The defendant costs specialists

Posts made in October, 2016

Costs lawyers’ rights of audience at CCMCs

By on Oct 24, 2016 | 2 comments

There is a firm of costs solicitors whose website states, as one of the reasons to instruct them to deal with costs budgeting: “As a firm of solicitors, all of our advocates have rights of audience at CCMCs, something which costs draftsmen and costs lawyers who are not employed by solicitors do not.” It is not entirely clear what is meant by this statement and what meaning is intended to be given to “employed by”.  Is this intended to be narrowly interpreted to mean a full time employee or to have the meaning traditionally used when referring to costs draftsman having rights or audience by virtue of being treated as being temporarily employed by the solicitors instructing them?  There cannot be many CCMCs where a costs draftsman/costs lawyer would be instructed by anyone other than a firm of solicitors. In any event, the statement is inaccurate in relation to costs lawyers. There was, indeed, a problem with the old Statement of Rights for costs lawyers.  Confusingly, a Google search for “costs lawyer statement of rights” still produces a result from the Legal Services Board for the old statement which limited costs lawyers’ rights to “proceedings being conducted under parts 43-48 of the Civil Procedure Rules 1999 (“CPR”) and under part 52 of those rules” (the pre-1 April 2013 costs provisions).  This did not cover the introduction of costs budgeting under CPR 3. However, the position was updated from 26 March 2014 in the Costs Lawyers’ Code of Conduct: “As a Costs Lawyer you are a regulated person under the LSA and are authorised to carry on the following reserved legal activities: The exercise of a right of audience The conduct of litigation The administration of oaths Provided that you are instructed to deal only with matters that relate to costs, you may conduct proceedings and represent clients in any court or tribunal, including any criminal court or courts martial, the Supreme Court or the Privy Council where: the proceedings are at first instance; or the proceedings include an appeal below the level of the Court of Appeal or Upper Tribunal, are on a first appeal (other than in the Court of Appeal) and the appeal itself relates to costs;...

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Why are more costs budgets not agreed?

By on Oct 3, 2016 | 1 comment

Costs budgeting is currently one of the great failures of the Jackson reforms, despite the ever hopeful views expressed by some members of the judiciary.  Many explanations can be given but the comments made by Mr Justice Stuart-Smith in his keynote speech at the Costs Law Reports Conference 2016 are revealing: “the expectation of Jackson LJ and the senior judiciary was that most costs budgets would be agreed, not least because of an appreciation by the other party of the expertise that has gone into its preparation” If this is true, it was a bizarrely optimistic and naïve view to hold. Where to begin? Schedules of special damages are no doubt prepared with considerable expertise, but in an adversarial system who would possibly expect a claimant’s schedule to be agreed by a defendant simply because of the expertise that went into its preparation? Costs budgets rarely give the name of the person responsible for drafting the same. On what basis does an opponent therefore have to believe that any given costs budget has actually been prepared with any degree of expertise?  I routinely receive CVs from recruitment agencies stating a costs draftsman with under 2 years’ experience is “experienced” at drafting costs budgets.  What opponent would accept the accuracy of such a budget? Practitioners know that a court will rarely allow more than an agreed/approved budget. If a party believes they may be the receiving party, they will therefore wish to ensure their budget will be at least as great as the level of costs that they are likely to incur.  Budgets are therefore routinely prepared on the basis of a worst case scenario with the resultant figure then being doubled to be on the safe side.  This may be a budget that has been prepared with “expertise” but in unlikely to be the basis for something that will be agreed. Let us take adopt a generous approach and assume that the majority of litigation is conducted with a degree of “expertise” and, at the end of a case, any Bill of Costs is also prepared with expertise. Why trouble with costs budgeting and detailed assessment at all?  Surely the costs claimed will be reasonable simply by virtue of...

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