The defendant costs specialists

Posts made in February, 2017

Why did APIL’s campaign fail?

By on Feb 27, 2017 | 1 comment

At the end of any unsuccessful campaign it is instructive to try to analysis why it went wrong. Why did Labour lose the 2015 general election? Because people voted Tory as Labour was not left wing enough. Solution: elect a hard left leader with genuinely left wing policies and watch the voters come flooding back. Why did Clinton lose the presidential election? Because most Americans are racists and were therefore naturally attracted to Trump’s bigoted anti-Muslim, anti-Mexican views. That’s why America will never have a black President. Why did Remain lose the Brexit referendum? Even I struggle to advance a convincing explanation for that one. Nevertheless, there is a very interesting, if lengthy, blog from Dominic Cummings, previously Campaign Director of Vote Leave (the official Leave campaign group), exploring some possible reasons. I do not know whether any of his analysis is correct but he does highlight the very real danger of retrospectively trying to explain the cause of events: “There are strong psychological pressures that lead people to create post facto stories that seem to add up to ‘I always said X and X happened.’ Even if people do not think this at the start they rapidly construct psychologically appealing stories that overwrite memories.” One of the examples he gives from the referendum is: “Month after month they [Remain campaigners] argued (including to us in private discussions) that they would win largely because they had the advantage of the status quo – an advantage proved in votes around the world over many years. They were right. That was a big advantage. It is much simpler to argue for the status quo than for a very complex change – that is exactly why most ‘change’ referendums lose, just as they briefed the media. Now they say ‘The EU is very complex, it requires a lot of information to explain it’ (Craig Oliver). Their claim that actually they had the ‘complex’ argument to make against our ‘simple lies’ is laughable for exactly the reasons they gave themselves before they came unstuck.” I therefore wonder what post-campaign analysis is being undertaken, and what conclusions reached, by those who campaigned most strongly against any radical changes to the whiplash claims process. The...

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Trust me, I’m a lawyer

By on Feb 17, 2017 | 2 comments

Litigation Futures features a guest post from Deborah Evans, chief executive of the Association of Personal Injury Lawyers, titled “Can we trust insurers to behave?”.  In the context of rising insurance premiums, she called for “a robust examination of the facts” and for insurers to “stop making excuses and sort yourselves out”. The timing of this post was unfortunate as Litigation Futures’ sister website Legal Futures carries a report this week headed: “Bolton law firm repays insurer £100,000 for ‘systematically inflating’ costs”. Claimant law firm Asons has apparently agreed to repay more than £100,000 to AXA after admitting to falsely and systematically inflating its legal costs, according to the insurer. The dispute involved 65 personal injury cases, settled between September 2013 and December 2014, where “Asons overstated the qualifications and experience of its legal staff to falsely inflate the bills sent to AXA”. In a statement, AXA said: “Asons admitted that they were systematically attempting to present false and misleading information on an organised basis to exaggerate their claim for costs, but Asons denied acting fraudulently”. AXA claimed the issue came to light following a case in Manchester County Court, where Asons claimed the fee earner working on the case had more than six years of litigation experience, when actually they had less than two.  Asons claimed this was an administrative error but the court sanctioned the firm for misconduct. It may be that AXA were specifically targeted or that, by coincidence, the only claims Asons had during this period were cases where AXA were the insurers.  This seems unlikely.  A more likely scenario is that, to whatever extent this “exaggerating” of costs was being undertaken, it was across the board against all insurers/Defendants.  The report notes Asons agreed to pay AXA more than £40,000 in legal costs as well as nearly £70,000 in damages and interest.  If 10% (for example) of costs claims during this period were against AXA, it would suggest potential overbilling totalling £700,000 by one firm during little over a year. The report does not record to what extent other insurers have been repaid any “overpayments”. In a statement, Asons said: “We take matters like this very seriously. Following a complaint by AXA, an internal...

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Detailed assessment and proportionality

By on Feb 9, 2017 | 0 comments

I have previously questioned the reasoning of Master Rowley, when dealing with the new proportionality test in May v Wavell Group, that: “The proportionate amount of costs must inevitably be smaller for a case which concludes early than one which reaches a final hearing.” My criticism was that it ran the danger of confusing what work was reasonable and necessary (the old proportionality test) with what total costs were proportionate.  Inevitably, a matter that proceeds to trial will involve additional costs compared to one that does not, but that is simply part of the first stage of the assessment process. At the recent Solicitors Costs 2017 conference Master Rowley explained the reasoning behind his decision is that, under the new regime, costs budgets are based on phases.  On assessment, the more phases that have been completed, the greater will be the recoverable costs.  Costs budgets are, of course, meant to produce a proportionate total.  Although the claim in May does not appear to have been costs managed, Master Rowley’s reasoning is that given the approach to costs management, it must follow that proportionate costs on detailed assessment will be lower if a matter settles early (with less phases completed). Given the existence of costs management by phases, the logic of this is difficult to argue with. Nevertheless, if is still noteworthy that CPR 44.3(5) does not list the amount of work undertaken or the stage at which the matter settled as being relevant factors when considering whether costs are proportionate. Further, in May the initially assessed costs of £99,655.74 were reduced to £35,000 plus VAT to reflect proportionality.  This was as against agreed damages of £25,000.  This, of course, begs the question as to what would have been considered proportionate if the matter had proceeded to a full trial.  Sadly, Master Rowley did not share his thoughts on...

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Key skills for successful lawyers

By on Feb 6, 2017 | 1 comment

Online job advertisement I came across over the weekend: “Immigration/ Asylum Caseworkers / Paralegal / Family Solicitors XXX & XXX LAW FIRM – London SW19 Our firm have opportunities ambitious Caseworkers/paralegal with experience in immigration/asylum law have a genuine interest passion immigration. The ideal candidate will have excellent drafting and communication skills; have the able to work invidiously and as a team player, have an ability to handle pressure and tight deadlines and provide excellent client care and satisfaction.” Yes, we can all agree on the importance of excellent drafting and communications skills....

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