No comparable right exists for defendants when a claim is successfully defended pre-issue.  In a costs shifting environment, it is not obvious why this distinction should exist.  (QWOCS has obviously expressly removed...

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Association of Costs Lawyers’ Annual Conference

By on May 16, 2016 | 0 comments

I was absolutely gutted to miss last week’s Association of Costs Lawyers’ Annual Conference. (No, actually, I wasn’t busy preparing for a Eurovision themed party, but recovering from surgery.) I will now have to wait another year before having a similar chance engage in such typically scintillating conversation and the exchange of hilarious costs law related anecdotes. If I didn’t have bad luck I’d have no luck at...

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