The defendant costs specialists

Posts made in November, 2016

Association of Costs Lawyers membership

By on Nov 22, 2016 | 0 comments

During the heyday of the costs negotiating industry, the Association of Law Costs Draftsmen, as it was, held discussions with a number of the major costs negotiating firms to explore the idea of employees of those firms joining the Association.  This was back at the height of the costs wars and before the introduction of the predicable costs regime when that part of “industry” was at its peak. The Association had a chance to become truly representative of a far larger proportion of the costs profession/industry than it then was.  (At a rough estimate, it represented less than 10% of those working in costs.)  I attended a joint meeting with other costs firm and representatives from the Association as I was, at the time, a senior manager with one of the major costs negotiating firms. Although the discussions were positive, nothing further happened. When the issue was subsequently resurrected, I wrote to the Association and the letter was subsequently published in the ALCD Journal (see letter). This is all the way back in June 2003.  In the event, the Association decided to maintain membership requirements and continued to limit membership to traditional law costs draftsmen. Close observers of almost any organisation will notice the same debates are endlessly repeated every few years.  (Back in 2011 I stood for election to the ACL Council with a manifesto including: “Make membership of the association something that all costs professionals aspire to and so increase our membership”.) The latest issue of Costs Lawyer magazine includes the following from ACL Chairman Iain Stark: “your elected members of Council, after a period of reflection, have determined that the Association as it currently stands is not in a position to respond to members’ needs going forward.  The brief for the future must be to grow the membership and represent all those at the coal face of legal costs, funding and management, while not diluting the hard work undertaken to date to secure a regulated community.” Here we are again, although against a very different background and outlook. Growing the membership to represent a broader proportion of those working in the costs world is a very sound proposal.  Indeed, it may be the only way for...

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Major reform ahead

By on Nov 18, 2016 | 2 comments

“May you live in interesting times” – Ancient Chinese curse Lord Justice Jackson has been appointed to look at options to extend fixed recoverable costs much more widely.  He has until 31 July 2017 to complete the review.  The review has been agreed with the government “and will inform its public consultation on proposed reforms, which will follow the review after consideration of its recommendations”.  He will formally commence his review in January 2017, but is inviting written submissions on this topic immediately. The terms of reference are “to develop proposals for extending the present civil fixed recoverable costs regime in England and Wales so as to make the costs of going to court more certain, transparent and proportionate for litigants” and “to consider the types and areas of litigation in which such costs should be extended, and the value of claims to which such a regime should apply”. In separate news, the Ministry of Justice has announced it is to press ahead with radical personal injury reforms aimed at curbing a “rampant compensation culture”.  Options being considered include: Scraping the right to compensation, or capping the recoverable amount, for minor whiplash injuries; Introducing a transparent tariff system of compensation payments for claims with more significant injuries; Raising the limit for cases in the small claims court for all personal injury claims from £1,000 to £5,000; and Banning offers to settle claims without medical evidence. All claims would need a report from a MedCo-accredited medical expert before any pay-out. The consultation will run until 6 January...

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Fixed costs confusion

By on Nov 17, 2016 | 1 comment

There have been two decisions in quick succession from the Court of Appeal in relation to the operation of the various fixed fee regimes. Bird v Acorn Group Ltd [2016] EWCA Civ 1096 was a public liability claim that was withdrawn from the portal due to the defendant’s failure to respond.  Liability was admitted by the Defendant shortly thereafter.  In the absence of settlement, proceedings were issued.  The Defendant failed to file an Acknowledge of Service and the Claimant obtained default judgment, with the claim then being listed for a disposal hearing but settling in advance. The Court of Appeal ruled that listing a portal ‘drop out’ case for a disposal hearing is listing for trial, meaning that it attracts column 3 fixed costs if it then settles. Briggs LJ held: “In every case where a claimant obtains judgment for damages to be assessed, followed by a disposal hearing for that assessment, there will be a progression from column 1 (which comes into force when proceedings are issued) to column 3, when the disposal hearing is listed. The fact that column 2 is jumped over because there is no intermediate allocation to the fast-track seems to me to be just one of those events which means that the three columns will not always be triggered in succession. But that by no means undermines the good sense of a conclusion that, once there has been a listing for a disposal hearing, column 3 is triggered.” In Qader & Others v Esure Services Ltd [2016] EWCA Civ 1109 the Court of Appeal held that the Fixed Recoverable Costs Regime does not apply to a claim started in the RTA Portal, which subsequently exited the portal and was allocated to the multi-track after proceedings were issued under Part 7 of the Civil Procedure Rules. The Court concluded there was a drafting error in the rules and the best way to give effect to the intention was to add, to Part 45.39B, after the references to 45.29J: “… and for so long as the claim is not allocated to the multi track” Kerry Underwood comments on this decision: “The result may be just, but the Court of Appeal accepted that to achieve that...

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Costs Lawyer survey

By on Nov 1, 2016 | 1 comment

The Costs Lawyer Standards Board has just issued a new client survey form.  Costs Lawyers are asked to print and issue to clients: “(i) Now for current clients; (ii) With your client care letter for new clients going forward; (iii) Once an instruction has completed (by way of reminder)”. A copy of the form can be found: here. Matters do not get off to a very good start as the form asks clients to complete and post back to the CLSB.  There appears to be no option to complete online and there is no Freepost address, meaning clients must pay the postage in addition to their own lost time completing the form.  The majority of Costs Lawyers’ clients will be other lawyers who are notoriously rubbish at completing surveys in any event (see, for example, the difficulties trying to obtain data for hourly rates).  I suspect the feedback rate would struggle to hit 1% simply on the back of the response method.  (At least the CLSB has not asked Costs Lawyers to provide a stamped addressed envelope with each form.) A slightly higher response rate may be obtained from clients in relation to solicitor/own client disputes (although the form does not ask the client to identify the nature of the instructions). Admittedly, the form itself is not overly onerous but will still take some minutes to complete.  A number of questions require cross-referencing with the original client care letter.  Most busy lawyers would not bother to complete the form for this reason alone.  (And no prize on offer for those who do.) It appears to be envisaged that this form will be sent with each set of instructions received, rather than once to each client.  I have some clients who send 100s of new cases each year.  There is obviously 0% prospect they will complete the form at the conclusion of each case and then post 100s of forms to the CLSB (at their own expense).  Being optimistic, it is possible a client who instructs us in 100s of cases each year might complete the form once.  This is probably as likely as a client who sends us one case each year.  The form includes questions relating to client...

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