The defendant costs specialists

Posts made in July, 2017

Late filing of costs budgets

By on Jul 11, 2017 | 2 comments

In Azure East Midlands v Manchester Airport Group Property Developments Ltd [2014] EWHC 1644 (TCC), a pre-Denton decision, it was held that a delay of two days in filing costs budgets in the context of a time frame of seven days was a “trivial” breach. In Wain v Gloucestershire County Council [2014] EWHC 1274 (TCC), again pre-Denton, the Court held that serving a costs budget served a day late was a “trivial” breach and an application for relief from sanctions was allowed. In Utilise TDS Limited v Davies [2014] EWCA Civ 906, another appeal heard at the same time as Denton and reported with it, the claimant failed to comply with an Unless Order by filing a costs budget 45 minutes late.  The Court of Appeal held this delay to be “trivial”. Most recently, in the judgment in Lakhani v Mahmud [2017] EWHC 1713 (Ch), the defendant was one day late in filing its budget.  The judge at first instance refused relief from sanctions on the basis the breach was “not a trivial breach. It is a serious breach.”  This was a case specific decision and the full judgment needs to be considered to understand the reasons as to the conclusions as to the seriousness of the breach.  However, on appeal the decision was upheld even if some doubt was cast on whether the original judge had correctly followed the sequence of tests as set out by Denton. The problem with these decisions is that if the issue of whether a delay of one or two days is, or is not, a serious/trivial breach is a matter which is fact sensitive, it inevitably leads to parties who are in breach feeling justified in making applications for relief and the other side feeling equally justified opposing those applications.  Satellite litigation prevails....

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Impact of Jackson extension of fixed fees

By on Jul 7, 2017 | 1 comment

The current prediction is that Lord Justice Jackson will recommend fixed fees are extended to all claims with a value of less than £100,000.  If this is true, and subsequently introduced, there are two obvious issues to comment on: Without undertaking a detailed statistical analysis, it is reasonable to estimate that a figure of £100,000 is likely to mean at least twice as much costs work will survive as if the figure had been set at the previously mooted figure of £250,000. That is a good thing. A number of costs firms appear to have muddled through the original Jackson reforms as a consequence of the additional work generated by costs budgeting compensating, in part, for the loss of other work. Fixed fees for all claims under £100,000 will coincide with costs budgeting being abandoned for this category of claim.  This, combined with the other significant losses in work that will result from the extension of fixed fees, is likely to see civil costs work decline in volumes by 80-90% compared to current levels, and that is against the serious job losses that have already been seen.  That is a bad...

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