The defendant costs specialists

Posts made in September, 2016

Referring to Part 36 offers in detailed assessment proceedings

By on Sep 27, 2016 | 4 comments

It is obvious that all those involved in civil litigation need to understand the operation of the “without prejudice” rule, be they insurance claims handlers, paralegals, solicitors, costs lawyers, etc. The recent decision of Chief Master Marsh in Ravenscroft v Canal & River Trust [2016] EWHC 2282 (Ch) considered whether an exception to this rule existed in relation to interlocutory hearings.  As part of that judgment the judge observed: “The boundaries of the exclusionary aspect of the without prejudice rule are not entirely clear” The boundaries of exceptions to the rule are no doubt not 100% clear but it is alarming the extent to which some lawyers appear to have failed to grasp even the most rudimentary basics of the rule. I recently had to make an application against a well-known firm of personal injury solicitors to strike out Replies which made express reference to the existence and amount of a Part 36 offer made during negotiations over costs.  By the time the matter reached court, all matters except for the costs of the application had been agreed.  Costs Judge Master James dealt with the matter on paper and the short written decision covers the relevant facts: “I have read the Application and both sides’ version of events. The decision to refer (in the original Replies) to the amount of a Part 36 offer is an extraordinary step. Post Halsey it is much more likely than not, that the parties will have attempted some form of ADR (whether it be by way of Part 36, Calderbank offer or otherwise). However, it is extremely trite law that the Court may be embarrassed to hear a matter, if it is made aware of the existence and in particular of the quantum of any Part 36 offers. In the worst case scenario, a Master reading the original Replies on the morning of the Hearing could have said ‘I must now recuse myself from this case and it will have to be adjourned until another Master can hear it. That is likely to be several months off. The party responsible for this is the Receiving Party who will therefore now have to bear the costs of this adjournment.’ When the Paying Party pointed...

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Extension of fixed fees

By on Sep 16, 2016 | 1 comment

Those hoping that the fallout from Brexit would kick any further costs reforms into the long grass are likely to be disappointed. The government has announced: “More needs to be done to control the costs of civil cases so they are proportionate to the case, and legal costs are more certain from the start. Building on earlier reforms, we will look at options to extend fixed recoverable costs much more widely, so the costs of going to court will be clearer and more appropriate. Our aim is that losing parties should not be hit with disproportionately high legal costs, and people will be able to make more informed decisions on whether to take or defend legal action.” “We are keen to extend the fixed recoverable costs regime to as many civil cases as possible. The senior judiciary will be developing proposals on which we will then...

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