The defendant costs specialists

Posts made in May, 2017

What can law costs draftsmen do?

By on May 31, 2017 | 1 comment

What steps in costs litigation are (non-Costs Lawyer) law costs draftsmen able to undertake? Although the issue, inexplicably, still sometimes arises, it should now be clear (post-Kynaston v Carroll [2011] EWHC 2179) that they can appear at (first-instance) detailed assessment hearings so long as they are properly instructed by the legal representative on record. However, the role of independent (ie not in-house) costs draftsmen extends beyond advocacy at detailed assessment.  It is not uncommon for costs draftsmen/costs firms to: Serve Notices of Commencement. Make Part 36 offers in detailed assessment proceedings. Is this permissible? Both Notices of Commencement and Part 36 offers are subject to the formalities that go with service (CPR 6).  If a costs draftsman is not on record as acting for a party (and, further, not an authorised litigator), can they properly serve a Notice of Commencement or Part 36 offer? The answer is possibly now to be found in the recent decision of Coulson J in Ndole Assets Ltd v Designer M&E Services UK Ltd [2017] EWHC 1148 (TCC). In brief terms, the issue arose as to whether a non-regulated claims firm could properly serve a Claim Form and Particulars of Claim on behalf of a litigant in person.  It was not in issue that the claim firm was not permitted to carry out reserved activities. The judgment analyses whether service of Claim Form and Particulars of Claim amounted to “prosecution” of the proceedings (a reserved activity).  If I have understood the judgment correctly, it concludes that such service was a reserved legal activity but this was a task that could legitimately be delegated to a third party, it being noted that service by process-servers happens all the time: “In my view, the (partial) answer to this is that process-servers are engaged by the relevant solicitors to carry out this particular task. They have the solicitors’ delegated authority to serve the documents. In those circumstances, since the solicitors on the record are responsible for the carrying out of all reserved legal activities, the solicitors remain responsible for the service of the documents, even if they have sub-contracted the task to professional process-servers. In that way, there is nothing inconsistent in concluding that the service of...

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Personal Injury Small Claims, Portals and Fixed Costs

By on May 18, 2017 | 1 comment

Kerry Underwood’s Personal Injury Small Claims, Portals and Fixed Costs has now been published and is available to order here. Running to over 1,300 pages over three volumes, you certainly get your money’s worth (a steal at £80). The value of the book falls into three categories: It is an indispensable practical guide for any claimant or defendant lawyer (or insurer) dealing with lower value personal injury claims. It is full of tips and guidance that will not only assist on a day-to-day basis but may make the difference between a happy client and a professional negligence claim. It should be on the shelf of any costs practitioner who deals with fixed fee cases (or who needs to identify when a case should have been fixed fee). It is absolutely essential reading for mangers/owners of claimant solicitor firms who deal with personal injury work. This book spells out how to keep this work profitable (and includes detailed model funding agreements).  Failure to buy this book, and follow the advice, may well make the difference between still having a profitable business in five years’ time and having shut up shop long before then....

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Interim costs payment

By on May 15, 2017 | 6 comments

This blog has previously looked at the interrelationship between interim payments on account of costs and interim costs certificates. Gordon Exall’s Civil Litigation Brief blog recently had a post on this issue that I struggle to describe as being anything other than bizarre (although the post itself is an entirely accurate summary of the decision being reported). HH Judge Robinson gave permission to appeal in relation to an unsuccessful application for an interim payment on account of costs.  The order granting permission does, to be fair, highlight: “I appreciate that I have not had the benefit of hearing submissions to the contrary, and the observations set out below must be taken to be subject to receipt of such submissions.” Nevertheless, the robustness of what follows makes it clear that the judge did not have much of an open mind as to the issue: “I have read the transcript of the telephone hearing.  It seems to me that the District Judge was completely misled by the Advocate for the Defendant. The Defence advocate directed the attention of the Judge to chapter 5 of the 2015 edition of Cook on Costs. That chapter deals with interim payments on account of costs by the client to his own solicitor [Judge’s emphasis]. It has no relevance to a claim for an interim payment on account of costs by the paying party to the receiving party.  That issue is dealt with at chapter 25 of Cook. The Judge was directed to a passage from Cook (2015) at page 85, paragraph 5.24 in these terms: ‘there is no scope to seek an interim payment of costs until a detailed assessment hearing is requested (via an interim costs certificate). …’ and If you do not get an order as discussed here, you will have to wait until you have requested a detailed assessment hearing before being able to apply for an interim costs certificate.’ Those passages persuaded the Judge to conclude that the court had no jurisdiction ‘to entertain an application for payment on account of costs until [CPR] 47.16 kicks in, once you’ve lodged your request for detailed assessment’. Those observations apply only to payment by the client to his own solicitor [Judge’s emphasis]. Chapter 25 of...

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Whiplash injuries to increase in severity

By on May 3, 2017 | 1 comment

Over the weekend, the Guardian published an article titled: “Whiplash: the myth that funds a £20bn gravy train”, challenging the medical basis for such claims and highlighting the fact that in Greece and Lithuania, where there is no expectation of financial gain from whiplash, chronic neck pain following a car crash appears simply not to exist.  (Strangely, @ccesstojustice, who are usually so keen to promote whiplash related stories, did not consider this worthy of a retweet.) In future (subject to something of a surprise at the next election), damages for “whiplash” injuries will be based on injury duration and costs recovery will end.  Damages will be: 0–3 months  – £225 4–6 months – £450 7–9 months  – £765 10–12 months – £1,190 13–15 months – £1,820 16–18 months – £2,660 19–24 months – £3,725 I previously commented: “However, I am struggling to envisage any business model which would allow for a reasonable profit to be made (even by CMCs) where damages for whiplash claims with symptoms of under 12 months are £1,190 or less and the claims are not costs bearing. What % of damages could be taken that would enable a profit to be made but leave enough damages for the claimant to bother with a claim? (The one exception to this is if an AI system could be put together that would fully automate the claims process for claimants, without the need for any human intervention, in exchange for a small cut of the damages.)  Either way, massive jobs cuts will follow.” Having given the matter further thought, I was perhaps being overly pessimistic. A potential client walks through the door of a solicitor and explains he was recently injured in a road traffic accident.  The solicitor explains how the claims process works and informs the client that because damages are calculated based on the actual duration of the injury there is no point in undertaking a medical examination until the symptoms have resolved themselves and the duration can be accurately determined. The solicitor goes on to explain that damages are now based on a fixed tariff and shows the client the figures: “For example, if your injuries last 3 months then you will be entitled to...

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