The defendant costs specialists

Posts made in December, 2016

Driverless cars

By on Dec 14, 2016 | 3 comments

An excellent blog post from Kerry Underwood highlights the future problems faced by RTA lawyers as a result of the development of driverless cars.  It is clearly correct that this will lead to a massive drop in the number of RTA accidents with a major knock-on impact on claims work in this area.  As Kerry observes, this may make all the fuss about increasing the personal injury small claims limit and scrapping or restricting general damages claims in minor soft tissue injury cases entirely redundant. Obviously, this will also be another nail in the coffin for those Costs Lawyers and law costs draftsmen who undertake the small amount of remaining work in this area.  But this is just the tip of the iceberg.  It will also have a dramatic impact on insurer claims handlers, car mechanics, car hire firms and medical agencies and experts, not to mention a welcome reduction in work for real doctors and nurses as a result of less RTAs. Even this is likely to be overshadowed by the impact driverless cars will have on the 10,000s working as taxi and minicab drivers, couriers and delivery drivers (with a disproportionate impact on many of the more recent arrivals to this country). And then we have the claims that robots will begin to take over the work of millions of workers in the next few years. This may not be an entire disaster.  Human history is a continuous story of new technology fundamentally changing the nature of employment.  You may well have met someone called Fletcher but it is unlikely you have ever met anyone who makes arrows for a living. Nevertheless, change invariably produces losers in the short term, whatever long-term benefits it may bring....

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Good times for costs firms?

By on Dec 9, 2016 | 3 comments

The majority of industry news concerning the costs profession comes from the pages of Costs Lawyer magazine and the Association of Costs Lawyers’ regular email bulletins. Reading these gives the impression of a profession in glowing good health with announcements of firms opening new offices and regularly taking on new staff and recruiting key personnel. It is understandable that costs firms wish to promote their good news stories. It is therefore something of a change to see the Law Society Gazette announce a prominent costs firm with apparent cash-flow issues and the fact they have recently closed two of their four offices and reduced their headcount from 110 to 70. This is hardly unique and the last year or two has seen a number of firms close offices, costs teams being disbanded and redundancies made.  There has also been an increasing number of mergers and takeovers.  One suspects a large number of these mergers/takeovers have been driven by the need to survive as opposed to being positive attempts to expand. It is not clear to what extent this is hitting the pockets of individual costs lawyers or law costs draftsmen, although it will clearly be impacting on many who own their own costs firm.  Given much of the reduction in workloads will have been from increases in low-value claims attracting fixed fees, one would expect these changes to have been initially felt by those less skilled costs workers who were probably the first to be let go.  On the other hand, one reader recently suggested to me that the number of advertisements appearing in Costs Lawyer magazine for experienced costs lawyers (with corresponding salaries) has been declining and those jobs still being advertised are for more junior staff. I wonder whether any of those who confidently predicted Jackson was nothing to worry about and suggested it would bring wonderful new opportunities are now starting to re-evaluate...

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Hindsight and legal costs

By on Dec 8, 2016 | 0 comments

Traditionally, the law has avoided applying hindsight when assessing the reasonableness of legal costs that have been incurred. However, when dealing with the issue of proportionality, hindsight has had a tendency to creep in.  If a matter settles for, say, £100,000, the issue of proportionality at detailed assessment has tended to be viewed in light of the damages actually recovered.  Many would argue, correctly, that this was the wrong approach.  This is because of the Court of Appeal’s comments in Lownds v Home Office [2002] EWCA Civ 365: “the proportionality of the costs incurred by the claimant should be determined having regard to the sum that it was reasonable for him to believe that he might recover at the time he made his claim” Since that decision in 2002, I am unaware of any detailed examination by the courts of what this actually means.  This is odd because although a cursory consideration of the words used suggests this is no more than a restating on the traditional approach of not applying hindsight, even a moments proper thought reveals this passage to be so ambiguously worded as to be virtually meaningless. Taking matters in turn, proportionality is to be judged by what it was reasonable for “him” to believe might be recovered.  To whom does “him” refer?  The claimant?  Most claimants will have no knowledge of what a claim is actually worth or what they may recover, other than what they are told by their legal advisers.  This is therefore presumably meant to mean what the claimant reasonably believes based on what his solicitor reasonably informed him the claim to be worth.  But what of a case where the solicitor forms one view as to quantum but obtains an advice from counsel which gives a different figure?  And what if counsel gives one advice but leading counsel is then instructed who gives another figure?  Which of the various figures is to be used? Secondly, what on earth does “might” mean in the phrase “might recover”?  If I buy a lottery ticket, I might win the jackpot.  Is it not reasonable to believe this “might” be the outcome even if it is spectacularly unlikely?  Depending on what medical evidence subsequently emerges,...

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Costs budgeting v detailed assessment

By on Dec 5, 2016 | 1 comment

Watching the implementation process of the Jackson reforms has often been like witnessing a slow-motion car crash.  It has certainly been in slow-motion, with his original report being published all the way back in May 2009 and his final report being published in December 2009, but with elements still to be introduced and practitioners and the courts still grappling with the basics of those already with us. The interesting thing about all this has been that much of the undermining of the reforms has come not, as might have been expected, from a reluctant legal profession.  Most problems have come from the judiciary. Costs budgeting is an obvious example, with some sections of the judiciary trying to avoid the process entirely, others, at least initially, wrongly treating the exercise as mini-detailed assessments, others postponing the costs management process to such a late stage in the litigation that it has become irrelevant. The latest example, I would suggest, is the decision by Regional Costs Judge Lumb in Merrix v Heart of England NHS Foundation Trust (Birmingham, 13/10/16). The issue was summarised as: “In summary, the Claimant receiving party submits that if her costs are claimed at or less than the figure approved or agreed for that phase of the budget then they should be assessed as claimed without further consideration. The budget fixes the amount of costs recoverable and the costs can only be reduced if the Defendant paying party satisfies an evidential burden that there is a good reason to depart from the figure in the budget. The Defendant paying party’s position is that the Costs Judge’s powers and discretion are not fettered by the budgeted figure for the phase but that the budget is but one factor to be considered in determining reasonable and proportionate costs on assessment.” The “problem” that arises stems from the, apparently, clear wording of CPR 3.18: “In any case where a costs management order has been made, when assessing 
costs on the standard basis, the Court will – a. have regard to the receiving party’s last approved or agreed budget for each phase of the proceedings; and b. not depart from such approved or agreed budget unless satisfied that there is good reason...

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