The defendant costs specialists

Posts made in April, 2017

Costs budgeting – The value of the claim

By on Apr 26, 2017 | 0 comments

Costs budgeting is designed to ensure proportionate costs are incurred by setting budgets at an early stage in the proceedings. Costs are proportionate if they bear a reasonable relationship to the sums in issue in the proceedings and the other relevant factors set out in CPR 44.3(5). That being the case, how often do judges, when setting budgets, record in the relevant order the sum they considered to be reasonably in issue?  How often are they asked to do so? If a claim subsequently settles for significantly less than the recorded sum, would this not represent a “good reason” to depart downwards from the...

Read More

Costs Lawyer qualification – history repeats itself

By on Apr 24, 2017 | 2 comments

The Costs Lawyer Standards Board has just finished a consultation process on a proposal to allow a new route to qualification as a Costs Lawyer.  The CLSB is proposing to introduce a new test which would lead to Costs Lawyer status. The test would be open to anyone who can evidence that they have achieved 10 years of experience in costs law and practice.  There would be no requirement for candidates to undertake learning/study as part of the preparation for the new test. The new test would cover the current Costs Lawyer training syllabus.  It is proposed that the test would be via multiple-choice questions (“MCQs”). The current three-year training course would continue to operate as the entry route for those without 10 years’ experience. The thinking behind this proposal is entirely sensible.  I became a Fellow of the old Association of Law Costs Draftsmen (as it then was) via a one-off examination, rather than through the then existing training course.  I was one of the last to take this route as a decision had been taken to remove that option to qualification.  I believed that decision was wrong then and the proposal to reintroduce a fast-track route to qualification – so long as sufficiently robust – should be uncontroversial (although no doubt very frustrating for those experienced costs draftsmen who committed to the time and cost of the full training course in recent years in the absence of a fast-track route). Nevertheless, there are some obvious issues that arise: Is a multiple-choice test appropriately robust? When I did the Bar Vocational Course, a number of subjects (such as Civil Procedure) were tested by way of MCQs.  These required significant study (or at least a photographic memory) to have any realistic chance of passing.  Guesswork was of only limited assistance.  For this new test, I can envisage questions such as: What is the deadline for service of Replies to Points of Dispute?                 A             within 21 days after being served with the Points of Dispute B             within 21 days of receipt of the Points of Dispute C             no deadline as Replies are optional D             at least 14 days before the date listed for detailed assessment E              at least 21...

Read More

New Precedent R budget discussion report

By on Apr 18, 2017 | 3 comments

I have previously commented on the problems caused by the Precedent R budget discussion report failing to distinguish between incurred and future estimated costs. This has, in part, now been addressed by the amended Precedent R (available here). This follows on from the new rules, that came into force on 6 April 2017, making it clear that costs management orders relate to future costs only.  The amended form expressly states: “Note: include only budgeted costs” Nevertheless, there remain two problems with the amended form: It contains a “Pre action costs” phase. Why?  Such costs, by their very nature, can never be future budgeted costs. CPR 3.15(2)(c) expressly states that when making a costs management order the court will: “record the extent (if any) to which incurred costs are agreed”. That being so, where in the form can one agree incurred costs? Third time lucky Rules...

Read More

Supreme Court comments on proportionality test

By on Apr 13, 2017 | 0 comments

One of the ongoing areas of uncertainty post-Jackson is whether additional liabilities should be included (where still recoverable) when considering proportionality. I am grateful to Andy Ellis for pointing out the comments of the Supreme Court in Times Newspapers Ltd & Ors v Flood & Ors [2017] UKSC 33: “However, certain changes introduced following Sir Rupert Jackson’s “Review” do apply to defamation and privacy cases. They include more muscular case management by the courts to deal with cases proportionately, costs budgeting and costs management, which involve the parties and the court controlling the level of recoverable costs at the start of the proceedings (see CPR 3.12(1)), costs-capping (by virtue of PD 3F para 1), and new provisions which limit the level of overall recoverable costs to what is proportionate [emphasis added] (pursuant to CPR 44.3(2)(a)).” This in in the context of the fact that success fees and ATE premiums remain recoverable in defamation cases. The Supreme Court appears to have proceeded on the basis that proportionality applies to both.  It is not clear from the judgment as to what extent argument was heard on this issue and the relevant transitional...

Read More

Grade D fee earner’s time

By on Apr 10, 2017 | 4 comments

Response received from well-known claimant costs firm: “We can confirm the fee earner was in fact a Grade D fee earner. Therefore we have applied more time throughout given the above.” Any suggestions as to an innocent explanation as what this is intended to mean gratefully...

Read More